“The consistory court is amongst the most nimble and efficient of the courts of this realm. The registry is well equipped, accessible and responsive: it can move with speed and expedition in cases of urgency”

Hill Ch, Re All Saints, Featherstone [2025] ECC Lee 1

However, it is not always well-served by those providing it with information, as demonstrated in three cases circulated this week: Re St. Peter Wrecclesham [2026] ECC Gui 1, Re St. Peter Wrecclesham [2026] ECC Gui 2, and Re St. Andrew Compton Dundon (Number 2) [2026] ECC B&W 2.

The Wrecclesham cases

Both cases concern the reservation of burial space. In memoranda dated 31 January 2026, Whitehouse Dep. Ch. gave provisional decisions that neither Petition would be granted since the parish had informed the Registry that there were only eight grave spaces left in the churchyard; there had been a total of seven burials over the past three years, indicating that the grave spaces would all be used within the next three years.

Since then, further information was provided to the Court which was contrary to that provided to the Registry. This  indicated that there were, in fact, 96 possible available grave spaces – “a material change in circumstances” ([2] and [3], both judgments, et seq.).

In each case, the respective Petitioner(s) had first approached the then incumbent in about January 2022. On 19 July 2023, the PCC noted that a request to reserve a plot for a couple (who were not named in the Minutes, but were Mr and Mrs West) (and likewise for Mrs Clarke) had been received and the PCC “agreed unanimously” [6].

The Petitioner(s) “then paid the required fee and were provided with markers identifying and reserving the plot. It appears that they were not told that the Petition would be referred to the Consistory Court. Instead, they were given a clear and reasonable expectation that the plot had been approved” [7].

The Petitions were not lodged with the Registry until September 2025 and it was at that point that they were sent to the Chancellor and Deputy Chancellor, who noted: “It has been impossible to establish why it took, possibly, as long as three years and nine months to reach that point. The parish is now in an interregnum and no correspondence has been made available to explain the delay” [8].

The provisional decisions to refuse the Petitions were given in separate Memoranda on 31 January 2026. Those decisions were made “because, as a general principle, when the number of available grave spaces is very limited a faculty will not normally be granted unless the Petitioner can show that there is sufficient justification for the court to take an exceptional course” [9].

Subsequently, the Assistant Archdeacon of Dorking visited the parish in April 2026 and was shown the churchyard, as well as a plan of the churchyard marking all the grave spaces, both occupied and those that are still available. The plan indicated that, contrary to the information provided with the original Petition, there were potentially 96 available grave spaces [10]. The Deputy Chancellor was informed that “the reason that the full number of vacant grave spaces was not provided at the time of the application is that the Incumbent and PCC intended to request closure of the graveyard when the eight spaces in the last row were filled. The burden of maintaining the graveyard is significant for a relatively small parish and the remaining unused area of the graveyard had become overgrown in parts [11]”.

In light of the revised evidence, the Deputy Chancellor granted the faculty, waived any contribution to the churchyard maintenance fund, and issued an unreserved apology on behalf of the Church for the delay, misinformation, and distress caused. Noting the very great distress suffered by the Petitioner(s) in the process of making the Petition, the Deputy Chancellor concluded:

“[16]. …The unexplained delay in progressing the Petition, the impression given that the parish had the power to grant the Petition, and had, indeed, granted it, and the provisional Consistory Court decision, based on erroneous information, have all combined to contribute to that distress and for that the Church must, and does, offer an unreserved and sincere apology. “

Re St. Andrew Compton Dundon (Number 2) [2026] ECC B&W 2

The Consistory Court reconsidered its earlier faculty decision in Re St. Andrew Compton Dundon [2025] ECC B&W 1, after discovering that through an administrative error, the court was not aware that Historic England had wished to be a party opponent.

To remedy the procedural unfairness, the Court joined Historic England, considered its expert evidence on the significance of the Victorian chancel stalls, and revisited the merits. Historic England demonstrated that the children’s choir stalls were an exceptionally rare, possibly unique, survival of Victorian church furnishing and that their removal would cause moderate harm to the significance of the Grade I listed church.

However, the Court concluded that the stalls were functionally redundant and that the parish’s need to create a smaller, more practical, energy-efficient worship space close to the altar outweighed that harm. It rejected Historic England’s proposed compromise as insufficient to meet the church’s present needs. Accordingly, the application to vary the existing faculty was dismissed, leaving the original faculty in force, including the condition preventing disposal of the removed stalls without further court approval.

Comment

The “Wrecclesham cases” raise an important question in relation to the closure of a churchyard: “To what extent is this within the gift of the incumbent/PCC?” Parishioners and those on the Electoral Roll have a legal right to be buried in a churchyard provided it has not been closed by an Order in Council under the Burial Act 1853 or 1855. The Ministry of Justice has issued Guidance Notes which explain the criteria for closure, including an application form to be completed by the PCC, (Parochial Church Councils (Powers) Measure 1956). The grounds for making an Order in Council are that:

(a) further burials would constitute a public health risk;
(b) further burials would be contrary to decency;
(c) burials should be discontinued for the prevention or mitigation of nuisance;
(d) there is no proper room for new graves; or
(e) [other] valid grounds as justified by the PCC.

Grounds (a) to (d) have been agreed by the Ministry of Justice, Church of England and local government representative organisations as potential grounds for justifying closure.

If (a), any Order to discontinue burials in a churchyard on the grounds that it is full will be made subject to exceptions allowing further burials in existing reserved grave spaces, vaults, walled graves or earthen graves provided they have sufficient room.

If any of (b) – (e),  a covering letter requires providing further information as to why burials should be discontinued.