Contents

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

Local authority providers

4.10 Of the estimated 30 per cent of New Zealanders who are buried rather than cremated, the majority are interred in cemeteries established and managed by local authorities.

4.11Our survey revealed wide variation in the number and status of cemeteries operated by local authorities around New Zealand.141 Some communities continue to have access to cemeteries reasonably close to their local neighbourhood, while others are serviced by one or two large public cemeteries developed on the urban fringe. For example, only one of Wellington’s and Tauranga’s cemeteries remain open for new burials, the others either being closed or providing only for second interments and ash interments. Although the amalgamated Auckland Council now has 52 cemeteries within its territory, most of these are closed or open only for additional interments, and most of the open cemeteries are a significant distance from the central city. Similarly, Christchurch has 27 cemeteries but only five are open for new burials.
4.12 District councils whose boundaries encompass large rural areas are often responsible for dozens of smaller, geographically dispersed public cemeteries, although they may have very few burials each year.142 For example, Southland has 15 cemeteries, and the region has an additional 12 trustee-managed cemeteries. Many councils have had to assume responsibility for some formerly trustee-managed cemeteries and, less commonly, some burial grounds that are no longer maintained by churches.

Denominational areas in public cemeteries

4.13 As discussed previously, New Zealand’s burial law has always been designed to accommodate religious diversity as far as is possible within the secular framework established for the provision of public cemeteries. Section 11(1) of the Act gives local authorities the power to permanently set aside a portion of a public cemetery for the exclusive use of any religious denomination. Currently, local authorities have almost complete discretion as to whether or not to establish denominational areas within their cemeteries.

4.14Analysis of our Local Authority Survey revealed differences in approach to the provision of denominational areas. These are a reflection of the different religious, ethnic and demographic makeup of these communities, and their differing capacities and resource constraints. Local authorities with responsibility for larger urban areas have tended to provide more denominational sections within their public cemeteries, including new areas reflecting our increasingly diverse urban communities. For example, Wellington’s Makara Cemetery provides a wide range of different areas for both religious and ethnic communities, including various Christian denominations, Hindu, Muslim, Progressive and Orthodox Jewish, Chinese, and Pacific Island areas. Historic cemeteries are also likely to have a greater number of denominational areas reflecting different divisions within Christianity.

4.15However, in many parts of the country, demand for separate Christian denominational areas has diminished, and we understand that in some cases local authorities have introduced policies stipulating that all new sections of a cemetery will be non-denominational.143 At the same time, as discussed in chapter 2, New Zealand’s increasing ethnic diversity is reflected in the growing number of local authorities establishing separate areas for burial according to Islamic customs and rites.144
4.16Our survey also indicates that responses to requests for denominational areas may be influenced by concerns about management efficiency.145 From a local authority perspective, setting aside different areas complicates cemetery management, increases maintenance costs, and in particular makes it more difficult to project future capacity. This difficulty arises because the capacity of each separate area must be assessed rather than the capacity of the cemetery as a whole. For example, Waikumete has an array of denominational areas, some of which are nearing capacity, and some of which have capacity through to 2050. Many of the denominational areas in this cemetery are as old as the cemetery itself and are still open to new burials. In contrast, the cemetery as a whole has capacity only for a few more years if it is not expanded.

4.17We were also informed that North Shore Memorial Park does not intend to accommodate any requests for new denominational areas, and has already rejected a request from the Islamic community. While this cemetery has significant scope for future development, the request was declined because of the constraints this would impose on planning and land utilisation as a result of the special requirements of Muslim burials, including the size of plots and the orientation towards Mecca. However, within the greater Auckland areas, Muslim burial areas are available within Waikumete and Manukau Memorial Gardens.

4.18 A number of local authorities, including Christchurch and Wellington, and Auckland’s Waikumete Cemetery also have specially designated urupā within the confines of the public cemetery. These are often developed in conjunction with urban Māori, who do not necessarily have an enduring connection to an ancestral urupā.

4.19In chapter 5 we consider more closely the extent to which the current provisions provide the appropriate balance between responsiveness to different community needs, and efficient cemetery management.

