The boundary between ecclesiastical and statutory legislation
The challenges faced by cemeteries and churchyards in meeting the current shortage of burial space have been considered in earlier posts, primarily in relation to the re-use of graves and more recently in the case of the development of a private cemetery. The recently-reported example of Camberwell Old and New Cemeteries broadens these considerations to the wholesale development of areas of consecrated ground within a municipal cemetery, and the interface between the faculty jurisdiction and secular provisions.
The statutory provisions relating to the re-use of graves in Greater London were considered here, and the New Southgate Cemetery Bill provided an example of a Private Parliamentary Bill to permit the development of a private cemetery. Similarly, the London Borough of Southwark is faced with a chronic shortage of burial space within its municipal cemeteries, and following an extensive public consultation in 2012, instituted a programme of development to overcome the problem. A maximum of 4865 plots will be created by the proposals detailed in the cemetery strategy and once these are complete, re-use (i.e. “lift and deepen”) may be considered.
These plans have generated substantial local opposition, here; The Friends of Camberwell Cemeteries’ Save Southwark Woods is a group which is campaigning: “to protect the woods, graves and green spaces of the Camberwell Cemeteries and preserve them as Nature Reserves, like Highgate and Nunhead Cemeteries”. Material relating to the development of the cemeteries, and also the involvement of the diocese, is one its web site.
As part of the Borough’s plans, three new burial areas will be created:
- Area Z, Camberwell Old Cemetery: This will bring an ‘out of bounds’ area back into public use; create 700 burial spaces; increase the ecological value and biodiversity of the area; and improve access and appearance of the cemetery.
- Area D1, Camberwell New Cemetery: Creation of approximately 145 burial plots by bring a currently unused area of Camberwell New Cemetery into use as a new burial area.
- Area B, Camberwell New Cemetery: Creation of approximately 1000 burial plots by bringing the currently unused former Honor Oak Nursery site at Camberwell New Cemetery into use as a new burial area.
Only the development of areas Z (phase 2) and D1 is subject to both planning consent and approval by the faculty jurisdiction. Prior to consideration by Chancellor Philip Petchey in the Southwark consistory court, a number of works had been undertaken on issues not requiring faculty approval. Nevertheless, since the court’s approval of the petitions was essential to the completion of the Borough’s plans, almost inevitably, a number of contentious issues were raised during the proceedings which were not within its vires. Other issues, such as the Borough’s allegedly discriminatory policy of “subsidising burial for Christians but not for many of its residents of other faiths” were raised with the Diocese, although this is not a component of the instant consideration.
Consistory court consideration
Re Camberwell Old and New Cemeteries  ECC Swk 2 concerns two petitions, for the development of areas Z and D respectively, which the court described as follows [emphasis added] :
Petition 1, “Area Z” This is “is about 2 acres (0.8 ha) in the north western corner of the cemetery, adjacent to Underhill Road. This was land used for public burials until the 1950s. In 2003 an area in excess of 0.5 acres (0.2 ha) was subject to unauthorised tipping which has produced a large stockpile of waste material, some of it contaminated. At its deepest point the pile is about 5m (15 feet) deep. Because of the contamination, the area is now fenced off (and has been since 2008). After 2003 it became overgrown with self-seeded vegetation and became covered in scrub and saplings; this vegetation has now largely been cleared in circumstances described below. About two thirds of the land is consecrated.” .
“The proposals involve addressing the contamination of the stockpile, reducing its size and regrading it. The resultant terraced landform, accessed by new paths, will be used for new burials. The burials beneath the stockpile will not be disturbed. Space will be created for about 700 new burials.” .
[One of the many site investigations conducted by the Borough included Land Quality Assessment, Area Z, Camberwell Old Cemetery which made a quantitative assessment of this contamination].
Petition 2, “Area D”: This is about 0.5 acres in size and comprises a grassed area surrounded by trees on three sides and within the main body of which two
burials have taken place. It has not been in general used for burials on account of the slope of the ground.
Planning permission for each of these areas was granted by Southwark LBC on 16 October 2015 and the DAC subsequently recommended the proposals. As a result of the Public Notices, 660 people submitted objections in writing and a further 318 people objected by email. Three of the objectors became parties opponent, but later were granted permission to withdraw as formal objectors .
Determination on written evidence
One of the opponents, Ms Blanche Cameron, Chair, Friends of Camberwell Cemeteries The Save Southwark Woods Campaign, submitted to the court that a determination based on written evidence was not appropriate . This was rejected by the Chancellor who concluded that it would be appropriate to determine the matter on the basis of written representations .
