Included in our round-up of the ecclesiastical judgments published in August was a brief summary of Re St John the Baptist Adel and St Michael Markington [2016] ECC Lee 8; in this  Worshipful Mark Hill, QC, granted two linked petitions which sought  permission for the introduction of “bespoke” churchyard regulation for the churches concerned. The petitions were relatively straightforward: that of St John the Baptist, Adel seeking to limit the approved material for memorials solely to York sandstone [15 to 18]; and at St Michael Markington, to legitimise the continued use of the garden of remembrance until the remaining spaces have been filled [19 to 21]. Importantly, however, the judgment included an explanation of the introduction of a single set of standard churchyard regulations for the Diocese of Leeds [“the Leeds Regulations”] and how local variations may be accommodated within the new scheme.

Churchyard Regulations in the Church of England

As we noted in Churchyard Regulations – the practicalities of enforcement, unlike the Church in Wales which has centralized Churchyard Regulations, those within the Church of England are diocese-based; in addition PCCs may adopt their own policies provided that these are consistent with the diocesan Regulations. These are mostly similar but not identical, and general guidance has been provided by ChurchCare on Memorials in Churchyards: issued by the Church Buildings Council under S55(1)(d) Dioceses, Mission and Pastoral Measure 2007, this is statutory guidance, setting out standards of good practice which “should not be departed from unless the departure is justified by reasons that are spelled out clearly, logically and convincingly”.

However, Churchyard Regulations are locally determined and legal issues addressed through the relevant consistory court. Enforcement is the duty of the incumbent and their application is not always consistent within a given diocese. Most dioceses provide advice on their web pages relevant to the various actors involved: clergy & PCCs; families; stonemasons; and funeral directors.

The new diocese of Leeds, (initially styled “the Diocese of West Yorkshire and the Dales”) is comprised of the three historic dioceses of Bradford, Ripon and Leeds and Wakefield, where the Churchyard Regulations were “very different in style and content, and the rigour of their enforcement by parochial clergy, archdeacons and chancellors was inconsistent”. Chancellor Hill’s task was “to draft a single set of Churchyard Regulations for the Diocese of Leeds (or West Yorkshire and the Dales, as it then styled itself) which would be readily comprehensible and of universal application throughout the diocese” [1].

Churchyard Regulations in other dioceses

Dioceses in which Churchyard Regulations are treated prescriptively rather than instruments of delegation are listed in paragraph 4 of the judgment. The Diocese of Worcester employs the term ‘standard memorial’, a departure from which requires ‘a powerful reason’ and should be confined to ‘cases which are truly exceptional’, Re St Mary, Kingswinford [2001] 1 WLR 927. A departure from the prevailing regulations permitting a ‘non-standard memorial’ requires, it has been suggested, ‘a powerful reason’ and should be confined to ‘cases which are truly exceptional’, as in Re St James, Newchapel, Lichfield Consistory Court, April 2012, unreported, paras. 21 and 24.

Elsewhere the term ‘substantial reason’ has been used: Re St Peter, Church Lawford [2016] ECC Cov 3 at para. 8. The expression ‘powerful reason’ was also adopted recently in Re St Mary, Prestwich [2016] ECC Man 1, para. 34, although it was solely in the context of kerbstones. A reference to ‘dispensing with the rules’ is to be found in Re Footscray, All Saints, Rochester Consistory Court, 7 February 2013, unreported.

Churchyard Regulations in the Diocese of Leeds

The Leeds Regulations form an appendix to the Chancellor’s General Directions, and are annexed to the judgment: they came into force on 1 January 2016, coterminously with the Faculty Jurisdiction Rules 2015, Lists A and B, and the phased introduction of the online faculty system.

The Chancellor explained:

[3] … [as a general rule, Churchyard Regulations] are an instrument of delegation pursuant to which the discretion to permit the introduction into churchyards of certain categories of memorial is devolved from the chancellor to the parish priest. Parochial clergy have delegated authority to allow memorials which fall within the certain specified categories; but they are perfectly at liberty, should they wish, to decline to permit a memorial even though it complies with the Regulations.

However, if a priest purports to permit the introduction of a memorial which does not comply with the Regulations, the permission will be a nullity. See by way of example, Re St Mary’s, Wath [2015] ECC Lee 8, [reviewed here] where an order was made for the removal of kerbstones introduced without authority”.

Chancellor Hill stated [5] that he would not be imbuing the Leeds Regulations with the enhanced normativity afforded by some other chancellors to their regulations; his approach followed that of Alexander McGregor Ch. in Re St John Whitchurch Hill [2014] Oxford Const Ct , [summarized here] “which records with simplicity and clarity at paragraph 16”:

“As is the case with any petition, the burden of proof lies on the petitioner to show why a faculty should be granted to authorise the particular proposal set out in the petition”.

