Contents

Chapter 13
Approval of new cemeteries

New cemeteries

13.5We described in Chapter 11 that one of the key problems with the current legislative framework is that it fails to recognise the diversity of needs across the population in respect of requirements for burial and cremation. Also, the practice of local authorities in recognising that diversity of needs is patchy. By “diversity of needs”, we include the burial requirements of different religious groups and different ethnic groups, an increasing desire within many groups to have more control over the funeral and burial or cremation processes and simply a desire from some groups to do things that cannot be easily accommodated within local authority cemeteries, such as eco-burial.

13.6To address this problem, we propose that a new statute should reduce the restrictions on two types of new cemetery—independent cemeteries and burial on private land.

Approval of independent cemeteries

13.7Currently, only religious groups may establish private cemeteries, known as denominational burial grounds.250 In Issues Paper 34, we asked whether independent providers should be able to establish cemeteries. More than half of submitters were in favour of independent providers being able to provide cemeteries, although many qualified that support on the basis that there were adequate safeguards to ensure the cemetery was maintained in perpetuity. The reasons for support ranged from the need for choice in burial options to the need for competition to local authority cemeteries.

13.8Only one-third of submissions from local authorities supported independent cemeteries. Of those opposed, most were concerned that the long-term responsibility for independent cemeteries would fall back on local authorities and that would be a financial burden on ratepayers. Some thought those concerns could be adequately mitigated through sufficient capitalisation or reserve funds prior to establishment. In contrast, 60 per cent of submissions from community organisations, 70 per cent of submissions from the funeral sector and 73 per cent of submissions from individuals were supportive of independent cemeteries.

13.9A number of submitters appeared to oppose independent cemeteries on the basis that the current legislative framework is already confused enough. We consider that our proposals will significantly simplify the legislative framework for cemeteries by removing the different categories of cemetery, by reducing and clarifying the obligations on managers and by requiring local authorities to maintain a regional register of cemeteries.

13.10Restricting new independent cemeteries to religious groups can no longer be justified. The law should not prevent a cemetery being established by a private person or entity if they have a piece of land that can be used in perpetuity for burial and if the local authority has no reason to object to the use of the land in that way. We envisage that this option may be taken up by proponents of eco-burial or groups that share religious or cultural burial needs.

13.11We considered whether the provision of independent cemeteries should be restricted to not-for-profit organisations on the basis that the need to make a profit may jeopardise the long-term viability of a cemetery. In Issues Paper 34, we asked whether independent cemeteries should be limited to registered charities or to not-for-profit organisations. Only one-third of submitters answering this question thought that independent cemeteries should be limited to registered charities, although many of the submitters who were not in favour of independent cemeteries at all did not answer this question. There was a range of views on the question of whether independent cemeteries should be allowed to make a profit, with the strongest support from the funeral sector (90 per cent in support) and the weakest from community organisations (10 per cent in support).

13.12On balance, we do not consider that independent cemeteries should be limited to registered charities or not-for-profit organisations. The concern about long-term protection is better dealt with in other ways, especially as there is no guarantee that a charitable entity would be able to maintain a cemetery in perpetuity more effectively than a for-profit business.

13.13However, it is important that the approval process and controls for cemetery land facilitate sustainable long-term management of the land. We consider that it should be for the relevant local authority to provide approval for the establishment of an independent cemetery because, if the cemetery fails, it will be for the local authority to assume the management responsibility. Also, the local authority will already be considering the application through the resource consent process under the Resource Management Act 1991 (RMA).

13.14The local authority must consider any such application and may reject it for good reasons. In making this determination, it should be able to consider a wider range of matters than it may consider under the RMA process. Three examples are:

13.15If the local authority approves an application for an independent cemetery, it may attach any conditions it considers are desirable. An applicant may appeal the local authority’s decision to the Environment Court.