Burial of members of New Zealand’s defence forcesTop

4.20Under section 15(1) of the Act, local authorities are also given the discretion to set aside a portion of any cemetery under their control for the burial, without fee, of persons who have been on operational service in any division of New Zealand’s defence force.146 The section also provides for the burial of service persons’ husband, wife, civil union partner or de facto partner.147 Local authorities give effect to this obligation through setting aside Returned Services sections in public cemeteries. When the Act was passed, significant future need was anticipated for this burial space for the returned servicemen from the two World Wars.
4.21The survey showed that most local authorities have set aside Returned Services sections in at least one of their major cemeteries, but in recent times the rates of interment in these areas has decreased.148

Historically significant gravesTop

4.22The majority of respondents reported that their older cemeteries contained gravesites pre-dating 1900 and so were categorised as “archaeological sites” under the Historic Places Act 1993.149 However, our survey revealed wide variability in the management of such sites, including the extent to which funds had been set aside for the restoration of old graves, the extent to which such sites were formally notified within the district plan, and whether significant sites had been officially registered with the Historic Places Trust.
4.23At one end of the spectrum some local authorities were strongly engaged in identifying historically significant graves and cemeteries and had a number of heritage orders in place. A number had developed comprehensive Conservation Management Plans for their historic cemeteries and were aware of their obligations under the Historic Places Act 1993 and Resource Management Act 1991 with respect to these sites.150 Some historic cemeteries or parts of cemeteries also have the status of “historic reserve” under the Reserves Act 1977.

4.24Many other respondents were aware their older cemeteries contained historic graves and that the cemeteries themselves were of both local and potentially national cultural and historical significance. Although few sites had been registered with the Historic Places Trust, most were recorded in the relevant district plan and were recognised as sites of significance to the local community. However, some smaller local authorities find it difficult to maintain older cemeteries, which have fallen into considerable disrepair.

4.25 According to the New Zealand Historic Places Trust, of the approximately 5,650 historic sites included in the Register, 65 are listed as Māori urupā and 50 as cemeteries. More than 485 churches are also registered, 26 of which specifically include church graveyards or burial grounds. However, it may be assumed many of the historical churches have graveyards attached to them.151

Emerging IssuesTop

Capacity and resourcing

4.26The majority of councils estimated they had sufficient capacity within their existing cemeteries for three decades or longer, provided burial rates remained stable.152 However, 26 of the local authorities who responded to our survey anticipated having to make significant capital investment over the next decade, either to expand existing cemeteries or to establish new cemeteries. New Plymouth District Council’s current capital programme for the development of a new district cemetery is projected to cost $2.3 million over the period 2009–2019.153 Areas experiencing significant population growth, such as Tauranga, are exploring options for new sites to develop over the next two decades. In its draft Cemeteries Master Plan published in December 2012, the Christchurch City Council also signalled its intention to outlay up to $1.5 million to purchase about 50 hectares of land either on the city outskirts or in the neighbouring Selwyn district to provide for the population’s burial needs after current capacity is exhausted sometime within the next 20–40 years.154

4.27Many respondents also reported increased demand for natural burial options and were developing natural burial sites either within existing council cemeteries or on land developed specifically for the purpose.

4.28Councils anticipated funding these major capital works and developments from a range of sources, including user charges, loans, and/or development and reserves contributions.

4.29Anecdotal information provided by cemetery managers suggests that there is often a strong community preference for burial in older established cemeteries and those that retain a distinct geographic connection with the community. However, in the main centres at least, the trend is towards fewer, larger cemeteries on the outskirts of residential areas where land is less expensive.

4.30Selecting a suitable site for a new cemetery can be a long and fraught process. There is a tension between a desire for burial grounds to be accessible and proximate to major centres, and a reluctance to use valuable land suitable for residential development for cemetery purposes. Local authorities are also under pressure not to overspend, therefore the affordability of the underlying land is highly relevant. In addition, land management issues that arise need to be considered, along with the preferences of the local community. These factors influence decisions about cemetery locations, and ultimately the range of cemetery options and the plot prices charged. Recent experiences in Auckland, New Plymouth and Rotorua demonstrate these difficulties.

