Exhumation and the re-use of graves under the CofE’s faculty jurisdiction
An earlier post reviewed the statutory provisions associated with the re-use of graves in the capital and the possible reasons for councils in Greater London not making more use of the powers in the London Local Authorities Act 2007. It has been suggested that his may be in part due to a perception that some of the issues surrounding re-use are seen as problematic, [e.g. the difficulties involved in establishing who owns the monuments, and similar issues, and partly the administrative complexity of identifying grave ownership]. However, in practice a significant number of the graves that have been reused come within a different legislative regime – the faculty jurisdiction of the Church of England. In 2014, the then Minister of Justice Simon Hughes, informed the House of Commons:
“[a]lthough the City of London … reused just under 900 graves in the four years up to 2013, it did this in nearly every case using the powers not in the 2007 Act but those under ecclesiastical law where, on Christian consecrated land, re-use of graves is permitted if the Church authorities issue … a faculty.”
In addition, Southwark Council is now at an advanced stage of a strategy for the development of its cemeteries, many of which fall within the faculty jurisdiction. The consecration of a burial ground determines whether the faculty regime is applicable or not; but as with measures such as the 2007 Act, this is only one component of the legislation relating to the development of burial grounds.
Burial Act 1857
When first enacted, section 25 of the Burial Act 1857 provided statutory protection for buried human remains that did not fall within ecclesiastical legislation; this related to “any place of burial” – a phrase that in 2007 was subject to reinterpretation by the Ministry of Justice in accordance with Foster v Dodd (1867) LR 3 QB 67, but soon reversed in view of potential common law action against archaeologists exhuming remains without the statutory protection given by a licence issued under the 1857 Act.
In the case of major infrastructure works, the enabling statutory measures often disapply the ecclesiastical and secular provisions concerning burial grounds, e.g. section 39(1) Channel Tunnel Rail Link Act 1996. However, with regard to the re-use of graves under the London Local Authorities Act 2007, whilst s74 (11) disapplies the requirement for a licence from the Secretary of State under s25 Burial Act 1857, the consistory courts retain their jurisdiction through s74 (9 and 10); this applies both before and after exhumation/re-use of the grave.
On 1 January 2015, s2 of the Church of England (Miscellaneous Provisions) Measure 2014 came into force, thereby amending s25 of the Burial Act 1857. Under the previous regime, whereas a consistory court could authorize exhumation from consecrated ground and reburial in other consecrated land, [i.e. “lift and re-inter”], in circumstances where reburial was within the same grave, [i.e. “lift and deepen”], a licence from the Secretary of State was also required. Although apparently illogical, this requirement was the official view of the government department concerned and gave rise to: a degree of uncertainty in the consistory courts as to its necessity; and the incorrect assumption of some that the faculty jurisdiction only permitted “lift and re-inter”.
These issues have been overcome through the revised legislation which eliminates this duplication; approval for exhumation is now required either from the appropriate consistory court or from the Secretary of State, thereby eliminating the small number of cases where approval was needed from both. Under the new provisions:
- Exhumations from land which is subject to the Church of England’s jurisdiction will need the Church’s authorisation (a faculty or the approval of a proposal under the Care of Cathedrals Measure 2011). This includes consecrated ground in cemeteries.
- Exhumations from land which is not subject to the Church of England’s jurisdiction will need a licence from the Secretary of State.
As before, re-use through both “lift and deepen” and “lift and re-inter” from consecrated land is possible within the faculty regime, now via a simplified procedure; but where the secular regime is applicable in London, section 74(3) of the 2007 Act limits re-use to the “lift and deepen” technique.
Re-use of graves: The Church of England consistory courts have addressed the re-use of graves in relation to the exhumation and re-interment of the remains of one or more in a single grave and the development of a churchyard or cemetery involving a number of sets of remains. Underpinning both is the Church’s approach to exhumation, which was explained by the Court of Arches in Re Blagdon Cemetery  Fam 299: “the norm is permanence in relation to Christian burial. The question then arises as to how to determine the exceptional circumstances which would justify departure from the norm”, . Before considering the particular circumstances of the instant case, it first reviewed six relevant factors that can arise in connection with a petition for a faculty for exhumation, . In relation to family graves, the Court stated [36(vi)]
“…The concept of a family grave is, of course, of long standing. In a less mobile society in the past, when generations of a family continued to live in the same community, it was accepted practice for several members of a family to be buried in one grave … Burials in double or treble depth graves continue to take place at the present time. They are to be encouraged. They express family unity and they are environmentally friendly in demonstrating an economical use of land for burials,” [emphasis added].
Although cited in Re Ivy Gertrude Brisbane deceased  Lincoln Const Ct, Mark Bishop Ch. [para. 9.5], the Chancellor added the rider “but not where the movement of remains will not lead to any saving of space”, [para.9.5.1.], as in the instant case which involved the movement of ashes from one family grave to another.
