The recently circulated judgment Re Tolleshunt Knights Cemetery [2025] ECC Chd 2 highlighted three aspects of burial law in the Church of England: the decreasing availability of burial plots; the complexity of the legislation of certain sites; and the importance placed on family graves.
The Cemetery
The former parish church of All Saints’ Tolleshunt Knights was acquired in 1957 by the Eastern Orthodox Christian Church, and is used as a chapel by the community of the nearby Monastery of St. John the Baptist (“the Monastery”). Since the coming into effect of a Pastoral Scheme on 14 December 2023, the Cemetery lies within the parish of Tiptree with Tolleshunt Knights and Great Braxted (“the Parish”), which forms part of the Benefice of Thrustable and Winstree.
The parish churches for Tiptree with Tolleshunt Knights and Great Braxted are All Saints, Great Braxted, and St. Luke, Tiptree (“St. Luke’s”). The Cemetery is in the care of the Parochial Church Council of Tiptree with Tolleshunt Knights and Great Braxted (“the PCC”) [4]. St. Luke’s has a churchyard, but it is closed to new burials by Order in Council. The Monastery has a small burial ground of its own, but its policy is to allow only resident members of its community to be buried there [5].
Until the coming into effect of the Pastoral Scheme, the only burial ground available to residents of Tolleshunt Knights and Tiptree was the Cemetery. Since the implementation of the Pastoral Scheme, the burial ground of All Saints. Great Braxted has become available, “although this has not made a great deal of difference to the amount of burial space available, because the number of parishioners has, naturally, increased since the enlargement of the Parish”. The closest local authority cemetery is in Colchester, some 12 miles away [6].
The Petition
In October 2020, the Petitioner sought a Faculty to reserve a double width grave space (i.e. effectively two spaces) for herself and her husband; she had no legal right of burial, but cited long-standing connections with the adjacent Eastern Orthodox Monastery of St John the Baptist whose grounds now include the Cemetery at Tolleshunt Knights. The grounds given by the Petitioner were that she and her husband had been visiting the Monastery for 30 years and they ‘feel like family with the Holy Fathers and Sisters there and would like to be near the Monastery‘”[8]
The Team Rector and Parochial Church Council opposed the application on the basis of a policy limiting grave reservations to parish residents or those connected with the parish churches; the policy aimed to preserve limited burial space for parishioners and to avoid the cemetery becoming filled by visitors to the monastery, whose own burial ground is reserved for resident members only. In response to the Petition, the Team Rector indicated (in November 2020) that there were 80 grave spaces available for future burials and that, on the basis of an average of 4 burials in the Cemetery for the last three years, the Cemetery would fulfil the needs of the parishioners for another 20 years. She also advised that the PCC had resolved not to support the Petition [9].
On 14 December 2020, the former Chancellor, the late George Pulman Q.C., gave his initial considerations, indicating that he was not able to grant a faculty at this stage. The Registry conveyed his directions to the Petitioner [11], inviting her to respond to that letter so that the Petition could be finally determined. In the absence of a response, the matter remained open until 5 June 2024 when the Registry received an email on behalf of the Petitioner who had been (wrongly) advised that she and her husband could appeal the decision [15].
Given that three and a half years had passed since the matter had last been before the Court, Hopkins Ch. considered it appropriate to give further directions, rather than simply proceeding to determine the Petition as it then stood. Accordingly, on 25 July 2024, through the Registry, she invited the Petitioner to provide in writing any further information [15] which was received by the Registry on 18 September 2024 [16] and passed to the Team Rector; she indicated it was unlikely that the PCC would have changed its views, which proved to be the case [17]. In an email to the Registry she said [emphasis added]:
“The Orthodox Monastery receives thousands of visitors every year from across the south-east and London. The Monastery Community does not permit these visitors to be buried in their own burial ground and they fully support the PCC’s policy of preserving grave spaces for those who have the legal right of burial. The PCC receives regular enquiries from visitors to the Monastery about reserving grave spaces. If everyone who had enquired in the last ten years had been permitted to reserve a grave space, the capacity of the Burial Ground would have been reduced by about 5-7 years.”
Determination
The Chancellor cited with approval the analysis of Hodge Ch. in his exhaustive survey of the authorities relating to grave reservations, Re St Mary Thame [2022] ECC Oxf 2, in which he identified eight key principles, reviewed in our post Time-limited burial plot reservation, (9 May 2022) [*]. The particular principles relevant to the determination of the instant Petition were:
(i) At common law, every person living in a parish has a right of burial in the churchyard unless it has been closed by Order in Council. That right also extends to persons who die in the parish, even if they are not parishioners.
