In the following piece (adapted from a fax sent to the Natural Death Centre by Cheltenham Borough Council) Richard Osborne of South Shropshire District Council Environmental Health Department summarises the views of local authorities regarding families carrying out burials on private land - in gardens or on farms. It differs in several particulars from the less restrictive advice which The Natural Death Handbook supplies - and the latter is likely to prove more reliably researched in some respects, in particular in its more careful distinguishing of what are legal requirements from what are merely recommendations - but it is nevertheless interesting to have the Environmeal Health Officers' perspective on the subject (although Richard Osborne did not expected to be publicly quoted). The Natural Death Centre prefers to rely for its legal advice on such matters on John Bradfield of the A. B. Welfare and Wildlife Trust (see below).
(1) There is no law against burial on private land.
(2) Planning permission may be needed for some memorial structures.
(3) Any more than a couple of bodies to be buried could be construed as change of use and actually a 'graveyard' by planners.
(4) The environment agency should be informed, in case there is a water course nearby that could be polluted. Some authorities report that the Environment Agency asks for 100m separation from a borehole, well or spring.
(5) The Department of the Environment (Hydrological Division, tel 01473 727712) have no objections, but have three standards:
(i) Not within 10m of drain, ditch or watercourse
(ii) Not within 50m of a borehole or well
(iii) Not in waterlogged ground.
(6) Obviously if there are any infectious disease concerns, the appropriate steps need to be taken.
(7) Burials should be at least three feet under.
(8) Great practical concerns exist over the issue of future problems, eg who would want to buy a property with a body in the garden. If there is a grave, informing the local authority, marking it and detailing the location on the deeds should reduce the potential complications of calling the police when human remains are found in the vegetable patch. There is an implied duty to record the burial on the deeds under the Registration of Burials Act 1864.
(9) The owner should check with a solicitor that there is no conveyant.
(10) The owner should confirm that no bye-law is being broken.
(11) The burial still needs to be recorded in the burial register and any other procedural matters of the Registrar need to be satisfied.
(12) The owner should tell the police.
(13) There is a duty to notify the local authority under the Burials Laws Amendment Act 1870.
(14) If the body needs to be moved in the future, a Home Office Licence would be required.
(15) The Natural Death Centre produce The Natural Death Handbook. Contact details are: NDC, 6 Blackstock Mews, Blackstock Road, London, N4 2BT (tel 0871 288 2098; e-mail: ndc@alberyfoundation.org; web: www.naturaldeath.org.uk). The Handbook is priced £14.99 2nd class or £15.50 1st class.
(16) Many authorities have standard forms to inform the local authority and to remind owners of their obligations and the above points. Some authorities ask for a copy of the doctor's death certificate and Registrar's certificate of disposal, confirmation from the Environment Agency, written approval of the land owner and a sketch plan.
I submit that the following should be altered for reasons stated.
(8) "There is an implied duty to record the burial on the deeds under the Registration of Burials Act 1864". There is no implied duty to do anything with the property deeds.
(11)(a) "The burial still needs to be recorded in the burial register ..." Which register do you mean, as there is no other mention of a register in the 16 points?
(11)(b) "... and any other procedural matters of the Registrar need to be satisfied." What does this mean? Cemetery managers used to have titles of Registrar but do you mean registrars of births and deaths and if so, what are the "procedural matters"? Without clarification the newly bereaved will be spun in circles, as you could be talking about discretionary powers, etc. which do not exist. The statement is vague and potentially worrying for those not familar with the subject.
'"The (land)owner should tell the police". That has proven to be a complete waste of police time, as they do not know what to do with the information'
(12) "The (land)owner should tell the police". That has proven to be a complete waste of police time, as they do not know what to do with the information.
(13)(a) There is a duty to notify the local authority under the Burial Laws Amendment Act 1870." There is no Burial Act of 1870. The BLA Act 1880 places no duty on private landowners or anyone else, to notify the LA of a burial in private land. If you disagree please give (a) section and (b) an explanation. For example, you may have in mind S.10 Sch.B but that would be a total misreading of that aspect of law.
(13)(b) Please confirm that you have NOT made that statement as a result of anything I've stated in my book or elsewhere! If you believe I have made such a statement or anything remotely like it, I would appreciate details.
(14) "If the body needs to be moved ... a Home Office licence would be required." The Home Office civil servants would agree but I am confident that cannot always be so, on the basis of explicit case law. However, as civil servants are willing to issue exhumation licences, I advise that this route be followed, to curtail the amount of intrusion likely from public officials. Compliance with conditions in an invalid licence would make it difficult to prosecute under common law. The other point which needs to be made is that a licence does not confer any authority to exhume. That must be given by the landowner and others with rights, if such exist.
