Faculty Jurisdiction
Section 56 and 57 of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 states that all church buildings, churchyards and curtilages are subject to Faculty Jurisdiction.
Maintenance of a Churchyard
Section 4(1)(ii)(c) of the Parochial Church Councils (Powers) Measure 1956 states that a Parochial Church Council is responsible for the maintenance of a churchyard. However, there is a procedure for transferring to a Parish Council or District Council the responsibility for maintenance of a churchyard which has been closed for further burials by Order in Council (see below).
Closed Churchyards
A churchyard is sometimes described as closed in the non-legal sense that burials have been discontinued there. But the term closed may be used in a legal sense to mean that a churchyard has been closed for further burials by an Order in Council.
Applying for a Closing Order
A Parochial Church Council may apply for a closing order when there is no room left for burials in a churchyard (apart from graves which have been reserved by Faculty but have not yet been filled). If a PCC is unsure as to whether a churchyard has been closed by Order in Council, an enquiry should be addressed to:
Burials Unit, Ministry of Justice, 4th Floor, 102 Petty France, London SW1H 9AJ.
Telephone: 020 3334 6413.
See also: Churchyard Closure Application Form and Guidance Notes.
Effects of Closure
No further coffin burials may take place in the churchyard, unless they fall within an exception specified in the closing order. It is common for a closing order to specify, by way of exception to the prohibition against further burials, that (a) burials may still take place in graves which have been reserved by Faculty, and (b) a body may be buried in the same grave as a relative, provided that following the second burial there will still be at least one metre of earth above the second coffin. When applying for a closing order, a Parochial Church Council should ask the Ministry of Justice to include these exceptions.
Cremated remains may continue to be buried in a closed churchyard, provided that either (a) a Faculty is obtained to authorise an interment, or (b) the cremated remains are to be buried in an area already set aside by Faculty for the interment of cremated remains.
The closed churchyard remains subject to the Faculty Jurisdiction, and the Parochial Church Council remains responsible for continuing to maintain the churchyard, unless and until it has transferred responsibility by giving notice under Section 215 of the Local Government Act 1972.
Note that section 3 of the Disused Burial Grounds Act 1884 prohibits the construction of any temporary or permanent buildings upon any disused burial ground, except for the purpose of enlarging a church, chapel, meeting house, or other place of worship. This restriction is still in force and applies to any disused burial ground, including a churchyard, whether or not it has been declared formally closed. Case law also indicates that while a churchyard remains open and available for further burials, nothing may be authorised in any part of it which would prevent that part being used for further burials.
Transfer of Responsibility
Under Section 215 of the Local Government Act 1972, a Parochial Church Council may give notice to the Parish Council (or, where there is no Parish Council, to the chairman of the Parish Meeting), requiring the Parish Council (or the Parish Meeting, as appropriate) to take over the responsibility of maintaining a churchyard which has been closed by Order in Council. Three months after the giving of the notice, the Parish Council (or Parish Meeting) becomes legally responsible for maintaining the churchyard, unless it gives notice under the Act to the District Council or Unitary Authority, requiring the District Council or Unitary Authority to take over the responsibility. Although the statutory period for giving notice to the Parish Council is three months, the General Synod Office suggested in 1981 that PCCs try to give Parish Councils at least twelve months’ notice, in order to allow Parish Councils time to make appropriate provision in their budgets.
In the case of a churchyard closed before the 1972 Act came into force, the Local Authorities etc (Miscellaneous Provision) Order 1974 provides as follows: “Where … the functions and liabilities of the parochial church council of a parish with respect to the maintenance and repair of a churchyard have under section 269(2) of the Local Government Act 1933 before 1st April 1974 been transferred to the council of the borough or urban district, or to the parish council, the authority on whom a request under section 215(2) of the Act would fall to be served shall maintain the churchyard by keeping it in decent order and its walls and fences in good repair.”
Once responsibility has been transferred, the Parish or District Council will have the same responsibility for maintaining the churchyard, and its walls, gates, fences, grass, trees, etc., as the Parochial Church Council had prior to the giving of notice to transfer responsibility. Advice is set out in Part 8 of Legal Opinions Concerning the Church of England, 8th Ed. 2007.
The Parish or District Council will need to apply for a Faculty to authorise any works in the churchyard other than routine maintenance, since the churchyard will remain consecrated ground.
Reusing Burial Space in Open Churchyards
The Chancellor has issued guidance for parishes regarding the re-use of old graves in churchyards: Re-Using Burial Space in Open Churchyards – Guidance November 2020
For further information please contact Joanna Pelan, Registry Clerk: Joanna-Pelan@birketts.co.uk