Considerations of individual cases: Of particular relevance is Re West Norwood Cemetery  Southwark Const Ct Philip Petchey Ch, since it relates to a cemetery which had adopted a policy of re-use, below. Furthermore, the Chancellor made specific comments on the application of Re Blagdon Cemetery in circumstances involving the re-use of graves. He said:
“17. In Re Blagdon Cemetery, the Court of Arches stressed that permanence was the norm for Christian burial and that permission for exhumation should only be granted exceptionally. It seems to me, however, that rather different conditions apply to a proposal which is for exhumation and re-interment in the same grave.
18. In recent years there have been concerns expressed about the shortage of burial space. One of the suggestions that has been made is that additional space could be made available within churchyards and cemeteries by the practice known as “lift and deepen” … In its response [to the government’s 2004 consultation] the Cathedrals and Church Buildings Division of the Archbishops’ Council made it clear that it welcomed the practice of “lift and deepen” of graves in consecrated ground and did not suggest that the general objection to exhumation applied to it.
19. It seems to me this represents the correct approach … if remains are not moved, save to be placed deeper in the ground, it seems to me that this is not exhumation to which the presumption articulated in In re Blagdon Cemetery applies. This facilitates the efficient use of ground which it is clear is to be encouraged …”
The salient facts in the instant case were these. The plot was dug to accommodate a total of five interments when West Norwood was a private cemetery and three interments were made under this regime. When the fourth set of remains was buried, however, this was after the cemetery had been taken over in 1965 by Lambeth Council, which had a policy of accommodating only four interments per plot; and the petitioner requested that the fourth interment be lifted and reburied deeper to accommodate further burial.
Whilst acknowledging “respect for the dead suggests that human remains be disturbed as little as possible”, , the court granted a faculty that permitted the exhumation and reburial of the fourth interment “at sufficient depth to permit a further burial in due course; and gave conditional permission to “deepen and lower” the other remains interred in the grave if it is necessary to achieve the required depth”.
The case of Re St. Matthew Stretton  Chester Const. Ct considered an unusual petition seeking a reservation for 30 years of the space in an existing double-depth grave for the future cremated remains of the woman who was the partner of the deceased after separation from his wife until his death. The case turned on the issues relating to the reservation of grave spaces rather than issues of re-use. This fell within the Chancellor’s discretion, and respecting the objections of the deceased’s wife and daughters, he dismissed the petition. His refusal was upheld on appeal.
Sometimes the re-use of the existing grave is an issue, as in Re St John Washingborough  Lincoln Cons Ct, Mark Bishop Ch. which concerned the exhumation and reburial at greater depth of a single interment to rectify an error in the digging of the grave. Likewise Re St. Nicholas Codsall  Lichfield Const Ct. concerned an inadequately-dug double-depth grave of insufficient depth, although in the case the remedy was re-interment in another part of the churchyard. The Chancellor held that the deeper of the two burials, which was “at a depth at which it can be retained in a secure and seemly fashion”, could also be exhumed and re-interred in view of the condition of the ground, coupled with the fact that “the plot containing these two coffins is already a family grave … and it has been such a grave since [the date of the second interment]” .
Burial ground development: Whilst the Church of England has expressed its support for the re-use of graves in the context of Christian burial, in terms of re-use and cemetery development it has had an uneasy relationship with local authorities and land owners. An early example was in relation to the South Metropolitan Cemetery, a.k.a. West Norwood Cemetery. The cemetery was originally laid out under the South Metropolitan Cemetery Act 1836, a Private Act of Parliament, and subsequently acquired by Lambeth LBC under a compulsory purchase order in 1965.
In February 1971 Lambeth decided to introduce a landscape improvement scheme under its lawn conversion policy. Despite public disquiet at the resulting clearance work, it was not until the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 came into force on 1 March 1993 that action could be taken by the Archdeacon of Lambeth against the illegal work undertaken by the Council without faculty permission, Re West Norwood Cemetery  Fam 210. This resulted inter alia in the South Metropolitan Cemetery (West Norwood Cemetery) Scheme of Management 1997, supplemented by Practice Direction “couched in terms readily understandable by funerary masons and the bereaved”. The Chancellor summarised that, “[i]n the interests of both the living and the dead, the intention was to reverse the trend by which a magnificent historical cemetery risked becoming an unplanned and tasteless rag-bag of funerary offerings”.
This was further considered in Re West Norwood Cemetery (No 2),  Southwark Consistory Court, George Ch. and included in a memorandum from the Friends of West Norwood Cemetery to the Environment Sub-committee of the House of Commons Environment, Transport and Regional Affairs Select Committee as part of its inquiry into cemeteries. More recently, the Chancellor of the Southwark Diocese has issued Guidance: on Churchyards and Memorials: Reuse of Graves which, echoes Re Blagdon Cemetery, and states:
“Save where burial rights are granted subject to a particular period of years, there should be an expectation that grave spaces will in due course be reused, and this is necessary to economise on land-use at a time when grave space is a diminishing resource. This is an increasingly urgent problem which all those responsible for churchyards have to face. Sensitive solutions have to be devised and implemented.