'The Chief Scientist with the former National Rivers Authority could not envisage any problems with isolated burials'
(16) "Many LAs have standard forms to inform the LA and to remind (land)owners of their obligations ..." As stated in (13) above I am 100% sure there is no duty to inform any LA so it cannot claim a right to be informed and has no power to give or withhold consent. Any such forms would be completely superfluous and involvement of public officials would suggest they have nothing useful to do, e.g. even applications for Lawful Development Certificates must not involve any consideration of merits or judgements of what is good, bad or indifferent. If you or any other EHO has proof that one human bural in any location has caused pollution of ground water, I'll be very interested to have proof. The Chief Scientist with the former NRA could not envisage any problems with isolated burials. Misguided notions about potential pollution after "two millennia" (Lords Livsey and Whitty) of burials and no evidence of a problem, seem to be returning us to the pseudoscience of the 19th century and push for what santitation officers at the time thought was the purifying fire of cremation. That, we now know, produces constant emissions of dioxins and mercury vapour from the same hot-spot locations –no pun intended.
A. B. Welfare and Wildlife Trust, 7 Knox Road, Harrogate, North Yorkshire HG1 3EF (tel 01423 530900 or 868121). Advises dying and bereaved people on any type of funeral in any type of place, anywhere in the country. The Trust was set up by John Bradfield, a social worker, conservationist and author of 'Green Burial - The DIY Guide to Law and Practice' (published by the Natural Death Centre, 1994, but now out of print). This summarised the authoritative research undertaken for the Trust. This seems to be the only charity in the country able to give sound advice on emotional needs, the full extent of choices, all aspects of the law, environmental health and using burials to promote wildlife. The Trust writes: 'Funds are desperately needed to provide the free advice service, train volunteers from all parts of the country and to buy land, so more burials can be arranged in nature reserves. Obtaining advice by telephone may continue to be difficult, unless the Trust is supported with donations and grants.'
I carried out an exercise of trawling the opinions of other local authorities a couple of years ago in response to local queries. What I came up with was a lot of clearly wrong information, some conflicting information, some good practice and some practices and procedures that upon questioning had no expressed basis from a risk perspective. So what I did, for local use, was to try to summarise the issues and put it in simple best practice terms so that anyone considering a home or private burial would have practical steps to consider in order to help prevent some possible problems, being for example:
1. soil disturbance from animals, especially if buried too shallow
2. possible disturbance from natural ground movement over time including water course movement
3. future 'discovery' of an unmarked or unrecorded grave leading to possible wasting of police time and concern for residents
4. involvement of Environment Agency
5. concern of local residents who have private water supplies (lots in this area).
The nature of the leaflet was never to become a nationally available completely authoratitive guide and it includes reference to the Natural Death Handbook as a source of more expert advice. The leaflet has been used as a prompt and guide to possible issues, where none previously existed, in my dealings with local residents. I am not seeking to be an expert in this field.
My reading of the Registration of Burial Acts 1864 is that all burials need to be registered, albeit then means of registration is not to my mind clear for a private burial but it appears to be expressed that the register of the burial is to be kept. In effect the use of property deeds is recommended as at least this would comply with this apparent requirement. I am sure it is quite possible that if I rang up the Environment Agency again I may get a different response from previously quoted distance from a watercourse, etc. My appreciation is that the Cemetry Clauses Act 1847, although it does not directly apply, does rightly make a penalty for causing a watercourse, pond, etc. to be fouled by any 'offensive matter'. Local residents in 2003 would not wish for such fouling either and therefore maintaining a reasonable distance appears to me to be sound practical advice. As expressed in the advice leaflet, I have very few concerns regarding possible disease issues excepting to include a mention that a GP may potentially advise against it in exceptional circumstances. I appreciate your comments regarding possible inaccuracies and will amend the leaflet to accommodate some of your expressed concerns. I accept what you say about the Burial Act 1880 which does appear to relate to solely Graveyards and Churchyards and the reference to this Act will be removed. I think that we probably come from the same perspective of wishing to enable private burial and I am concerned that people should be aware of pratical issues and enable the process of private burial to be free of problems both immediately and in the future as well as responding to the natural concerns of locals. I have obtained a copy of the Natural Death Handbook which I also refer interested parties to.
Richard Osborne, Commercial Team Leader, South Shropshire District Council (tel 01584 813378).
";
echo $mb_link;
echo "
";
if ( session_is_registered('navigation')) {
echo " Return to Message Board's last display of selected messages";
}
?>