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Faculty Jurisdiction
Maintenance of Churchyards
Re-use of Churchyards for Further Burials
Closed Churchyards
Churchyard Plans and Records
Access for the Disabled

Faculty Jurisdiction

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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Reservation of Grave Space
Trees in Churchyards

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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).

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Re-use of Churchyards for Further Burials

If a churchyard has not been closed by an Order in Council then it is lawful to re-use a churchyard that has already been used previously.

Normally re-use will not be permitted unless the last burial in the area was more than 75 years ago. In many cases the Chancellor will require a minimum period of 100 years since the last burial.

In many cases there may be existing memorials commemorating those whose remains are buried in the churchyard. Those memorials may only be removed by a faculty. If the PCC has in mind to rebury across a segment of the churchyard, it would be sensible to apply for a faculty to cover the whole of that area, after attempting to contact as many families as possible of those commemorated by the existing memorials.

There may be faculties granted over the years reserving spaces to particular individuals or families. On no account should these spaces be used until the reservation period has expired. Many of the older faculties are likely to have been granted for 100 years.

The PCC will need to check their records in every case. Families commonly assume that if a loved one is buried in the churchyard that gives them a claim to further family burial in the churchyard. However, that is not the case unless a faculty has been granted. Nevertheless, there are pastoral issues to consider if such a claim is made.

There are health and safety issues to consider and aesthetic concerns. Depending on soil conditions the human remains, coffins and coffin furniture, etc., will have become unrecognisable over a period, but that period varies from place to place. A local undertaker might be able to give you advice on this. There are obvious health issues about disturbing remains that might release disease and aesthetic concerns about digging up recognisable remains. In the past it was common to remove remains and put them in a charnel house but nowadays they tend to be put to one side and reburied in an adjoining plot made available for that purpose.

We would also recommend that you consult the Commonwealth War Graves Commission just in case there are any of their graves in the area.

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Closed Churchyards

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 application form.
Tel: 0203 334 2813. Email: coroners@justice.gsi.gov.uk

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 previously 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 set aside by Faculty for the interment of cremated remains. The Faculty may be granted before or after the Closing Order.

Once a churchyard has been closed by an Order in Council it cannot be re-opened.

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.

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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.

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Access for the Disabled

The Association of Burial Authorities has produced a note for guidance concerning the application of the Disability Discrimination Act 1995 to burial grounds.

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