(ii) By s. 88(1) of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 (“the 2018 Measure”), persons on the electoral roll of a parish enjoy a similar right.
(iii) By s. 88(4) of the 2018 Measure, “A person who does not have a right of burial in the churchyard or other burial ground of a parish may not be buried there, or have his or her cremated remains buried there, without the consent of the minister of the parish.”
(iv) That power is vested in the minister on the basis that s/he is the freehold owner of the churchyard. S. 88(5) of the 2018 Measure requires the minister, in deciding whether to give consent, to have due regard to any general guidance given by the PCC of the parish.
(v) So far as the reservation of particular burial places is concerned, s. 65(4) of the 2018 Measure provides that an exclusive right to a burial place can be granted only by Faculty. It follows that if an individual wishes to reserve a grave space in a churchyard or burial ground, s/he must petition for a Faculty, and that the decision as to whether to allow that grave space to be reserved rests with the Chancellor, as a matter of his/her discretion.
(vi) Different principles apply depending on whether the petitioner has a legal right to be buried in the churchyard, or not.
(vii) Where the petitioner has a legal right to be buried in the churchyard, and where there is ample space, such that the churchyard will serve the needs of the parish for many years, a reservation will usually be freely granted.
(viii) Where the petitioner does not have a legal right to be buried in the churchyard, a Faculty can be applied for with the concurrence of the incumbent: see Re West Pennard Churchyard [1992] 1 W.L.R. 32, and Re Churchyard of Wick, St Lawrence [2013] (Timothy Briden Ch, Bath and Wells).
(ix) It was held in those cases that the absence of consent from the incumbent means that a petition must necessarily fail, i.e. the incumbent has a right of veto. However, it has been suggested elsewhere that absent that concurrence, a Faculty can be granted – but only in an exceptional case: Re St. Mary Magdalene, Bolney [2022] ECC Chi 4. I have some difficulty in seeing how that can be correct, in the light of the wording of s. 88(4) of the 2018 Measure and the reasoning in West Pennard and in Wick, which seems to me persuasive; but, for the reasons explained below, I do not have to decide that point.
(x) A PCC is entitled to have a policy in relation to granting, or not granting, grave reservations. That policy cannot bind the Court. However, where the policy is considered, reasonable and fair, the Court will only be entitled to depart from it in exceptional circumstances.
Applying the above analysis, the Chancellor concluded that she was unable to grant the Petitioner a Faculty: the Petitioner did not have a right to be buried in the Cemetery because she is not resident in the Parish; her petition does not have the support of the Team Rector and on one view taken in the authorities, is conclusive and means that the Petition must fail.
On another view, she could grant a Faculty but only if sufficiently exceptional circumstances were made out, and “at the very least, this means that, as a starting-point, the Petitioner has an uphill struggle” [22]. Even is if such power existed, exceptional circumstances would be required to override the policy, and none had been shown. The petition was therefore refused [23].
Postscript
The Chancellor stated that she could not allow the Petitioner’s wishes to override the entitlement of those who have a legal right to be buried in the Cemetery to be interred there in the order in which they die. Furthermore, “it is also necessary to bear in mind the Christian context in which applications of this kind are made. In that regard, I can do no better than quote from the judgment of Ockleton, Dep. Ch. in Re Highley Churchyard [2018] ECC Her 1:
‘People have a great emotional attachment to the resting-places of the earthly remains of their loved ones. The Court’s jurisdiction to consider petitions of this sort and to grant or refuse faculties for the reservation of grave spaces is part of its general jurisdiction over church property and its duty to ensure that all things are done decently and in order, in accordance with the law and with the exhortation of St Paul…
The exercise of this jurisdiction by a church court must not under any circumstances be understood as implying that the church regards the place of burial or indeed the mode of disposing of the dead as of any importance in the sight of God. The reunion with our loved ones which we confidently expect is not dependent on our bodies being buried near theirs. The Christian’s journey through death to life eternal is wholly unaffected by the fate or location of the body…’”
In Re Blagdon Cemetery, the Court of Arches observed [at 36(vi)] “The concept of a family grave is, of course, of long standing…Burials in double or treble depth graves continue to take place at the present time. They are to be encouraged. They express family unity and they are environmentally friendly in demonstrating an economical use of land for burials”… However, this assertion was in the context of the permanence of Christian burial rather than the location.
[*] The judgment includes annual number of petitions relating to reservation of burial plots, from 2012 to the time of its publication, here. These were supplied by the Diocesan Registry [11], and range from 31 to 55, with a median of 45. There were 22 petitions in the first three months of 2022. Although undoubtably correct, this is substantially less than the determinations reported in our posts, which comprise all such determinations circulated by the Ecclesiastical Law Association.