Summary of legal position on reservation of burial plots in churchyards
Petitions for the reservation of grave space in an almost-full churchyard are becoming more common as throughout England and Wales the effects of the (long anticipated) availability of new burial plots decreases. We considered this issue last year following the judgment in Re St. Wilfrid Grappenhall  Chester Const Ct, David Turner Ch. which approved the adoption of a “non-reservation” policy by a PCC well in advance of the situation becoming critical.
More recently in Re St Oswald Methley  ECC WYD 2 the Chancellor refused to grant a faculty for the reservation of a double grave of the two petitioners; although the churchyard contained the graves of the parents and siblings of one of them, neither had a legal right to be buried there. Furthermore, it was anticipated that there would be no space remaining in two years or less.
The ecclesiastical law in this area was settled some time ago, and in Re St Oswald Methley the Worshipful Mark Hill, QC, provides a clear summary of the principles to be applied :
“i]. At common law, every parishioner has a right of burial in the churchyard of the parish unless it is closed by due legal process;
ii]. The common law right extends also to all persons dying in the parish, whether or not they are parishioners;
iii]. By statute a similar right is enjoyed by all persons whose names are on the electoral roll of the parish: see Church of England (Miscellaneous Provisions) Measure 1976, s 6(1);
iv]. The incumbent has power at common law to prescribe in what position in the churchyard any burial is to take place: but that is the extent of his power in respect of cases where the deceased had a legal right of burial;
v]. As freeholder of the churchyard, the incumbent is also entitled to grant consent to the burial in the churchyard of the remains of a person who has no legal right of burial; in doing so he is to that extent ousting those who have existing prospective rights. In deciding whether to give consent in such a case, he is therefore required by statute to ‘have regard to any general guidance given by the parochial church council of the parish with respect to the matter’: see s 6(2) of the 1976 Measure;
vi]. These common law and statutory rights crystallise only when the person in question dies.”
These principles were formulated and applied in the cases of Re All Saints Heathfield  Chichester Const Ct (3 December 2013) and Re St Nicholas Pevensey,  Chichester Const Ct (28 March 2012), and were derived from the decision of Newsom QC Ch. in Re West Pennard Churchyard (1991] 4 All ER 125. A key section of Chancellor Newsom’s judgment was highlighted :
“If a person with a legal right of burial wishes in his lifetime to assure his personal representatives of a right to bury his remains in a particular place in the churchyard, he must apply to this court for a faculty to reserve that grave space. Whether such a faculty shall be granted rests wholly in the judicial discretion of the court.
If there is plenty of room in the churchyard it is freely granted to a petitioner who has a legal right of burial. What such a faculty does is to protect the petitioner against the hazard of losing his legal right in his lifetime (e.g. by ceasing to live in the parish), and to require whoever is the incumbent when the petitioner dies to allow his remains to be buried in the position in the churchyard defined in the faculty.
To this extent, therefore, the faculty deprives the incumbent of his right to prescribe the position where a burial is to take place; and it deprives the parishioners generally of the space becoming available if the petitioner moves away. [126j-127b].
Such a faculty can also be applied for, with the concurrence of the incumbent, by a person who does not have a legal right of burial. The grounds on which such a faculty is granted vary; among them are the association of the petitioner with the church or with the parish, or the presence in the churchyard of the remains of relatives of the petitioner.”
Approving and applying this passage in The Churchyard of Wick St. Lawrence  Bath and Wells Const Ct (4 November 2013), Briden Ch. stated:
“Thus in deciding whether or not to grant a faculty [to reserve a grave space] the Court must consider whether the minister’s consent to the burial has been signified, and in its absence the petition ought to be dismissed. To do otherwise would be to subvert the purpose of Section 6(2) of the Church of England (Miscellaneous Provisions) Measure 1976, since the provision of a space reserved by faculty would override the minister’s power to give or withhold consent to the eventual burial.”
Application of principles
When the available spaces within a churchyard are down to single figures, it is uncommon for a faculty for the reservation of a burial plot to be granted, particularly in cases where the petitioner has no legal right to be buried there; as the Chancellor noted in Re All Saints Heathfield  Chichester Const Ct, Mark Hill Ch, “there is no analogous ‘qualifying connection’ in respect of burial as was introduced for marriage under the provisions of the Church of England Marriage Measure 2008”. In this case there were only “four or five” spaces remaining (at the time of the hearing), and a faculty was refused since “to reserve one for any particular individual would serve to prejudice the public right of burial enjoyed by all parishioners until such time as the churchyard is full”.
Nevertheless, a faculty may be granted to someone with no legal rights for burial, provided others possessing such a right are not disadvantaged. This was demonstrated in the grant of a faculty to a non-parishioner in recent case Re All Saints Ashwicken  ECC Nor 4 and in Re St Margaret, Drayton  Norwich Const Ct, Arlow Ch. Both had the support of the incumbent, although the former was for a reservation of only 12 years in view of the limited space available. Diocesan Registry Guidance states:
“Unless there are exceptional circumstances … the reservation will normally last for a maximum of 30 years. This is to avoid blocking spaces in churchyards for unduly long periods of time. However, where there is space in the churchyard for less than 30 years’ worth of anticipated burials, any faculty for a grave space reservation is likely to be limited to a shorter period, to match the expected capacity of the churchyard. So if there is only room for 5 years’ worth of burials, any reservation is likely to be limited to just 5 years.”
In Re St. Wilfrid Grappenhall  Chester Const Ct, David Turner Ch. the Chancellor considered that it was open for the PCC to take account of local conditions and its adoption of a “no-reservation” was considered to be reasonable even when there were sufficient spaces for another 20-30 years. Similarly, in Re Brightlingsea Churchyard, , Chelmsford Const Ct, Pulman Ch the Chancellor supported the “local views” 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.
Finally, in the complex circumstances surrounding The Churchyard of Wick St. Lawrence  Bath and Wells Const Ct Briden Ch, a petition was not granted on account of the absence of a legal right to burial and the objection of the incumbent and PCC. Here the Chancellor held that the “Church Council [was] entitled to have regard to the anticipated demands upon burial space arising from an increase in the population of the parish. Equally the need to preserve an area free of burial on the north side of the church, in order to facilitate the building of an extension, is justified.” In his concluding observations Chancellor Briden noted;
“It is also correct that the family is collectively disadvantaged by the lack of burial facilities at Kewstoke coupled with successive pastoral schemes which have affected rights of burial in the parishes concerned (see paragraph 13 of Schedule 3 to the Mission and Pastoral Measure 2011). Unfortunately for the Petitioner, the law is against him and I am bound to reject his application for reservation of the grave space for the benefit of his children”.
However, the court regularized an earlier informal agreement with a previous team rector under a different arrangement of the benefice; this would permit the reservation of a grave for the petitioner and his wife “because the moral claim by the Petitioner and his wife to this plot has been acknowledged by the Parochial Church Council and entered in the parish records”. This did not apply to his children since “the means whereby his four children could all be accommodated in one double depth space has yet to be devised”.