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

9 thoughts on “Rights of way across churchyards: a request for assistance

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  4. Dear David, I am a long retired lawyer but am currently assisting by granddaughter in a claim for damages against the PPC, The Incumbent and the Incumbency of a church in Devon. During a very cold spell at the beginning of last year she slipped on black ice down granite steps at the rear of the church and fractured her right arm and ‘smashed’ the elbow. The church, through their insurers are denying any liability either in negligence or under the Occupiers Liability Acts stating (a) that the maintenance of the churchyard is the responsibility of the Town Council under the provisions of ss. 215 (1) & (2) of The Local Government Act 1972 and (b) that the footpaths through the church as ‘public’ footpaths and therefore are not covered under either of the Occupiers Liability Acts. I am wondering whether you would be prepared to let me have a copy of your Dissertation as part of my research? Many thanks.

    • Dear John. Thanks you for your query. The dissertation to which you refer is the work of Ian Thornton, not myself, and I do not hold a copy of it. You should contact the University whose details are:

      Cardiff School of Law and Politics
      Cardiff University
      Law Building
      Museum Avenue
      Cardiff, CF10 3AX

      Phone : +44 (0)29 2087 4315
      E-mail: lawpol-pgt@cardiff.ac.uk

  5. Our church has been sold. The new owners have purchased the building, 3 metres around the church and a section of the churchyard as their garden. In the process, a long-used footpath from the village green to the church has been blocked.

    The residents are very upset.

    As a parish council, we are trying to establish if a footpath of over two hundred years can be so easily disregarded. The churchyard is still open and maintained by the dioceses even though the church is closed.

    Is this of any interest?

    • Generally speaking, the fact that people use a footpath over someone else’s land doesn’t, in itself, constitute it becoming a public right of way. ‘Public Rights of Way’ which give the public as a whole a legal, as opposed to a permissive use over land– (i.e. to use it ‘as of right’ rather than ‘by invitation’) can only come into being either by Statute or by the land owner formally ‘dedicating’ it to the Local Authority.
      Any person can enter and traverse land or property if the landowner permits it, without making it a permanent right of access. Unless the landowner has dedicated it to be permanently open to the public at all times, it is purely a private act by the land owner. This is often referred to as a ‘permissive right of way’. At common law, now enshrined by Statute in The Highways Act 1980 s.31(1), there is a presumption that if a footpath has been used by the public “as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway. But, there immediately follows, in the Act, a proviso – “unless there is sufficient evidence that there was no intention during that period to dedicate it” (this is the condition expressly laid out in the Act). If the church that you mention is an ‘Anglican’ (CofE) Church there is clear evidence that no Incumbent of such Church could have had an intention to dedicate the church paths as public footpaths because:-
      (a) He/she would have had no authority to do so as he/she would require a Faculty decision from the Archdeacon to do this.
      (b) If the paths lay through consecrated ground, again it is understood that no Incumbent of any Church would be able to dedicate a Public Right of Way over them without a Faculty.
      When a formal dedication (expressed or implied) happens, it is designated on a map held by the Local Highway Authority (usually the County Council) and is open to the public. Public Footpaths (i.e. footpaths designated as Public Rights of Way) are shown coloured red on the this map. You should look up the ‘designated map’ for your area and if the footpath in question is not shown coloured red on such plan, it is not a public right of way. You could also approach your local ‘Faculty Office’ to see whether a faculty to create a public footpath was ever given.
      Ordnance Survey Maps also detail public footpaths and you could also consult them.
      As mentioned, the fact that the public has had access over the church footpath/grounds for some period of time doesn’t, in itself alone, constitute the paths becoming Public Footpaths (i.e. Public Rights of Way). A ‘Public Right of Way has, as mentioned, a special meaning, i.e. it is something which has been ‘given over’ by the land owner to the public as a whole, who can then use it ‘as of right’, as opposed to ‘by invitation’. If the footpath you mention is not a designated public right of way the church in question can close it to the public as and when they want to; It can impose conditions as to its use and even do away with it altogether. I hope that this helps.

    • Thank you for your comments, Madeline. It’s not one for us at the moment, but we will follow developments through the minutes of the Dunham & District Parish Council. Regards, David

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