4.31The need for a new cemetery in New Plymouth became apparent in the late 1990s, as existing cemeteries began to approach full capacity. By December 2005, a new cemetery site had been selected and the Council resolved to purchase the land. The land was acquired under the Public Works Act in January 2007. However, the neighbouring land is used for a poultry farm, and the land owner was concerned about reverse sensitivity issues155  posed by the proposed cemetery.156 These issues were ultimately resolved, and the land was gazetted under the Reserves Act 1977 as a Local Purpose (Cemetery) Reserve in April 2012. The site has now been cleared and a landscaping plan has been approved. The site is due to open in 2015/2016, by which time, existing cemeteries are expected to reach full capacity. The new cemetery is expected to provide capacity for the next 60 years.
4.32Existing cemeteries in Rotorua have capacity through to 2015/16. The Rotorua District Council purchased a site for a new cemetery in early 2007.157 Nearby residents were displeased with the planned development, and in 2011 the Council decided to sell this site and purchase an alternative site. The second site is not yet developed, and is due to open once existing cemeteries reach full capacity. Based on current projections, this site will provide adequate burial space for the next 150 years.
4.33Waikumete Cemetery in Auckland is the largest in the country. Established in 1886, it has served as the main cemetery for the Auckland region for over 100 years. The cemetery is now reaching full capacity, and it is projected that no new plots will be available for sale from 2018. Before the amalgamation of Auckland councils, the Waitakere City Council compared the costs of expanding into undeveloped scrubland on the site, and purchasing new land. Expansion of the existing cemetery was shown to be a far cheaper option, and would provide capacity until 2060. However, the scrubland is a protected ecosystem under the District Plan. Capacity projections took account of burial demand from people living in the former Auckland City as well as former Waitakere City. In November 2012, the Auckland Council released a discussion document on the future management of Waikumete Cemetery including the option for expansion. The discussion document notes that other cemeteries are available in the Auckland region, but that “there is currently no viable alternative cemetery to serve the people of west Auckland.”158

4.34In some of the larger metropolitan areas, including Auckland, Christchurch and Wellington, the issue may not be an overall lack of capacity but rather a lack of capacity in the cemeteries most favoured by their communities. These local authorities note that in order to meet future demand it will inevitably be necessary for people to be buried in cemeteries that are not their first preference and possibly not geographically close to the area with which they were connected during life. The extent to which citizens should be able to exercise choice regarding the location, character, and cost of burial site is a question we discuss further in chapter 5.

Repossession of unused plots

4.35A number of councils raised concerns about the impact of section 10(4) of the Act on their ability to maximise the capacity of existing cemeteries, particularly those containing large portions of older graves. As discussed earlier, this section was introduced by the 1964 Act, and provided for this right to expire after 60 years if no burial had taken place within this time.

4.36Despite this amendment it appears very few local authorities are enforcing this provision and a significant number raised concerns about the constraint pre-sold, but unused, burial plots were placing on the optimal management of cemeteries, particularly older cemeteries which were nearing full capacity.159 For example respondents for the New Plymouth District Council reported that at Te Henui, one of its earliest and largest cemeteries, there were 1,200 pre-sold plots that had passed the 60-year point with no burial taking place. The difficulty is that these are interspersed throughout the cemetery.
4.37However, views on the appropriateness of the 60-year expiry clause were by no means unanimous. Some wished to see the term shortened in light of the increasingly transient resident population; others argued it should be extended to 100 years to ensure those wanting to make provision for future generations to be buried together in the same land could do so with greater certainty.160 A number of respondents questioned the appropriateness of the expiry provision, arguing that once a person had purchased an exclusive right to burial it should not be rescinded under any circumstances. Yet practical difficulties arise with a longer term, as locating the owner of the plot becomes less straightforward as time moves on from the original date of purchase. Some councils had also introduced bylaws or management plans either preventing or restricting the pre-purchase of plots in an effort to extend the life-time of cemeteries nearing capacity.

4.38Once burial has occurred all local authorities contract to provide perpetual interment. This is a matter of discretion rather than law. Under section 10(1) local authorities are able to issue a shorter licence (although if a shorter term were provided for, a licence for disinterment would be needed before remains could be removed). In many jurisdictions the tenure must be renewed at the end of the original contract term or provision may be made for the re-use of the plot. Whether New Zealanders would accept shorter tenures in the interests of extending the capacity of cemeteries and/or lowering the costs of burial is an issue we return to in chapter 7.

