Contents

Chapter 6
Management and protection of places of burial

Land classification – implications for management and control

6.30In the following discussion we consider whether the current legislative framework provides the clarity required to ensure effective long-term management of our places of burial as circumstances change over time. We begin with the issues that arise over the legal status of the land on which burials have taken place, and the implications for the differences for long-term management and possibilities of alternative use. We then consider the particular issues that arise for trustee-managed cemeteries when trustees wish to transfer control to local authorities, given the particular heritage value of these cemeteries and the idiosyncratic management arrangements under which they operate.

Status of burial land and long-term management

6.31As discussed in chapter 3, New Zealand’s early burial law sought to bring all land used for burial under the umbrella of one statutory regime, irrespective of how the land was originally set aside or the management arrangement in place. However, the legislation has never included a requirement that land used for burial be protected by any legal caveats or that the certificate of title include reference to the land’s status as a burial ground or cemetery.247

6.32Respondents to our Local Authority Survey were not always able to provide comprehensive information about the underlying legal designation of land used for cemeteries in their districts. Often the land had been classified as cemetery reserve and is subject to the Reserves Act 1977. In other cases land may have been donated by the Crown or obtained under the Public Works Act 1981 or the Local Government Act 1974. One of the ramifications is that cemetery status is not always noted on the title and is not noted in a consistent form when it is recorded.

6.33Although not required by the Act, our Cemetery Trustees Survey revealed that many trustee-managed cemeteries do have a notation on the certificate of title.248 This is most commonly the result of reserve status under the Reserves Act 1977. We believe it is also likely that some trustee-managed cemeteries meet the definition of “reserve” but the certificate of title has never been properly updated to reflect this status. Under the Public Reserves and Domains Act 1908, existing cemeteries were classified as reserves. Several iterations of reserve legislation have interposed, but each new statute has defined “reserve” so as to include reserves set aside under predecessor legislation. As a consequence, legacy trustee-managed cemeteries are generally within the definition of reserves. Land which has been classified as “reserve” should be, in theory, subject to the planning and management requirements of the Reserves Act, creating another layer of administrative complexity for trustee-managed cemeteries. In practice, it is our understanding that the Department of Conservation, which administers the Reserves Act, does not follow up with trustee-managed cemeteries to ensure that they are meeting their obligations as administering bodies of reserves.

The problemTop

6.34The ambiguous, unusual, and complex legal status of land used for burial does not necessarily cause day-to-day management problems. However, the different legal classification of the land, or in some cases the lack of clarity as to the land’s status, causes problems and potential conflicts between different statutory regimes in a number of areas. The lack of clarity as to the legal status of land used for burial can also create more serious problems when decisions are being made to either transfer the ownership and/or management of such land to another party, or to divert unused portions for another purpose.

6.35Under the Act different rules apply to the sale and diversion of land used for burial depending on whether it is a “cemetery” or a “burial ground” (as defined in the Act). The rules that apply to the sale or diversion of cemetery land that is unused and surplus to requirements also differ depending on whether that land is subject to the Reserves Act, the Public Works Act or under the control of a trustee-managed cemetery.249 Hence, difficulties can arise if the land’s legal designation is unknown or disputed.
6.36The default position is that cemeteries and burial grounds which have reached their capacity and are closed for further burials should not be “sold or leased or otherwise disposed of or diverted to any other purpose.”250 However, under section 44 the Minister of Health has a discretionary power to waive this provision in the case of burial grounds. Cemeteries, on the other hand, cannot be legally alienated or diverted to an alternative use, except by an Act of Parliament.251 The different regimes reflect the fact that burial grounds are established on private land. Cemeteries managed by trustees can be transferred to a local authority, under a separate process discussed in more detail below.

6.37On the rare occasions when a cemetery or burial ground is cleared for alternative use, it is the practice in New Zealand to disinter all remains and rebury them in another cemetery. This may often be the preference of the families of the deceased, but in addition it is usually necessary because of planned earthworks. A recent example is the clearance of the Westney Road Methodist burial ground to provide for an extension of Auckland Airport. In 2005, a notice was issued closing the burial ground and exempting it from the restrictions on alienation, with the condition that tablets, monuments and remains were cleared. After the burial ground was closed, the Airport worked with the descendants of persons buried to arrange for disinterment and reburial elsewhere, mostly in the nearby Mangere Lawn Cemetery. If this had been a public cemetery, and not a burial ground, legislation would have been required to authorise the change in use.