It therefore follows that under the Leeds Regulations, “there is no requirement for petitioners to: discharge a higher burden of proof; rebut a presumption; demonstrate a ‘substantial’ or ‘powerful reason’; or show an ‘exceptional’ case. Each petition will be determined on its own merits, the only constraint being the inability of the court to permit something which is contrary to, or indicative of any departure from, the doctrine of the Church of England in any essential matter “[6].

He concluded the explanation of the new regulations by stating [emphasis added]:

“[7.] The terms and content of the Churchyard Regulations will, of course, be a relevant factor – often highly relevant and doubtless on occasion determinative. But they will be one of the constellation of infinitely variable factors which the court must consider on a case-by-case basis. I anticipate that the same outcomes may well result irrespective of the differing approaches, but as I have the responsibility and privilege of creating clear practices for the Diocese of Leeds, justice requires that I set out in advance which mine will be. There will be no presumptive preference for what is contained in the Churchyards Regulations, nor a bias in favour of the standard, bland or anodyne“.

Bespoke Churchyard Regulations for particular parishes

The Leeds Regulations state:

“16. Parishes are encouraged to consider seeking a faculty for bespoke Regulations for use in a particular churchyard. Such Regulations must take into account local practice, tradition and custom and the particular environmental, architectural and aesthetic considerations of the church and its setting. They are likely to be more readily enforceable if the parish has a sense of ‘ownership’. The provisions of these Regulations should be incorporated unless the parish can satisfy that chancellor that it is appropriate for a faculty to be granted which sanctions a specific variation.”

The two conjoined petitions which form the subject matter of the judgment are made pursuant to this paragraph; and as they raised issues of general application for the diocese as whole, the Chancellor offered some general guidance for similar cases, [13], before addressing the specific facts of the two cases. The petitions were relatively straightforward: that of St John the Baptist, Adel sought to limit the material to be used for memorials solely to York sandstone [15 to 18]; and that at St Michael Markington, to legitimise the continued use of the garden of remembrance until the remaining spaces have been filled [19 to 21].

In the case of St John the Baptist, the parish was seeking not an enlargement of the regulations but a narrowing of their scope, the justification of which was a desire to maintain the attractive appearance of the churchyard and to preserve the integrity of the historic burial ground by continuing the use of traditional local stone. Strictly, such a revision is unnecessary since a parish priest is at liberty to refuse to give permission for a proposed memorial even though it is covered by the Regulations. However, such a restriction had been parochial policy for many years, is well-known locally, and has contributed to the attractiveness of the church and its burial ground. In addition, the PCC wished to restrict the dimensions of memorial slabs over the place of cremated remains, prohibit the addition of bases to memorials and to require them to be bedded directly into the ground; this was justified on visual and aesthetic reasons and facilitating routine churchyard maintenance. Petition granted.

The St Michael Markington petition concerned only a minor variation, sufficient to legitimise the continued use of the garden of remembrance until the remaining spaces have been filled; thereafter other provision will be required. The draft was approved subject to a minor amendment, to be clarified with the court, on which the Chancellor suggested that the petitioners consider a narrower range of permitted stones having regard to the locality and the materials already used in the churchyard.

The Chancellor gave each set of petitioners liberty to apply should minor variations to their respective drafts be thought desirable in consequence of any matter raised in the judgment, [23].

Comment

The Diocese of Leeds is one of the three largest in the Church of England (in terms of area), with 656 Anglican churches serving its population of 2.3 million people. The introduction of standardized Churchyard Regulations is therefore an important initiative towards achieving a consistent approach on what is sometimes a contentious issue. If, as is suggested, “the same outcomes may well result irrespective of the differing approaches”, what are the benefits of this approach and could it be adopted throughout the Church of England?

The more prescriptive approaches impose a stricter criterion for departure from the church or dioceses Churchyard Regulations. In both cases, however, the burden of proof lies on the petitioner, but with the prescriptive approach the petitioners must “discharge a higher burden of proof, rebut a presumption, demonstrate a ‘substantial’ or ‘powerful reason’ or show an ‘exceptional’ case”. Removal of this requirement has the potential to simplify the formulation and assessment of such petitions for both PCC and the court.

Elsewhere, the approaches adopted by the respective Chancellors have been developed to reflect the perceived needs of each diocese; however, the application of the new Leeds Regulations is likely to be followed with great interest, especially if this is shown to simplify this aspect of the faculty jurisdiction for the petitioners and the courts.