12.36We propose that the person who or group which is the owner of the land should be designated in the statute to be the cemetery manager, having responsibility for the management obligations. In this way, management responsibility will be clearly attributed on the basis of an ascertainable piece of legal information—ownership—rather than being dependent upon determining the type of burial land in question.
12.37However, the intention of this proposal is to provide certainty around cemetery obligations rather than to alter current effective systems of management. There are a large number of mainly smaller cemeteries that are currently operated by entities that do not also own the land. Many existing trustee cemeteries fall into this category. The land owner might be the Crown, the local authority or even a private land owner. That owner may never have considered itself responsible for the management of the cemetery. Therefore, the framework should provide an exception to the general rule, to cover such cemeteries that are currently operating effectively.
12.38The new statute should provide that the owner of cemetery land is the cemetery manager (and responsible for the cemetery obligations) except where, when this provision comes into force, the cemetery is being managed by a group of people who do not own the cemetery land and who are operating as community managers of the cemetery. “Community manager” in this exception should mean a person who:
Makes most of the day-to-day decisions in respect of a cemetery such as the provision of burial plots, maintenance of the grounds and the keeping of burial records, whether under a formal or de facto delegation from the cemetery owner.
12.39In those circumstances, the community manager should be deemed to be the cemetery manager under the new statute and subject to the new cemetery obligations.
12.40While there is an element of uncertainty retained in this exception (because it will not be possible to know in every case whether a cemetery is within the exception or not), there is a greater benefit in recognising effective current management arrangements.
12.41Under this proposal, in the vast majority of cases, the person who holds the cemetery obligations will be clear. It will be the person who is effectively managing the cemetery, or it will be the owner of the land. However, there are cemeteries where the owners of the land are also the managers, but the certificate of title has not been updated when previous owners or managers have changed or passed away. That presents a problem both in ascertaining who is responsible for the cemetery obligations and when the cemetery land needs to be dealt with by way of lease, mortgage or sale.
12.42In these circumstances, the new statute should provide a straightforward mechanism by which the District Land Registrar has the power to update the certificate of title on the application of the current cemetery manager. The application should include a statutory declaration setting out the history of the ownership of the cemetery land and the purpose of the application to amend the certificate of title. The District Land Registrar should have a power to update the certificate of title if satisfied that:
12.43Our consultation revealed that sometimes it becomes impractical for non-local authority cemetery managers to continue to effectively manage cemeteries. This may be due to a lack of volunteers or a lack of financial resources. In these circumstances, the statute should provide straightforward mechanisms for the management powers and obligations to be transferred to the relevant local authority.
12.44We consider that, when current cemetery management systems fail, the relevant local authority should be under an obligation to take over the management of that cemetery if the following criteria are met:
12.45Under our proposals for maintenance duties described above, the local authority would be able to decide on the level of maintenance required for that cemetery after community consultation. If the cemetery is not considered a high priority and is not required for future burials, the local authority may decide to maintain it only to the most basic level.
12.46The statute should provide straightforward mechanisms by which the cemetery management obligations can be renounced, delegated or transferred to the local authority. Which of these options is appropriate should be determined by the circumstances and negotiation between the parties. In each case, the original manager should be under an obligation to notify the local authority so that it can be noted on the cemetery register. Below, we also discuss powers of the local authority to take over management of cemeteries when the current managers are incapable of operating effectively.
12.47This option is applicable when a person or group of people are designated to be the cemetery manager under the exception described in 12 above—that is, at the time the statute comes into force, the cemetery is effectively managed by them despite them not owning the cemetery land. Many current trustee cemeteries will be subject to this exception. If that person or group subsequently finds that it cannot meet the cemetery management obligations, it should be able to renounce that role by providing notice to the local authority and the owner of the land. After the role has been renounced, the management obligations should fall to the local authority, unless the owner of the land has expressed a desire to take over management responsibilities.
12.48This option would be appropriate when the management problem is temporary. A delegation must be done with consent so is really an agreement for another party to fulfil the cemetery management obligations. The other party may be the local authority or any other party that will agree to fulfil the role. If the management role is delegated, the original manager retains responsibility for the statutory obligations.
12.49This option would be used to permanently transfer management and ownership of a cemetery when the cemetery manager is also the land owner. Under a transfer, the cemetery land is transferred to the new owner along with the cemetery management obligations. The new owner becomes the cemetery manager and is subject to the statutory cemetery obligations, including the duty to maintain the cemetery and the limits on future use of the land.