The vicar and churchwardens petitioned for a faculty to authorise a survey of the churchyard by inserting rods into the ground to confirm the accuracy of burial plans for the churchyard extension and to identify prospective burial plots in the older part of the churchyard for which there were no plans. There were 25 objectors who were entitled to be treated as interested parties, of whom one took part in the proceedings as a party opponent. The party opponent had, since 2010, lived in a property which abutted the churchyard, and the windows at the back of his house overlooked the older part of the churchyard. When the house was purchased, he had understood that the older part of the churchyard was full and no longer used for burials. He had family connections with the village of Heighington and submitted that it was likely that he had relatives buried in the churchyard. He objected to the proposals on the grounds that graves of his relatives might be disturbed by the insertion of rods into the ground. He also submitted that the reuse of old grave spaces was tantamount to exhumation and contravened the principle of permanence of burial. He also opposed the petition on the ground that, if burials were resumed in the older part of the churchyard, it would affect the value and saleability of his property. He submitted that if the faculty were granted his and his family's enjoyment of the property would be affected because they would be distressed by seeing burial services taking place, or relatives visiting graves, from the windows of the property. He maintained that this would amount to a breach of his right to the use and enjoyment of his property under Article 1 of the First Protocol to the European Convention on Human Rights, and that it would amount to an actionable nuisance. Other objectors raised concerns about the disturbance of existing burials and the propriety of reusing existing graves.

The deputy chancellor observed that there was no legal impediment to the reuse of old grave sites for fresh burials after a suitable period of time had elapsed and that a faculty was not required for this purpose unless the removal of monuments was involved. The churchyard had not been closed by Order in Council and the incumbent was entitled to prescribe where any burial was to take place. The use of the churchyard for burials was its natural and ordinary purpose; the incumbent was under a duty to use it for that purpose and in doing so would not commit a nuisance. In the light of the decision of the House of Lords in Aston Cantlow PCC v Wallbank [2004] 1 AC 546, neither the petitioners nor the Parochial Church Council were a public authority for the purposes of the Human Rights Act 1998, as they were carrying out a church, rather than a governmental, function. Even if the incumbent were a hybrid public authority for these purposes, there would be no interference with the party opponent's peaceful enjoyment of his property within the meaning of Article 1 if burials took place in the older part of the churchyard, and in any event it was in the public interest that the space in the churchyard should be maximised and the law permitted it. The deputy chancellor was not convinced that a faculty was required for the use of rods to test the ground for soil density to indicate whether the ground had previously been used for burials but a faculty would be granted for the avoidance of doubt, subject to conditions to deal with any human remains that might be discovered. [Alexander McGregor]