Saved by S5 Disused Burial Grounds Act 1884, or not?
Disused burial grounds both old and ancient frequently feature in Midsomer Murders. In real life, however, their reuse is an on-going concern in view of the growing shortage of burial space. On 30 April, The Guardian reports “C of E intervenes in row over plan to build car park over graveyard”. The issue is not new, but it is necessary to unpick some of the journalese and identify the legal issues involved. A number of the issues raised in the Guardian article on the former Calderstones hospital in Lancashire echo those considered in In re Radcliffe Infirmary Burial Ground  PTSR 1508, below.
Calderstones Hospital Cemetery
The (unsuccessful) listing application for Calderstones Hospital Cemetery gives some background information:
“In 1915 Queen Mary’s Military Hospital was opened. Thirty-three soldiers died at the hospital and were buried in an associated military cemetery to the north-east of the hospital buildings (a war memorial in the cemetery records their names). The hospital was subsequently known as Whalley Asylum and from 1929 it became Calderstones Hospital, a long-stay learning disability hospital. The hospital cemetery was laid out adjacent to the earlier military cemetery. Just under 1,000 individuals who lived in Calderstones were buried in the cemetery, with the last burial probably occurring in the early 1970s…
“…In 2008 the chapels were vandalised. A contemporary newspaper article (Lancashire Telegraph, 10 July 2008) reported that all the windows were smashed, doors were ripped off, ceilings pulled down, pews torn apart and a stone font toppled. A stone memorial at the bottom of the cemetery was also smashed.
“At the time of the application, [which was determined on 1 February 2018], the lych-gate and two mortuary chapels remain, and the applicant states that there are fragments of grave stones, though the majority appear to have been removed. New, wide access driveways with concrete kerbs have been partially constructed”.
The cemetery on the grounds of the former hospital has been derelict since it was sold by the NHS to a private developer for £5,000 in 2000. Approximately 500 headstones, including 13 marking the graves of infants who died during the second world war, were removed from the graveyard soon after its sale. The company behind the present development, All Faiths Remembrance Parks, has been granted planning permission to build a multi-faith crematorium and car park.
Work on the £2M site was brought to a halt by the developer in January 2018 when historians discovered records revealing that 102 years ago, the Church of England had formally set aside the land for sacred use “in perpetuity”, i.e. the burial ground had been consecrated. The diocese of Blackburn is reported to be “considering whether to deconsecrate part of the graveyard after a formal request by the developer”.
Radcliffe Infirmary Burial Ground, Oxford
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; it proposed building a School of Government over the burial ground but the Oxford Diocese objected under S22 Care of Churches and Ecclesiastical Jurisdiction Measure 1991 and the matter was considered by the Oxford Consistory Court in In re Radcliffe Infirmary Burial Ground  PTSR 1508. An analysis of Chancellor Bursell’s judgment in given by Timothy Briden in In his post Consecrated burial grounds; an obstacle to developers? ; in his summary of the case, he said:
“The second issue [for the consistory court] concerned the prohibition in section 3 of the [1884 Act]. The Chancellor (at least by implication) considered that the prohibition would survive the removal of the remains and deconsecration of the land. Fortunately…Section 5 of the Act created an exception in respect of ‘any burial ground which has been sold or disposed of under the authority of any Act of Parliament’.
“Since the original voluntary hospital had been vested in the Minister of Health by statute…and there had been subsequent transfers to and from NHS entities, under statutory authority, section 5 was held to come into play, releasing the land from the constraints imposed by section 3”.
Whilst reports of the Calderstones Hospital Cemetery focus on its deconsecration, in practice matters may not be quite that simple; whilst its consecration status has an impact on certain provisions within ecclesiastical and statutory legislation, the presence of human remains will be a concern for the consistory court. A further issue is the presence of the few memorials and headstones that remain.
With regard to future building on the site, S3 Disused Burial Grounds Act 1884, states:
“. No buildings to be erected upon disused burial grounds except for enlargement, &c. It shall not be lawful to erect any buildings upon any disused burial ground, except for the purpose of enlarging a church, chapel, meeting house, or other places of worship”.
Within the 1884 Act, “disused burial ground” means “any burial ground which is no longer used for interments, whether or not the ground has been partially or wholly closed for burials under the provisions of a statute or Order in Council“. In Oxford, the petitioners benefited from the provisions within section 5 of the 1884 Act; in the case of Calderstones, its applicability will depend upon whether the burial ground was sold or disposed of under the authority of any Act of Parliament.
The Disused Burial Grounds(Amendment) Act 1981 is inapplicable to consecrated land. However, S44(4) Mission and Pastoral Measure 2011 provides that a statutory scheme under the Measure (rather than a faculty) may authorise building on burial grounds, provided there have been no burials in the previous 50 years, or, if there have been more recent burials, there have been no objections from relatives or personal representatives.
Subsequently, S4 Care of Churches and Ecclesiastical Jurisdiction (Amendment) Measure 2015 modified the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 to enable the granting of a faculty for building on a disused burial ground, subject to the same conditions as for a statutory scheme, even if the building does not constitute an enlargement of the church, (This is discussed more fully by Philip Jones, here).
Recent publicity of the development has revealed a substantial amount of local opposition, although it is not clear how many of the present objectors would have standing under S18A (2)(b). As Briden concluded in his review of the Radcliffe Infirmary Burial Ground:
“The case serves however, to highlight the difficulties which arise when old burial grounds are acquired. Careful investigations into the history of the site, and the law applicable to it, are essential if costly mistakes are to be avoided”.