Cemetery development at the local and national level

Re St Peter Terwick [2017] ECC Chi 2 is a relatively straightforward case concerning the development of a churchyard through the re-use of land formerly used for burial. However, it is important since in addition to the Chancellor’s summary of the diminishing availability of space for burial, the judgment records “the exemplary manner in which the parish has set about converting its aspiration into reality”. The Chancellor suggests that “parishes elsewhere should not be deterred by the need to ‘lift and deepen’ or to re-position memorials”; furthermore, he indicates that in future cases, the court would be happy to give directions to address and determine preliminary issues where proposals for the reuse of graveyards are under consideration.

Background

The judgment Re St. Peter Terwick [2017] ECC Chi 2 commences with what the Worshipful Mark Hill QC describes as an “over-lengthy background” on the ever-increasing shortage of burial space in England and Wales [6]. He notes that “a helpful collation of these developments” is to be found in our post “Re-use of graves in England – the faculty jurisdiction” and the House of Commons Briefing Paper by Catherine Fairbairn, Reuse of Graves, most recently updated on 6 June 2017. He also comments as recently as November 2016, Junior Justice Minister Phillip Lee informed the House that the Government was considering whether the issue of reuse of graves should continue to be kept under review (HC Hansard, 29 November 2016 Vol 607 Col 1487) [7], a comment to which we will return, infra.

Re St Peter Terwick

St Peter Terwick is in the Chichester Diocese, and the judgment concerns how the problems of decreasing burial space were addressed at parish level by the incumbent and PCC. The Schedule of Works indicates that this involves the “re-use of part of the south graveyard for burials”; more details is included in the outline of works, as set out in the request for advice from the DAC, which states [8]:

“The north churchyard was extended in 1936 and is filling up at the rate of a row every 10 years. At present there remains a lawn area which is used for open air public events. We wish to keep this available. The south churchyard has one grave [from] 1920 but the others date from 1742-1918. There are large areas with no grave markers and no recorded burials, though there are likely to be old graves there.

It has already been the practice to re-use burial sites and we understand that any human remains must be reverently re-buried. We have five grave [spaces] remaining in the north churchyard and would expect the first burial in the south churchyard to be in about 2018. This new area could accommodate the needs of the parish for the next 100 years.”

This is supplemented in “a very helpfully drafted” Statement of Needs which reveals that ground penetrating radar has shown that there are no significant buried features in the area to be re-used [9]. In addition, the churchyard plans have been “meticulously maintained” recording the locations of all grave markers and their inscriptions [11].

Helpful comments, particularly on archaeological methodology, were obtained from the South Downs National Park Authority, although the officer properly indicated that the issue of re-use was for the consistory court, not the local planning authority to decide [12]. Historic England did not wish to comment and the DAC issued a certificate recommending the proposal subject to certain provisos.

In the Chancellor’s assessment, the petitioners had discharged the burden of proof “by a considerable margin”, with a timely recognition of the diminishing space for burial, and the rejection of the “soft option” of formally closing the churchyard and passing the associated obligations to the local authority [15]. He had no hesitation in ordering that a faculty pass the seal, authorising the reuse of part of the south graveyard for burials, subject to the certain conditions [16]

The Chancellor determined to grant a faculty to allow part of the churchyard to be reused for burials, but proposed to stay the issue of the faculty until the parish had considered whether to ask for a set of bespoke churchyard regulations limiting the types of stone which could be used for memorials, in order to preserve the character of the unique setting of the small country church set in the middle of a field – “a bucolic idyll, with this small twelfth century church set in a field, remote from any settlement” [9]. [The footnote below summarizes the use of bespoke churchyard regulations in the Leeds Diocese].

He added two concluding observations: one specifically for this St Peter’s, Terwick and the other of wider application throughout the diocese [17]. With regard to the former, the Chancellor noted “the setting is the most significant feature of this small rural church” in the Statement of significance. He said that it would be unfortunate and regrettable if the church’s setting were to be compromised by serried ranks of unimaginative catalogue headstones, and “would look favourably upon an application to authorise bespoke churchyard regulations for this section of the south graveyard which limits the type of memorial which might be introduced to prescribed categories which are appropriate for unique setting of this fine grade II* listed building”. The issue of the faculty was therefore stayed until such time as the matter has been addressed by the incumbent and PCC and referred back to him for further direction.