Approval of burial on private landTop

13.16The Act makes no provision for burial on private land other than in an existing private burial ground established under the Cemeteries Amendment Act 1912 or if the strict criteria for a “private burial place” or “burial in a special place” are met.251 In Issues Paper 34 we asked whether it should be lawful to bury a body on private land with the appropriate consents. More than half of submissions supported burial on private land, and many submitters said that their support for burial on private land was their main motivation for submitting. As with independent cemeteries, many submitters qualified their support on the basis that adequate safeguards for the maintenance of the land were provided. The reasons for support ranged from the psychological benefits of permitting burial on land that has significance to the deceased person and their family to the need for increased choice. Many submitters considered that burial on private land should be limited to rural land, and many suggested there needed to be robust systems to identify where the graves were. An overwhelming theme through these answers was that the land must remain a burial site in perpetuity.

13.17We consider that a number of the concerns raised by those opposing burial on private land are either addressed by the proposed legislative framework or can be adequately addressed through the approval process. These concerns include, for example, the need for adequate records of the location of the grave; the potential for disinterment if the land is subsequently sold (and the risk that the disinterment may be done without informing authorities); the need to consult neighbours; the impact on surrounding land and waterways; the need for maintenance in perpetuity; concerns about public access to the cemetery; and the potential for burial on private land to put strain on local authority resources, particularly if they were required to be monitored.

13.18Given the strong demand we found through our consultation process, we consider that the current restrictions on burial on private land cannot be justified. We also consider that applying the RMA process to certain applications for burial on private land would be too onerous. In particular, we consider that, when the private land in question is rural land and the total number of burials intended for the site is fewer than five, burial on that site should be approved solely under a process in the new statute and not be subject to RMA processes.

13.19The local authority must approve an application under the new statute for burial on private land if it is satisfied that:

13.20It should be noted that, when burial occurs on private land, that land will be deemed by the new statute to be a “cemetery”, and the owner of the land will hold the obligations of cemetery manager in respect of that land.252

Recommendations

R65 The statute should provide that any new cemetery is an approved cemetery if:
  • it has been approved by the local authority;
  • it has been registered as a cemetery on the local authority register; and
  • in respect of non-local authority cemeteries (including burial on private land), the certificate of title for the cemetery land provides a covenant indicating that bodies are buried in the land and restricting the use of the land.
R66 The statute should permit any person or entity to apply to the local authority for approval to establish a new cemetery on any land, subject to the granting of permissions under the Resource Management Act 1991. (The process for approving burial on private land is set out at R71.)

R67 In considering whether to grant approval for the establishment of a new cemetery the local authority may consider any matter it considers relevant, including:
  • the relevant expertise and experience of the applicants;
  • the likely effect of the proposed cemetery on neighbours;
  • the likelihood that the cemetery can be maintained as cemetery land in perpetuity; and
  • the extent to which any risks raised by the proposed cemetery can be adequately mitigated.
R68 If a local authority decides to grant approval for the establishment of a new cemetery, it may impose any conditions it considers necessary, including:
  • maintenance requirements in addition to those imposed by the statute;
  • the establishment of a fund (or a plan for the development of a fund) to provide for the maintenance of the cemetery land in perpetuity; and
  • the payment of a bond to cover the risk that the cemetery is not adequately managed into the future and the local authority would be required to take over management.
R69 Any person may apply to the local authority for burial on private land if:
  • the land in question is rural land; and
  • the cemetery is intended for the burial of no more than five bodies.
R70 The Resource Management Act 1991 should not apply to such applications for burial on private land.

R71 The local authority must approve any application for burial on private land if it is satisfied that:
  • there is unlikely to be an adverse impact on any neighbouring land owners;
  • the land is suitable for use as a cemetery;
  • there is unlikely to be any adverse impact on surrounding land and waterways;
  • the applicant has a strong family connection with the site; and
  • there is an adequate plan for the perpetual maintenance of the site as a cemetery.
R72 If a local authority decides to grant approval for burial on private land, it may impose any conditions on that approval as it considers desirable.
250Burial and Cremation Act, s 31.
251We described these options under the current Act in Chapter 10.
252These obligations were described in Chapter 12.