Private cemetery development

A Private Bill for cemetery development

Tuesday 7 February marked the second day of the Committee stage of the European Union (Notification of Withdrawal) Bill. Policy wonks scouring the House of Commons Order Paper could therefore be forgiven for skipping over the section on Remaining Orders and Notices and missing the Private Business of New Southgate Cemetery Bill, the focus of this post. Whilst not quite as newsworthy as this (or even the Westminster Hall debate on overly aggressive seagulls in Torbay), it is a little closer to our core “law and religion” interests, highlights some of the issues associated with cemetery development, and provides a useful chronology of a Private Bill on this topic.

Private Bills in general

A Private Bill is legislation that affects specific groups of people or localities, whereas a Public Bill affects all people equally. Private Bills proceed through the Houses of Parliament in a fairly similar manner to Public Bills, although there are a number of additional elements to the process; a summary is provided in Private Bills in Parliament: House of Commons Background Paper. There are two critical differences from the normal procedure on a Public Bill: the first is that the promoters of a Private Bill must prove the need for it and the second is that anyone affected by its terms may petition against it. If a Private Bill is petitioned against, it becomes an “Opposed Bill”; and there will be a quasi-judicial committee hearing at which petitioners will be heard, either in person or through their agents (usually, but not always, solicitors or counsel).

New Southgate Cemetery Bill

Background

It will come as no surprise to readers (and possibly the Ministry of Justice) that there is a growing shortage of burial space within the United Kingdom, and whilst the practice of “lifting and deepening” is becoming more common, the reorganization of burial grounds and movement of old graves and memorials is less so. In January 2016, we posted Reuse of graves in London – statutory provisions which noted that with regard to the re-use of graves in Greater LondonSection 74 London Local Authorities Act 2007 empowers a burial authority to disturb or authorise the disturbance of human remains interred in the grave for the purpose of increasing the space for interments in the grave: where it has extinguished a right of burial in a grave space under s6, City of London (Various Powers) Act 1969; or a right of interment in respect of a grave under s9, Greater London (General Powers) Act 1976.

However, these provisions do not apply to every cemetery in Greater London:

  • Not all municipal cemeteries were established under the Burial Acts; some were established before the Burial Act 1852, and some were laid out by local authorities under the less prescriptive Public Health (Interment) Act 1879.
  • Some are subject to specific enactments: for example, some of the cemeteries owned by the borough of Southwark were excluded from the 1976 Act since they were subject to similar provisions within the Greater London Council (General Provisions) Act 1975.
  • Private cemeteries are not Burial Authorities under s 214 Local Government Act 1972 and do not have the power to extinguish burial rights unless another Private Act is secured;

New Southgate Cemetery is an example of the latter, hence the need for a Private Act of Parliament, which is clear from recital (9) in the Preamble: “[t]he objects of this Act cannot be attained without the authority of Parliament”. [Frank, as a former Examiner of Petitions for Private Bills in both Lords and Commons, points out that this is an absolutely basic prerequisite for any Private Bill petition.]

New Southgate Cemetery

After the closure of burial grounds in central London in the 1850s, there was a movement to establish new cemeteries further from the centre of the city. The Cemeteries Clauses Act 1847 allowed for the creation of commercial cemeteries, expanded upon by the Burial Act 1852.

A description of the cemetery development on this site is given in the Wikipedia entry. New Southgate Cemetery (not to be confused with Southgate Cemetery) is a 22-hectare cemetery in the London Borough of Barnet, which was established by the Colney Hatch Company in the 1850s. The name was changed from Colney Hatch to New Southgate to avoid association with the nearby Colney Hatch Lunatic Asylum. It became the Great Northern London Cemetery with a railway service running from near Kings Cross station to a dedicated station at the cemetery, i.e. similar to the service of the London Necropolis Company to Brookwood Cemetery in Surrey. The railway service to Great Northern London Cemetery soon closed, but the cemetery has remained open.

The Bill’s Promoter’s Statement in support of Second Reading of the Bill states inter alia [emphasis added]:

“6. The cemetery currently has approximately 40,800 graves in the section of the cemetery under the ownership of the Promoters and there are approximately 3,600 graves in the section under the ownership of the Bahá’ís.

7. Around 180,000 interments have been carried out in these graves in the 160 years since the cemetery has been open. There are now around 1,700 burial spaces remaining in the section of the cemetery under the ownership of the Promoters and between 75 and 100 burial spaces in the section under the ownership of the Bahá’ís.

8. The Promoters carry out around 175 funerals per year, and the Bahá’ís carry out around 10. At this rate the available burial spaces in both sections of the cemetery will run out in ten years’ time. The Bill would deal with this by granting both the Promoters and the Bahá’ís two new powers to create new grave spaces. These new powers are based on powers already available to local authority-run cemeteries in London, under section 9 of the Greater London Council (General Powers) Act 1976 and section 74 of the London Local Authorities Act 2007.

16. Prior to the promotion of the Bill, the Promoters consulted cemetery users, the local authorities, the religious orders that use the cemetery and the Commonwealth War Graves Commission upon the Bill’s contents. The promotion of the Bill has been approved by resolution of the Promoters and the Bahá’ís.