With regard to the latter, he said [18]:

“[18]. …the successful navigation of this petition to a happy conclusion will act as an example throughout the diocese as to how sensible reuse of burial grounds can help meet an undoubted societal need. Here, the parish was fortunate in that there were very few grave markers and little by way of obstruction in the area concerned. Parishes elsewhere should not be deterred by the need to ‘lift and deepen’ or to re-position memorials. In future cases, the court will be happy to give directions to address and determine preliminary issues where proposals for the reuse of graveyards are under consideration”.

Comment

Government inertia

The judgment Re St Peter Terwick refers to recent comments made by the Junior Justice Minister, Phillip Lee, (HC Hansard, 29 November 2016 Vol 607 Col 1487) [7], in a Commons debate on the New Southgate Cemetery Bill [HL]. The Minister said [our emphasis]:

“Before I address the Bill in more detail, I want to mention the issue of burial space more generally. There is increasing interest in this issue in the media, in the burial sector and, indeed, among parliamentary colleagues. Burial space is running out in parts of our towns, cities and countryside, but this is not a concern in other areas. Even within Greater London, the picture is not consistent. A 2013 York University cemetery research group audit indicated that there is acute pressure on burial space in parts of London, but that is not true across all of London.

There is already private (???) legislation that, for almost 10 years now, has enabled public burial authorities in London to reuse graves, yet very few have done so. It is therefore not yet clear that pressure on burial space is a national issue requiring central Government intervention. Successive Administrations have kept the situation under review; I and my ministerial colleagues are considering whether that position should continue. Where there is local pressure, however, it is right for local solutions to address it”.

This statement seems to justify the continuing inaction (since 2001) and to signify a continuation of this policy. It appears to be a step back from the answer given on 22 December 2015 by Caroline Dinenage, Parliamentary Under-Secretary at the Ministry of Justice, to Written Question 20166, itself a retrenchment from the position outlined by the then Minister of Justice, Simon Hughes in an adjournment debate in 2014 [Commons Hansard 5 Sept 2014 Vol 585 (33) Col 632]. Furthermore, its focus on the lack of application of the London Local Authorities Act 2007 can be taken to imply:

• this statutory legislation is the only major factor to be considered in the development of burial sites in Greater London;
• if it is ineffective in Greater London, there is no need for similar measures to be introduced elsewhere in the country; and
• if acute pressure on burial space is limited to certain parts of London, there is no requirement for more generally applicable action.

Reuse of graves in Greater London

In our post Private cemetery development we noted that the provisions of the 2007 Act do not apply to every cemetery in Greater London including, inter alia private cemeteries such as New Southgate Cemetery, which are not Burial Authorities under s 214 Local Government Act 1972; these do not have the power to extinguish burial rights unless another Private Act is secured. The reuse of graves therefore falls under one of three regimes: Local Authorities Act 2007; the Church of England faculty jurisdiction; or under a Private Act. We have analysed each of these in the following posts:

• Reuse of graves in London – statutory provisions (11 January 2016);
• Re-use of graves in England – the faculty jurisdiction (18 January 2016); and
• Private cemetery development (10 February 17) and New Southgate Cemetery Bill – Update (25 July 2017).

We also considered the boundary between the relevant ecclesiastical and statutory legislation in Municipal cemetery development and the faculty jurisdiction (in relation to developments at the Camberwell New and Old Cemeteries).

Other legislation

Whilst legislation relating to extinguishing burial rights is an important factor in the development of new cemeteries, it is but one of the hurdles facing anyone wishing to provide additional new space for burial. The Technical Guidance on the Re-use and Reclamation of graves in London Local Authority Cemeteries (“the LEDNET Guidance”) was published in October 2013 with a view to assisting local authorities on these issues. It suggests that the lack of action by London boroughs “may in part be due to the fact that, for many …, some of the issues surrounding reuse are seen as problematic”. In an adjournment debate in 2014 [Commons Hansard 5 Sept 2014 Vol 585 (33) Col 632], these were identified [Col 630] as “the difficulties involved in establishing who owns the monuments, and similar issues, and partly the administrative complexity of identifying grave ownership”.

In addition to the legislative and other requirement identified in the 2013 LEDNET document, on 14 March 2017 the Environment Agency (EA) issued a new tranche of position statements on groundwater protection. “Many of the approaches set out in the position statements are not statutory but may be included in, or referenced by, statutory guidance and legislation”.

