“…no churchyard is full and ripe for closure until all the parts of it in which reburial is possible have been buried over again at least once. And, until closure, all legal burial rights continue”
Newsom QC Ch. in Re West Pennard Churchyard
Despite well-established legal principles, there are relatively few recent considerations on the re-use of grave spaces. In Re St. Mary West Horsley [2026] ECC Gui 3, (4 September 2026), Whitehouse Ch. noted that in view of the increasing scarcity of grave spaces in the Diocese, it was likely that there would be more such petitions coming before the consistory court. She therefore indicated that it was appropriate to deliver a written judgment since she could identify no recent judgment in relation to such a Petition in the Diocese of Guildford[5] [1].
The Petitioners sought a faculty to reuse a section of the churchyard of St Mary’s for new burials. The parish indicated that it would not re-use any space where the grave was less than 75 years old or where there was an existing memorial stone in place. Where evidence of a previous burial is discovered, the grave would be dug to a deeper depth and any human remains discovered would be reinterred in a deeper grave[1]. The proposal was extensively consulted upon and received no objections.
The churchyard, dating back centuries, had exhausted its later burial extensions and had no further available land. In 1957 permission had been granted for a new area of land to the south west of the original graveyard to be set aside for burials, with two smaller additions in 1996 and 2005. This additional space has now reached capacity and there is no further land attached to the church available for use as burial space[6].
The DAC Archaeological Advisor raised no concerns about graves which were 75–99 years old but recommended careful excavation, reinterment, recording and archaeological oversight, particularly for older graves[7]. He recommended inter alia that, if the faculty was approved, the “lift and deepen” principle[2] be applied formally: any in-situ remains encountered should be reinterred in a deepened grave as indicated in the application, but they should be excavated in such a way as to preserve their physical integrity and placed in a container of some sort to ensure they are identifiable as the remains of the individuals marked on the existing plan[8].
The Law
Where a churchyard has not been closed by Order in Council, further burials may take place in existing graves without a faculty, subject to the provisions of s25 Burial Act 1857. The principles in relation to the re-use of grave spaces were considered in Re West Pennard Churchyard [1992] 1WLR; Re St Michael’s Heighington [2016] ECC Dur 3, Re All Saints Biddenden [2020] ECC Can 1 and the Opinion of the Legal Advisory Commission of the General Synod, here.
The Deputy Chancellor held that reusing grave spaces after a satisfactory period is legally permissible and consistent with Christian doctrine, provided remains are reverently reinterred. There is no statutory minimum period, although at least 50 years is generally appropriate, subject to pastoral considerations.
The conditions of the grant of the Faculty are that any human remains uncovered as burials occur are to be reverently treated and there is to be proper care and recording, as appropriate, of any archaeological artefacts. The parish are to follow the recommendations by the DAC Archaeologist. The Chancellor left it to the good sense of the incumbent and PCC as to whether they adopt the course of re-opening several graves at once, or on an individual basis.
[1] Similarly, Re All Saints Biddenden was the first such Petition in the Canterbury Diocese on reuse-defined sections of a churchyard for burials in which Ellis Ch. set out relevant considerations for other parishes to bear in mind[14].
[2] Para. [8] of the Judgment.