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Court gives judgment on memorials

27 November 2008

by Shiranikha Herbert Legal Correspondent

A PARISH COUNCIL that had declined responsibility for a closed churchyard, so that responsibility passed to the district council, still continued to have an interest in its condition, and could intervene in faculty proceedings brought by the district council, the Arches Court of Canterbury ruled.

The Court also gave guidance on how chancellors of dioceses should proceed when faculties were sought to deal with unsafe and un­stable mem­orials in closed church­yards for which local authorities were responsible.

The churchyard of St Mary the Virgin, Hutton, is one of 20 church­yards within the area of North Somerset Council (“the district council”) which have been closed for burials by Order in Council. Responsi­bility for the maintenance of those churchyards passed to the council, as stipulated in section 215 of the Local Government Act 1972.

The safety of the memorials in the churchyards was of concern, and in March 2005 Chancellor Timothy Briden in the Bath & Wells Consistory Court granted the dis­trict council a faculty authorising it “to lay flat on its appropriate grave any tombstone or other monument found on hand testing or visual inspection to be unstable or dan­gerous in some other respect”.

In September 2005 the council tested the memorials. The system included a hand test by applying a force of approximately 35 kg at the top of the memorial. Where a memorial failed a hand test, a digital force meter was used to provide an objective check of the force used, and to ensure that the memorial had not been over-tested. A detailed record of the inspection was made.

As a result of the testing, about one-third of the memorials were laid flat, out of the 152 that were identi­fied in the council’s inspec­tion report.

The laying flat of the memorials gave rise to complaints. Hutton Parish Council (“the parish coun­cil”) pointed out that the district council appeared to have acted in breach of the 2005 faculty, which provided for hand testing only, and said that the spirit of the diocese was against “a mechanistic approach to this sensitive matter”.

The district council accepted that the use of the digital force meter was in breach of the faculty, and apolo­gised, but said that it was used with the best of intentions and was a genuine mistake. It also explained that because of the absence of records, it had not been possible to write to individual owners of memorials found to be dangerous.

In November 2007, Chancellor Briden granted a confirmatory faculty for the use of the digital force meter for future tests in the church­yards, and also said that, although the parish council did not own any monuments affected by the district council’s activities, its role as the organ of local government to repre­sent the civil parish of Hutton gave it a sufficient interest to intervene.

The district council appealed to the Arches Court of Canterbury for, among other things, two declara­tions: first, that Hutton Parish Council did not have sufficient interest to intervene in relation to the faculty granted in 2005; and, second, that the district council’s duty under the 1972 Act to keep Hutton churchyard “in decent order” did not extend beyond laying flat any monuments found to be unsafe or out of repair, and did not empower it to carry out works of reinstatement.

The Dean of the Arches, the Rt Worshipful Sheila Cameron QC, Judge Richard Walker, and Chancellor June Rogers refused to make either declaration. As to the first declaration sought, the Court said that a parish council could have an interest in faculty proceedings, since the parish council was “the democratically elected ‘voice’ of the local parish community”. The ap­pearance of the churchyard had an impact on the whole community in a village such as Hutton. Many of their forebears and predecessors as residents would be buried there.

When a churchyard was closed for burials, local people did not auto­mati­cally lose interest. The wide­spread laying flat of memorials was bound to affect the whole com­munity, and the parish council thus had a sufficient interest to intervene.

As to the second declaration sought, the Court said that the duty of maintenance on the district council under the 1972 Act was the same as the duty of maintenance imposed by that Act on the PCC. Ensuring the safety of memorials was part of that duty, but it went further than simply laying a large number of memorials flat. “Keeping” indicated an element of continuity, which meant that the district council’s duty did not end when it had laid memorials flat.

The Court ruled that, in future, where a local authority sought a faculty in relation to the testing, laying flat, or taking any other action in respect of memorials in a closed churchyard, a condition should be attached to the faculty requiring an initial survey to be carried out to identify any unsafe memorial of particular significance, and the result of the survey should be reported to the Chancellor within a specific timescale set out in the faculty.

The Court further ruled that an order should also be made for special citation to be given to any known relative of such a person, and/or a direction given for adver­tise­ment in a national or local news­paper. In the absence of any response, then, unless the local authority was willing to carry out limited repairs to keep the memorial in a stable and safe condition, leave should be given to the local authority to lay it flat or reposition it elsewhere in the churchyard.

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