New Churchyard Regulations in Oxford Diocese
The Diocese of Oxford weekly newsletter of 30 November 2016 included an announcement that the Chancellor of the Diocese had made new Churchyard Regulations governing the installation of new memorials, works to existing memorials, and other matters in churchyards; these will come into force on 1 January 2017. With more churches than any other diocese in the Church of England, and coming shortly after standardized Regulations of the Leeds diocese which came into force at the start of this year, these new Regulations represent a significant development towards regularizing the management of churchyards in the Church of England.
With the exception of cryonic preservation, the funerals industry is seldom subject to the time pressures of FMCGs – fast-moving consumer goods – and the required skills and management associated with burial are at a very basic level. However, the consistory courts are frequently called upon to address errors and omissions resulting from those acting in a professional capacity – funeral directors, clergy, burial ground managers, and stonemasons – in their consideration of petitions from relatives of the deceased, which are on occasions prompted by significant misunderstandings of church law by the petitioners and in the media’s reporting of the cases. This is exacerbated by the diocese-specific nature of Churchyard Regulations and the prescriptive approach adopted by some Chancellors to their application.
In our post on 13 September, Standardisation of churchyard regulations we reviewed Re St John the Baptist Adel and St Michael Markington  ECC Lee 8 in which the Worshipful Mark Hill, QC, considered two linked petitions which sought permission for the introduction of “bespoke” churchyard regulation for the churches concerned. Importantly, however, the judgment included an explanation of the introduction of a single set of standard churchyard regulations for the Diocese of Leeds [“the Leeds Regulations”] and how local variations may be accommodated within the new scheme. The Leeds Regulations form an appendix to the Chancellor’s General Directions.
Chancellor Hill stated  that he would not be imbuing the Leeds Regulations with the enhanced normativity afforded by some other chancellors to their regulations; his approach followed that of Alexander McGregor Ch. in Re St John Whitchurch Hill  Oxford Const Ct, [summarized here] “which records with simplicity and clarity at paragraph 16”:
“As is the case with any petition, the burden of proof lies on the petitioner to show why a faculty should be granted to authorise the particular proposal set out in the petition”.
It therefore follows that under the Leeds Regulations, “there is no requirement for petitioners to: discharge a higher burden of proof; rebut a presumption; demonstrate a ‘substantial’ or ‘powerful reason’; or show an ‘exceptional’ case. Each petition will be determined on its own merits, the only constraint being the inability of the court to permit something which is contrary to, or indicative of any departure from, the doctrine of the Church of England in any essential matter “.
The Oxford Churchyard Regulations
In addition to the existing Regulations, the Diocese web page on Churchyard Regulations contains links to the new Regulations [“the Oxford Regulations”] and an accompanying letter from the Chancellor, a proforma Memorial Agreement Form, and guidance for funeral directors and stonemasons, and for families. There are also links to older documentation on the prohibition of Quick Response (QR) Codes on memorials and gravestones, and on the reuse of churchyards for reburial.
The Chancellor’s letter provides an informative background to burial in consecrated ground and the necessary legislative constraints. In it he explains the special nature of churchyards in terms of their consecration by the Bishop, and their status in UK law. It stresses that are not the exclusive preserve of members of the Church of England and anyone resident in a parish – irrespective of religious affiliation – is entitled to be buried in the parish churchyard provided there is still room and the churchyard has not been closed to new burials.
As shared spaces, those charged with their protection must have regard to the needs of all those whose relations and friends are laid to rest there, to the local church congregation who have the responsibility for maintaining the churchyard, of all members of the local community and of the Church and of society at large. This necessitates a framework of rules in order to “achieve a balance between the need for individuals and families to mourn and to commemorate those they love in a way that is meaningful and helpful to them, and the needs of the community as a whole, including the needs of others whose relations and friends are also buried in the churchyard. The framework of rules also has to uphold the nature of the churchyard as a distinctively Christian place”.
The new Churchyard Regulations
The Oxford Regulations, which come into effect on 1 January 2017, are available in full here and also summarized in the Chancellor’s letter. Like the Leeds Regulations, they adopt a non-prescriptive approach to the approval of ‘monuments’ (i.e. headstones etc.), and there is no longer a requirement for individually-designed monuments to be authorised by faculty, provided such a monument meets the normal requirements of the Regulations.
Authority is delegated from the Chancellor of the Diocese to the minister to authorise: (a) the introduction into a churchyard of any monument or ledger stone which complies with the relevant regulations; and (b) addition of further inscriptions , temporary removal for the addition of inscriptions  or repair , subject to the requirements of the Regulations.
