St John’s Churchyard, Heath Hayes and the not-so “complicated procedures” on closure

When I left the Diocese of Lichfield almost three years ago to return to journalism, I took the decision that I would not report on the diocese. It is a rule that I have occasionally broken, when the circumstances are appropriate and when it is clear that there is no conflict of interest.

Such instances have included the fire at the Lichfield Cathedral School, where I just happened to be on the scene just before the fire engines arrived (no, I didn’t wield the matches!) and covering the exploits of the Lichfield Diocesan Clergy Cricket Team in the Church Times Cricket Cup competition where my role is merely to piece together reports from team secretaries from all the dioceses (Lichfield are through to their fourth final in five years, by the way, against London at the Walker Cricket Ground, in Southgate on 4th September).

I have also been careful not to comment on matters to do with the diocese and its churches – its potentially a tricky area when you know where the bodies are buried! But it is bodies that has prompted me to break this rule! Or, rather, a churchyard.

It is part of the law of England that when a churchyard is closed, the responsibility for maintaining it falls on the local authority. This could be a (civic) parish council or town council, where they exist, or the local district, borough or unity authority.

Some people – mainly secular humanists – claim that this is unfair and that local authorities shouldn’t have any responsibility to maintain any part of a church or its environs. This is to miss the point (it is also a separate debate, but worth a brief mention): When a churchyard is open, it is the common law right of everybody who lives and died in the parish to be buried in the churchyard. With this right comes the common law duty on churches to bury the dead.

This is a public duty funded by the fees charged for burial. When a churchyard is closed there are no longer any fees and so the cost of maintaining this public area would fall disproportionately on those member of the community who are members of the church. Passing responsibility for maintenance of closed churchyards to local authorities means that the cost can be shared (through the Council Tax) fairly on all the members of the community.

Closing a churchyard is a relatively complex legal process and, ultimately, requires an Order in Council. It happens fairly frequently: in April, a meeting of the Privy Council, chaired by the Queen at Windsor Castle, closed four churchyards: All Saints, Leavesden (Watford); St Michael and All Angels, Hallaton (Leicestershire); Holy Trinity, Brimscombe (Stroud); and St Thomas a Becket, Pensford (Bristol).

But although the process for closing a churchyard (or, more legally, an Order Giving Notice for the Discontinuance of Burials) is complex, the process of passing responsibility for maintenance to local authorities is very simple.

So it has been somewhat intriguing to read of the ongoing shenanigans at St John’s Churchyard in Heath Hayes.

The churchyard was closed in October 2011 and, some time afterwards, the Parochial Church Council (PCC) passed the appropriate resolution and requested that the Heath Hayes and Wimblebury (civic) Parish Council take on the maintenance responsibility.

The procedure for this is laid out in section 215 of the Local Government Finance Act 1972, which states that after serving the statutory notice on a parish council, “the maintenance of the churchyard shall be taken over by the authority on whom the request is served . . . three months after service of the request.

There is a get-out clause for small local authorities: if, as is the case here, the notice is served on a parish or town council, it can pass on the responsibility to the district council. Again, the process is simple and is laid out in section 215 (3) of the Act. All the parish or town council has to do is “so resolve and, before the expiration of the said three months, give written notice of the resolution to the council of the district . . . and to the parochial church council.

If that happens, then “the local authority to whom the notice is given . . . shall take over the maintenance of the churchyard at the expiration of the said three months.

The wording of the Act is clear and the process is automatic. There is no need for an authority to “consent” because it has no alternative: responsibility for the maintenance of closed churchyards, in law, passes to the local authority at the expiration of three months notice.

So why has the churchyard at St John’s in Heath Hayes allowed to become so overgrown and unkempt? If you want to know how bad it is, this report from the local Express and Star newspaper will leave you in no doubt.

The condition of the churchyard will be of concern to many; but I was concerned not just by the state of the churchyard, but also by the words attributed in the report to Cannock Chase District Council spokesman Jamie Summerfield, who, according to the paper, said that the transfer of the graveyard was a ‘complicated procedure’.