“…This was on the basis that the Petitioners would be in a position to address in writing any detailed questions that I might have; it would have been possible for me at any stage before the final determination of the matter to have decided that it was not appropriate that it should be decided on the basis of written representations6. In the event, the Petitioners addressed satisfactorily a number of questions which I raised and it has not been necessary for there to be a hearing”;
Felling of trees
Under the Faculty Jurisdiction Rules 2015, a faculty is not required for the felling of a tree where the diameter of any stem of does not exceed 75 millimetres (measured over the bark at height of 1.5m above ground level). By a letter dated 22 December 2015, the Head of Parks and Leisure of the Borough sought advice as to whether it would be possible to clear the scrub from Area Z without a faculty on the basis that any tree that was removed was less than these dimensions. The Chancellor replied on 11 January 2016 referring the Borough to the provisions of the Faculty Jurisdiction Rules. In the light of this guidance, Southwark LBC began works to clear the scrub from Area Z.
Ms Cameron subsequently submitted “what was, in effect, an application for an injunction, setting out her belief that Southwark LBC were illegally felling trees” . The application was dismissed. Citing In re Welford Road Cemetery  Fam 15 the Chancellor stated:
“If there is no substantive power to order the restoration of works in respect of a cemetery, it is apparent that there can be no power to issue an injunction to prevent any such works in the first place. Against this background, I declined to take any action upon Ms Cameron’s application and, in the event, the scrub was largely cleared from Area Z. I have however no reason to think that this work did require consent by faculty.” .
Development of municipal cemeteries
The Chancellor outlined the development of municipal cemeteries in parallel with churchyards, noting that the demands for burial space had been offset in part by the growing popularity of cremation [20 to 27]. He explained:
“ …Although the new cemeteries were no longer next to churches, most people still wanted Christian burial, and according to the rites of the Church of England. The meant that most of the land in these cemeteries was consecrated according to the rites of the Church of England [Ref. 10. Those parts which were unconsecrated were utilised by those who had an objection to being buried in such ground.]
The effect of such consecration is that these areas became subject to the faculty jurisdiction of the Consistory Court. More particularly, this meant that human remains received protection against exhumation, the position in law as applied by the Consistory Court being that permission for exhumation was only exceptionally allowed. This was the case whatever the contractual position as regards the burial.”
Many local authorities with responsibility for cemeteries have been looking at ways of addressing the demand for burial space. Extending existing cemeteries or creating new ones is likely to be difficult. However, even without the lifting and deepening of graves, the possibility exists in some cemeteries to create new grave space, as in the present case.
Overlap between faculty jurisdiction and planning control
The relevance of planning permission vis-à-vis a Consistory Court’s grant of a faculty was considered in In re St Mary’s Churchyard, White Waltham (No 2)  Fam 146, in which Bursell QC Ch stated:
“… in my view any court should recognise a proper comity between courts and tribunals of different jurisdictions…the consistory court is entitled to accept the reasoned decisions of a planning authority, or of a planning inspector, unless they are demonstrated to be wrong by cogent evidence. If the matter has been properly aired before such an authority or inspector the consistory court is entitled in my view to accept the planning decision as a reasoned starting point from which to begin its own deliberations.
In such circumstances it is insufficient for an objector merely to voice dissatisfaction with a decision: any objection must itself be reasoned and supported by proper evidence”.
The Chancellor noted  that there are many cemeteries owned by private companies or by local authorities which contain consecrated ground subject to the faculty jurisdiction. The Consistory Courts have held that it would not be appropriate to exercise their jurisdiction over such land in quite the same way as they do over churches and churchyards. In In re West Norwood Cemetery  Fam 2, RML Gray QC said
“… [the jurisdiction of the Consistory Court] will be exercised sparingly with regard to municipal cemeteries, and will be exercised only in the clearest cases where the jurisdiction has been invoked to control, in the interests of justice, or of the decent and respectful treatment of the dead, works being carried out which threaten either of those objects”.
Footnote 16 adds the clarification: Certain dicta in In re West Norwood Cemetery were overruled by the Court of Arches in In re Welford Road Cemetery  Fam 15 but the effect of that judgment was further to restrict the jurisdiction of the Consistory Court over municipal cemeteries.
