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.
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Maintenance of a Churchyard
Section 4(1)(ii)(c) of the Parochial Church Councils (Powers) Measure provides that a Parochial Church Council is responsible for the maintenance of a churchyard. However, 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. The attached list of Closing Orders has been provided by the Ministry of Justice, and gives details of closing orders relating to parishes in the Diocese of Peterborough, which comprises Northamptonshire, Rutland and part of Cambridgeshire.
Applying for a Closing Order
A Parochial Church Council may apply for a closing order in the
circumstances set out in the Guidance
issued by the Ministry of Justice.
Attached is the form of
application for a closing order. Before making an application to close a
churchyard (or to enquire whether a closing order has already been made in
respect of a particular churchyard), please contact the Ministry of Justice,
to ensure that you have the latest version of the applicaiton form.
Tel: 0203 334 2813. Email: email@example.com
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, (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, and (c) burials may take place in existing walled graves or vaults which have room for further interments, provided each coffin is adequately enclosed by brickwork or stonework. 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.
Transfer of Responsibility
A closed churchyard remains subject to the Faculty Jurisdiction and, after a new closing order is made, 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.
Under Section 215 of the Local Government Act 1972 , 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. Although the statutory period for giving notice to the Parish Council is three months, the General Synod Office requested in 1981 that PCCs try to give Parish Councils at least twelve months notice, in order to allow Parish Councils time to make appropriate provision in their budgets.
In the case of a churchyard closed before the 1972 Act came into force, the Local Authorities etc (Miscellaneous Provision) Order 1974 provides as follows: "Where ... the functions and liabilities of the parochial church council of a parish with respect to the maintenance and repair of a churchyard have under section 269(2) of the Local Government Act 1933 before 1st April 1974 been transferred to the council of the borough or urban district, or to the parish council, the authority on whom a request under section 215(2) of the Act would fall to be served shall maintain the churchyard by keeping it in decent order and its walls and fences in good repair."
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. There is a further Opinion of the Legal Advisory Commission concerning the maintenance of memorials in closed churchyards.
The Parish or District Council will need to apply for a Faculty to authorise any works in the churchyard other than routine maintenance.
Churchyard Plans and Records Regulations 1992
In 1992, the Chancellor of the Diocese introduced the Churchyards Plans and Records Regulations, which require all Parochial Church Councils to maintain up to date plans of their churchyards. For futher guidance on the management of churchyards, we recommend The Churchyards Handbook.