Exercise of powers

Question

As some readers will know I have a problem with a charity set up originally to fund raise for the repair of memorials in our Closed Churchyard which is routing other funds through it .  Whilst the Charity Commission  has agreed with all my representations my PC refuses to get involved . So we now have a situation in which the charity has money for memorials and money for an outside project all mixed in the same bank account .  I have asked the PC to request a copy of their bank account to verify  the amount held for memorial repair  but they refuse.  Now the Charity have advised the PC that they will be spending some money on a repair and have gone ahead  with ordering the work themselves . As such the PC does not know what money is being spent on what .    My view is that under S215 the Local Authority assumes the  exclusive responsibility for maintaining the Churchyard and as such no one else has the power to carry our works.  I say this as the Occupiers Liability Act is involved here.  If the PC are knowingly allowing a third party to carry out works which is their exclusive responsibility are they acting unlawfully in any way??

Answer 1

The s215 act is it not a guidance for the local planning authority to facilitate the repair or improvement of unused buildings and land? Surely Parish Council involvement in a closed graveyard allows them to take on the responsibility of the maintenance of a graveyard under the mantle of a burial authority. They then can fund the maintenance via PC funds and allow in their budgets for it.

Answer 2

Which legislation are you referring to when you quote S215?  S215 of the Town 7 Country Planning Act empowers a principal planning authority to serve a notice on the owner of untidy land to clean it up.   I can't see how this immediately applies to a damaged memorial structure.  That said I don't think S215 prevents a third party from carrying out works to meet the requirements of the notice.

Comments

LGA 1972 s215 provides for the church when a churchyard is full to pass the responsibility for maintenance over to the local authority.  If that is agreed when  push comes to shove any costs have to be met by the precept. In LTN 64 it mentions legal liability, negligence etc  in paras 3 and 4.  I therefore question the wisdom  of "allowing" third  parties to carry out work for which you are liable.  I draw a parallel with the maintenance of PROWs in that whilst PCs have powers to maintain footpaths they are only allowed to do so if they meet the DCs specification who have the ultimate statutory duty.   The question in this case is if the PC allows the third party to carry out works independently given its legal liability  should it first get  a waiver signed?.   Personally I believe that all work should go through the PC and avoid any dispute.

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I feel that unless the PC has taken on the mantle of burial authority which they can choose to do, any obligation for an " abandoned" burial area falls first and foremost to the main principle Local Authority.
In which case the PC has no obligation or involvement.

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In this case the PC has taken on the role.  In the beginning (1976) who paid was not clear and eventually a fund raising charity was established. It is that charity that has gone rogue  and has declared that it is spending money on repairing memorials . That fact is unable to be checked as the Charity is independent.   My question is are they allowed to do so  as it is the PC who has the legal responsibility of the  repairs as indicated in s215.

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The "charity" if correctly set up as such should be registered with the charity commission and as such their complete constitution (why they were set up and the definitions of their intent) are open to public viewing and must be updated annually. As the PC is the "authority" then this "charity" cannot work independently and make decisions without PC approval. Now if when this all began the set up was flawed (or no longer applicable or workable) then it is for the PC to change the setup  especially if the pc fund the maintenance costs thereby negating the charity reason for existing -fundraising for memorial maintenance.

Answer 3

Who owns the memorial? Unless it is a public memorial (e.g. war memorial), it probably belongs to the family of the deceased. Legal liability for its maintenance lies with the family. Neither the charity nor the PC should undertake any works apart from making safe an unsafe structure, which usually involves simply laying it flat. For all other works, the family should be contacted, where possible.

Comments

I agree Dave but this is a complex area with little case law and different points of view exist. Clearly however, if the family is no longer around someone has to step in. Ironically in this case the family is perhaps one of biggest benefactors in the area and in another charity which they set up years ago there sits nearly £500k. You raise an interesting points though as to when maintenance /repairs are to be considered cosmetic or safety related . However that is not the question in this case

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I am sure I will be corrected if wrong but the duties of the PC as a burial authority cover maintenance of the burial ground to facilitate access to the plots (cutting the grass?) and ensuring the safety to the accessing public which can extend to making headstones, pathways etc safe. As stated the responsibility for the individual plots falls to the owners and would I assume revert to the authority should ownership not be proven.

