Can a parish council legally maintain an open churchyard

Question

My local parish council are planning on taking on the maintenance of the open part of our local churchyard and have already tendered for this work together with some tree work.

The Local Government Act 1972 section 215 “Maintenance of a closed churchyard” specifically gives the parish council the powers for this maintenance if certain process and procedures have been followed. I’m assuming in this case that they have. However, it does not give them the powers to maintain the open part of the churchyard.

The parish council however believe that Local Government Act 1972 section 214 “Cemeteries and crematoria” gives them the required power. What I believe is that they do not understand the difference between Churchyards and Cemeteries and that section 214 of the act does not convey those powers to them.

Can anyone definitively clarify whether they have the power to maintain an open churchyard (not a cemetery).

Thanks.

Answer 1

Has your council taken on the ‘general power of competence’ (GPC)?

Section 1(1) of the Localism Act 2011 gives local authorities the power to do anything that individuals may do.

Perhaps this is the power that is being used?

Comments

Unfortunately my parish council does not have the General Power of Competence.

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I think GPC is a disaster in the making. Why would parishioners want their parish councils to take on more responsibilities? We want smaller government, not bigger. Why can't the church look after its own? Why is a parish council tendering for business about which it probably knows nothing?

Answer 2

I can't see why not. LGA 1972 section 214 first says that a parish council is a burial authority. Then it says that burial authorities may provide and maintain cemeteries.

You can find a detailed discussion of the terms churchyard, graveyard and cemetery at https://jakubmarian.com/difference-between-cemetery-and-graveyard-in-english/. My reading of this is that there could be parts of the churchyard that are effectively a garden adjoining the church, but at least part of the churchyard is a graveyard and a graveyard is a kind of cemetery. Hence the parish council is, as a burial authority, empowered to maintain the portion of the churchyard that is a cemetery. It might be deemed hair splitting to separate out parts of the churchyard, and so better to simply maintain the whole area.

Some argue that only a minority are nowadays connected with the church, and it is unreasonable to put the burden on all the citizens of the parish. Against that, a churchyard is often a valued space within a community, and can be seen as a communal responsibility passed down from times gone by.

The provisions for closed churchyards are more to do with the facility for the church to hand over responsibility to the parish council. The parish council can, in turn, refuse to take this responsibility and pass it to the principal authority. However, there are drawbacks to this course. The principal authority may not maintain the churchyard to the satisfaction of local people, and it can also pass on the costs of maintenance (over which the parish would have no control) as a surcharge on the parish council. It is thus usually better for a parish council to shoulder the responsibility if it can.

There is an injustice here in the case of large churchyards in parishes with very small populations, but unfortunately I don't know of any solution to that.

Comments

A few points in response to your comments.
1. Cemeteries and Crematoria are non-denominational i.e. not faith based whereas churchyards most definitely are which is why I believe that LGA 1972 section 214 does not apply to open churchyards.
2. If the maintenance of open and closed churchyards was meant to be allowed by parish councils why does LGA 1972 section 215 "Maintenance of a closed churchyard" have the word "closed" in the title? If it was meant to cover open and closed churchyards surely it would be written as  "Maintenance of a churchyard" ?

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My comments are based on my reading of the legislation. To go further, you would need to instruct a lawyer who specialised in local government matters. Although my feeling is that you would get the same answer! With regard to your comments:
1. I don't know that is right. There are numerous Jewish cemeteries in London and elsewhere. Also a couple of exclusively Islamic cemeteries in London. There is a Quaker cemetery quite close to where I live and doubtless elsewhere. And so on.
2. As in my original answer, there are specific procedures for closing a churchyard and passing responsibility to the parish council. I wouldn't read that as implying that an open churchyard does not contain a cemetery or that it requires an additional power for the burial authority (i.e. parish council) to maintain it.

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My parish council are taking my query seriously and they are now getting conflicting views from NALC, their local association and whoever else they are consulting so there is obviously no clear-cut answer to this.
I would have thought that it would be prudent to err on the side of caution if they do not know definitively that they have a power to do something.

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I don't really believe that there is any doubt. It seems to me that the provisions of LGA 1972 section 214 are quite clear enough. An additional point is that the Open Spaces Act 1906 can be used as the basis for a council to maintain a churchyard. For further information please see http://www.centralbedfordshire.gov.uk/Images/april-2014-supplementary_tcm3-3336.pdf sections 12 and 13. Although section 12 only refers to using LGA 1972 section 214 para 6 to make a payment towards upkeep, by the same logic the council can maintain the churchyard under para 2. If you don't think that is definitive enough, then rely on the Open Spaces Act. One way or another, it seems quite clear that a parish council can either assist with or carry out maintenance of an open churchyard.

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It really doesn't matter what I think as, from what I said earlier, the parish council and their advisor's  have doubts. Interestingly the view from CPALC is that parish councils do not have the powers to maintain open churchyards. I asked about LGA 1972 section 214(6) and their response was that "someone fails to understand the difference between a churchyard and a cemetery".

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There is often no definitive answer to a question like this. The legislation is open to interpretation, so unless there has been a court case that decides the specific issue, then we are left with lawyers opinions, and they are liable to vary. It can depend on the meanings attributed to words. I think CPALC is mistaken. As already shown in the link in my original answer, a churchyard is not synonymous with a cemetery, but it does usually contain a graveyard which is a kind of cemetery (so "someone fails to understand..." is inappropriate). Any parishioner has the right to be buried in the churchyard of the parish, so there is no question that the citizens are being provided with a benefit. Also, as already stated, the PC can maintain the churchyard under the Open Spaces Act 1906. I'm just repeating myself now. But rather than getting bogged down in legal debate, a practical measure might be to ask the council's auditor whether it would regard expenditure on the churchyard as within the council's powers, citing the arguments that I have offered. If the auditor either agrees or declines to give an opinion, I would just proceed on the basis that the decision is very unlikely to be challenged. Or use LGA Section 137 if the cost is within the limits.

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Perhaps this might help with the definitions The Local Authorities' Cemeteries Order 1977 section 2.

The parish council I'm referring to do not provide a cemetery, it's the church that provide the churchyard, so presumably they are therefore not a burial authority? If they're not a burial authority they then shouldn't be maintaining the open part of the churchyard?

I've already asked the council's external auditor who've asked me to raise it when the audit has been completed, which I will do. I'll post the response in due course.

Many thanks for the discussion.

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You're welcome! Here's some further confusion, posted by solicitors Nicholas Hancox: "The Local Government Act 1972 says very clearly in section 214(6) that a parish council may lawfully contribute to the upkeep of a burial ground maintained by another person. Some people argue that this applies to the upkeep of an open Church of England churchyard. But there is an unresolved legal argument to the contrary, which is that spending money on the maintenance of a burial ground which the ecclesiastical authority, the parochial church council, itself has a legal obligation to maintain, might be unlawfully irrational. Why would it be reasonable for the civil parish council to spend its taxpayers' money on a subsidy to a religious organsisation (the parochial church council) which already has a binding legal obligation to fund the work itself? It would be a waste of taxpayers' money. One counter-argument is that keeping a burial ground open by contributing to its expansion and maintenance might in a particular case be cheaper than allowing that burial ground to close and then having to take on the entire maintenance liability under section 215...". The author doesn't seem to subscribe to there being an important distinction between churchyard and cemetery, although others might. The council of which I'm a member routinely makes a grant to the PCC (never queried by the auditor) on the basis that the churchyard is a valuable public space and that if it were closed (it's pretty full) we'd have to take total responsibility.

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If I'd got money to throw away perhaps the real route to the answer is a Judicial Review? :)