Spending parish council money on your local church (including burials): what are parish councils legally allowed to do?

As we always say in our well-attended and popular Councillor Training sessions, modern parish councils often encounter difficulties operating effectively within a framework of rather older (and dare we suggest outdated) legislation.

As LRALC has previously advised, the Local Government Act 1894, for example, expressly prohibits councils from spending any money on maintaining or improving church property. In practice this includes the church building itself, the churchyard and the church hall.

In this instance, the situation is complicated by the fact that subsequent legislation appears to contradict the earlier 1894 Act. For example, s.214(6) of the Local Government Act 1972 permits a parish council to contribute towards the expenses incurred by any person in providing or maintaining a cemetery and s.215 of the Local Government Act 1972 permits a parish council to maintain a closed churchyard.

Whilst it is widely accepted now that a parish council can legally maintain a closed churchyard there remains a difference of opinion amongst some legal professionals over whether a parish council is permitted to maintain or contribute to the maintenance of an open churchyard. The debate being does s.214(6) of the Local Government Act 1972 override the provisions of the 1894 Act?

Current guidance from the National Association of Local Councils (NALC) accepts that in the absence of caselaw and specific clarification from government there is no definitive answer to the question as to whether a council can legitimately maintain or contribute to the maintenance of an open churchyard. However, as the NALC briefing (please see here) says, "the government's current view on the legal issues is that there is no need for any further legislation as they believe the 1894 Act restrictions do not override the provisions in later Acts of Parliament".

We therefore continue to recommend that any councils considering giving financial assistance to a church should contact LRALC for specific legal advice.

Frances Webster