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Published online by Cambridge University Press: 06 August 2009
In 2004, this Journal published a case note of a decision by District Judge Thomas in the Gloucester County Court. At issue was the leeway permitted a District or Parish Council in discharging its obligation of maintaining a closed Anglican churchyard ‘by keeping it in decent order and its walls and fences in good repair’. The Parochial Church Council had passed responsibility for maintaining the churchyard to the Parish Council, which, in turn, had passed it to the District Council. The obligation was (and still is) no more and no less than that of the Parochial Church Council before the transfer. It is, said the note, ‘one of substantive maintenance and not merely management of decline (note the relief granted at first instance in R v Burial Board of Bishopwearmouth (1879) 5 QBD 67 at 68)’.
1 Lydbrook Parochial Church Council v Forest of Dean District Council (2004) 7 Ecc LJ 494.
2 Local Government Act 1972, s 215(1).
3 Ibid, s 215(2).
4 Ibid, s 215(3).
5 Available at <http://www.cofe.anglican.org/about/churchlawlegis/guidance/monumentmaintenance.rtf>, accessed 15 June 2009.
6 See the minutes of Bidborough Parish Council Meeting on 29 January 2007, available at <http://www.bidborough-pc.gov.uk/parish_council/2007docs/Jan07Min.html>, accessed 15 June 2009.
7 I am indebted to the Forest of Dean District Council for supplying me with a copy of the judgment, as I am to the Clerk of Bidborough Parish Council for information about Bidborough parish churchyard.
8 The Order can be found at <http://www.fdean.gov.uk/kudos/documents/ld27c.pdf>, accessed 15 June 2009.
9 Re Hutton Churchyard, (2009) 11 Ecc LJ 236, Ct of Arches.
10 In 1857, the law officers gave an opinion that section 18 was to be construed ‘redenddi singula singulis’ and required the churchwardens to care for closed churchyards, and burial boards to care for all other closed burial grounds, including private grounds belonging, for example, to Dissenters. In 1860, the Home Secretary observed that, if the section really was to be construed ‘reddendi singula singulis’, burial boards would have to care for churchyards and churchwardens for all other burial grounds. Thereupon the law officers (the Attorney-General being the same but the Solicitor-General different) gave their opinion: first, that the obligation fell on the burial board, if there was one, and only fell on the churchwardens if there was not; and second, that the section applied only to parochial churchyards and burial grounds and not to private ones. See the National Archives TS25/1117, ‘Burials Act 1855: construction of section 18, 1857–60’.
11 (1861) 1 B & S 679; and (1862) 2 B & S 703.
12 R v Burial Board of Bishop Wearmouth (1879) 5 QB 67 at 68.
13 R v Burial Board of Bishop Wearmouth 12 June 1879, 6a. See, too, the remarks of Brett and Cotton LJJ in the Court of Appeal at pp 73 and 74 respectively.
14 Although the judge appears to have thought that, before the 1972 Act, parochial church councils (and before them churchwardens) were obliged to maintain closed churchyards in decent order – and here he quoted from an uncited source – ‘so far as they had funds to do so’. There is no warrant for this limitation.