Transfer of unused plots

4.39Cemeteries are public places, but they also involve private interests, including the interests of those who purchase rights to interment and their survivors. These interests are typically encapsulated in contracts or deeds conferring a “right of interment” on the owner. Because that right is only exercised posthumously, difficult issues can arise when decisions need to be made about transferring those rights or extending them to others in a family. They may also arise before burial has occurred.

4.40Under the Act local authorities are empowered to sell an “exclusive right of burial” either in a cemetery plot or vault.161 Those who enter into contracts with local authorities for a burial are effectively sold a perpetual licence to occupy the land. However, this licence does not imply ownership or control of the land itself, and the exact nature of the legal interest including rights to future transfer is often unclear. If the deed of sale does not clarify the nature of the rights, these rights become an ambiguous and variable matter of interpretation, often informed by subsequent bylaws.162 For historical deeds of purchase, it may be difficult to ascertain the original intention of the parties and their understanding of the transaction.

4.41Local authorities have adopted different approaches to the transfer of the deeds to unused plots. For example, Dunedin reported that as the issue could be highly contentious when there are family disputes, it had adopted a strict policy of not allowing the transfer or reassignment of deeds (although it does allow them to be rescinded to the Council and the original purchase price refunded). In contrast, Wellington City Council has developed a formal application process requiring the applicant to establish their relationship with the original deed holder and the authority under which they seek the transfer.

Resourcing

4.42Cemeteries by their nature offer only short- to medium-term potential for revenue generation.163 Once a cemetery has reached full capacity it will become a loss-making asset as revenue streams end, but ongoing maintenance costs continue in perpetuity. For this reason, and because of their cultural and social significance, many local authorities manage their cemeteries under the broad umbrella of their parks and recreational facilities.
4.43With a few notable exceptions, our Local Authority Survey also showed that the income generated by cemeteries from user charges was insufficient to meet total cemetery expenditure.164 In almost all cases the shortfall is met by a rates subsidy. The level of rate-payer subsidisation ranged from 75 per cent in some sparsely populated regions, to between 50 and 30 per cent in metropolitan centres. Auckland pointed out that the split between user pays and ratepayer funding varied depending on the size, age and location of the many cemeteries. Like Hamilton, Auckland’s large memorial parks were fully operation cost recoverable, but this was not achievable with many of the smaller semi-rural cemeteries.
4.44Other variables that affect cemetery revenues include the demographic profile of the area, such as the age and ethnic make-up of the population (which has a bearing on the preference for burials over cremation), the age and capacity of cemetery stock, the availability of crematoria in the region (including whether the council itself operated a crematorium)165 and the level of fees charged.
4.45According to a recent media survey, the fees charged by local authorities for burial plots and interment have increased, on average, by 30 per cent in the past four years.166 However, the survey also showed wide variation in charges across New Zealand. Among the highest were Auckland’s North Shore Memorial Park and Waikumete, where plot and interment fees range between $2,975 and $5,400. In other districts, including Gisborne, Dunedin and Napier it is possible to purchase a plot for less than half these sums. In many respects these variations in cost reflect the underlying land values. As we will discuss in the following section on trustee-managed cemeteries, it is still possible to purchase the right of interment in some rural cemeteries for as little as $200, while others charge only a nominal fee for local residents. Additional fees are usually levied for anyone from outside the district and for interments outside normal council working hours. In some jurisdictions, cemeteries provide instalment payment options for the pre-purchase of plots. We are not aware of any local authorities that offer this option, though it would be within their powers to do so.
4.46Many local authorities appeared to set fees that covered the direct costs associated with burial, including the preparation of graves. The maintenance of cemeteries is then funded from rates. Approximately half of the survey respondents signalled that the rate-payer contribution to the maintenance of cemeteries in their districts was forecast to increase over the next five years due to the increased costs of maintenance (mostly outsourced to contractors), and to fund improvements.167

4.47Striking the appropriate balance between public and private contributions posed an increasing challenge for some local authorities, as noted in the Tauranga survey response:

The burial plot fees do not reflect the cost of the plot and maintenance in perpetuity, but if we were to increase them to accurately reflect this cost then the plot fee would be very expensive, and we would be prohibiting people from purchasing them…

4.48Other than rates contributions the only other source of funding available to councils came from Veterans Affairs, which provided grants to assist with the provision and maintenance of graves for those who have been on operational service in the New Zealand Defence Forces.168 A few respondents also reported receiving small grants from the Ministry of Culture and Heritage, for the maintenance of historically significant graves.