Additionally the minister may grant permission for up to 3 toys or similar objects to be left at the place of burial or interment of cremated remains for a period of 12 months from the date of burial or interment, but these must be removed at the end of that period . The minister, or a person acting on his or her behalf, may remove any objects which are not, or have ceased to be, authorised under these regulations and which have not been authorised by faculty .
Monuments but not ledger stones, in the shape of a book are permitted , and certain etchings or carvings, in addition to inscriptions, are permitted as long as they do not cover more than a fifth of the surface of the stone. Although not explicitly mentioned in the Regulations, the Chancellor’s letter states that there is no longer a requirement to obtain a faculty for armorial bearings or crests. Inscriptions and other markings are no longer restricted to one side of a monument, [Regulation 33].
Permission to introduce a monument or ledger stone is now restricted to a period of 50 years rather than 100 years as before. It is not proposed that monuments and ledgers should be moved after the expiry of 50 years, but this revised minimum period is consistent with various statutory provisions which confer certain rights on the relations of a deceased person who was buried in a churchyard within the previous 50 years, and ensures a degree of consistency in this area.
Cut flowers and silk flowers may be left at the place of burial or interment of cremated remains but must be removed once they are decaying or have become faded. However, plastic flowers and plastic wreaths are not permitted
Our post Standardisation of churchyard regulations concluded:
“…the approaches adopted by the respective Chancellors have been developed to reflect the perceived needs of each diocese; however, the application of the new Leeds Regulations is likely to be followed with great interest, especially if this is shown to simplify this aspect of the faculty jurisdiction for the petitioners and the courts”.
Since the Leeds Regulations followed the approach of the Oxford Chancellor, Alexander McGregor Ch. in Re St John Whitchurch Hill, it is unsurprising that this is formally incorporated in the revised Oxford Regulations, in addition to a number of other simplifications and the specific delegation of authority to the incumbent. Whilst parishes are not explicitly encouraged to seek “bespoke” local variations as in the Leeds Regulations , this option is not precluded. However, many of the often contentious issues such as toys, “gardens” and silk/plastic/cut flowers are spelled out.
The Diocese of Leeds is one of the three largest in the Church of England (in terms of area), with 656 Anglican churches serving its population of 2.3 million people; the Diocese of Oxford accounts for 825 churches in villages and market towns, suburbs and urban areas, organized into 626 parishes, which have 55,000 or so regular worshippers. Elsewhere, the approaches adopted by the respective Chancellors have been developed to reflect the perceived needs of each diocese; however, the application of the new Leeds Regulations and now the Oxford Regulations is likely to be followed with great interest, especially if this is shown to simplify this aspect of the faculty jurisdiction for the petitioners and the courts.
I suppose I’m not that surprised that there may be significant misunderstandings of church law by relatives, but during my time as churchwarden here I was astounded at times by the ignorance displayed by some funeral directors – particularly of the regulations around memorials, but also of some real basics. (One phoned me up, during a vacancy in this parish, demanding to know why we hadn’t sent the deeds for the grave, and was amazed to hear that it doesn’t quite work like that in a churchyard.)
I think our particular issue may be partly down to being right on the edge of the conurbation, and being one of the few remaining parishes with burial space remaining. Most churches around here either never had a churchyard, or it has been long closed for new burials, and the funeral directors will inevitably be dealing primarily with such churches and either cremation or burial in municipal cemeteries.
Thank you for your comments, Richard. I have never had any direct dealings with funeral directors, and my main concern has been the potential for copyright infringement in the orders of service used for all the occasional offices, including funerals. However, from some of cases that come before the consistory courts, it seems as though there is widespread ignorance not only of ecclesiastical law, but of legislation that should come within the expertise of the professionals involved. The consistory court cases in the forthcoming December round-up include Re St. Peter Bramley in which the Chancellor berates the petitioners: “the endemic ignorance of faculty law, process and procedure is eye-watering, and compounded by a co-extensive lack of comprehension of the
requirements of secular planning law for which it is itself responsible”.
Just read that judgment – wow!
Digressing slightly from the subject of “outside” understanding of the faculty jurisdiction… I’m sure these things will vary widely between dioceses, but there must be a need for some sort of more deliberate training for churchwardens and suchlike in the workings of the DAC, consistory court etc. I think it’s just assumed that you somehow absorb this knowledge from your predecessors, by osmosis.
A quick Google search quite readily turns up a number of diocesan courses and information for churchwardens, such as that provided by the Salisbury diocese. However, courses in themselves are not the answer, and it is necessary both for new churchwardens to attend a course and also for them to put the content into practice. With regard to the faculty jurisdiction, this is not necessarily the major component of a churchwarden’s role, or one which occurs very often.
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