Frensham Village Churches

Churchyard Regulations

Introduction

  1. The purpose of these regulations is to summarise the relevant law relating to churchyards; Provide a framework of rules, so that the beauty of our churchyard heritage is maintained.; Give practical guidance for Health and Safety, as well as maintenance issues. The churchyard is the setting for the Parish Church and it needs to be a place where people can be quiet, remember and pray, without the distraction of things that are unsightly or inappropriate.
  2. Because this document contains rules, it is difficult to make it reader-friendly. It also contains rules for matters which seldom concern the bereaved (for example, Exhumations, Trees in Churchyards). What is needed, therefore, is an 'Extract from the Regulations' which is relevant to the bereaved particular to the parish. PCCs can help their Incumbents (who have at times a very delicate pastoral duty to discharge in discussing with bereaved relatives the appropriate type of memorial), by creating their own 'Extract'. A model 'Extract' is included as Appendix D.
  3. The word 'Incumbent' is used in these regulations to refer to the Vicar, Rector, Priest-in-Charge, Team Vicar or, in the case of a vacancy, the Rural Dean. It does not include the Curate, who does not have the Incumbent's delegated authority

Burials

Rights of Burial

  1. Parishioners (Including all those on the Church Electoral Roll), and others who die in the parish, have a right to burial in the churchyard if there is still space available, and if the churchyard has not been closed by Order in Council. This right applies to both bodies and cremated remains (ashes).
  2. Permission for others to be buried may be granted by the Incumbent, who must have regard to any general guidance given by the Parochial Church Council (PCC)
  3. If the churchyard or burial ground has been Closed by Order in Council, no burial of bodies may take place (unless the Order makes exceptions e.g. for the burial of family members). Different rules apply to the burial of ashes.
  4. The Incumbent is responsible for deciding where in the churchyard burials will take place. It is usually possible to reserve a particular grave space by means of a Faculty (as below) if there is good reason for so doing.
  5. The reservation of a grave space, the exercise of a right of burial and the erection of a memorial do not alter the ownership of any part of the churchyard, which remains the legal property of the Incumbent. Any fee paid in connection with the use of the churchyard is solely for services rendered or in return for permission granted. It is not possible to 'buy' a space under any circumstance.
  6. All burials must be recorded in the Burial Register.


Graves and Memorials

  1. Incumbents have discretion to authorise the erection of any headstone which falls within the types and classes authorised in Appendix A (Memorials in Churchyards). They may refuse to permit the erection of an authorised headstone if they believe it would be detrimental to the churchyard. However, they have no discretion to allow the erection of a headstone that falls outside those authorised.
  2. No memorial should be erected within six months of a burial (the Incumbent may increase this minimum to 12 months depending on the type of soil in the churchyard).
  3. If a family (or executor) wishes to erect a memorial which falls within the Incumbent's discretion, they should apply on Form CR1 (available from the stonemason or Incumbent). Permission is always required and no work should be ordered or put in hand until permission has been granted.
  4. If a family (or executor) wishes to erect a memorial which falls outside the Incumbent's discretion, they may apply for a Faculty giving the grounds for their request. The Incumbent will advise them how to approach the DAC.
  5. Graves should normally be on a 9ft (2700mm) by 4ft (1200mm) grid unless ground conditions dictate otherwise. No grave or memorial should be placed within 4ft (1200mm) of the church, so as to facilitate access and help reduce damage during maintenance and repair of the building.
  6. Local Authorities have regulations regarding the minimum depth of a grave. Generally the depth must be not less than 750mm (30ins) above the coffin.
  7. In the event of any memorial being erected or placed in the churchyard without the written consent of the Incumbent or a Faculty granted by the Chancellor, those responsible may be required to remove the same and pay the costs (including the costs of any legal proceedings compelling them to do so).


Reserving a Grave Space

  1. It is sometimes desired to reserve a grave space in a particular location. The only way this can be done is by Faculty. Informal arrangements, such as promises or understandings have no legal force and may lead to disappointment and distress. A Faculty is the only guarantee. Special application forms are available from the Diocesan Registry
  2. Once the Faculty has been granted, the site of the grave space in the churchyard shall be marked so that it can be located at the time when it will be required for use. The responsibility for such marking rests with the person to whom the Faculty is granted (the 'petitioner'). The petitioner shall discuss the method of marking with the Incumbent and agree it with him / her and then carry out the marking. Marking must take place within 3 months of the grant of the Faculty. The petitioner will be responsible for ensuring that the marker remains adequate for its purpose. It is not the responsibility of the Incumbent, Churchwardens or PCC.
  3. The following method of marking must be used unless, upon written application to him, the Chancellor directs otherwise: A durable wooden or metal stake placed at the head of the grave space, marked with the initials of the person to be buried, followed by the year of reservation in brackets; e.g. "A.B.C. (99)".
  4. The marking of a grave space in this way will be a condition of any Faculty granted for the reservation of a grave space. A copy of the Faculty will be sent by the Registrar to the Incumbent of the Parish. It must be kept with the Churchyard Plan. The position of the grave should be marked on the Churchyard Plan and identified by name and the date of the Faculty. The responsibility for this rests with the Incumbent and Churchwardens.
  5. No markers may be placed until the granting of a Faculty and any markers so placed should be removed.


