Rights of way across churchyards: a request for assistance

Ian Thornton is completing his LLM in Canon Law at Cardiff University; and below he asks for readers’ assistance in sourcing information for his dissertation

I am looking at what may, in certain cases, be a clash between secular and canon law over the designation by local authorities of public footpaths through churchyards.

Readers will be aware that a churchyard usually falls within the curtilage of its church and as such is deemed to be within the jurisdiction of the diocesan consistory court. This being the case the local authority will have few rights over it.

Many established churchyards will have a path or pathways through them to give access to the church for its proper purpose. Over time a permissive use, determinable at will by the church, may also be established for non-ecclesiastical purposes: for example, where there are two paths approaching the church from different points the whole may be used as a short cut. Permanent alienation necessarily requires approval by faculty.

Problems arise when the churchyard is closed and the care and maintenance are ceded to the local authority. It probably seems a good idea at the time because cost and maintenance resources become the responsibility of the secular authority. However there is a down side to this. It is unclear how far the rights of the church can be maintained in such cases. Specifically, s 53(2)(b) Wildlife and Countryside Act 1981 gives “Order Making Authorities” the right to make designation Orders, amending the local area Definitive Map and Statement where it considers that a new right of way has been created over land in the area to which the map relates and designating such a right of way as a public path. In the eyes of the secular authority, such land may well be a closed churchyard

The effect of the Order is to open up to public unrestricted use what may have previously been considered by the affected church to have been a private path through its churchyard. Such change may have proved, or feared to be, detrimental to the church by causing actual or potential interference with services and other church activities: one may consider undue noise, dog walking, inconsiderate ramblers causing interference with weddings, funerals and christening parties, for example.

These concerns are fairly modern. It is inconceivable that until the mid-1800s there would be any thought that a path through a churchyard would be the responsibility of any authority but the church; but with the rise of secularism in Victorian England and the realignment of the interface between church and state, incursions into what had been considered the realm of the church gathered pace. The process for closing churchyards to future interments, the designation of churchyards as open spaces and the right of churches to transfer the care and maintenance of closed churchyards had a cumulative effect that may not have been appreciated at the time, but which has been strengthened in more recent 20th century legislation, as mentioned above.

My study into this has been prompted by a decision of an Inspector appointed by the Planning Inspectorate in an adjacent parish, part of the same united benefice, where the local authority, prompted and supported by the Ramblers Association, designated as a single public footpath two old-established access pathways through that church’s closed churchyard. The Inspector was equivocal and admitted that he may have made the wrong decision when he granted permission. His decision, however, was accepted by the diocese.

What I am trying to do is to unpick the Inspector’s reasoning and check whether or not there was a basis in law for his decision. It’s very much a legalistic study that may not have wide ecclesiastical appeal, but there are lessons to be learned from this; first, that there is still an interface between canon and civil law that is valid today, second, that canon law impact may not be fully understood by civil authorities and secular organisations, third, that other parishes may be under similar threat – the RA’s website was unduly triumphal about its success, fourth, church authorities are still asleep to this threat and need a wake-up call. Other points may pop up.

Of course, the Inspector may have got it right. He was very fair. I was at the hearing, heard and saw the evidence, heard his expressed concerns and doubts, have read both his opinions and there is no doubt he recognised and had serious doubts about the conflict between secular and canon law. The Diocesan Registrar, Lee Coley, did a good job presenting the diocesan case and creating serious doubt in the mind of the Inspector, but to no avail.

I would appreciate hearing from any readers who may be incumbents, pastors, diocesan or parish officers, or former officers, of any parish that has inadvertently fallen foul of this provision and if any other readers have such or similar experiences that they would be happy to share with me, please contact me at ThorntonIR@cardiff.ac.uk. Obviously, all such contacts will be confidential, for this specific academic purpose only and will not be quoted in the dissertation, other than in a general non-attributable way, without specific approval.

Any help would be much appreciated.

Ian R Thornton

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