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Ecclesiastical Case Reports
Lydbrook Parochial Church Council v Forest of Dean District Council
(Gloucester County Court: District Judge Thomas, December 2003)
Closed churchyard - maintenance - public or private law
The PCC brought an action against the local authority seeking a mandatory order compelling it to repair and maintain its churchyard. Section 215(1) of the Local Government Act 1972 provides that a PCC shall maintain a churchyard which has been closed by Order in Council 'by keeping it in decent order and its walls and fences in good repair'. However the PCC may require the parish council to take over the liability to maintain the churchyard, who in turn can require the same of the District Council, as had happened here. Such liability is one of substantive maintenance and not merely management of decline (note the relief granted at first instance in R v Burial Board of Bishopwearmouth (1879) 5 QBD 67 at 68) nor is it conditional on adequate funds being available. The local authority conceded the duty to maintain, but sought to strike out the claim on the basis that its obligation was one of public law, enforceable only by way of judicial review in the Administrative Court and not by private action. The district judge applied the decision of the Court of Appeal in Dennis Rye Pension Fund v Sheffield County Council [1998] 1 WLR 840 CA, and rejected suggestions to the contrary in L Leeder, Ecclesiastical Law Handbook (Sweet and Maxwell, 1997) at paragraph 8.28, and in the Legal Opinions of the Church of England (Church House Publishing, 1994) page 68. Since the issue between the parties concerned not the duty to maintain, but a detailed assessment of the level of maintenance necessary, the District Judge considered that the matter was properly brought by private law action in the county court. He therefore dismissed the defendant's application to strike out the claim and ordered a stay of the proceedings for the parties to consider mediation or alternative dispute resolution.
Details of this decision kindly supplied by Mr Guy Adams of counsel.
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