New Land for Burials

Closure of an existing churchyard

Annex 1: Maintenance of Old Burial Grounds
● Part A (powers of local authorities relating to old burial grounds)
● Part B (applicable to churchyards only: grounds for transfer of responsibility to local authority)
Annex 2: Notes on Closing Orders for Churchyards
Annex 3: Liability for Maintenance of Closed Churchyards

New Land for Burials
1. Where the existing churchyard is becoming full, it is the responsibility of the local authority to make new provision for burials. However, it may be helpful for the PCC to take an active role and if appropriate to initiate discussion with the local authority, in order to assist the local authority in making new provision for burials within the parish rather than further away. In some cases the PCC may be able to identify land which the local authority might acquire as an addition to the churchyard, or the local authority might itself be aware of such land.

2. New land would need to be checked by a local undertaker to ensure it is suitable for burying in and does not lie below the water table. Once local consultations and check have been completed, a legal process needs to be followed leading to the transfer of the land to Church ownership (churchyard land legally vests in the incumbent for the time being) and to its consecration.

3. If there is a proposal to provide new land for burials as an addition to the churchyard, or as a detached churchyard, please contact the Archdeacon and the Diocesan Registrar for advice about the procedure to be followed.

Closure of an existing churchyard
1. If a churchyard no longer has space (except in family graves) for further burials, and the parish has notified the local authority of the need to make new provision for burials in the local area, it may be appropriate to make more formal provision for closing the churchyard and for its future maintenance. In such circumstances you may find it helpful to refer to the
enclosed guidance documents issued originally by the Department of the Environment (Annex 1 and Annex 2) and by the General Synod Office (Annex 3). Please note that the functions previously carried out by the Department of the Environment in relation to burial grounds are currently exercised by the Ministry of Justice.

2. The relevant Ministry of Justice team is based at:

Coroners and Burials DivisionMinistry of Justice
3rd Floor
102 Petty France
London
SW1H 9AJ

020 3334 6390
Email: coroners@justice.gsi.gov.uk
www.justice.gov.uk

3. Annex 1 gives guidance on the Maintenance of Old Burial Grounds generally (including both those formally closed by Order in Council and those which are not), while Annex 2 offers Notes on Closing Orders for Churchyards. Annex 3 emphasises the importance of giving due notice to a local authority if it is proposed to transfer responsibility for maintenance of a closed churchyard to the local authority. A good source for further information on all these matters is The Churchyards Handbook, published by Church House publishing and available from the Diocesan Resources Centre.
Annex 1: Maintenance of Old Burial Grounds
[L120 (1974) Department of the Environment]
1. The notes in Part A below summarise the statutory powers available to local authorities under which they may assist or take responsibility for the maintenance of old burial grounds. The exercise of the powers is at the discretion of local authorities and entirely a matter for agreement between individual authorities and the owners of the burial grounds. Authorities with definite proposals under consideration will of course need to consult the actual text of the Acts.

2. Part B is applicable to churchyards only and sets out the circumstances in which the responsibility for maintenance can be automatically transferred to local authorities.

3. Local Government Act 1972 - financial contributions
Under section 214 (6) of the Local Government Act 1972 a burial authority may contribute towards any expenses incurred by any other person in providing or maintaining a cemetery in which the inhabitants of the authority's area may be buried.

4. Open Spaces Act 1906 - care, management and control
Under section 9 of the Open Spaces Act 1906 all local authorities (i.e. county councils, London boroughs, district and parish councils) may either:
(a) acquire by agreement, with or without payment, the freehold of or more limited interests in, or
(b) undertake the entire or partial care, management or control of any burial ground whether in use or partly or wholly disused. By section 10 the ground would be for use in trust by the public as open space and the local authority would have power to lay it out and improve it (but see below as to the removal or tombstones and monuments).

5. The powers of the 1906 Act are not given to a local authority as a burial authority. In the Department's view if a local authority undertake:
(a) only partial care, management and control, this may be compatible with the continuance of burials by the owners of the burial ground:
(b) the entire care, management and control of a burial ground, burials should cease unless in the exercise of acquired rights.
Section 13 protects rights of a profitable or beneficial nature which, the Department are advised, include acquired rights of burial. It would be open to a local authority to resolve under their powers (in section 9) for the management and control of the burial ground that burials should cease entirely, but then compensation would be payable under section 13 for the
extinguishment of existing rights.

6. A local authority cannot exercise any powers of management under the 1906 Act in relation to consecrated ground without the bishop's prior authorisation (section 11 (1)).

7. Section 11 (3) permits the removal of tombstones and monuments in a disused burial ground only (i.e. one no longer used for interments whether or not the ground has been partially or wholly closed for burials under the provisions of a statute or an order in council). If the ground is consecrated a licence or faculty must first be obtained from the bishop (section 11 (4)). The local authority, at least three months before moving any tombstones or monuments, must prepare and deposit for public inspection a statement of the names and dates on the tombstones to be moved; give notice of the proposals at least three times in a local newspaper and to any person known or believed to be a near relative of a person commemorated on the tombstone; and place a notice of the proposals on the door of any church attached to the burial ground.

8. The playing of any games or sports must have the prior authorisation of the bishop if the ground is consecrated or of the owner or former owner if the ground is not consecrated (section 11 (2)).
Churchyards of England
Local Government Act 1972 Section 215
9. Section 215 (1) of the Local Government Act 1972 provides that where an Order in Council has been issued for the discontinuance of burials in a churchyard the parochial church council shall maintain such churchyard in decent order and its walls and fences in good repair.