17. The Promoters believe that the Bill is necessary and expedient for the proper administration and future sustainability of the cemetery and for ensuring that grave spaces are available for the local and religious communities.”

Progress of Bill

The Parliamentary stages of the New Southgate Cemetery Bill are listed here. The Petition to introduce the Bill was presented in the Lords on 27 November 2015. By the end of  Session 2015-2016, it had been given its Second Reading and was carried over to the 2016-2017 Session, when was reintroduced to the Lords and subsequently considered by the Commons. On 7 February the Bill was given its Third Reading, without debate.

Scope of the Bill

Recitals (1) to (6) of the Preamble to the Bill cite the various Private Acts associated with the ownership of the present cemetery. Under the New Southgate Cemetery and Crematorium Limited Act 1990, New Southgate transferred ownership of part of the cemetery to the National Spiritual Assembly of the Bahá’ís of the United Kingdom (ªthe Bahá’ís”). Wikipedia notes that “possibly the most famous person buried there is Shoghi Effendi (1897-1957), a leader of the Bahá’í Faith”.

The objective of the Bill is summarized in Recital (7):

“In order that better use may be made of the land in the cemetery for burials, it is expedient that New Southgate and the and the Bahá’ís be authorised to extinguish certain rights of burial granted in graves in the cemetery and to disturb, or authorise the disturbance of, human remains interred in such graves and also in graves where no rights of burial were granted, for the purpose of increasing the space for further interments in such graves and to use appropriately or remove altogether from the cemetery memorials on such graves”.

Underpinning the vires defined within the Bill is Clause 4(14), which disapplies the provisions of section 25 of the Burial Act 1857 (offence of removal of body from burial ground) “in relation to a removal carried out in accordance with the provisions of this section”. As we have noted before, similar sections are to be found in legislation relating to major infrastructure projects, [e.g. annotations to section 25 of the 1857 Act].  In the case of major infrastructure works, the enabling statutory measures often disapply both ecclesiastical and secular provisions concerning burial grounds, e.g. section 39(1) Channel Tunnel Rail Link Act 1996. However, mirroring s74 (9 and 10) London Local Authorities Act 2007, the proposed Bill does not seek to circumvent the jurisdiction of the consistory court, below.

Overall, the Bill is quite straightforward:

  • Clause 3 empowers a burial authority to extinguish rights of burial inter alia where in respect of any grave space in the cemetery a right of burial has not been exercised for 75 years or more from the date of the latest burial in the grave space or, if there has been no burial in the grave space, from the date of the grant of the right of burial in the grave space; this includes the power to remove any memorial in or on the grave space.

However, Clause 3 (11) and (12) provides that the jurisdiction of the consistory court of the diocese over consecrated land which is used, or is available for use, for the interment of human remains, is unaffected. Where the burial authority proposes to disturb any human remains in consecrated land, it may not exercise its powers without first obtaining a faculty, with or without conditions attached to it, from the consistory court.

Similar provisions  in Clause 3(13) apply to any grave in which there is a Commonwealth war burial or to any grave space in or on which there is a Commonwealth War Memorial.

  • Clause 4 empowers the burial authority to disturb or authorise the disturbance of human remains interred in a grave in the cemetery for the purpose of increasing the space for interments in the grave where: (a) the burial authority has extinguished rights of burial in the grave under section 3; or (b) the grave is a public or common grave.

Any human remains disturbed must be reinterred either: (a) in their original grave; or (b) in another grave within the cemetery, such grave being below the level of the ground and consisting wholly or substantially of earth.

For the purposes of the Bill, the term ªthe burial authority” means: (a) in relation to the transferred land, the National Spiritual Assembly of the Bahá’ís of the United Kingdom; and (b) in relation to any other part of the cemetery, New Southgate Cemetery and Crematorium Limited.

Comment

Whilst the Church of England has expressed its support for the re-use of graves in the context of Christian burial, in terms of re-use and cemetery development it has had an uneasy relationship with local authorities and landowners. An early example was in relation to the South Metropolitan Cemetery, considered in Re West Norwood Cemetery [1994] Fam 210. Although not in the context of burial ground development, Leeds City Council was recently taken to task in Re St Peter Bramley [2016] ECC Lee 9 on account of its  eye-watering ignorance of faculty law, compounded by a co-extensive lack of comprehension of the requirements of secular planning law for which it is itself responsible.

However, apart from issues such as these, which hopefully are atypical, the main point raised by the New Southgate Cemetery Bill is the length of time involved for the development of a burial ground which does not fall within the provisions of section 74 London Local Authorities Act 2007.

By contrast, authorization for exhumation and reburial associated with for the reorganization of churchyards under the faculty jurisdiction is generally less time-consuming. With regard to the release of new land for burial, however, these are on average much smaller than municipal graveyards, [Ministry of Justice, Survey of Burial Grounds in England and Wales].

David Pocklington

With thanks to Frank for professional advice.

Cite this article as: David Pocklington, "Private cemetery development" in Law & Religion UK, 10 February 2017, http://www.lawandreligionuk.com/2017/02/10/private-cemetery-development/

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