Neutral Citation Number: [2018] ECC Yor 4 IN THE CONSISTORY COURT OF YORK PARISH OF THE MOST HOLY AND UNDIVIDED TRINITY, HULL HULL MINSTER, THE CHURCH OF HOLY TRINITY, KINGSTON UPON HULL IN THE MATTER OF TWO PETITIONS REQUESTING FACULTIES IN RELATION TO TRINITY BURIAL GROUND Unopposed Petitions (1) The Reverend Canon Dr Neal Barnes Robin Alden Highways England Petitioners (2) The Reverend Canon Dr Neal Barnes Robin Alden Sandie Forte-Gill Petitioners JUDGMENT The Petitions 1. I have before me two petitions in relation to the Disused Burial Ground of Holy Trinity Church Hull, now Hull Minster. The burial ground is generally referred to as Trinity Burial Ground 2. The first petition in which the petitioners are the Vicar the Revd Canon Dr Neal Barnes, Robin Alden a churchwarden, and Sandie Forte-Gill the Delivery Director for Highways England, was received in the Registry on 20 April 2018. This petition sought a faculty to “carry out archaeological excavation including the removal of burials and their safe storage pending reburial, the removal and safe storage of affected memorials, partial demolition and safe storage of the northern boundary wall and the subsequent re-interment of burials in the northern part of the burial ground to allow construction of a new slip road forming part of the A63 Castle Street Improvement Scheme, all as per the Trinity Burial Ground Clearance and Exhumation 1 Proposals Ref: HE514508-KKSJV-HER-S)_RW_WM-RP-ZH-000001 Rev. 2.0 by Highways England dated 20 th March 2018.” 3. The second petition in which the petitioners are the Vicar the Revd Canon Dr Neal Barnes, Robin Alden a churchwarden, and Highways England, was received in the Registry on 25 June 2018 and is for “works relating to the reinstatement of Trinity Burial Ground following archaeological excavation and the clearance of burials.” 4. I propose dealing with these two petitions together in the course of this one judgment. Public Notice 5. When I received the first petition amongst a number of others which had been recommended at the April 2018 meeting of the Diocesan Advisory Committee, I notified the Registrar that I was “holding back the one for Holy Trinity as it is a matter of some significance in various respects and provided that there are no objections I propose issuing a short judgment on the matter granting the faculty. I believe that 18.05.18 is the date when any objections must be filed by. So if you could let me know asap after 18th that there have been no objections I will be able to finalise the matter.” In fact the date when the period of notification expired was 22 May 2018. 6. I am told that both the Victorian Society and the Georgian Society of East Yorkshire have been provided with copies of all the documentation in relation to the proposal. I am further told that both Societies were spoken to by a representative of Mott MacDonald Sweco who are the agents acting on behalf of Highways England in relation to these petitions. No representations have been received on behalf of either Society. In all the circumstances I do not consider that any special notice should be given to them or to the national Georgian Group under Part 9 of the Faculty Jurisdiction Rules 2015. 7. On 19 May 2018 Miss G T Johnson wrote to the Registrar expressing her "strong objections to the exhumation and burial removal of my four times great-grandparents … Francis Conyers (died 1842) and his wife, Elizabeth, née Hunter (died 1817)" whom she said were "resting in a grave in Castle Street cemetery, Kingston upon Hull, close to the entrance in Mytongate." I will set out further details of her objection in due course. 8. On 23 May 2018, in accordance with Rule 10.3 of the Faculty Jurisdiction Rules 2015, the Registrar wrote to Miss Johnson explaining the options facing her, namely either to formally object to the proposals by filing a Form 5 document, or to allow me to take her 2 letter of objection into account when coming to my decision, without her becoming a party to contested proceedings. 