6.38The Act sets out a complex and multi-layered process for dealing with cemeteries and burial grounds that cannot accommodate further burials, or that need to be closed for other reasons. The process begins when the Minister of Health issues a “closing order” for the cemetery or burial ground. As part of this closing order, or at a later date, the Minister can vest the control and management of the cemetery or burial ground in a local authority or any other individual or body corporate for the purpose of ensuring it is “maintained in good order” and remains accessible to the public. The Minister also has the power to order the removal of monuments and tablets in a closed cemetery or burial ground. If this occurs, the initiator of the action, whether a local authority or a body corporate, must give public notice of the clearance and must send a copy of the notice to the Historic Places Trust.

6.39In theory at least, each of these steps, from the issuing of the closing order to the delegation of control and management responsibility to another party, must be notified in the Gazette.252 In practice, however, our research indicates that historically the processes have not always been followed and/or the documentation, which might establish which, if any, of the processes have been undertaken, cannot always be found. The picture is further complicated in situations where there is uncertainty as to whether the land is subject to the “cemetery” or “burial ground” regime.
6.40In the course of this review there have been a number of instances in which burial grounds have been put up for sale, often in conjunction with the sale of deconsecrated churches and their surrounding land. In some cases the appropriate steps have been taken in advance of the sale to sub-divide and protect the land used for burial, but in others the sale process has given rise to a number of legal and policy issues. In one case, ownership of a denominational burial ground in Canterbury was transferred to a private company, which undertook a number of burials before the Ministry issued a closure order because it regarded the conversion to a private cemetery as ultra vires.253 In another case, a deconsecrated church in Devonport was put up for sale together with the closed burial ground containing historic graves, some of which were unmarked. The proposed sale initially met with strong opposition from members of the local Devonport community.254 However, the vendors consulted with the relevant stakeholders and worked with the Ministry of Health to ensure that all land in which burials had taken place was excluded from the sale. The old burial ground was recently gifted to the Auckland City Council.255
6.41We are also aware of one instance in which a local authority fell foul of the restrictions on alienation. In 1995, the Waitakere City Council decided that an undeveloped portion of the Waikumete Cemetery should be sold for the purposes of a residential subdivision. The subdivision proceeded and houses were built on the land. However, the reserve status and cemetery status of the land was not removed, meaning that the subdivision was of questionable validity.256

6.42These examples demonstrate a number of issues. As seen in the clearance of the Westney Road burial ground, the apparently strong statutory restrictions on the alienation of burial grounds can be overridden by an exemption from the Minister of Health. The process for receiving an exemption is not transparent and does not provide for a public hearing. The sale of unused cemetery land at Waikumete demonstrates the pitfalls of the current law for local authorities seeking to manage their cemetery assets, which can include land adjacent to a cemetery but not yet used for burial.

6.43In addition, the various attempts to sell land used for burial in conjunction with church property illustrates the difficulties in both applying and enforcing the existing legislation when there is a lack of clarity as to the status of the underlying land and the historic decisions which have been taken over its control and management.

Trustee-managed cemeteriesTop

6.44As discussed earlier, it appears that at the time the Act was passed it was envisaged that trustee-managed cemeteries would all eventually enter into local authority management.257 In practice, the transfer of ownership and management of these historic cemeteries often appears to have been both legally cumbersome and somewhat haphazard.
6.45Many local authorities have taken over the management of cemeteries that were formerly operated by trustees, as provided for by section 23(3) of the Act. However many commented that it was not always clear under what authority the council had assumed responsibility for these properties, nor, in some instances, the legal ownership and status of the underlying land. This lack of clarity over the legal status of the land and the origin and nature of the council’s delegated authority was often problematic.258
6.46Part of the difficulty is that the Act does not provide a process for transfer of management as such. Instead, it provides that the Governor-General may appoint a local authority to have control or management of a cemetery if the trustees number less than three.259

6.47Section 53 addresses the issue of vesting the underlying title. Neither section 53 nor section 23 provides any guidance to trustees or local authorities wishing to transfer management. In addition, consent of the local authority is required, which could pose an obstacle to effective transfer in some cases. The risk is that the lack of effective transfer provisions will result in cemeteries that have no responsible manager, for example if trustees die without appointing replacements. There is also a risk that the cemetery management will be informally transferred but outstanding issues such as caveats or undissolved trusts will remain a barrier to full transfer and effective management.

6.48This scenario occurred for the Pauatahanui Burial Ground in Porirua and was ultimately resolved only through a local bill promoted by the Porirua City Council. The Pauatahanui Burial Ground was set aside as a cemetery by the Stace family in 1856. The first burial occurred in 1860, and the cemetery was managed by trustees as a public cemetery for almost 150 years . In the notice giving effect to its closure in 2004, it is referred to as a denominational burial ground.

