Section 11(1) of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 states that all churchyards belonging to parish churches are subject to the Faculty Jurisdiction.
Maintenance of a Churchyard
Section 4(1)(ii)(c) of the Parochial Church Councils (Powers) Measure 1956 provides that a Parochial Church Council is responsible for the maintenance of a churchyard.
The Diocesan website has a page of documents about Church Buildings and Graveyards, which includes guidance on the testing of unsafe memorials: ‘Churchyards and Memorials‘. The Government has also issued guidance on testing for safety of memorials, Burial grounds: guidance on managing unstable gravestones.
There is a procedure for transferring to a Parish Council or District Council the responsibility for maintenance of a churchyard which has been closed for further burials by Order in Council (see below).
A churchyard is sometimes described as closed in the non-legal sense that burials have been discontinued there. But the term closed may be used in a legal sense to mean that a churchyard has been closed for further burials by an Order in Council.
Applying for a Closing Order
A Parochial Church Council may apply for a closing order when there is no room left for burials in a churchyard (apart from graves which have been reserved by Faculty but have not yet been filled). The Ministry of Justice has issued a special application form with accompanying notes on the procedure for applying for a closing order. The PCC should consult with the Parish Council and District Council and get their agreement to the closure before sending the completed application to the Ministry of Justice.
Before completing the application form, and in other cases of uncertainty, the PCC are advised to contact the Ministry of Justice to check if there is already an Order in Council or an Opened with Approval for the churchyard. An enquiry should be addressed to: Burials Unit, Ministry of Justice, 8th Floor, 102 Petty France, London SW1H 9AJ. Telephone: 020 3334 2778.
Effects of Closure
No further coffin burials may take place in the churchyard, unless they fall within an exception specified in the closing order. It is common for a closing order to specify, by way of exception to the prohibition against further burials, that (a) burials may still take place in graves which have been reserved by Faculty, and (b) a body may be buried in the same grave as a relative, provided that following the second burial there will still be at least one metre of earth above the second coffin. When applying for a closing order, a Parochial Church Council should ask the Ministry of Justice to include these exceptions.
Cremated remains may continue to be buried in a closed churchyard, provided that either (a) a Faculty is obtained to authorise an interment, or (b) the cremated remains are to be buried in an area already set aside by Faculty for the interment of cremated remains.
The closed churchyard remains subject to the Faculty Jurisdiction, and the Parochial Church Council remains responsible for continuing to maintain the churchyard, unless and until it has transferred responsibility by giving notice under Section 215 of the Local Government Act 1972.
Transfer of Responsibility
Under Section 215, a Parochial Church Council may give notice to the Parish Council, requiring the Parish Council to take over the responsibility of maintaining a churchyard which has been closed by Order in Council. Three months after the giving of the notice, the Parish Council becomes legally responsible for maintaining the churchyard, unless it gives notice under the Act to the District Council, requiring the District Council to take over the responsibility.
Once responsibility has been transferred, the Parish or District Council will have the same responsibility for maintaining the churchyard, and its walls, gates, fences, grass, trees, etc., as the Parochial Church Council had prior to the giving of notice to transfer responsibility. See the Opinion from Legal Opinions Concerning the Church of England, which is copyright The Central Board of Finance of the Church of England 1997 and The Archbishops’ Council 1999 and reproduced by permission.
The Parish or District Council will need to apply for a Faculty to authorise any works in the churchyard other than routine maintenance.
Access for the Disabled
The Federation of Burial and Cremation Authorities has produced a paper which contains guidance concerning the application of the Disability Discrimination Act 2005 to burial grounds.