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Re Keynsham Cemetery, Bath Wells Consistory Court, 18 September 2002

8 October 2002
The issues

Cemetery – Headstones – Local Authorities Cemeteries Order 1977

The facts

Keynsham Town Council, the Local Burial Authority, exercised its powers under Article 16 of the Local Authorities Cemeteries Order 1977 to carry out a safety inspection of Keynsham Cemetery and to lay flat unsafe tombstones. It had not applied to the consistory Courts for a faculty for minor works. The matter came before the Bath & Wells Consistory Court.

The decision

1. Keynsham Town Council had exercised its powers without first obtaining a faculty.

2. It had acted in good faith and faced with the prospect of civil or criminal liability in respect of the state of the tombstones in the cemetery the remedy chosen was not unreasonable given the need to avoid the clear risk to injury of people using the cemetery. The Burial Authority’s actions in making the affected memorials safe immediately after testing and without giving the owners of the tombstones any time to effect a repair was reasonable and a confirmatory faculty would issue subject to certain conditions.

3. As far as future control was concerned, the 50 kg test by a topple tester was too harsh and in future monuments should only be laid flat if they failed testing to a 30 kg standard by topple tester or similar device. Where it was reasonably practical to do so in future, the burial authority should give any person known to be interested in the memorial which failed a topple test due notice and reasonable opportunity to remedy the defect.

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