Developing historic burial sites

With a growing demand for residential housing but a scarcity of land, especially in central locations of towns and villages, developers are increasingly looking to re-develop land previously used for other purposes; abandoned cinemas, schools even asylums have all been redeveloped for housing.

One property development that is becoming more and more popular is the conversion of churches and graveyards. This received a lot of public attention when the HS2 project sought to move several burial grounds. Understandably, this causes controversy, with the public fearful about how this will impact their deceased loved ones. For this reason there are strict guidelines that attempt to strike the right balance to ensure that abandoned land is brought back into use whilst  protecting the rights and dignity of the deceased. This is a complex and detailed area of law so this article provides a very brief overview of some of the issues to consider.

Who do most burial sites belong to?

The most common historic burial grounds fall within the jurisdiction of the Church of England and are often attractive for development because of their desirable town and village centre locations.

Where the graveyard is Church of England consecrated land, it is subject to what is called “faculty jurisdiction” i.e. it is dealt with by ecclesiastical and not secular law.

The church has wide powers as to whether to consent to proposals affecting  consecrated land which it does by granting a “faculty”. It would be wise to obtain this consent before entering into any binding contract (or at least making the contract conditional upon obtaining such consent). The procedure for obtaining a faculty is governed by the Faculty Jurisdiction Rules 2015 and grans are made by the Diocesan Chancellor.

Where the works are minor and do not interfere with the character and amenity of consecrated land or buildings and do not involve the erection of buildings or disturbing human remains then consent is likely to be granted. For this reason, consent has been granted to use burial grounds as playgrounds or as open space. From a developer’s perspective therefore, if the burial ground forms part of a larger site it might be wise to include this as the public open space in the development that some planning authorities require.

Where works are more substantial, you need a permanent release for secular use, governed by the Mission and Pastoral Measure 2011 Code of Practice. Any human remains will be removed, reinterred or cremated. Tombs, headstones and memorials must be disposed of in accordance with schedule 6 of the Mission and Pastoral Measures 2011 Code of Practice.  Any decision can be appealed via the Judicial Committee of the Privy Council. In addition for the removal of remains and monuments, the Disused Burial Act 1981 will need to be complied with.

The removal of remains and monuments is often a lengthy and expensive endeavour and should be accounted for in any build plan.

What about burial sites not under the jurisdiction of the Church of England?

The general rule under the Disused Burial Grounds Act 1884 is that a developer cannot build on a disused burial ground but an Order of the Council can be made for the burial ground to be formally closed.

If you wish to develop a burial ground not governed by the Church of England procedure, then the process can be more complex. You need to consider whether:

• You can rely on the procedure sent out in the Disused Burial Grounds (Amendment) Act 1981 (see below);
• the burial site belongs to another religious body (such as the Roman Catholic Church) as their particular pastoral scheme should be followed.
• the site belongs to the Local Authority, in which case refer to the Local Government Act;
• The exercise of a compulsory purchase order  (in which case you may have to comply with 1981 Act) ; or
• You can rely on specific statute (this is common for ex-hospitals where the poor may have been buried in unmarked graves near the hospital).

We will focus on the Disused Burial Grounds (Amendment) Act procedure.

What are the requirements of the Disused Burial (Amendment) Act 1981?

The requirements are set out in the Act which states that a building may be erected on consecrated ground if nobody was ever interred or if there are no objections from the personal representatives or relatives of anybody interred within the last 50 years.

Where human remains are still interred then no building can be erected unless the remains have been removed and reinterred elsewhere and any tombstone or monument has also been dealt with in accordance with the Act (there is helpful guidance on this on English Heritage’s website). In short:

• under the Act the church or organisation which owns the burial site must advertise their desire to reinter in a local newspaper for two successive weeks and display a notice on or near the site for six weeks. Both notices must state the timeframe and method for raising objections. Critics argue that there should be more obligations on developers to contact the relatives of the deceased, as it is  plausible that they will live out of the area and may not visit the graveyard every six weeks.
• If the remains were interred within the 25 years before the date of the notice, the applicant must use reasonable means to locate the personal representatives and relatives of the deceased; or
• The Secretary of State makes an order confirming they do not believe the burial site will be disturbed, in which case there is no need to remove the remains. If the Secretary of State has made an order, and the graves will thereafter become inaccessible, additional notice provisions must be complied with.

If there is just a monument (and no remains) it is up to the church, owner of the site or commission to determine how the monument should be dealt with.

Are there exceptions?

There are many exceptions to the above provisions and the rules are complicated, especially if there are war graves or if any of the monuments have historical significance.

In addition there are the other usual pre-development issues to consider such as restrictive covenants which may mean the land can only be used as a burial ground. These would have to be dealt with separately.

Legal and planning advice should be obtained as soon as possible to establish the jurisdiction of the disused burial ground and the correct procedure must be followed. Any pre-sale contract should be dependent upon necessary consents being granted prior to completion.

For more information about this topic, please get in touch info@ts-p.co.uk