10. Section 215 (2) provides that a parochial church council which is liable to maintain a churchyard closed by an Order in Council, may:-
(a) if the churchyard is in a parish having a separate parish council, serve a written request on that council to take over the maintenance of the churchyard;
(b) if the churchyard is in a parish not having a separate parish council, serve such a request on the chairman of the parish meeting; or
(c) if the churchyard is in England elsewhere than the City and the Temples and is not in any parish, serve such a request on the council or district or London borough in which the churchyard is situated; and subject to what is said in paragraph 11 below, the maintenance of the churchyard shall be taken over by the authority on whom the request is served or the parish meeting as, the case may be, three months after service of the request.

11. If a request is served on a parish council or the chairman of a parish meeting and, if that council or meeting so resolve and, before the expiration of the said three months, give written notice of the resolution to the council of the district and to the parochial church council maintaining the churchyard, the council of the district and not the parish or community council or parish meeting, are required to take over the maintenance of the churchyard at the expiration of the said three months.

12. A parochial church council therefore continues to be responsible for the maintenance of a churchyard after it has been closed by an Order in Council but where they serve a written request on the local authority or parish meeting their obligations in the matter are automatically transferred to the authority or meeting three months after service of the request. A parish
council or a parish meeting have the option, however, of transferring the responsibility for maintenance to the district council provided that they resolve to do so and give written notice of their resolution to the district council and to the parochial church council before the three months have expired.
Annex 2: Notes on Closing Orders for Churchyards
[L121 Department of the Environment]
1. A closing order is an Order made by Her Majesty in Council under section 1 of the Burial Act 1853 at the request of the Secretary of State for the Environment [now Justice] requiring the discontinuance of burials. The Order may relate to the whole or part of a churchyard and may make provision for exceptions to allow some further burials in appropriate circumstances. It would not be appropriate for such orders to be made for churchyards where burials have already ceased.

2. The usual provision for exceptions takes the form of one or more of the following clauses:-
(a) existing walled graves or vaults which have room for further interments, provided that each coffin is adequately enclosed by brickwork or stone-work;
(b) existing family (earthen) graves which have sufficient space for further interments, provided that the top of each coffin is at least 3 ft below the normal level of the ground;
(c) any unused (earthen) grave space which has been reserved, subject to the condition that the top of each coffin is at least 3 ft below the normal level of the ground.

3. Grounds for closure
Until recently, the Department were, in general, prepared to seek a closing order only where there was a public health risk. The reference to public health in section 1 of the Burial Act 1853 has been repealed by the Local Government Act 1972. With the agreement of the Privy Council Office, the church authorities and the local authority associations, the Department are now prepared to seek a closing order on any of the following grounds:-
(a) that further burials would constitute a public health risk
(b) that further burials would be contrary to decency
(c) that burials should be discontinued for the prevention or mitigation of nuisance
(d) that there is no proper room for new graves

4. Applications
An application for a closing order should be made by letter to this Department and should set out the full grounds for closure (see paragraph 3) together with any supporting information. Applications are usually made by the Incumbent or the Secretary of the Parochial Church Council.

5. Consultation with local authorities
The Department will write to the appropriate parish or district council, or both, as necessary for their observations on the application.

6. Further information
If the Department consider the case should proceed, the church authorities will be asked for information to enable the question of any exceptions to be considered.

7. Publicity
When any proposed exceptions have been considered, the applicant (i.e. usually the church authorities) will be asked to give public notice of the proposed closing order by placing an advertisement in a local newspaper. A draft notice will be supplied by the Department. There will be an opportunity for representations to be made direct to the Department at this stage.

8. Objections
Copies of any objections received by the Department will be passed to all the interested parties for consideration. In many cases individual objections can be met by proposing exceptions or further exceptions to the order where this course is acceptable to the church authorities and the local public health authority.

9. Notice of the Department's intention to apply to the Privy Council
If there are no objections, or if all objections have been resolved, the Department will give 10 days' notice (as required by statute) to the church authorities of their intention to seek a closing order.

10. Consideration by the Privy Council
After the notice mentioned in the previous paragraph has expired, the Department will make application to the Privy Council Office for a closing order. The Privy Council Office will publish in the London Gazette notice of the date on which Her Majesty in Council has ordered the application to be considered, and will send to the church authorities copies of the notice. A copy of the notice is also sent to the local authorities concerned. The notices are required to be posted by the church authorities on church or chapel doors or on other conspicuous places in the parish concerned for at least one month
before the date for consideration named in the notice. If the Privy Council approves the application they will in due course advise Her Majesty to make a closing order, copies of which will be sent to the local church and civil authorities.
Burials Team
Ministry of Justice
Steel House
11 Tothill Street
LONDON
SW1H 9LJ
Tel: 020 7210 0066
www.justice.gov.uk
Annex 3: Liability For Maintenance Of Closed Churchyards
[General Synod Office September 1981]
This note relates to paragraph 10 of Annex 1 above.
1. You will be aware that under S.215 of the Local Government Act 1972, it is possible for a Parochial Church Council to transfer the responsibility for maintenance of a churchyard, which has been closed by Order in Council, to the Local Authority on giving three months' notice.

2. Especially where extensive repairs are required to the churchyard this short notice can cause difficulties for the Local Authority's budget.

3. As a result of Parliamentary Questions, discussions have been held with the Department of the Environment and with the Association of District Councils and the National Association of Local Councils as to a possible solution to the problem. As far as this office is concerned we would wish to avoid any amendment of S.215.

4. I therefore write to ask you if you would (a) inform Parochial Church Councils in your Diocese of the problem and (b) would request any such Council with a closed churchyard that, in future, the practice should be to give twelve months' informal notice to the Local Authority of any intention on the part of the Council to serve the three months' statutory notice laid down in S.215 of the 1972 Act. By this means a Local Authority would have 15 months' notice of transfer and adequate provision could then be made in the budget for the ensuing financial year.