9. Miss Johnson has not responded to the Registrar’s letter. I am of course therefore duty-bound by Rule 10.5(2) to take her original letter into account in coming to a final decision on this matter, and I shall do so. 10. I have considered whether it would be appropriate to deal with this matter by holding a hearing and having the benefit of legal submissions by an amicus. However, I am satisfied that the law on this matter is well established and uncontroversial, and that I would not be assisted in any significant way about the law by such a hearing. The factual material before me is in a report prepared by Oxford Archaeology North and Humber Field Archaeology dated November 2016 prepared for Balfour Beatty and Highways England, Balfour Beatty being the Principal Contractor for the proposed scheme. That report is extremely detailed and provides me with all the factual information that I consider necessary for reaching a decision on the issues in this case. 11. In all these circumstances I am satisfied that it is appropriate for me to deal with these matters by way of a written judgement based on the documentation before me. The reason for the proposed works 12. For several years Highways England has been planning improvement works to the A63 in the Castle Street area. The A63 is the main trunk road carrying traffic into Hull. The Mytongate junction restricts the flow of traffic along the A63, slowing journeys. The road has approximately 47,000 vehicles travelling along it each day. Delays at peak times cause problems for people and businesses. 13. The A63 at Castle Street also creates a barrier between the city centre to the north, and the tourist and recreational developments to the south. 14. The intention of the scheme is to improve access to the Port of Hull by widening some sections of the road, upgrading the Mytongate junction and building two new footbridges over the road. That work will involve widening the road to accommodate slip roads to the north and south of Castle Street. To accomplish that on the south side it will be necessary to excavate and use a part of the disused burial ground that belongs to Holy Trinity Church. The scheme also aims to help reduce the impact of the barrier effect of the road as referred to above. 3 Trinity Burial Ground 15. This disused burial ground was the principal place of burial for the parish of Holy Trinity, Hull, which was of course the main parish of Hull, from 1783 until 1861, when it was closed by an Order in Council. The site, which lay outside the city boundaries, was identified in 1783 as a suitable site for the building of a new gaol and the creation of a burial ground for the parish of Holy Trinity, the existing graveyard around the church in Market Place being full. The Kingston upon Hull Improvement Act 1783 was said to be, amongst other things, “An Act for building a new Gaol for the Town and County of the Town of Kingston-upon-Hull; for purchasing an additional Burial Ground, for the use of the Parish of the Holy Trinity, in the said Town ….”. 16. The Holy Trinity parish burial registers record the interment of some 44,041 individuals between 1783 and 1861, the latter date indicating the point when the additional burial ground had itself become full. It is likely that during that period the vast majority of those burials would have been in the new burial ground with some burials continuing to be made within the vaults and family plots of the original Holy Trinity graveyard in the Market Place. 17. The burial ground is now bounded to the north by the A63 road, to the east by the Holiday Inn and to the south by the Holiday Inn car park and to the west by the Mytongate roundabout and Commercial Road. 18. The Gaol was situated to the north east of the burial ground. Part of the work to be undertaken during the works to widen the road will include excavating what remains of the Gaol. Previous proceedings 19. I was first notified about this proposed development and its impact upon the churchyard in early 2014, when I was asked about whether I had any views to express about the options faced by the Highways Agency who wished to develop the road junction and in order to do so would need to excavate the disused burial ground of Holy Trinity Church. I then said: “The most controversial part of this development is the route down which the Highways Agency will go to achieve their objects. By this I mean whether they will seek to do this by a Scheme under the Mission and Pastoral Measure 2011 or whether they will seek to achieve it by faculty. They have expressed a desire to have the freehold of the land transferred to themselves. If that is the route down which they choose to go then they will have to do it by a Scheme. That is because s.68 of the Measure provides that: “Subject to subsections (3) and (4), it shall not be lawful to sell, lease or otherwise dispose of any church or part of a church or the site or part of the site of any church or 4 any consecrated land belonging or annexed to a church except in pursuance of powers under this Part or section 44.” s.44 provides wide powers: (1) Subject to the following provisions of this section, a pastoral scheme may provide for the appropriation of the whole or any part of— (a) a churchyard or other land annexed or belonging to a church or to a parish church cathedral within the meaning of the Cathedrals Measure 1963 (1963 No.