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Court grants Southwark more space for burials

21 April 2017


Disputed: the site of some of the First World War war graves

Disputed: the site of some of the First World War war graves

THE Consistory Court of the diocese of Southwark granted two petitions made by officers of the London borough of Southwark, so that consecrated land in two disused public cemeteries, Camberwell Old Cemetery and Camberwell New Cemetery, which had also had war graves, could be used for future burials in consecrated ground.

The first petition concerned a two-acre area (“Area Z”) that had been used for public burials until the 1950s. In 2003, part of that area was subject to unauthorised tipping, which had produced a large stock­pile of waste material, some of it contaminated. After that, it became overgrown with self-seeded vegeta­tion and scrub. About two-thirds of the land was consecrated.

The proposals involved address­ing the contamination of the stockpile, reducing its size, and regrading it. The resultant terraced landform, accessed by new paths, would be used for about 700 new burials. The burials beneath the stockpile would not be disturbed.

The second petition concerned an area of about half an acre (“Area D”), where two burials had taken place. The reason that it had not been generally used for burials before was explained by the slope of the ground. It was proposed to create a new access path to the area, and provide about 145 new burial plots.

Neither proposal involved the physical disturbance of any grave or the exhumation of human remains.

When the petitions were dis­played at the entrances to the two areas, 660 people submitted written objections. It was not possible to obtain contact details for 20 of them. The Registrar sent letters to the other 640, asking whether they wished to become parties opponent to the petition. Some of the letters could not be delivered, and others with­drew their objections. Eventually, there were no parties opponent, but there were 619 written representa­tions and 318 emails from objectors, which the Chancellor took into con­sideration when making his decision.

The Chancellor, the Worshipful Philip Petchey, explained the history of burials, when, in the earliest days of the Church of England, the dead were buried in the churchyard of the parish church but graves would not have been individually marked. That facilitated the reuse of the same ground.

In the 18th century, the process began by which graves were per­man­­ently marked, and that meant that churchyards had to be ex­­panded. By the 19th century, some cemeteries were run by private companies and local authorities, and were no longer next to churches. Most people still wanted Christian burial according to the rites of the C of E, however, and therefore the land in private and local-authority cemeteries was consecrated according to C of E rites.

The effect of such consecration was that those areas became subject to the faculty jurisdiction of the consistory courts, and that human remains received protection from exhumation, which was allowed only in exceptional circumstances. The only reason that burial space had not run out long ago was the popularity of crema­tion.

Some people, however, still wanted their remains to be buried; consequently, there was now a shortage of burial space in England generally, and, more particularly, in Greater London and the London borough of Southwark.
There was an overlap between the faculty jurisdiction and the jurisdic­tion exercised by local planning authorities by reference to the fact that certain developments needed planning permission. The two proposals in this case needed plan­ning permission, and, in each case, planning permission had been granted in October 2015.

Within each area, there were areas of public burial where no exclusive right was purchased by the families of the deceased, nor a right to erect a memorial. Those areas received multiple burials, sometimes up to 18 in a single grave. The cemetery manager allowed small memorial tablets to be placed, and, in both areas, there were several of those markers. But those who placed them had no entitlement to keep them in place.

There were 48 unmarked war graves within Area Z, although only 20 were within the consecrated part. It was proposed that 25 of the 48 would be marked by new head­stones. Of the remaining 23, there were some where the relevant name did not appear on the war memorial within the cemetery. It was pro­posed that those names should be entered on the war memorial.

Even if a headstone was not practicable, there might be other ways of marking at least some of the 23 graves. The Commonwealth War Graves Commission would work with Southwark Borough Council in the detailed design to achieve that.

In the years after the Second World War, there was increasing concern about the environment, which the objectors focused on, particularly the loss of trees. The loss of any significant tree was “potentially unfortunate, and may carry with it unfortunate conse­­quences in particular loss of habitat”, the Chancellor said, but “it must always be possible to justify the felling of a significant tree . . . by reference to the benefit otherwise flowing from a proposal, particu­larly in the context of replacement planting.”
In both areas, no tree that was subject to a tree preservation order was to be felled.

The Chancellor said that the value of a cemetery within a com­munity was often enhanced by the fact that it provided open space and was an attractive area of trees and plants. In the present case, there was a conflict between the use of the land as a cemetery, and the wider “green space” and ecological benefits.

The objectors wanted Area Z, in particular, to be managed as an ecological area, and gave lesser priority to the need for more burial space.
The Chancellor said that it seemed to him that there was no pro­per basis for stopping what Southwark Borough Council, as the landowner, reasonably proposed. If there were clear and compelling environmental objections to the proposals, then, given the particular importance that the Church attached to the environment, it would not be appropriate to permit the proposals.

As it was, Southwark, as planning authority with its particular expert­ise in this area, was content. The diocesan advisory committee (DAC) had considered the pro­posals and recommended them. No expert evidence had been supplied by any of the objectors. The Chan­cellor said that he had not identified any sufficient reasons for rejecting the judgements of the planning authority, or the DAC.

He hoped that with greater know­ledge of what was proposed, and the background to it, some of the objectors might change their minds and recognise the consider­able care that had gone into the design of the two schemes.

At the heart of the Christian faith was a belief in the resurrection of the dead, the Chancellor said, and there was powerful symbolism involved in committing human remains into the earth.

These proposals would help to ensure that, in the future, those living in Southwark who wished to be buried in consecrated ground would continue to be able to do so, the Chancellor said, and it was appropriate that, if possible, the faculty jurisdiction should facilitate that. The Chancellor was also confident that, despite the contro­versy, the proposals would be seen, in time, to have been both sensible and well thought out, and to have improved both cemeteries.

After the faculty was granted, Southwark Council put out the following statement: “Unfortu­nately, the timing of the faculty approval, and the fact that they have given us a deadline to implement the project, has meant that, al­­though we would prefer not to, we must undertake vegetation clear­ance, and see if it is possible to remove trees early on in bird-nesting season.”

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