In 2013 we noted that in view of the diminishing availability of burial space in England and Wales, the reservation of graves is likely to become an increasingly important issue, Marriage and burial obligations of the Church of England. Local authority policies vary from sequential interments to the personal selection and reservation of specific plots. In the case of churchyards, however, a Faculty is required for such a reservation. Re All Saints Heathfield  Chichester Const Ct, Mark Hill Ch. addressed the issue of reservation when there were only “four or five” spaces remaining (at the time of the hearing). By contrast, the more recent case discussed below, Re St. Wilfrid Grappenhall  Chester Const Ct, David Turner Ch., considers the adoption of a “non-reservation” policy by a PCC well in advance of the situation becoming critical.
Mr and Mrs Boardman, aged 70 and 69 respectively, sought a petition to reserve for 30 years a plot, yet to be identified, in which their remains could be interred when that time comes. Although no objections resulted from the public notice of the petition, neither the Rector nor PCC indicated their consent. The petition alerted the PCC to the possibility of a precedent being established that would lead to a tying up of the available burial space by those who would not otherwise be given priority.
A subsequent PCC meeting passed a resolution with respect to burials and adopted a Churchyard Policy. Under this, priority would be given to: those living in the ecclesiastical parish of Grappenhall; regular worshippers and those on the electoral roll; those with strong links with the parish church, (at the discretion of the incumbent). Importantly, it included a provision that the reservation of grace space would not be permitted. On this later point, the Chancellor stated [paragraph 9] that “though without doubt that step was taken as a direct response to reflection upon the Boardman’s perfectly proper request”, he could detect no ad hominem motivation whatsoever in the PCC’s decision to adopt such a policy.
The Rector stated that in period 1990 to 2014, there had been on average 5 burials per year, and even at this modest rate, the estimated space for 120 new burials would be used within 25 years. The petitioners queried this calculation, suggesting that account had not been taken of the increasing tendency towards the burial of cremated remains.
As is the case for many churchyards, its extension through the purchase of additional land was not possible; re-use of graves had not been considered by the PCC, but it was the opinion of the Rector and Churchwardens that this may prove undesirable: the Grade I church was in a conservation area fronting onto a highway, having “an historic, well-recognized and documented aspect”. “Strenuous local and congregational objections” were anticipated to re-use in this area.
A summary of the relevant legislation is included in paragraphs 20 to 42 of the judgment. Early case law on reservation of burial space includes Re West Pennard Churchyard 1991 1WLR 32, in which Newsom Ch. considered that where plenty of room remained available and persons have the legal right to burial, a faculty would be “freely granted”; however, Lomas Ch. questioned this broad approach, Re St Mary, Dodleston Churchyard 1996 1 WLR 451, and stated that decisions should be dependent upon careful appraisal of all the relevant circumstances, and may be contingent upon numerous possibilities.
There is a common law right to burial in the churchyard of the parish, unless closed by legal process, and this extends to all persons dying within the parish, whether parishioners or not. There is a further statutory right for all persons whose names are on the electoral roll of the parish, section 6(1), Church of England (Miscellaneous Provisions) Measure 1976.
The incumbent has power at common law to prescribe the location of burials within the churchyard for those having a legal right of burial. However, as freeholder of the churchyard, he/she is entitled to grant consent to the burial of those with no such legal right, but is required by section 6(2) of the 1976 Measure “to have regard to any general guidance given by the PCC”.
The court has a discretion whether to allow or refuse a petition to reserve a grave space; in general “this is likely to be exercised in favour of reservation particularly where the faculty is sought by those with a right to burial in the churchyard … with the proviso that it can properly be said that there is no substantial risk to the rights of other parishioners,” such as when pressure on space is acute.
The Chancellor made some observations on the courts’ exercise of this discretion in these circumstances, [32 to 42]: individuals with a legal right of burial must, generally, be interred in the order in which they die until such time as the churchyard is full; whilst regular attendance, active participation in the church’s ministry nor generosity to the endeavour can give presumptive priority for a certain class; the position may be strengthened if one or more of a petitioners relatives are buried nearby, but may be weakened is the churchyard is on the point of being full.
Reference was made to Re Brightlingsea Churchyard, , Chelmsford Const Ct, Pulman Ch which considered two concurrent petitions relating to the closure of a churchyard. Chancellor Pulman supported the viewed of the vicar and PCC, and the Archdeacon, that the churchyard was full, and dismissed the counter claims of the district council and the Home Office on grounds of the practical implications of their suggestions.
With regard to PCCs that adopt policies resisting the reservation of a grave space, consideration was given in Re Dilhorne Churchyard  Lichfield Consistory Court: Coates Dep Ch and Re St Leonard Blithfield  Lichfield Cons Ct, Stephen Eyre Ch. Both judgments support the view that a court should not readily ignore the reasonable bona fide and proposer exercise of a PCC’s discretion, although such a policy cannot be conclusive, nor can it remove the court’s discretion which should take into account “exceptional circumstances” and the aspect of fairness to those who have accepted such a policy.
The Chancellor cited with approval the broad approach taken by these two cases, and considered that the (non-reservation) policy adopted by the St Wilfrid PCC to be reasonable. He stated that the faculty petition by the Boardmans had triggered “a possible overdue debate about the future use of the churchyard, suggesting that “there may well be more to be said concerning both land acquisition and re-use”.
We strongly suspect that the Chancellor’s comments on the overdue debate on the future use of churchyard, land acquisition and re-use of graves will have wider relevance beyond St Wilfrid, Grappenhall. However, there appears to be a paucity of centralized data in this area: the Ministry of Justice web page on burial ground statistics indicates that a one-off survey was undertaken in 2006 “and there are no plans to repeat it”. For these data, the report indicates that of those CofE and CiW churches that responded to the survey: 64 per cent of the churchyards were open for new burials, while a little under 20 per cent were closed to new burials; approximately 80 per cent of land available for burials was already occupied by graves, with 20 per cent still unused; and 36 per cent occupied by graves over one hundred years old.