Reuse of graves within a period of less than 75 years is likely to cause distress and offence to the living, as well as appearing disrespectful to the dead. But incumbents should promote and publicise policies for the reuse of graves as soon as 75 years have elapsed after the most recent burial therein, not least so that those presently arranging a burial are informed of what is likely to happen in the future.
Rather than planning for re-use on a grave-by-grave basis, there is merit in seeking to bring larger areas into re-use as part of a coherent plan.
Removal of existing memorials (including laying them flat) requires a faculty from the Chancellor, and consultation with any surviving relatives who can be traced will always be appropriate. Memorials remain the private property of those who initially paid for their erection, and therefore any faculty granted will contain provision for safeguarding (by some form of relocation) of the memorials. Where authorisation is sought to reuse part of a churchyard, the removal of a number of memorials can properly form the subject of a single petition for faculty.”
Whilst it is clear that the Church encourages the re-use of graves as an environmentally-friendly and economical use of land for burials, it is less enthusiastic about the exhumation of remains to make way for a building project. In In re Radcliffe Infirmary Burial Ground  PTSR 1508 the University of Oxford sought to exhume over 700 sets of skeletal remains from a burial ground consecrated in 1770 by the Bishop of Oxford and closed in 1855 by Order in Council. The University proposed building a School of Government over the burial ground but the Diocese objected under section 22 of the 1991 Measure.
Whilst the public benefit resulting from proposed use of the land for academic purposes provided a convincing justification for permitting exhumation, the prohibition against building on a burial ground in s3 Disused Burial Grounds Act 1884 proved more problematic. However, in view of the vesting of the original hospital in the Ministry of Health by statute, s79(1) National Health Service Act 1946, and subsequent transactions between NHS entities, s3 was rendered inapplicable on account of s5 of the 1884 Act: “[n]othing in this Act contained shall apply to any burial ground which has been sold or disposed of under the authority of any Act of Parliament.”
Columbaria: With regard to columbaria, secular legislation is the more relaxed. The DCA Guide for Burial Ground Managers states:
“The provisions of the 1857 Burial Act regarding the removal of buried human remains do not appear to protect cremated remains within an above-ground columbarium (or any other above-ground container or niche), and the DCA does not therefore issue licenses in respect of them. Where a columbarium is under the faculty jurisdiction, however, the remains will be regarded as having been placed in their final resting-place, and may only be removed under the authority of a faculty.”
This latter point is emphasized by the definition of “exhumation” in Rule 2.2(1) of the Faculty Jurisdiction Rules 2015 under which “exhumation” includes: “the removal of a body (or part of a body) or of cremated human remains from a catacomb, mausoleum, vault or columbarium”. Whilst Part 3 and Schedule 1 make provision for certain matters within the jurisdiction of consistory courts to be undertaken without a faculty, new, more prescriptive conditions were introduced for “additional matters orders”, which preclude their application for, inter alia, “the exhumation or other disturbance of human remains”.
We noted in an earlier post that the plans of Southwark Council are likely to receive consideration by the consistory court, (t.b.a.). The campaigning organization “Save Southwark Woods” has indicated that, as of 4 January 2016, the Diocese had been made aware of “more than 700 individual objections … to the first phase [of the Southwark plan]”. We will follow developments with interest.
 The Guide for Burial Ground Managers published in 2005 by Department of Constitutional Affairs, (DCA), stated [para. 2] “If the ground is consecrated, no licence is required, in addition to a faculty, if the remains are to be removed to a different grave in consecrated ground in the same or another churchyard or cemetery. If the coffin is to be moved within the grave, or removed and replaced in the same grave, the DCA takes the view that the law requires a licence in addition to a faculty”, [emphasis added].
The in 2007, DCA took on other responsibilities and was renamed the Ministry of Justice. Government responsibility for burials is presently shared between two Departments—the Ministry of Justice and the Department for Communities and Local Government. The Ministry of Justice has responsibility for burial law and policy; the DCLG has responsibility for local burial authorities.
 Re West Norwood Cemetery , Southwark Const Ct. At paragraph 22, the Chancellor doubted the need for a licence under s25 Burial Act 1857 in relation to the “lift and deepen” procedure, noting that noted that this was the view of the relevant government department, reference 5.
 The Cemeteries, Crematoria and Burial Provisions (CCBP) Sub-Group of the London Environmental Directors Network (LEDNET) Technical Guidance on the Re-use and Reclamation of graves in London Local Authority Cemeteries  at paragraph 3.7.3..
 Although the petitioner’s preference was for a “full burial” in view of the uncertainty as to the spaces available for two coffins, her request was limited to the placement of her cremated remains.