The reservation of burial plots is a frequent consideration of the consistory courts, and with an increasing shortage of burial plots, it seems likely that more petitioners will seek to secure the guarantee of an interment in a preferred churchyard. This post reviews Re St Mary Thame  ECC Oxf 2, delivered on 28 April 2022, in which the Worshipful Chancellor David Hodge QC sought to establish points of principle in relation to the reservation of burial plots.
The shortage of burial plots in the UK is well-known, and in September 2013 we posted “Shortage of burial space? Surprise, surprise!“; this noted that dating back to 1994, successive administrations had been aware of the problem, but have been unwilling to take action on this sensitive issue and its partial solution through the reuse of graves.
In March 2015 we posted Reservation of burial space, which considered Re All Saints Heathfield  Chichester Const Ct, Mark Hill Ch. where there were only “four or five” spaces remaining and Re St. Wilfrid Grappenhall  Chester Const Ct, David Turner Ch. in relation to the adoption of a “non-reservation” policy by a PCC well in advance of the situation becoming critical.
More recently we have summarized two judgments of the Worcester consistory court in which open-ended periods of reservation for burial plots were sought (i.e. “until I die”); however, the periods of reservation were limited initially to 25 years: Re St Kenelm Romsley  ECC Wor 3 and Re St Kenelm Romsley  ECC Wor 4. The circumstances in Re St Mary Thame led the Chancellor to restrict the initial reservation to 10 years.
Re St Mary Thame – the petition
The court’s consideration of the petition in summarized in the review from Ecclesiastical Law Association, which is reproduced below.
“The petitioner wished to reserve a double grave for herself and her partner. The petitioner had been resident in the parish until 2013, the remains of her father and stillborn child were buried in the churchyard, and all her immediate family still lived in the area. The normal period allowed for reservation of a grave in the diocese was 25 years. Evidence suggested that there was room for further burials only for a further 7 to 10 years. The Chancellor granted a faculty, but limited it to 10 years, giving permission to the petitioner to apply for an extension within 6 months of the expiry of the 10 years. The judgment contains a review of decisions relating to grave reservations by other Chancellors, including cases where Parochial Church Councils had adopted policies of not supporting grave reservations”.
Reservation of burial plots – Points of principle
The points of principle considered by Chancellor Hodge are at  to , and are based upon a review of the 23 cases listed below. From his review of the authorities, the Chancellor derived the following propositions, which, he noted, were not intended to be exhaustive:
(1) The reservation of a grave space is entirely within the discretion of the consistory court, to be exercised having regard to the particular circumstances of the case.
(2) The court will be more inclined to grant a faculty to a petitioner with the right to be buried in the churchyard than to one without such an entitlement. Those who have such a right are the persons living within the parish, and those on the electoral roll of the parish church.
(3) The court may nevertheless grant a faculty to a petitioner with no right to be buried in the churchyard where they can demonstrate a personal, or a substantial family, connection to the church and/or its churchyard, or some other some good and sufficient reason to be buried there.
(4) Where there is sufficient space within the churchyard, and the incumbent minister gives their consent, the court may well grant a faculty to such a petitioner, unless the Parochial Church Council have a policy of opposing the reservation of grave spaces.
(5) Such a policy cannot be conclusive, and it cannot remove the court’s overarching discretion; but where the PCC have adopted a policy that is considered, reasonable and fair, the court will only be justified in departing from that policy in exceptional circumstances; and anyone seeking to reserve a grave space in the face of such a policy will need to show that their case is markedly out of the ordinary.
(6) Where, however, the remaining space within the churchyard is limited, then a faculty will not normally be granted, and the petitioner will have to demonstrate sufficient justification for the court to take the exceptional course of allowing a reservation in such circumstances, because of the risk that such a reservation will prejudice the rights of those parishioners or worshippers who would otherwise be entitled to be buried in the churchyard.
