Chapter 4
Burial in New Zealand today: an overview of the current practice

Burial on Private Land

4.85Burial on private land is heavily restricted by the current framework. Burial on private land is only lawful if there is no public cemetery available within 32 kilometres of the place of death.187 By contrast, burial on private land in rural areas is allowed in the United Kingdom and some Australian states, provided planning requirements are met. From our survey of local authorities, it appears that there is likely to be demand for this option in New Zealand.188

4.86Alongside the practical exception based on distance, the Act recognises some very limited circumstances in which an individual may be buried in a place of particular significance other than an established cemetery, burial ground or urupā. Section 47 provides for burial “in any private burial place” which has been used for burials before the commencement of the Act. The permission of a District Court Judge is required for this. Section 48 of the Act also makes provision for burial in a “special place” provided the Minister certifies in writing that “he is satisfied that there are exceptional circumstances which make the burial of that body in that place particularly appropriate.”

4.87The Act provides no guidance as to the objective of this provision or the circumstances under which burial in a special place may be regarded as appropriate. However, the Ministry of Health’s guidelines suggest the provision should be understood within the broader context of the Act’s prohibition on private burial grounds – in other words, approvals will be reserved for truly exceptional cases. By itself, a long association with an area or piece of land would not normally be sufficient to justify an exemption under this provision:189

The Ministry of Health believes that section 48 of the Act was intended to provide for the burial of public notables whose deeds were of national significance. Therefore, an association with the land and/or activities which are of national significance will demonstrate exceptional circumstances.

4.88It is evident from the applications for “burials in special places” considered by the Ministry of Health under section 48 of the Act in the last two decades that many applicants felt strong historical family connections with the land on which they were seeking to be buried. While some of the applicants clearly met the Ministry’s criteria of a “public notable” with strong personal associations with the proposed site, many others sought approval solely based on their long association with the land. In most cases, these applications were declined on the basis that they had not been able to meet the “exceptional circumstances” threshold. However, as mentioned above, we are aware of one case in which an application under section 48 was declined and the applicant subsequently received authorisation through the alternative route of establishing a small denominational burial ground.

4.89We also note that the Act contains savings provisions for “private burial grounds” established under the Cemeteries Amendment Act 1912. The purpose of this Amendment Act was to create a management framework for the collection of family burial grounds on private land which pre-dated the statutory restrictions on private burial, or which fell under the exception for deaths that occurred more than a specified distance from the nearest cemetery. However, we are not aware of any private burial grounds that are still in use, and it does not appear from our enquiries of the Ministry of Health and local authorities that there is any ongoing government or local authority oversight of these places of burial.

187Burial and Cremation Act 1964, s 46.
188Local Authority Survey, above n 139.
189As well as establishing the merit of their case, applicants must obtain any required resource consents from the territorial authority and satisfy local health protection officers that the site is suitable for human burial. They must also consult with local iwi to ensure there are no unresolved issues with the land, and with any neighbours who may be affected by the site. An appropriate caveat must be included in the land’s certificate of title and will also be noted by the local authority for purposes of the Land Information Memorandum.