Burials in the Camberwell cemeteries
The Chancellor explained that the majority of the land within both cemeteries was consecrated. There are also areas of public burials within each: i.e. areas which were subject to burial but where no exclusive right was purchased by the families of the deceased, nor a right to erect any memorial. These areas received multiple burials (sometimes up to 18 burials in a single grave). The Cemetery Manager did allow small number of memorial tablets to be placed in these Area Z and Area D [i.e. without faculty authority], but those who placed them there have no entitlement to keep them in place .
In addition, there are 48 war graves within Area Z, 20 of which are within the consecrated area; it is proposed that 25 of these would be marked by new headstones at appropriate places in the proposed terraces .
Objections to the proposals
The Chancellor identified three categories of objection to the proposals :
(i) environmental, and in particular concern about the loss of trees
(ii) concern about flooding; and
(iii) concern that the proposals do not display respect for the dead. A particular concern has been expressed about the treatment of war graves in respect of Area Z.
From the point of view of the Church, the appropriate use of a consecrated burial ground is as burial ground – that is what it was consecrated for; from the point of view of the owner of such a burial ground (if such owner is not an ecclesiastical body), the only use that such owner will be able to make of the land, given its consecrated status, is as a burial ground. Consequently, “this all points to the Consistory Court facilitating such use, all other things being equal” .
In contrast to these points of view, the objectives of the Friends of Camberwell Cemeteries’ Save Southwark Woods are: “to save the Camberwell Cemeteries as inner city Nature Reserves with respect for the dead and their memorials, and woods, green spaces and nature for the living”.
The Chancellor stated that it would not be appropriate to permit a faculty which did not respect the remains of the dead; the proposals do not involve the physical disturbance of any grave or the exhumation of human remains from any grave . Accordingly there is no objection to the proposals on this basis. With regard to Area Z, there are three issues to address:
- With regard to the treatment of the pile of spoil, there is the consideration of whether, having been appropriately landscaped, there is any objection to using it for further burials, those burials being at a higher level than those that have already taken place and thus overlying the existing burials. It was concluded that: “from the point of view of sustainability…it is best now to seek to take advantage of a feature of the land to promote sustainable development, albeit that that feature should not have come into being in the first place” .
- It was deemed appropriate that the small number of tablet memorials marking public graves should be collected and stored. It is only recently that this area has been cleared of brambles, and it is therefore unlikely that the memorials will have been the subject of recent visits. If any relative did want a grave marker to be incorporated within the scheme, this would be possible, ; and
- With regard to the as 48 unmarked war graves in Area Z, the Commonwealth War Graves Commission (CWGC) is working with Southwark LBC to achieve a solution which both perceive to be satisfactory. CWGC do not object to the proposals and evidently see them as an opportunity appropriately to provide additional commemoration of the war dead 
With regard to Area D, it is planned to create a footpath over land which has been used for burials. The Chancellor did not think that there is anything objectionable in this, which must be the case in many churchyards. The memorial tablets in this area may be moved, if required .
The focus of the objectors related to the loss of trees . The Chancellor noted :
“As regards Area Z, this contains three trees which are subject to tree preservation orders (two oaks and a large ash). None of these are proposed to be felled. 18 significant trees will be felled. None of these are Class A. The trees to be felled comprise 4 category B trees, 13 category C trees and one is category U21. 60 new trees would be planted” [The category classification relates to BS: 5837 2012, Trees in relation to design, demolition and construction – Recommendations]. “
but was somewhat dismissive of the party opponent’s claims:
“. …Ms Cameron either attaches too much intrinsic significance to the trees with which she is concerned or considers the loss of those trees as a matter of greater significance than it apparently has; she also does not seem to give credit for the new planting. It is hard to identify significant environmental harm flowing from the proposals...”
“. As regards Area D, no tree subject to a tree preservation order will be affected. There will be the loss of only one significant tree [Ref 22: A Poplar] and of 24 young trees, some of which are in poor condition. 25 new trees would be planted. It is hard to see this as involving significant harm. The land would be managed to enhance its nature conservation interest, so that bird and bat boxes would be provided in the trees. This is appropriate for a Site of Nature Conservation Interest (Grade 2)”.
