Background

The presence of kerbs around a burial plot is frequently addressed in the consistory courts[*], and each diocese has its own Churchyard Regulations offering practical guidance to parishes on the legal permissions and procedures involved in caring for churchyards, here and here. In Re St. John the Evangelist Perlethorpe [2025] ECC S&N 4 Ockelton Ch. noted:

“[1]. …There have been questions as to the legal basis of the ‘Churchyard Regulations’, and a reform of them over the whole of the Church of England is in progress. I had hoped that this case would have the benefit of being decided against the background of the revised arrangements for this Diocese. Progress has been much slower than was originally hoped, and the Petitioners cannot be expected to wait indefinitely. Besides, although the new law might change the background, it makes no difference to the principles governing the decision on this specific Petition”,

and as a consequence, resolution of the Petition had been seriously delayed. In this case, the petitioners sought permission to erect a memorial in the churchyard for which certain features of the design were outwith what was authorised to be permitted by a parish priest under the Diocesan Churchyard Regulations.

Background

The differences between what was proposed, ([3] and [4]), and what would be allowed under the Churchyard Regulations are: the proposed height of the headstone was considerably greater than the maximum of 1200mm; plus a plinth and base totalling not more than 200mm. The plinth and base are much larger than the maximum of a total of 152mm projection all round the headstone, which in this case would give a maximum width of 944 mm. Neither a kerb nor carving on the reverse side of the stone is permitted under the Regulations. On the other hand, the proposed stone is on the list of those allowed, the proposed width is within the permitted dimensions, and appropriate symbols are allowed on the front of the headstone if hand-carved [5]. In addition, there were some “procedural peculiarities” which were dealt with it by way of condition, infra.

Headstone

In a letter to the Registrar, the second Petitioner indicated that the PCC believed the Manvers family should be allowed to erect the headstone they have planned because of the family’s military service (during the eighteenth and nineteenth centuries), Lady Rozelle’s service in the WRNS and her benevolent and charitable work in the village and elsewhere. In relation to the kerb, he pointed out that some other graves in the churchyard had flat kerbs; a photograph showed them now grassed over [7].

Ockleton Ch. noted that reference reference in the papers to the present and other Manvers graves being in a “family plot” was a misnomer. The Manvers graves are together near the church “and it appears that nobody else has so far been allowed to be buried very near them”. However, there is no area of the churchyard over which anybody has any particular right. Although the Manvers family rebuilt the church rather to the South of its predecessor in 1876, there is no recorded extension under the Consecration of Churchyards Act 1867 or any reservation of burial rights under that Act. The whole area of the churchyard is therefore available for the burial of any person dying with the right of burial in the churchyard of the parish, or anybody else with the permission of the Minister [8].

In determining the Petition, he was concerned only to a very limited degree with the memorials erected by previous generations:

“[9]. Today we do not consider that the rich or important are entitled to a larger memorial than others; and we have in our lifetimes seen that the graves of peers of the realm, prime ministers and archbishops have been appropriately marked with modest memorials. Kerbstones around graves in churchyards were frequently allowed in the past: I doubt if there is any Diocese where they are allowed today”.

There were two good reasons for that. The practical one is that they make maintenance of the churchyard much more difficult:

“[9] In fact at Perlethorpe the grass cutting is done by grazing sheep (not very effectively if the photographs accompanying the Petition are to be trusted) but that arrangement might cease at any time, and kerbs and motor mowers do not mix.

The second reason is to my mind more important. A kerb tends to suggest that the people buried in the grave, or their family, have some right over the land in which the burial took place…Sometimes the part within the kerb is separately treated, for example with gravel or a stone base; always there is an implied inhibition of walking within the kerbed area. That is all in principle quite wrong.

The whole of the churchyard is dedicated to God and subject to that is an asset of the whole community. Nobody has any individual ownership in parts of it. Even a place where a body is already buried may be re-used for burials after an appropriate period, and, even before that simply forms part of the land that is the churchyard.

[11]. This is really saying the same, albeit on a smaller scale, as what I said above about the lack of any “family plot”. While a churchyard remains open for burials (i.e. has not been closed by Order in Council) all the space within it is available for burials; and it is the incumbent, not the families of the deceased, who has the task of deciding whereabouts in the churchyard any burial is to take place. In my judgment it is not right nowadays to allow anything that gives a contrary impression.

For the foregoing reasons the proposal for a kerb will not be allowed [12]. With regard to the memorial stone itself,

“[13]. …In visual terms as appearing from front or back it seems to me that the proposed memorial is well designed and elegant, with the possible exception of the spacing of the lines of the inscription, which can no doubt be settled in due course. There is, however, no justification for the large square plinth. For the same reasons as apply to kerbs, a base larger than is necessary to support the headstone is undesirable because of its appearance as a claim to the land.

 A Faculty will therefore issue for a headstone erected in accordance with the design accompanying the Petition, subject to the conditions in [14].

Procedural matters

The Chancellor commented:

[6]. There are some procedural peculiarities. The DAC has not been asked to advise on the proposal. It does not need DAC advice, but petitions of this sort often are referred to the DAC. The proposal has the support of what is called the Standing Committee (which is not the PCC). One of those present and voting on whether the Petition should be supported was the second Petitioner, who indeed put the proposal before the meeting, and seconded the proposal. The resolution which followed is said to have been the unanimous resolution of the PCC (not of a standing committee.) This history indicates a more serious procedural problem, but I can deal with it by way of condition.

The faculty was granted subject to the following conditions:

“[14]. There will be the following conditions. (i) the headstone must be no more than 150mm thick; (ii) all decoration and lettering must be hand-carved; (iii) the memorial must be erected in full compliance with all applicable British Standards (BS 8415 or any replacement); (iv) no work is to begin until the Registrar has indicated in writing that she has seen a certified copy of a resolution of the PCC (not including any member of the PCC having an interest in the Petition as Petitioner or family member) supporting the installation of the memorial as permitted by the Faculty; (v) the work must be completed within 12 months.

Footnotes

[*] For the avoidance of doubt, the “kerb” around a grave is the low stone border that outlines the full perimeter of a burial plot. It is usually made from the same material as the headstone. “Curb” follows UK rather than US usage, meaning “to control” or “to limit.”

This post is based upon the reported judgment and the assessment of the  Chancellor in Re St. John the Evangelist Perlethorpe [2025] ECC S&N 4 on which we would not presume to elaborate