The petitioner applied to the incumbent on 19 July 2019 to reserve a grave space in the churchyard for herself and her partner. She lived in the parish, and her parents and grandparents were buried in the churchyard. The average rate of burials in the churchyard suggested sufficient space for 50 more years. However, the incumbent refused to consent, as any reservation was said to be contrary to the Parochial Church Council (PCC) policy. The policy to refuse all reservations of grave spaces had been passed on 15 July 2019 at an extraordinary PCC meeting, held between the petitioner's first enquiries about the reservation and her formal application. The chancellor observed that there had not been a previous petition for reservation in this churchyard during her 30 years in office.

With reference to re West Pennard Churchyard [1991] 1 WLR 32 and re St Oswald, Methley [2016] ECC Lee 2, the chancellor considered the respective rights and duties of the PCC, the incumbent and the court in determining questions of burial in a churchyard. The right of burial in a churchyard is determined by the common law and the Church of England (Miscellaneous Provisions) Measure 1976. For those with no right of burial, the incumbent has the right as freeholder to grant consent to a burial in the churchyard; in doing so, she or he must have regard to any general guidance given by the PCC (section 6(2) of the 1976 Measure). For this reason, a petition for a reserved grave space by a person with no right of burial will normally be refused if opposed by the incumbent; otherwise, the court would be overriding the incumbent's power to refuse to consent to the burial. For those with the right of burial, neither the incumbent nor the PCC can interfere with that right; the extent of the rights of the incumbent is to determine the location of the burial within the churchyard.

The power to decide an application for the reservation of a grave space lies entirely with the court. However, in a wide-ranging review of reported decisions over the last 30 years, the court noted that different consistory courts had come to differing views of the weight to be given to PCC policies to refuse to consent to reservation petitions. In general, the more recent authorities seemed to indicate a preference to affording serious weight to the PCC's policy unless it was reached in bad faith or unfairly designed in response to a particular application. The theme that emerged was one of a willingness to determine that the PCC are better placed to understand the local needs. However, the PCC's policy was not conclusive, and, while serious weight ought to be given to the PCC's policy against the reservation of burial spaces, it was within judicial discretion to determine what was reasonable in the particular factual circumstances.

In the present case, none of the circumstances which had persuaded other courts to place significant weight on the views of the PCC were present. Most significantly, the policy was very recent, and there was no question of unfairness to anyone who might have acted on the policy by deciding not to seek a faculty for a reservation. Accordingly, a faculty would be issued. [Catherine Shelley]