Exhumations

  1. No human remains (including cremated remains) may be moved ("exhumed") without a Faculty and sometimes a Home Office Licence.
  2. The process of obtaining a Faculty to permit an exhumation, which can only be granted in exceptional circumstances, is often lengthy and complex.

Cremated Remains

Interment of Cremated Remains

  1. Parishioners (including all those on the Church Electoral Roll) and others who die in the parish, have a right to the burial of their cremated remains ('ashes') in a churchyard, and the remains of non-parishioners can also be buried there if the Incumbent consents. Where possible, Incumbents should ensure that cremated remains are buried in an area set aside by Faculty for that purpose (often called a 'Garden of Remembrance') or in a family grave.
  2. If a churchyard has been closed for burials by Order in Council, the burial of cremated remains may continue in an area set aside for that purpose by Faculty. Following closure, a Faculty can still be granted (a) setting aside a new area for cremated remains or (b) for the burial of cremated remains in an individual plot e.g. a family grave. It is normally possible to allow for the burial of ashes to continue as part of the closure Order.
  3. Cremated remains disposed of in a churchyard should normally be buried without their container. At the discretion of the Incumbent, such remains may be reverently strewed or may be buried in a casket or urn (but it must be made of biodegradable material).
  4. Once cremated remains have been interred, they may not be disturbed without Faculty. This restriction should be borne in mind when cremated remains are interred in an existing grave if it is expected to be used for further burials.
  5. The PCC may apply for a Faculty so that an area where ashes are interred may be used for the interment of other ashes after 50 years. The PCC should always make reasonable attempts to enquire from members of the family of the deceased whether they object to its re-use. Should such objection be made, then re-use will be deferred for a further period of 25 years.
  6. A Faculty is always required before cremated remains may be deposited in a church. Such a Faculty will only be granted in exceptional circumstances.
  7. All interments of cremated remains must be recorded in the Burial Register.


Gardens of Remembrance

  1. It is good practice to set aside, by Faculty, plots which may be dedicated for the exclusive burial of ashes. The forms of such Gardens of Remembrance depends very much on individual circumstances, and calls for vision and sensitivity. The PCC should seek assistance in the creation of a suitable design. The design should envisage the interment of not more than 50 cremated remains before the design should be reconsidered. When applying for a Faculty, the parish are encouraged to consider a flexibility of approach, paying specific attention to the particular circumstances of the location and the amount of space that is available. The DAC has experience of such projects and should be consulted at an early stage in the design.
  2. A Garden of Remembrance should not be immediately adjacent to the church, churchyard wall or other building, so that it is not disturbed by necessary repairs or maintenance.
  3. Often the Garden of Remembrance is designed as a tranquil space with no permanent markers because the burials are recorded in a Book of Remembrance. Sometimes there is, however, a pastoral need for some more tangible marking. The DAC is willing to give advice on ways this need might be achieved.
  4. Every parish, if it has not already done so, will need to draft regulations for a Garden of Remembrance and to obtain a Faculty for its use. Model Regulations for a Garden of Remembrance are in Appendix B.

Management of the Churchyard

Maintenance

  1. Under the Parochial Church Council (Powers) Measure 1956, the duty to care for and maintain the churchyard is laid upon the PCC, which has all the powers necessary for that purpose. The following rules are appropriate for the proper exercise of those powers but may be varied, by agreement with the Chancellor, to meet the needs of the local situation. The surface of the churchyard shall be kept, as far as possible, level and free from mounds. The PCC may, at its discretion, level the ground at any time more than twelve months after the latest interment in the grave. Bulbs and small annual plants may be planted in the soil of a grave being within the area previously excavated. Plants or flowers may be placed in a removable sunken container, but unless they are kept tidy, the PCC may treat the grave as part of the turf and mow over it. Wreaths or cut flowers may be laid directly on any grave or placed in any vase authorised by these Regulations. If a built-in vase ceases to be used for a period of twelve months or more, the PCC may insert a matching stone stopper in the vase hole. Artificial flowers of good quality may be placed on a grave at the discretion of the Incumbent and PCC. Both natural and artificial flowers will deteriorate after periods of time. The PCC may remove flowers and wreaths of whatever kind at their discretion if they judge them to be unsightly and all artificial flowers after two months. Any power exercisable by the PCC under section 4 of these Regulations may be delegated (by the PCC) to a person or persons deputed to care for the day to day upkeep and maintenance of the churchyard.
  2. Where a churchyard has been closed by an Order in Council, the PCC may request the local authority to take on the responsibility for its maintenance (Local Government Act 1972 section 215). Careful thought should be given before such a request is made, since the PCC then loses control.
  3. Whether the maintenance of a closed churchyard is undertaken by the PCC or the local authority, it remains the property of the Incumbent and also subject to Faculty Jurisdiction. A Faculty is still needed for all works which would require a Faculty in an open churchyard.