4.49However, considerable scope exists for council-owned cemeteries to benefit from community volunteer labour, especially through councils entering into partnerships with community groups to maintain historic cemeteries.

The role of Friends of Cemeteries

4.50In many parts of New Zealand, volunteers play a pivotal role in recording and maintaining historic gravesites and cemeteries. This is particularly so in rural areas that still have access to trustee-managed cemeteries. There are also a number of active community-based voluntary groups, which have formed with the specific goal of protecting and preserving some of our largest and oldest public cemeteries. Among these are the Friends of Mount Street Cemetery and Bolton Street Memorial Park in Wellington, Friends of Linwood Cemetery in Christchurch, Friends of the Lawrence Cemetery in Waitahuna, Friends of Auckland’s Waikumete Cemetery and a recently established Friends of Symonds Street Cemetery in central Auckland.

4.51A number of these voluntary groups operate with some assistance from the Historic Cemeteries Conservation Trust and undertake a wide variety of tasks, including the physical restoration of individual gravesites and monuments, the detection of unmarked graves, the construction of paths and gardens and the compilation and digitisation of cemetery records.

4.52In many instances these groups work closely with the local authority responsible for the cemetery’s management. However, local authorities are not required to consult with or work collaboratively with such organisations. In the course of preliminary consultation we have been told that the absence of any such requirement means the groups are sometimes limited in the scope of the work they are permitted to undertake.

Animal interments

4.53It is apparent from our Local Authority Survey that requests for the interment of animals, or their cremated remains, are becoming increasingly common. In some cases the request is to inter the remains with the pet’s owner. In other cases it may involve a separate interment. One local authority alluded to the fact that animals may sometimes be interred in the coffin with their owner without this being formally declared. We note that there are no restrictions on establishing a private cemetery for pets; anyone could create such a cemetery, provided it complies with the provisions of relevant district and regional plans.

4.54Christchurch City Council noted that an animal cemetery was being planned in a regional park. Others noted that they were already providing for animal cremations in crematoria operated by the local authority.

4.55Most local authorities sought some policy guidance on the acceptability of interring animal remains in public cemeteries. Although this issue has been raised in several survey responses, it is peripheral to the core subject matter of this review. We consider that the legislation should remain silent concerning the burial of animal remains, or ashes. Cemetery managers who wish to allow animal interments may do so, and may of course control the burial of animals through bylaws or policies.169

Trustee-managed cemeteries

4.56 It appears from Hansard (the record of Parliamentary Debates) that at the time the Burial and Cremation Act was passed it was envisaged that trustee-managed cemeteries would all eventually enter into local authority management.170 While this has happened for many former trustee-managed cemeteries, including some which have transferred management as recently as the past year, around 100 cemeteries throughout the country are still managed by trustees under Part 3 of the Act.

4.57These were established in the early days of our colonial history, and therefore reflect the migration and population distribution patterns of the early European settlers. These cemeteries include some of the oldest and most historically significant in the country. They are particularly common in rural areas, where to this day they continue to serve the local communities, for whom the cemetery may provide one of the strongest links with the pioneering past.

4.58There is no central registry of trustee-managed cemeteries, and the Act does not currently require land used for burials to be formally designated.171 However, the Office of the Auditor General (OAG), which is responsible for auditing the finances of these cemeteries, has records from trustees who comply with the audit requirements, and many local authorities record the existence of trustee-managed cemeteries within their regions. In our research we have identified some trustee-managed cemeteries from local authority records that are unknown to the OAG, and there may be others that have not been identified.172
4.59In assessing the current state of trustee-managed cemeteries, we have drawn on information provided by the OAG as well as our own primary research undertaken in 2011/2012. In this section, we rely particularly on data collected from a comprehensive survey of trustees, and interviews trustees and with local authorities.173 We have also received extensive information from Land Information New Zealand relating to the legal status of cemeteries, and from the Department of Conservation, relating to cemetery reserves.

