In 2004, this Journal published a case note of a decision by District Judge Thomas in the Gloucester County Court.Footnote 1 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’.Footnote 2 The Parochial Church Council had passed responsibility for maintaining the churchyard to the Parish Council,Footnote 3 which, in turn, had passed it to the District Council.Footnote 4 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)’.
In February 2007, the General Synod's Legal Advisory Commission issued an Opinion on ‘The maintenance of monuments in closed churchyards’.Footnote 5 This stated that
the recent decision in Lydbrook Parochial Church Council v Forest of Dean District Council … reinforces the legal position that the duty is one of substantive maintenance and not merely management of decline (see generally R v Burial Board of Bishopwearmouth (1879) 5 QBD 67 at 68).
Shortly before, the Diocese of Rochester had declined a request from Tunbridge Wells Borough Council to contribute to ‘reconstruction and engineering work’ (for which a faculty had been granted) in a closed churchyard ‘which goes beyond mere repair’. Its letter enclosed a copy of the note from this Journal.Footnote 6
‘Substantive maintenance and not merely management of decline’ trips off the tongue lightly, and it may well summarise Judge Thomas's view and the legal position accurately. If the note is read carefully, however, it will be seen that it does not put these actual words into the mouth of the Judge, nor does the reporter suggest that this is a paraphrase of what he said. The phrase certainly does not appear in his judgment,Footnote 7 although the consent order approved by him does appear to have required the District Council to do more than merely manage the decline of the churchyard.Footnote 8 Moreover, Bishopwearmouth is not mentioned in his judgment. This is not entirely surprising, since the case was not about the standard of maintenance of a closed churchyard, as the Court of Arches has recently pointed out.Footnote 9
The point at issue in Bishopwearmouth was not what had to be done to a closed churchyard but who had to pay for it. Section 18 of the Burial Act of 1855 provided that
In every case in which any Order in Council has been or shall hereafter be issued for the discontinuance of Burials in any Church Yard or Burial Ground the Burial Board or Churchwardens as the Case may be shall maintain such Church Yard or Burial Ground of any Parish in decent order, and also do the necessary repair of the Walls, and other Fences thereof, and the Costs and Expenses shall be repaid by the Overseers upon the Certificate of the Burial Board or Churchwardens, as the Case may be, out of the rate made for the relief of the Poor of the Parish or place in which such Church Yard or Burial Ground is situate unless there shall be some other fund legally chargeable with such Costs and Expenses.Footnote 10
In R v St John, Westgate, and Elswick Burial Board,Footnote 11 it was decided that section 18 was confined to parochial churchyards and burial grounds. Despite this, the law officers argued in Bishopwearmouth that section 18 applied to all burial grounds and that the churchwardens had to care for the grounds unless there was a burial board, in which case the board was to care for them. In Bishopwearmouth, the Court of Appeal affirmed R v St John, Westgate, and Elswick Burial Board and held that churchwardens were to care for closed churchyards, whether or not there was a burial board, and burial boards were to care for closed burial grounds provided by them. It went on to hold that a poor rate authority could be made liable to defray the expenses of maintaining closed parish burial grounds in its district, even if the district had no connection whatsoever with the parishes whose grounds they were.
As for the significance of ‘the relief given at first instance’, what is presumably being referred to is the making absolute of a rule nisi for a mandamus ‘commanding the burial board to put the Gill Cemetery in repair, and maintain it in repair’.Footnote 12 There is a short report of the proceedings at first instance in The Times, which shows that the Queen's Bench made the rule absolute against its better judgment. The Lord Chief Justice said
We are disposed to think the contention of the defendants is well founded … (but) we think it would be better that the facts should be put upon record by a return to the mandamus in case the litigation should be carried to a higher tribunal.Footnote 13
The issue before the Court of Arches in Re Hutton Churchyard was not so much the standard of obligatory maintenance imposed by section 215 of the Local Government Act 1972 (though it certainly was concerned with that) but whether the obligation extends to memorials in a closed churchyard and, if it does, the extent to which the burden it imposes (in respect of memorials) is mitigated by the fact that the primary responsibility for keeping the memorials in good shape is that of their owners, who cannot always be traced. The Court referred to Lydbrook in endorsing Judge Thomas's rejection of the District Council's submission in that case that the Council was not obliged to comply with section 215 if it could not afford to do so: the Judge did, indeed, discuss the weight that could or could not be given to finance by a District Council deciding how to discharge its statutory obligation.Footnote 14 He would permit the Council to give it some weight, while not allowing it to be determinative. Perhaps the way it might be put, although neither he nor the Court of Arches put it this way, is that finance may be taken into account in determining the means but not the end. As to what becomes of the phrase ‘substantive maintenance and not merely management of decline’, only further litigation and commentary will tell.
