Impacts Of A Disused Burial Ground On Development

Often in Central London, development is to be carried out in the vicinity of a disused burial ground. A recent example of this involved minor works and the location of a temporary building on top of a disused Church of England burial ground, assumed to be consecrated land. The site, therefore, was subject to Ecclesiastical Law as well as the laws of England. Notwithstanding that the works proposed in this case were most unlikely to disturb human remains, the grant of planning permission and listed building consent did not deal with the legal issues associated with development above a disused burial ground arising under both English legislation and Ecclesiastical Law.

This post discusses the issues that need to be taken into consideration when development affects a disused burial ground to which Ecclesiastical Law applies. For the purposes of this blog, “Ecclesiastical Law” is the law applying to the Church of England. Accordingly, this post does not deal with burial grounds which are associated with other religions.

English Law: a blanket prohibition

Section 3 of the Disused Burial Grounds Act 1884 prohibits the erection of a building (non-exclusively defined to include any temporary or movable building) over a disused burial ground other than for certain specified spiritual reasons. This is a blanket ban, which covers consecrated as well as un-consecrated, land. A breach of section 3 could attract an indictment.

Ecclesiastical law: consecrated land

In addition to the blanket ban under English law, for all but the smallest works proposed on consecrated land, under Ecclesiastical Law a 'faculty' (a right to do works) granted by the Bishop of a Diocese, is required. This requires an application to be made to the Diocese within which the land is located.

A breach of Ecclesiastical Law in building out a proposed development could attract an injunction from the Consistory Court preventing the works from being carried out and or an order requiring the restoration of the land to its condition immediately prior to the unlawful works being done. Failure to comply with any such order in the absence of a reasonable excuse constitutes contempt of Court, punishable by fine or imprisonment upon certification by the Chancellor of the breach to the High Court. The statutory limitation on making a restoration order (in the absence of deliberate concealment) is 6 years following the commission of the act.

Of course, the blanket ban contained in section 3 of...