Role of trustee-managed cemeteriesTop

4.60From responses to our survey, it appears that rural trustee-managed cemeteries continue to provide a very important community service.174 Several responses mentioned that the current trustees had ancestors buried in the cemetery. These trustees invariably saw their role as the custodians of a community asset, and emphasised the importance of involvement in the cemetery management to the local community. For example, Drybread Cemetery stated that “the local history and identity is wrapped up in the cemetery”.

4.61Unsurprisingly, many of those who completed our survey expressed strong reservations about conferring control and management of the cemetery to a local authority. Some were concerned that if the cemetery was passed to local authority control, it would be closed, plot prices would increase, or adjacent land earmarked for future expansion would be sold for other purposes. Many trustees commented that costs are kept low because of community voluntary involvement, which results from a sense of community ownership.

4.62These sentiments were captured by the trustees of Dunkeld Cemetery, who noted that:

Retaining local trustee control in our Cemetery has worked well in the community since 1896. Working on and maintaining the Cemetery instils pride and ownership in our precious Beaumont place of rest. We have had good feedback from families who have loved ones in our cemetery – they enjoy visiting and appreciate the well-kept gravesites, lawns and surrounds. Our Trust is passionate about local history and members are available to help people with their genealogical enquiries. With those things in mind our community would not wish to have the cemetery transferred in to the local authority's jurisdiction, wishing instead to retain this special resting place in the care and management of people who have a special bond with Beaumont. Along with this there is a significant saving in costs retaining it in non-paid Trustee control.

4.63The trustees of Eastern Bush Cemetery noted that their cemetery was a “sleepy little cemetery in a remote location” and it would be “impracticable” for the local authority to maintain the grounds. Forest Hill noted that the cemetery was “like a family cemetery”, reflecting the strong connection in the local community arising from several generations having been buried in the same place.

4.64A small proportion of responses expressed concern that in future it might become more difficult to find replacement trustees, and transfer of control to the local authority might be necessary at some stage.

Legal status of trustee-managed cemeteriesTop

4.65The precise legal status of trustee-managed cemeteries is complicated. As discussed in chapter 3 above, many trustee-managed cemeteries began as charitable trusts. Some continue to comply with the original trust deed, whereas others have no record of the origins of the trust. The Act stipulates “[t]rustees are public entities as defined in section 4 of the Public Audit Act 2001”.175 Cemetery Trustees are also public bodies for the purpose of the Local Authorities (Members' Interests) Act 1968.
4.66The Cemeteries Act 1908 contained provisions that allowed for the Governor-General to delegate the power to appoint trustees to a local authority, envisioning a system of devolved management.176 This delegation power is retained in the current Act. Regrettably, however, there are incomplete records of these delegations. It is clear that since at least 1882, trustee-managed cemeteries have been subject to significant government oversight, and that they are a form of public cemetery managed by community appointees, and not private arrangements.

4.67Some trustee-managed cemeteries have registered with the Charities Commission as charitable trusts. There is no obligation to do so, and it is arguably outside the scope of the Charities Act 2005 for public entities of this sort to register. In chapter 7 we consider how best to respond to this unique blend of incrementally developed practice and arcane law.

Financial status and auditingTop

4.68Under the Act, trustees must apply all funds to the maintenance of the cemetery.177 They must keep accounts of all money received and expended, and the accounts must be audited yearly, consistent with the obligations for public entities under section 4 of the Public Audit Act 2001.
4.69A number of the trustee-managed cemeteries responding to our survey expressed the view that the auditing process was unduly time consuming, given the small amounts involved.178 The OAG also notes that in many cases, the costs of undertaking the audit exceed the yearly funds received by the cemetery.179
4.70Upper Wairau Cemetery paints a fairly typical picture of a fully operational and well-run rural trustee-managed cemetery. This cemetery charges $500 for a burial plot and $200 for interment.180 In 2012, the annual return submitted to the Charities Commission shows a total income of $6,376, expenditure of $4,799 and cash assets of $37,931. The report also showed an average of 10 volunteer hours worked per week and no paid employees. This reflects a common practice among trustee-managed cemeteries: the fees are kept low, and maintenance is performed by volunteers.