6.49However, as the land was set aside prior to the Cemeteries Management Act 1877 and operated as a place for the burial of the dead generally,260 it would appear that it was actually a trust-operated cemetery erroneously categorised as a denominational burial ground. When it came time to close the cemetery in 2004, after all the available plot space was used, the Porirua City Council realised that the trustees appointed under the Act had never been recorded on the certificate of title. The registered owners had long since died and the title remained subject to caveats. Legislation was passed in 2007 vesting the title in the Porirua City Council, removing the caveats, dissolving the trusts, and confirming council control and management.261

6.50An additional example is Puhoi Cemetery. We have been advised by the Ministry of Health that the trustees wish to transfer the management of the cemetery, but there are difficulties in doing so because it is located on Crown land and is subject to the Reserves Act. Many still operative trustee-managed cemeteries are likely to have similar issues, suggesting a strong argument in favour of “cleaning up” the underlying title to better enable future transfer of control, when trustees so choose.

6.51Section 22(3) of the Act provides a simpler process for the transfer of control of trustee-managed cemeteries that are on land vested in the local authority. Under this section, if due to resignation, death, or absence of trustees “there is at any time no person holding the office of trustee in respect of that cemetery”, the local authority will take over control of the cemetery.

6.52A further issue relates to the relationship between trustee-managed cemeteries and local authorities. It is quite clear that most trustee-managed cemeteries charge less for a plot than local authority cemeteries. As long as trustees and other members of the community are able to donate time to maintain the grounds and manage burials, this seems to meet the preference of the community. The difficulty arises at the point of transfer of management, if and when this occurs. The local authority will be bound to honour agreements for the pre-sale of plots, and although an interment fee can be charged, there is a risk that many trustee-managed cemeteries will end up becoming a liability for ratepayers. To some extent this is unavoidable, and a natural consequence of the way trustee-managed cemeteries were historically created. However, there may be a case for requiring improved accountability by local authorities to pre-empt problems arising with financial liabilities in relation to future transfers.

247Other than new denominational cemeteries.
248Cemetery Trustees Survey, above n 238.
249Burial and Cremation Act 1964, s 21(3).
250Sections 43 and 44.
251For example, the bisection of Bolton Street Cemetery in Wellington for a motorway was authorised by the Finance Act (No 2) 1967, s 6.
252Burial and Cremations Act 1964, ss 41, 44 and 45.
253Internal Briefing to the Director-General of Health regarding proposed closure of Raithby Burial Ground (18 April 2008).
254Sarah Coddington “Fears for graves in church sale: survey will check for lost human remains” Stuff (22 November 2011). <www.stuff.co.nz>
255Email from Sally Gilbert (Manager Environmental & Border Health, Ministry of Health) to Law Commission regarding St Paul’s (Presbyterian) Burial Ground, Devonport (27 August 2013).
256Section 49 of the Reserves and Land Disposals Bill 2007 is intended to rectify this, by providing:

49 Reserve status of Waikumete cemetery land revoked:
(1) The reservation of the Waikumete cemetery land as a reserve for local purpose (site for cemetery) is revoked.
(2) The revocation of status under subsection (1) must be treated as if—
(a) it occurred under section 24 of the Reserves Act 1977; and
(b) the requirements of that section were satisfied; and
(c) section 25 of the Reserves Act 1977 does not apply to the land to which the revocation relates.
(3) The dealings referred to in section 48(4) are valid and have always been valid despite section 112 of the Reserves Act 1977.
257See above n 170.
258Respondents for the Christchurch City Council in our Cemetery Trustees Survey drew our attention to the fact that on a number of occasions since the passage of the Burial and Cremation Act Parliament has been forced to pass special statutes in order to vest ownership and control of moribund trustee-managed cemeteries in a local authority because the mechanisms provided under the current Act were inadequate. Survey respondents for the Whangarei District Council proposed that there be an updated register or database of all legacy trustee-managed cemeteries for which local authorities have delegation under s 23 of the Act (including delegations made under previous Acts).
259Section 23(3) of the Burial and Cremation Act 1964 provides that
​[i]f the trustees of a cemetery to which this Part applies at any time number less than 3 the Governor-General may, instead of appointing trustees under this section, with the consent of a local authority, appoint that local authority to have the control and management of the cemetery as from a date to be specified, which date may be before or after the date of the making of the appointment.
260See Porirua City Council “Historic Site: Pauatahani Burial Ground and Rose Project” <www.pcc.govt.nz>.
261Porirua City Council (Pauatahanui Burial Ground) Act 2007.