He continues: “the transfer process has taken longer than usual. Cannock Chase Council is now working urgently to complete the process of adopting the graveyard so that grounds maintenance work can be carried out and the graveyard brought back into an acceptable state.”

This all left me scratching my head: There is no transfer process and there is certainly nothing to “adopt”. The churchyard isn’t being transferred. It will continue to be “owned” by the Vicar of Heath Hayes.

It is merely responsibility for maintenance that passes to the local authority. And, as I have explained above, the “procedure” isn’t “complicated” at all: it merely requires a notice to be served on the Council.

In fact, because the obligation is a statutory duty, there isn’t even a need for the council to have a meeting about it (okay, funds have to be allocated, but there is certainly nothing to “adopt” or “agree to”).

And yet Cannock Chase District Council’s Cabinet will receive a report from its head of commissioning, Mike Edmonds, when it meets tomorrow (Thursday), recommending that the council “Formally note the adoption of the closed churchyard at St. John’s Church, Heath Hayes” and provide the necessary funds for its maintenance: an initial £10,000 “to bring the churchyard up to an acceptable standard” and an ongoing £3,500 per year for “an annual maintenance regime.”

As I have said, agreeing to provide the funds is one thing (but they have a statutory duty to do so); formally “adopting” the churchyard is something altogether different. But the question remains, why has the churchyard been allowed to get so badly overgrown?

The report by the council’s Mr Edmonds is astonishing. It lays the blame for the delay not on “complicated procedures” but on a misunderstanding. But even this doesn’t make sense within the statutory framework.

He says that on 10th September 2012, the Heath Hayes and Wimblebury Parish Council (the local civic council) notified Cannock Chase District Council that is was passing responsibility for maintenance of the churchyard to it.

Simple – three months after the initial notice, responsibility passes to the council. In other words, tomorrow the District Council will be asked to “formally adopt” something that it has already, in law, been statutorily responsible for since at least 10th December 2012.

Mr Edmonds tells councillors: “It appears that there was some confusion as to whether this request had been made correctly. It was unclear as to whether the Parish Council had formally resolved to pass on responsibility for the maintenance to the Council and given notice of their resolution to the District Council. As a consequence it appears that all parties believed that they had taken the appropriate action in this case, the PCC and the Parish Council believing that the District Council had taken on the maintenance responsibility for the churchyard and the District Council seeking the appropriate resolution from the Parish Council, before it actually did so.

This paragraph is remarkable! It’s worth breaking it down:

  • “It appears that there was some confusion as to whether this request had been made correctly.”

– Confusion by who? What request? The law is simple: the parish council wasn’t requesting that the district council take on responsibility for maintenance; it was giving notice that it was passing the responsibility on. And doing it “correctly”? What does this mean? The Act doesn’t specify a specific “correct” form.

  • “It was unclear as to whether the Parish Council had formally resolved to pass on responsibility for the maintenance to the Council and given notice of their resolution to the District Council.”

– How can this be unclear? Mr Edmonds said that the district council received notification from the parish council on 10th September 2012. So by his own words, he refutes the second part of this sentence. As for not knowing whether the parish council had “formally resolved”, why didn’t he simply look in the parish council minutes? They are available online.

Microsoft Word - 3. MINUTES 09.12-SEPTEMBERIt took me five minutes (and that included looking for the address of the parish council’s website) to download the minutes from its meeting immediately before 10th September 2012. This shows that on 5th September 2012, under item 19 on the agenda, “it was agreed to transfer responsibility for the burial ground to the district council.”

If I could find that out in five minutes, why has it taken Cannock Chase District Council 22 months to do it?

  • “As a consequence it appears that all parties believed that they had taken the appropriate action in this case, the PCC and the Parish Council believing that the District Council had taken on the maintenance responsibility for the churchyard and the District Council seeking the appropriate resolution from the Parish Council, before it actually did so.”