Health and Safety

  1. The PCC, together with the Incumbent, are occupiers of the churchyard for the purposes of the Occupiers' Liability Acts 1957 - 1984. These Acts place upon the occupiers a duty of care to see that the visitor in the churchyard will be reasonably safe. Therefore, there is a duty to ensure, particularly but not exclusively, that walls, trees and memorials are regularly inspected, and the PCC should take reasonable steps to reduce or minimise foreseeable risk. Such an inspection should typically form part of the Quinquennial Inspection and should also be carried out following exceptional weather conditions. Where the churchyard is closed and responsibility for maintenance has been passed to the local authority, the local authority is also an occupier, but not to the exclusion of the Incumbent and PCC.
  2. The person who erects a memorial is responsible for seeing it is kept safe and in proper repair. However, when such a person moves or dies, it is often not possible to trace them or to locate the heirs to enforce repairs or recover the cost. The burden of maintenance in effort and cost thus often falls on the PCC. Should it come to the attention of the PCC that any memorial may be unsafe, it should be roped off immediately. Where the family can be traced, they should be contacted, as responsibility for its maintenance rests with them. Where those responsible for the maintenance of the memorial cannot be traced, the PCC must, by default, take appropriate action. If they have any doubt about the safety of a memorial, they should seek professional advice and should contact the Archdeacon. A Faculty may be required if major repairs are necessary. Memorials of particular distinction may be separately listed.


Trees in Churchyards

  1. The Regulations as to the care of trees in churchyards appear in Appendix C


Recording the Churchyard

  1. Incumbents and Churchwardens are responsible for ensuring that the Churchyard Plan and related Faculties are kept securely in the church or elsewhere, a note being kept as to where they may be found. During a vacancy in the living, it is the responsibility of the Churchwardens to ensure that any Priest-in-Charge or other clergy person responsible for burials is kept fully informed about the Churchyard Plan. Unless this course is followed, a burial could take place in a grave space which had been reserved for someone else resulting in unnecessary distress.
  2. If there is no Churchyard Plan, or the existing Plan is not up-to-date, the PCC must take steps to create an up-to-date plan. It should record the location of the church in the churchyard, the location of all trees, bushes, hedges and fences, as well as the location of all memorials. The DAC is willing to give advice as to the preparation of such a plan.
  3. All parishes should maintain a record of all memorials in the churchyard including the inscriptions and the names and addresses, both of the persons who caused the memorial to be erected and the mason who carried out the work. This will help the PCC both to locate the appropriate person should repairs to the memorial be required and to assist those carrying out family or other research. The DAC is willing to give advice as to the preparation of such a record.


Alterations

  1. The PCC will wish, from time to time (and typically to coincide with the Quinquennial Inspection), to review the churchyard to see what alterations are desirable. Such a review may encompass Health and Safety, disabled access, the condition of the existing fabric, lighting, tree planning and landscaping. A Faculty is always required before any alteration can be made in a churchyard or burial ground (other than burials and interments, the erection of memorials as provided in these Regulations and routine maintenance).


Closure of a Churchyard

  1. Where a churchyard becomes full of burials and there is no further useable space, the Incumbent and PCC may seek to have it closed. Closure of a churchyard for further burials can only be ordered by Her Majesty in Council. Application should be made in the first instance to The Coroners Unit of the Ministry of Justice, (see useful addresses at the beginning of these regulations). The fact that closure is irreversible should be borne in mind, as well as the fact that closure imposes significant limits on the future use of the land, for example for any form of building. The Registrar should be consulted before any action is taken.
  2. Alternatively, the Incumbent and PCC may prefer to adopt a policy for the reuse of graves where burials took place at least, say, 75 years ago. This is to be encouraged in view of the increasing shortage of land for burials, but requires very careful and sensitive treatment. It will probably involve a Faculty, as memorials may have to be moved. Advice should be sought from the Registrar as to the legal position, and the Secretary of the DAC as to the manner in which it should be carried out.