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I beg to differ. The responsibility for the maintenance of a closed churchyard is primarily for its walls and fences, grass and trees (if not planted as a memorial) in the same way a PCC assumes such responsibility for an open churchyard. The responsibility for memorials extends only to issues of public safety.

The Legal Advisory Commission of the General Synod's guidance on the Maintenance of Monuments in Closed Churchyards sets out the legal position, supported by case law judgements. See https://www.churchofengland.org/sites/default/files/2017-12/maintenance%20of%20monuments%20in%20closed%20churchyards.pdf

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I am with you totally here Dave. The issue is however that a fund  raising charity  is saying it can independently carry out repairs without the need to consult the PC.  I don't believe they can . Still I have raised all issues with the PC . Lets see what they do. Thanks all

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Hmm. That's a bit like me deciding I don't like the colour of your front door and repainting it one day whilst you're not at home! It's not the PC they need to consult, it's the owner of the monument.

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As the Occupiers Liability act applies here who is liable should a memorial fall and kill someone. I suggest s215 arrangements  makes the PC responsible LTN 64 para 3 and 4 I believe makes that clear . While I agree that the family owns the memorial they often are not around so the overarching responsibility falls to the PC?  Equally if you allow a third party to carry on and do repairs who is responsible if their contract bodges the job ?

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Openspaces- I feel that the charity needs to be examined in depth to clarify their constitution and what they are allowed to do. They may be raising funds but are they allowed to carry out repairs themselves as they wish to do? The word charity is bandied around with little thought of whether the body is actually a charity. As Dave the clerk says just because they raise money for whatever does not give them the right to do whatever.

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Right Dave/Mentorman would you agree with this as a summary (just need to get things clear in my head) . When a PC agrees to take on board the maintenance of a Closed Churchyard under S215 this involves only keeping the area in “decent order” and this extends to say the walls the paths, cutting the grass etc?  However, when it comes to memorials/tombstones  etc this is entirely separate from the rest of the maintenance criteria.  In terms of memorial ownership the primary responsibility for everything lies with the family. If that family no longer has a presence the PC is responsible only for ensuring public safety under the Occupiers Liability act and in the case of “dangerous” memorials this would usually extend only to simply laying them on the ground, if for example there was danger of them falling.  In the case of this charity the objects refer to the “preservation, repair and maintenance of memorials and tombs”. On reflection I am suggesting that is an entirely different matter and separate from the PCs responsibility under S215.   Their behaviour as charity is of course an entirely different matter.

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I would agree with you summation of the points. As said the problem is the "charity" and their intent. Their aims may well be of good intent but as the authority responsible for the burial ground your permission would be required for them to carry out any remedial works to graves or monuments unless they could prove that they were doing it on the instructions of the owners of the plots. Even then they would be required to meet your health and safety requirements. As said the "charity" and its scope need to be researched to ascertain what they are allowed to do under their constitution. It may well be that a working relationship between the PC and the charity could be forged but as the authority the PC cannot allow unilateral works to be carried out.

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Yes, your summary is correct. To illustrate how this works in practice, my district council visits all burial areas under its responsibility annually to carry out a safety inspection. They grab hold of each memorial and see if anything moves. If it does, they attach a notice to it informing the owner that it has been declared unsafe and that they have six months to rectify it, or it will be taken down. Where the monument is deemed unsafe, usually the taller structures, a fence is erected around it to prevent potential injury. The district council makes no attempt to contact the owners directly. If no remedial action is taken, the monument is dismantled as far as is necessary to remove the danger and the components are laid out on the grave. Across the district, they do this to dozens of memorials each year and, in total, several hundred have received this treatment over recent years.

Incidentally, I notice that nineteen monuments in your churchyard are either Grade II or II* listed in their own right, so any work carried out on these monuments would require listed structures consent and would need to be carried out by an approved stonemason under the supervision of your local conservation officer. I hope the charity is aware of this.