Often in Central London, development is to be carried out in the vicinity of a disused burial ground. A recent example of this involved minor works and the location of a temporary building on top of a disused Church of England burial ground, assumed to be consecrated land. The site, therefore, was subject to Ecclesiastical Law as well as the laws of England. Notwithstanding that the works proposed in this case were most unlikely to disturb human remains, the grant of planning permission and listed building consent did not deal with the legal issues associated with development above a disused burial ground arising under both English legislation and Ecclesiastical Law.

This post discusses the issues that need to be taken into consideration when development affects a disused burial ground to which Ecclesiastical Law applies. For the purposes of this blog, “Ecclesiastical Law” is the law applying to the Church of England. Accordingly, this post does not deal with burial grounds which are associated with other religions.

English Law: a blanket prohibition

Section 3 of the Disused Burial Grounds Act 1884 prohibits the erection of a building (non-exclusively defined to include any temporary or movable building) over a disused burial ground other than for certain specified spiritual reasons. This is a blanket ban, which covers consecrated as well as un-consecrated, land. A breach of section 3 could attract an indictment.

Ecclesiastical law: consecrated land

In addition to the blanket ban under English law, for all but the smallest works proposed on consecrated land, under Ecclesiastical Law a ‘faculty’ (a right to do works) granted by the Bishop of a Diocese, is required. This requires an application to be made to the Diocese within which the land is located.

A breach of Ecclesiastical Law in building out a proposed development could attract an injunction from the Consistory Court preventing the works from being carried out and or an order requiring the restoration of the land to its condition immediately prior to the unlawful works being done. Failure to comply with any such order in the absence of a reasonable excuse constitutes contempt of Court, punishable by fine or imprisonment upon certification by the Chancellor of the breach to the High Court. The statutory limitation on making a restoration order (in the absence of deliberate concealment) is 6 years following the commission of the act.

Of course, the blanket ban contained in section 3 of the 1884 Act ousts discretion from the Chancellor to grant a faculty for building on disused burial grounds for secular purposes, even where the Diocese would otherwise wish to permit the proposed works. Indeed, this was recently illustrated in the Christ Church, Spitalfields Case.

Exceptions to the blanket prohibition

There are only a few exceptions to the blanket prohibition contained in section 3.

One way of overcoming the section 3 prohibition in relation to consecrated and un-consecrated land is found in section 5 of the 1884 Act: an exception to the prohibition in respect of any burial ground which has been sold or disposed of under the authority of any Act of Parliament. This provision is useful when dealing with a burial ground located on land which has been held by a public body at some point. If this exception applies to a particular burial ground, then that land is released from the prohibition against erecting a building under English law. While a faculty for proposed works on consecrated land would still need to be obtained under Ecclesiastical Law, the Chancellor could grant one if he thought it appropriate to do so.

An alternative option for dealing with a consecrated burial ground came into force in 2015: section 18A of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 provides that where one of two specified conditions are met the grant of a faculty would overcome the blanket prohibition contained in section 3 of the 1884 Act so that building on consecrated land is permitted under English Law for secular purposes. The conditions are that:

  1. no interments have taken place in the land on which the building is to stand during the period of 50 years prior to the date of the petition for the faculty; and
  2. no personal representative or relative of any person whose remains have been interred in the land during that period has objected to the grant of the faculty or that any such objection has been withdrawn.

Obviously, for very old disused burial grounds, it is to be expected that condition (a) would be satisfied, and therefore, should the Diocese wish to grant a faculty, development could be permitted by virtue of section 18A. However, for more recently disused burial grounds (such as that on the Isle of Wight, the proposed development of which was recently featured in the press), the risk that a representative or relative of people whose remains have been interred in the land would object to the development proposal can be a real possibility. Should this occur and the objection not be withdrawn, neither condition (a) or (b) would apply and, therefore, section 18A could not be relied upon to permit the development.

There may be significant legal consequences if the requirements relating to disused burial grounds under both English and Ecclesiastical Law are ignored. Of course, breaches of these legal requirements could also have other commercial implications, in obtaining insurance or complying with other legal requirements which require buildings to be lawful, such as a subsequent financing or disposal. Accordingly, care must be taken to ensure that all legal requirements are understood and necessary consents obtained when promoting development on disused burial grounds. Consultation of the local planning authority and Diocese should be taken at the outset when formulating a development proposal located within the vicinity of a disused burial ground. Further, in cases where the burial ground has been disused in the preceding 50 years, the risk of an objection being made by a representative or relative of the deceased should be assessed, and the possibility of and requirements for its withdrawal considered.