A return to unmarked graves?

“…for the future the re-use of the areas might be by way of unmarked
graves, as it has been in the past

The recent judgment Re Streatham Cemetery [2023] ECC Swk 3 concerns cemetery development. Opened more than one hundred years ago, there is now very little room in Streatham Cemetery for further burials. A Petition by the Bereavement Services Manager of Lambeth LBC[1] sought permission to re-use land within two areas of the cemetery through the operation of “lifting and deepening” of existing interments, thereby creating new burial space. The observations of Petchey Ch., (above and at [16]), indicate some of the issues to be addressed on the growing shortage of burial space.


Gravestones and other grave markers became more permanent in the nineteenth century and their existence at ground level inhibited and generally continues to inhibit the re-use of the space beneath. Within Streatham Cemetery there are two area of consecrated ground [2] which, although they have been used for burials, are are grassed and are generally free of any monuments [3]. These are areas of common graves in which the charge of interment related solely to the burial and this attracted no further rights. Because triple depth interments had been possible without leaving space for memorialisation, a comparatively small area was used for the reception of a large number of burials.


At the end of 2020, Lambeth LBC displayed notices in the cemetery indicating its intention to reuse these areas. The invitation to relatives of those buried in these areas to contact the Council’s Bereavement Services received no responses [6]. More recently and in connection with this petition, notices were posted in the vicinity of Section 5 and Section V, at the entrances to the cemetery; and on the websites of Lambeth LBC and of the Diocese. Likewise, these receive no responses [7]. The DAC  recommended the proposals for approval [8].


The Chancellor noted that “in accordance with historic practice, to facilitate the economical use of land and to address the continuing shortage of grave space”, the proposals before the court were in principle both acceptable and commendable; they reflected the Diocesan Guidance in respect of churchyards, reproduced at [10]. “…75 years is generally an appropriate period after which the re-use of graves may take place. This period, identified in the Guidance, is also recognised in statute as an appropriate period after which re-use may be permitted” [4].

Petchey Ch. took a view on the likelihood that persons might discover the place of a grave either had been re-used or might be re-used in the future; further, there was a possibility some might feel that the re-use of their relative’s grave was not appropriate. He commented [emphasis added]:

“[13]. If and when such a scenario arises, the person or family concerned will have the opportunity to read this judgment. The reason why I am granting a faculty will be clear. I hope that they would feel that the concern they might understandably feel is mitigated by the fact that the re-use of the grave space has been permitted for the public benefit.

[14] I do not think that there is any legal objection to what is proposed…I do not consider that the Blagdon principles have direct application in the present circumstances. What is being considered is not exhumation from one place to another but exhumation and re-interment within a short space of time within the same grave. What is involved involves disturbance of human remains and that certainly should not happen without good cause; but it does not seem to me that this is what was being addressed in Blagdon [5].

Of course, it is possible to characterise the circumstances of the present case as exceptional, because they are ones in which an exception is appropriately made (for reasons given), but this imparts into the Blagdon test a degree of circularity which I do not think that it was intended to have. Nonetheless it is appropriate that I should make it clear that it is only the public benefit arising that overrides the norm of permanence which does apply in this case.

With regard to the practical issue of the small number of grave makers present, their retention in situ would limit the area available for re-use “and would look odd”. Accordingly, the Chancellor considered that after this lapse of time, it was appropriate to permit their removal, and they should be respectfully buried “in some convenient place within the Cemetery” [15]. He concluded:

“[16]. It occurs to me that for the future the re-use of the areas might be by way of unmarked graves, as it has been in the past. This would facilitate re-use (albeit some considerable time in the future). However, the reason why the graves were originally unmarked was because the relatives of those buried could not afford a marked grave.

In my experience it is generally true that those who after the death of a relative seek burial of his or her remains also desire the remains to be marked by a memorial of some kind; this obviously provides a focus for a visit. Lambeth LBC propose that it should be possible for the new graves to be marked in the usual way and it seems to me that this is reasonable.

[17]. As demonstrated in the Conservation Statement, the proposals will not have an adverse effect on the appearance of the Cemetery. The effect on the trees in the two areas has been considered in an Arboricultural Impact Assessment and I shall require the trees of value to be preserved and appropriately protected.

The Chancellor directed that a faculty should issue: the works are to be carried out in accordance with the LBC’s Principles, Policies and Procedures for the Reuse of Graves and the trees protected in accordance with its Arboricultural Impact Assessment, with root protection areas taken into account when carrying out works in the vicinity of the trees [19]. Insofar as is possible, works should be carried out during times when the cemetery is closed.


Streatham Cemetery is currently accepting burials “in a beautiful open area with abundant wildlife and a rich local history” and offers a number of options for memorials: including burial chambers, mausolea, columbaria. Chancellor Petchey noted “those who after the death of a relative seek burial of his or her remains also desire the remains to be marked by a memorial of some kind”, and despite the constraints this imposes, the continuance of new graves marked “in the usual way” seems likely to continue.

[1] Streatham Cemetery is now owned and managed by the London Borough of Lambeth, even though it lies within the area of the London Borough of Wandsworth.

[2] The location of the two areas considered is indicated here, (scroll down). The 8,731 burials in Section V took place between 1922 and 1935, and 5,003 burials in Section 5 between 1928 and 1936 [4]. The proposal will result in the provision of about 571 new burial spaces; 202 in Section V and 369 in Section 5 [8].

[3] Although the areas are generally free of memorials, there are about ten small tablet-style memorials visible in the grass. The Chancellor suggested  it was most likely that the cemetery authorities at the time “turned a blind eye”; there are certainly no records and there is no-one now working at the cemetery who is able to assist.

[4] e.g. s9 Greater London Council (General Powers) Act 1976 and s74  London Local Authorities Act 2007. However, these Acts are not applicable to the instant case.

[5] On the applicability of Blagdon, in Re Wandsworth Cemetery [2023] ECC Swk 1  Petchey Ch. stated:

“human remains should never be disturbed without good cause, I do not think that, where they are to be reinterred after a short interval in circumstances like the present, the full force of the principle of exceptionality articulated in In re Blagdon Cemetery applies. However Blagdon makes clear that the principle of family solidarity is to be encouraged; as is economy in the use of grave space.

[Re Wandsworth Cemetery] seems to me an appropriate case in which a faculty for disinterment of the ashes should issue; the faculty will be subject to a condition that they should be re-interred within a period of three months in the same grave. I allow a period of three months just in case, in the event, there are any complications in this happening on the same day as the burial.

Cite this article as: David Pocklington, "A return to unmarked graves?" in Law & Religion UK, 14 June 2023, https://lawandreligionuk.com/2023/06/14/a-return-to-unmarked-graves/

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