– This sentence, roughly translated, says, “don’t blame me guv, it’s everyone else’s fault even though it’s nobody else’s fault.” Firstly, it doesn’t “appear that all parties believed that they had taken the appropriate action… The PCC and the Parish Council HAD taken the appropriate action. As for the District Council seeking the “appropriate resolution . . . before it actually did so” – before it actually did what?

Well, it appears from the document, that Cannock Chase District Council believe that they have some say in the matter. They do not. They are already responsible for the maintenance of the churchyard – even before, or irrespective of, tomorrow’s meeting of its cabinet committee. It is a statutory responsibility imposed by the law, not by the will of the council.

Mr Edmonds’ report falls short in other areas too.

For example, he says that there is “no statutory guidance on the appropriate standard to which a closed churchyard should be maintained.” Actually, he might like to read the Ecclesiastical Jurisdiction Measure 1963 (particularly section 6(b)) as well as the Faculty Jurisdiction Measure 1964 and the Care of Churches and Ecclesiastical Jurisdiction Measure 1991.

These Measures – passed by the General Synod of the Church of England and its predecessor, the Church Assembly – are Primary Legislation. They have the same legal effect as an Act of Parliament. They vest the authority over churchyards – and what happens in them – to the Consistory Court of the Diocese and the appellate court of the province: in the case of Heath Hayes, this is the Lichfield Consistory Court and the Arches Court of Canterbury.

The Measures provide for Rules and Regulations (secondary legislation, in the form of Statutory Instruments made by the Synod) and Guidelines (made by the chancellor (the judge presiding over the Consistory Court)) that cover what can and cannot be done to and in churchyards.

The legislation also covers the processes for obtaining permission for works in churchyards. Mr Edmonds’ report suggests that he is partly aware of this, because he suggests that where the council identifies a dangerous memorial, “it must notify the PCC who may issue a faculty (consent of the Bishop) for the making safe of the memorial”.

The PCC cannot issue a faculty, it can only request one. And it isn’t the consent of the bishop, but the consent of the Chancellor of the Consistory Court. The Chancellor must apply the law – statute and precedent – to determine whether or not any faculty can be granted.

In the case of an unsafe memorial, particularly in an emergency, these can usually be granted fairly quickly. In the case of several unsafe memorials, the courts are likely to request a more detailed process to ensure proper consultation with the affected parties.

One of the most shocking aspect of Mr Edmonds’ report is where he states: “paths that cross the churchyard are also an asset that are transferred…” No assets are transferred. The ownership of the churchyard remains fully and totally the “property” of the vicar.

Does this matter?

Well, yes. Frankly, it does. And not just because the people of Heath Hayes have had to put up with an overgrown churchyard for so long. It matters because if the Council do not do things properly they could end up in the Consistory Court having to explain why they have acted contrary to the law.

Referring back to Mr Edmonds’ assertion that there are no statutory guidelines about the appropriate standard to which a closed churchyard should be maintained; in his report he says that Cannock Chase District Council’s responsibility includes trees: “This extends to the felling, lopping and topping of trees where it is required as part of good arboricultural maintenance/practice.”

Before he starts chopping trees down, he may wish to consider section 6 (3) of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, which states that “The chancellor of a diocese shall . . . give written guidance . . . as to the planting, felling, lopping and topping of trees in churchyards.”

If the Council does any work to the trees that is contrary to this statutory guidance – or any other work in the churchyard without a faculty where one is required – they may find themselves having to account for themselves to the Chancellor of the Diocese; having to appear at a consistory court hearing; and having to pay the costs of such a hearing.

Cannock Chase District Council is legally responsible for the maintenance of the churchyard of St John’s, Heath Hayes, regardless of what it does or does not decide to do in its cabinet meeting tomorrow; and in fulfilling its obligations must act in accordance with numerous laws, regulations, rules and guidelines.

It has been so responsible for almost two years. It’s about time they set to it, rather than making ridiculous statements about complicated procedures, the adoption of a churchyard or the transfer of assets.