4.71A significant outlier is Mangere Lawn Cemetery in Auckland. This cemetery was established in 1893 near the centre of Auckland in an area that was historically excluded from town limits. As Auckland expanded, demand for burial space increased, and Mangere Lawn Cemetery now operates a crematorium and functions as a full service cemetery. Fees are $2,600 for a plot, and $1,000 for interment. The most recent annual returns show that this trustee-managed cemetery employs seven people full-time and one person part-time, receives over a million dollars in annual income from cremation, plot sales, and investment, and has over two million dollars in cash reserves. From discussions with the cemetery management, we understand that the current trustees intend to continue to amass financial reserves, so a sufficient fund is available for perpetual maintenance of the cemetery grounds after all the plots are sold.

Emerging issuesTop

4.72 While there can be no doubt that trustee cemeteries continue to serve an important function within the sector, our preliminary research indicates a number of pressing problems with both the statutory framework and current management structures.181 For example, not all of these cemeteries have the legally required complement of three trustees and in some cases the trustees were not fully cognisant of their legal obligations under the Act, including financial reporting requirements. There also appeared to be wide variation in the level of maintenance provided.

4.73Of greater concern is the extent to which records are kept of the cemeteries themselves. As mentioned above, there is no central record of trustee-managed cemeteries, and nor is the status of the land consistently noted on the title. This provides significant barriers to the effective oversight of trustee-managed cemeteries.

4.74However, the most significant problems appear to arise when there is a need to transfer control of a trustee cemetery to the local authority. The processes allowing for this are inadequate and difficult to implement. We look at this issue in more detail in chapter 6 below, and options to reform this process are presented in chapter 7.