In summarizing the environmental issues and the conflicting positions of the Borough and the objectors, the Chancellor stated:
“. Against this background, it seems to me that the proper basis for stopping what Southwark LBC as landowner reasonably proposes does not exist. If there were clear and compelling environmental objections to the proposals then, given the particular importance which the Church attaches to the environment, it would not be appropriate to permit them. As it is, Southwark LBC as planning authority with its particular expertise in this area is content. The DAC has considered the proposals and has recommended them to me. No expert evidence has been supplied to me by any of those who are objecting. For my part, I have not identified any sufficient reason for rejecting the judgments of the planning authority or the DAC.”.
On the issue of flooding, no expert submission was presented by any objector in respect of any risk of flooding which the proposals will create. However, planning permission had been granted and a statement had been provided by a qualified Drainage Engineer; he considered that the proposals will not increase the risk of flooding. Consequently, the basis for rejecting the proposals on the ground that they present a risk of flooding does not exist. The Chancellor noted “It may be that there is further design work to be done on the drainage scheme or schemes before the works are begun. However there is no reason to think that that work will not be done to ensure the success of the proposals.” .
The Chancellor directed that faculties shall issue in respect of each petition; “There will be liberty to apply so that if the Petitioners want [his] guidance on the detailed implementation of the proposals they will be able to seek it”.
The creation of ~5,000 burial plots in a Greater London cemetery is a substantial undertaking. Planning for the works considered here began in 2012, and to satisfy its various legal obligations, Southwark Borough Council was required to undertake numerous surveys and investigations. The role of the consistory court was key, for although the physical disturbance of any grave or the exhumation of human remains from any grave did not constitute any part of these phases of the development, the consecrated status of the majority of the land under consideration required ecclesiastical approval for works.
Re Camberwell Old and New Cemeteries was therefore an uncommon petition since it centred on “the appropriate use of a consecrated burial ground is as burial ground”, i.e. how landscaping issues impact on the “decent and respectful treatment of the dead”, rather than the consideration of the interments per se. From the point of view of the Borough, the consecrated status of the cemetery gave it little option other than to treat is as a burial ground, regardless of the demands of campaigning groups.
It is evident from the web site of Friends of Camberwell Cemeteries’ Save Southwark Woods that considerable effort was expended on the mounting of an effective campaign in the media. However, whilst the media are more concerned with the publication of a circulation-enhancing story rather than its underlying basis, both secular and ecclesiastical courts adopt much stricter criteria to the acceptance of expert evidence. The installation of telecommunications equipment in church towers provides a number of examples – Re St. James Kidbrooke  ECC 16 and its recent consideration by the Court of Arches Re St. James Kidbrooke  EACC 1. These cases, and others demonstrate the difficulties faced by party opponents when called upon to provide reasoned expert evidence which may be tested by the court.
Nevertheless, since these two petitions concerned landscaping rather than the exhumation of remains, there was the opportunity for a successful challenge:
“…If there were clear and compelling environmental objections to the proposals then, given the particular importance which the Church attaches to the environment, it would not be appropriate to permit them….”.
The Environment Agency issued new guidance Cemeteries and burials: prevent groundwater pollution on 14 March 2017, in line with its revised Groundwater position statements which explain government policy on the burial of human and animal remains. The relevant assessment for Areas D and Z were undertaken prior to this date.
The initial post was based upon the version of Re Camberwell Old and New Cemeteries on the ELA web site. The link  ECC Swk 2 has now been updated and the post revised.
I am a member of the public and have seen your Posts 18th Jan 2016, 10th Feb 2017. I note in the current Post that there is reference to ‘taking advantage of a feature of the land’ to allow burials at a higher level, ‘overlying existing burials’. The case under discussion concerns an area where the land depth had accidentally been allowed to increase. Can you please refer me to any discussion on cases where land is deliberately overlaid with sufficient soil to allow further burials over existing graves?
I am not aware of any recent examples where land has deliberately been overlaid to permit further burials over the existing graves. The Institute of Cemetery & Crematorium Management Policy document on Shallow Graves gives information on the current requirements in relation to the depth of interment and separation from other burials in the same plot. The Church of England encourages “family graves” in which there are several burial in the same plot – up to four were considered in Re St. Mary Hellesdon  ECC Nor 6 .
In medieval London, most people were buried without coffins, and there was no tradition of gravestones. After a number of years had passed, the grave could be reopened, any remaining bones removed to a charnel, and the ground used again. The only effect would be the slow raising of the ground level as the centuries passed.
Thank you. We know of recent, and intended, overlaying of existing burials. We may need professional advice. Are you available for private consultation?
Thank you for the enquiry Graham, but neither of us at L&RUK is available for private consultation. David and Frank.
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