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Published online by Cambridge University Press: 12 September 2022
Despite the widespread use of cremation, there is once again a shortage of burial space in some parts of the country. Chancellors dealing with petitions for faculties reserving grave spaces are finding that more and more parochial church councils are opposing reservation as they see that the available space is running out. In rural areas it may be possible to persuade a farmer or landowner to part with some land to form a new burial ground, perhaps serving a number of adjacent parishes. Section 35 of the Church Property Measure 2018 sets out the law relating to shared burial grounds, developed in a series of nineteenth-century Acts which a modern reader would find both prolix and overcomplicated. This article explores the history and practical workings of the law, illustrating these by reference to a prime example of a shared burial ground, the Mill Road Cemetery (more formally the Parochial Burial Grounds) in Cambridge.1 The law as to rights in graves and the memorials placed on them causes much misunderstanding. Our account will show that the same may be true with regard to the burial ground as a whole.
1 We are not concerned with municipal cemeteries, the legal regime of which is to be found in the Local Authorities Cemeteries Order 1977, SI 1977/204, as amended (to enable burial records to be held electronically) by SI 1986/1782.
2 See J Rigg, ‘The rise of cemetery companies in Great Britain 1820–53’, unpublished PhD thesis, University of Stirling (1992), p 33, available at <http://hdl.handle.net/1893/2017>, accessed 6 June 2022.
3 HL Deb 28 June 1852, vol 122, col 348.
4 Rigg, ‘Rise of cemetery companies’, does not deal with the legislative background.
5 This was not the case with the cemetery set up in Cambridge by the Cambridge General Cemetery Company, now known as the Histon Road Cemetery.
6 10 & 11 Vict c 65.
7 13 & 14 Vict c 52.
8 This explanation was given by the Earl of Hardwicke during proceedings on the Burial Act 1852, which replaced the 1850 Act: see HL Deb 28 June 1852, vol 122, cols 1348–50.
9 Burial Act 1852, ss 2–8. For the immediate future needs of parishes now without a burial ground, the Crown had purchased the Brompton Cemetery, which would be available for all such parishes.
10 Burial Act 1852, ss 10–22.
11 An example is the order made in 1854 forbidding burials in any of the parish graveyards in Norwich prompting the establishment of a Norwich Burial Board which established the Earlham Cemetery; see J Bartlett, ‘A Short History of Earlham Cemetery’, 2015, <https://www.friendsofearlhamcemetery.co.uk>, accessed 6 June 2022.
12 An Act to amend the Laws concerning the Burial of the Dead in England beyond the Limits of the Metropolis, 16 & 17 Vict c 134.
13 Burial Act 1855, s 14 contains a remarkable provision that, if three-quarters of those voting at a vestry meeting resolved that the building of a chapel for non-Anglicans was ‘undesirable or unnecessary’, the Home Secretary could rule that the burial board was under no obligation to provide such a chapel.
14 Burial Act 1855, s 11, amended in detail by the Burial Act 1857 (c 81), s 9.
15 See Legal Advisory Commission, Legal Opinions Concerning the Church of England, part 8, <https://www.churchofengland.org/about/leadership-and-governance/legal-services/legal-opinions-and-other-guidance/legal-opinions#calibre_link-162>, accessed 6 June 2022.
16 Parochial Church Councils (Powers) Measure 1956, s 4(1)(ii)(c).
17 58 Geo 3 c 45. All the powers of the Church Building Commissioners were transferred to the Ecclesiastical Commissioners by the Church Building Commissioners (Transfer of Powers) Act 1855 (19 & 20 Vict c 55). The property of the Ecclesiastical Commissioners was transferred to the Church Commissioners by the Church Commissioners Measure 1947, but powers in respect of new burial grounds had by then been vested in the diocesan boards of finance.
18 59 Geo 3 c 134, s 37.
19 3 Geo 4 c 72.
20 St George's Gardens in Camden is claimed to be the first burial ground bought to serve two parishes; it dates from 1713.
21 8 & 9 Vict 70.
22 An exclave is a piece of land which is a detached portion of the main holding. For example, Lindisfarne and neighbouring parishes, geographically in Northumberland, were for many years an exclave of the County Palatine of Durham. That area was an enclave in Northumberland, just as the Vatican City is an enclave in Italy.
23 9 & 10 Vict c 68.
24 Section 2 enabled the bishop to make similar provision in any sentence of consecration of the chapel.
25 14 & 15 Vict c 97.
26 The notion of the freehold of a gate is strange; ‘gate’ means an access road (such as exists in Mill Road Cemetery), as opposed to purely internal paths.
27 See Cambridge City Council, Open Spaces department, Mill Road Cemetery Conservation Plan 2004, p 60.
28 Reproduced in ibid, p 54; it bears no date.
29 The map can be viewed at <http://millroadcemetery.org.uk/mrc2015/wp-content/uploads/2015/06/the-13-parish-areas.jpg>, accessed 6 June 2022. Bound stones were put in place; some still exist.
30 See Re St Gabriel, Fenchurch Street [1896] P 95, 101; Re St Mary Magdalene, Paddington [1980] Fam. 99.
31 In 1977, the Church Commissioners ruled that the site of the lodge was not consecrated; they based their ruling on a reference in the sentence of consecration to the use of a room in the lodge as a temporary chapel, concluding that the lodge must have been built before the rest of the land was consecrated. It is not entirely clear that that conclusion was correct, but the lodge was later sold in reliance on it.
32 Examples in recent years include a scheme under which sculptures were installed at a number of points within the cemetery; a misunderstanding by officers of the City Council, who purported to make an order about dogs on the basis that the cemetery was the property of the Council; and issues around the use by the local community of the access road for a Christmas market.
33 See a printed paper recording this, reproduced in the Mill Road Cemetery Conservation Plan 2004, p 57.
34 SI 1949 no 1848.
35 It was this that led the board to make the abortive suggestion of the transfer of the whole cemetery to one parish.
36 If the hut were to be destroyed by fire (a fate similar to that of the chapel in the Mill Road Cemetery), its site would presumably remain vested in the bishop.
37 In 2001 a person was injured in the Mill Road Cemetery and solicitors acting on his behalf indicated that they claimed damages from the ‘Trustees’. They were told that the maintenance responsibility was that of the City Council, which settled the claim.
38 This is to be distinguished from the exclave provision in s 35(8).
39 See Burrell, A, ‘And who is my parishioner? Residency, human rights and the right to burial in the parish churchyard’, (2022) 24 EccLJ 58–67Google Scholar.