The Environmental Permitting (England and Wales) Regulations 2010 (EPR) require permitting of activities that may lead to the input into groundwater of hazardous substances or non-hazardous pollutants. Groundwater resources are primarily managed by abstraction licensing. The primary aim of all of the position statements is the prevention of pollution of groundwater and protection of it as a resource. Groundwater protection is long term, so these principles and position statements aim to protect and enhance this valuable resource for future generations.

The position statement relating to cemeteries [page 39] is of particular importance in view of the current shortage of burial space and the need for future development, either by the extension of existing cemeteries or the creation of new ones, including grave plot reuse and ‘lift and deepen’ methods. An analysis of the EA position statement is made in our post Groundwater pollution from cemeteries. 

The various tranches of legislative requirements may be accompanied by well-supported and active campaigns against certain aspects of the proposed works, such as those at the Camberwell New and Old Cemeteries, supra ; these can be a source of further delay in the re-use and extension of burial space.

Reuse of graves under the faculty jurisdiction

In the 2014 adjournment debate, supra, the then Minister of Justice, Simon Hughes commented:

“Although 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, reuse of graves is permitted if the Church authorities issue … a faculty.”

The reference point to the Church’s approach to grave re-use is the Court of Arches judgment Re Blagdon Cemetery [2002] Fam 299 and the Rt Rev Christopher Hill’s extended consideration of the issues in “A Note on the theology of burial in relation to some contemporary questions”, (2004) 7 Ecc LJ 447; in this he comments on the re-use of graves, an issue not before the court.

“the Christian principle of the living and departed being in one communion and family would not seem to discourage the re-use of graves. In principle the family vault has always recognised this…[a number of examples are given]…While there are many questions of respect and reverence to consider in the necessary but limited disturbance involved in the deepening or re-use of graves, I can see no theological principle against the practice if done with proper care, respect and after due time”.

The Chancellor of the Southwark Diocese has issued Guidance: on Churchyards and Memorials: Reuse of Graves which echoes Re Blagdon Cemetery. The Worshipful Mark Hill’s comments in Re St Peter Terwick encouraging other parishes to consider the re-use of graves, further emphasises the Church’s approval of this practice.

Since our post Re-use of graves in England – the faculty jurisdiction there have been further judgments which have permitted the re-use of parts of churchyards for further burials, including: Re Caister Parish Cemetery [2016] ECC Nor 3; Re St Mary Magdalene Gedney [2016] ECC Lin 4; and Re St Mary Magdalene Fleet [2016] ECC Lin 6. The good practice adopted in the formulation of the petition in Re St. Peter Terwick was summarized in paragraph 15:

“….They have recognised in timely manner that the available space for burial is diminishing. They have rejected the soft option of having the burial ground declared full thereby passing the obligation onto the local authority. They have thought responsibly about what it means to be an established church in the twenty-first century at grass roots level, making provision for the entire community, not merely churchgoers. They have consulted widely and openly with parishioners and throughout the wider locality. They have taken professional advice from, amongst others, the DAC and its experienced archaeological advisor in particular. They commissioned a specialist ground penetrating radar survey, which revealed nothing more than conduits for utilities in the section they want to reuse. They have consulted with the inspecting architect”.

Unlike some petitions, the incumbent and churchwarden were supported in drawing up the petition by the churchyard plans (“meticulously maintained, recording the locations of all grave markers and their inscriptions” [11]) and “the absence of significant buried features in the area to be re-used” [9]. Furthermore, no objections were raised to the petition.

It is uncertain whether the use of ground-penetrating radar to identify the existence of buried features will become a more widely used (or demanded) technique, but it provides more certainty than imposing a condition for “gravediggers…to proceed with caution. If any disarticulated human remains are uncovered which cannot be buried at a greater depth than the new grave, work should stop and directions obtained from this court on how to proceed”, (Re St. Mary Magdalene Gedney, at 15[iii]).

Footnote

In our post on 13 September 2016, Standardisation of churchyard regulations we reviewed Re St John the Baptist Adel and St Michael Markington [2016] ECC Lee 8 in which Chancellor Hill considered these two linked petitions which sought permission for the introduction of “bespoke” churchyard regulation. The judgment included an explanation of the introduction of a single set of standard churchyard regulations for the Diocese of Leeds [“the Leeds Regulations”] and how local variations may be accommodated within the new scheme. The Leeds Regulations form an appendix to the Chancellor’s General Directions.

David Pocklington