141Local Authority Survey, above n 139.
142In 2011, there were 19 regions with fewer than 100 deaths. The lowest rate was in the Chatham Islands with only two deaths. In contrast, there were 3140 deaths in Christchurch and 6243 in metropolitan Auckland (that is, the former Auckland city, Manukau city, North Shore city and Waitakere city combined). See Statistics New Zealand “Local Population Trends” <www.stats.govt.nz>.
143Many of those completing our Local Authority Survey indicated that while historically separate areas had been set aside within council cemeteries for the burial of different Christian sects this practice had been discontinued.
144For an example of a Local Authority that is seeking to become more responsive to an increasingly diverse population, see Tauranga City Council, Strategy and Policy Committee “Adoption of Draft Exclusive Burial Areas in Council Cemeteries Policy” (29 June 2010) <www.tauranga.govt.nz>.
145Local Authority Survey, above n 139.
146Section 15(2) establishes that the Minister of Veterans’ Affairs, after consultation with the Minister of Defence and the New Zealand Returned and Services’ Association, may specify, by way of a notice in the Gazette, any “war, armed conflict, peacekeeping force, or other operation” which would meet the definition of operational service for the purposes of the Act.
147Veterans Affairs wants clarification of the partner’s rights; in particular, whether these only apply after the member of the armed forces has died and been interred in the area or, in cases where the spouse dies before the member, whether they may be interred first.
148Local Authority Survey, above n 139.
149Historic Places Act 1993, s 2; Local Authority Survey, above n 139.
150See for example the former Waitakere City Council Waikumete Cemetery Conservation and Reserve Management Plan (March 2001) <www.waitakere.govt.nz>; the Wellington City Council Karori Cemetery Conservation Plan (2003) <www.wellington.govt.nz>; and the Christchurch City Council Barbados Street Cemetery Conservation Plan (2009) <www.christchurch.govt.nz>.
151Email from Rebecca O’Brien (Registrar of the New Zealand Historic Places Trust Pouhere Taonga) to Law Commission regarding historic cemeteries (27 August 2013). All numbers are approximate.
152Local Authority Survey, above n 139.
153Zac Yates “New cemetery site inspired by stream” (1 December 2012) Stuff <www.stuff.co.nz>.
154Christchurch City Council Draft Cemeteries Master Plan (December 2012) <www.resources.ccc.govt.nz>.
155Reverse sensitivity is a concept that has developed through cases decided by the Environment Court. It occurs when an established use (in this case the chicken farm) has an adverse effect on neighbouring land, and a change in use of the neighbouring land is likely to result in increased complaints about the existing land use, and may therefore require the existing use to adopt new measures to reduce the adverse effects.
156See Ryan Evans “Council feels cemetery chickens won’t come home to roost” Taranaki Daily News (online ed, 28 May 2010).
157Matthew Martin “Site chosen for Rotorua’s new cemetery” Rotorua Daily Post (31 March 2011).
158Auckland Council “Waikumete Cemetery Management Plan Review – Discussion Document” (1 November 2012) <www.aucklandcouncil.govt.nz> at 15.
159The Manawatu District Council appears to be one of the few councils to have exercised its discretion to shorten the contract period for pre-purchased plots in order to increase capacity. At the end of the contract period the right to interment in plots where no burial had taken place reverts to the council and can be re-sold.
160Respondents for the Whangarei District Council pointed out that local urupā did not necessarily have the capacity to accommodate all those who wished to be buried in them. It was therefore important for local Māori families to be able to make adequate provision for present and future generations to be buried together in council cemeteries. Imposing a 60-year or shorter expiry date on contracts could prevent this from happening.
161Burial and Cremation Act, s 10(1).
162A form of delegated legislation usually made by local authorities.
163Section 18 of the Burial and Cremation Act requires that all money received by a local authority from the provision of cemetery services be credited in a “separate account” and “applied in the management and improvement” of the cemeteries under its control. While the majority of respondents reported that separate accounts were maintained for cemetery income, this was not universal. It is arguable that the stringent accounting and financial reporting requirements to which all local authorities are now subject may have made this provision redundant.
164Local Authority Survey, above n 139.
165Our Local Authority Survey revealed significant differences in the rates of cremations versus burials in each district. For example, in Tasman it was estimated that 70 per cent of the population are cremated while in Gore the ratio was reversed. In districts with no cremation facilities such as Buller, over 90 per cent of the population were buried. While cremation rates tended to be highest in the metropolitan centres, areas with large Māori and Pasifika populations tended to report lower cremation rates. For example, the Ruapehu District Council estimated 85 per cent of its population opted for burial, reflecting the high proportion of Māori in the local authority area.
166Rob Stock “The rising price of eternal rest” The Sunday Star Times (New Zealand, 6 May 2012) at D16.
167Local Authority Survey, above n 139.
168Section 15 of the Burial and Cremation Act provides local authorities with the discretion to set aside an area of a public cemetery for the burial of those who have been on operational service as part of the New Zealand Defence Force. The right of burial is without fee and extends to husbands, wives, civil union and de facto partners of the person in service.
169For example, the draft Christchurch City Draft Cemeteries Bylaw and Handbook includes a provision which provides that “[n]o animal(s), including birds or fish, either as ashes or as a body, can be interred in a Council cemetery.”
170(14 August 1964) 339 NZPD 1368.
171Newly established denominational burial grounds must register a caveat against the title, but existing cemeteries and historic denominational burial are under no obligation to record the cemetery status.
172As mentioned at above n 137, this means that the exact number of trustee-managed cemeteries is unknown.
173Cemetery Trustees Survey, above n 140.
174Cemetery Trustees Survey, above n 140.
175Burial and Cremation Act, s 29.
176Cemeteries Act 1908, ss 6–9.
177Burial and Cremation Act, s 28.
178Cemetery Trustees Survey, above n 140. Records from the OAG in 2007 showed that of the 98 trustee-managed cemeteries audited in 2005/2006, 73 per cent had cash holdings of less than $10,000, while 92 per cent had annual receipts of less than $10,000 and 95 per cent had annual payments of less than $10,000. See Controller and Auditor-General Local government: Results of the 2005/06 audits (Office of the Auditor-General, Parliamentary Paper B29[07b], June 2007).
179At [65].
180Based on results received from the Cemetery Trustees Survey, the median cost for a plot in trust managed cemeteries is $250, and the average cost is $350. However, several cemeteries reported charging only a nominal fee (ie less than $100).
181Cemetery Trustees Survey, above n 140.