(7) Even where such a justification is demonstrated, it will not usually be right to extend the duration of the faculty beyond the period for which the churchyard is likely to have space for burials, unless there are exceptional circumstances (including evidence of a particularly strong connection to the church and/or the churchyard) in favour of doing so.
(8) Should a faculty for a grave space reservation be granted for a limited duration, it remains open to the petitioner to apply for an extension of the period of its validity. Whether or not any extension is to be granted will depend upon the prevailing circumstances, including: (1) the petitioner’s personal circumstances; (2) whether arrangements have been made to provide additional space for burials, whether by the acquisition of further land, or the re-use of parts of the churchyard, or otherwise; (3) the views of the incumbent minister; and (4) any current policy of the PCC towards the reservation of grave spaces.”
The judgment includes annual number of petitions relating to reservation of burial plots, from 2012 to the present time, here. These were supplied by the Diocesan Registry , and range from 31 to 55, with a median of 45. There were 22 petitions in the first three months of 2022.
The Chancellor noted :
“These figures appear to bear out my perception that the number of gravespace reservation petitions increased in 2021 and has increased again so far this year. It is impossible to predict whether this trend will continue, or whether this is merely a temporary increase which will abate as the pandemic (hopefully) continues to recede”.
Whilst not binding on other courts, this analysis of twenty-three judgments provides a valuable resource for future considerations and analysis of cases in this area.
- Re Churchyard of Wick, St Lawrence (Bath & Wells CC, 4 November 2013)
- Re Dilhorne Churchyard (2001) 6 Ecc LJ 77
- Re Holy Trinity, Belbroughton & Fairfield  ECC Wor 3
- Re Holy Trinity, Belbroughton & Fairfield  ECC Wor 4
- Re St Andrew, Leyland  ECC Bla 1
- St Augustine, Kirkby-in-Cleveland  ECC Yor 5
- Re St Clement, Terrington  ECC Ely 3
- Re St George, Fatfield  ECC Dur 4
- Re St. George, Fatfield  ECC Dur 5
- Re St Giles, Exhall  EACC 1 , (2022) 24 Ecc LJ 116; reversing  ECC Cov 1, (2021) 23 Ecc LJ 118 at first instance
- Re St James, Brownhills  ECC Lic 3
- Re St John the Baptist, Ashley  ECC Lic 1
- Re St John the Baptist, Cold Overton  ECC Lei 4
- Re St Leonard, Blithfield (Lichfield CC, 16 October 2014)“
- Re St Mary, Doddington  ECC Ely 2*
- Re St Mary, Dodleston Churchyard  1 WLR 451
- Re St Mary & St. Radegund, Postling  ECC Can
- Re St Mary, Woodkirk  ECC Lee 3, (2021) 23 Ecc LJ 250
- Re St Michael and All Angels, Muncaster  ECC Car 2
- Re St Nicholas, Baddesley Ensor  Fam 1
- Re St Oswald, Methley with Mickletown  ECC Lee 2*
- Re St Thomas à Becket & St Thomas the Apostle, Heptonstall  ECC Lee 2
- Re West Pennard Churchyard  1 WLR 32,  4 All ER 125
Annual petitions for reservation of burial plot
2012 – 43
2013 – 55
2014 – 54
2015 – 54
2016 – 40
2017 – 47
2018 – 36
2019 – 34
2020 – 31
2021 – 48
2022 – 22 (in three months)
A question related to space constraints… Can ashes be interred in a closed churchyard?
The various bits of guidance from diocesan advisory committees say that “an Order in Council for the closure of a churchyard can make provision for future burials to take place in specified areas in the future. This is normally limited to those whose relatives are buried in graves where there is space available for surviving relatives, or those who have reserved a grave space under a faculty. Interment of ashes can continue provided that no human remains are disturbed.”
Of course, where there is a grave, the interment of (multiple) cremated remains is nearly always an option – and greener options are on the way….