Chapter 11
Problems with the current legislative scheme for burial and cremation

Problems with establishing new crematoria

11.42We have identified two issues with the process for establishing crematoria—the cumbersome multi-level process for approval and the lack of requirement for public notification of a proposal to build a crematorium.

Cumbersome multi-level process

11.43As we described in Chapter 10, the establishment of a crematorium will require resource consent under the Resource Management Act (the RMA) (unless operating crematoria is a permitted activity under the district plan), the Minister of Health’s consent under the Burial and Cremation Act (the Act) to begin construction and then a second consent from the Minister under the Cremation Regulations (the Regulations) to begin operating the cremator.

11.44In practice, the Minister’s consents provide little or no extra protection over the operation of the RMA protections. These consent powers are just two of a number of legislative powers of decision currently held by the Minister of Health that we consider should be amended because the relevant considerations are not primarily health concerns.203 In this case, as in the others, we consider that the relevant considerations are mainly matters of appropriate use of the land and so are better dealt with by local authorities under other legislation.

Lack of public notificationTop

11.45Currently, there is no certainty that the impact of the location of new crematoria on neighbours will be taken into account in the approval processes. Under the RMA, resource consent may not be required at all if the operation of crematoria is a permitted activity under the district plan, and even if it is required, a local authority may decide that the consent application does not need to be notified. Under the Act and Regulations, the impact of a crematorium on neighbours is not a matter that the Minister of Health will necessarily take into account either.

11.46In Issues Paper 34, we asked whether applications to operate new crematoria should all be publicly notified under the RMA. It was clear from submissions that there was strong public concern about the location of crematoria. Some people expressed particular sensitivity about the location of places that deal with dead bodies. That is also a concern in tikanga Māori, which places restrictions on places where dead bodies are located. Other submitters suggested that sensitivities over dead bodies were irrational and merely an expression of a “not in my backyard” mentality.

11.47The Ministry of Health noted that there were a number of crematoria established within funeral homes that were not notified and were operating satisfactorily and also a number of notified consent applications that have generated significant public concern due to the potential presence of a crematorium rather than any specific effects. Local Government New Zealand submitted that this was just one of many similar issues that arise within the planning framework, and it is important that one activity does not receive inconsistent treatment. It submitted that the best practice was for this issue to be addressed within the district plan. The draft district plan is the appropriate vehicle for public consultation on this and a range of issues. This view was supported by the Ministry of Health and the New Zealand Law Society.

11.48While the depth of feeling about the location of crematoria makes it clear that the public should be consulted on this matter, it is also important that any proposals in this Report work effectively with other legislative schemes. On balance, we consider that adequate protection in this regard is already provided by other legislative regimes. Specifically, these issues should be dealt with through ordinary local government planning processes, rather than by an exception to those processes in burial and cremation legislation.

203We discussed these powers in Chapter 10.