Chapter 7
Reform options: a modern approach to cemetery management

Maintenance and long-term protection of land used for burial

7.70As discussed in chapter 6, there are both public and private interests in ensuring individual graves and places of burial are adequately maintained and protected over the long-term. Ensuring that there is a robust and consistent statutory framework to achieve these objectives will be essential if our proposals to open the sector to new providers are accepted. The proposals below reflect our view mentioned above at [7.45] that legislation should focus on protection of the underlying land and clarifying standards of maintenance and service provision, rather than imposing restrictions on who may operate cemeteries.

7.71In this section we outline the key elements of our proposals dealing with the establishment, management and protection of land used for human burials.

Resource Management considerations

7.72The burial of human remains raises land use issues, but at present these issues are poorly integrated into the general resource management framework. Despite the major reforms in New Zealand’s local government and resource management law over the last 25 years, the Burial and Cremation Act has not been updated to reflect a modern approach to land management and the role of local government.

7.73If the provision of cemeteries is opened up to alternative providers, it will be particularly important to ensure that resource management considerations are better taken into account. Under section 9 of the Resource Management Act, resource consent is required for a use of land that contravenes a rule in a district or regional plan or a national environmental standard. The implication of this section is that if the relevant plan does not restrict the use of land in question, and there is no national environmental standard, then the use of land will be permitted without resource consent.271 Without a requirement for resource consent, the local authority would not be able to consider resource management issues (for example, the efficient use of land, and the effect that establishing a cemetery would have on the amenity of the area). The local community would not receive the opportunity to comment on the proposed use of land.272
7.74As mentioned above, we consider that a National Environmental Standard could address a range of issues and provide some level of national consistency in managing the land use implications of cemeteries established by new providers. In particular, the National Environmental Standard could provide that all new cemeteries have a default non-complying activity status273 if the relevant plan is silent.274 A non-complying activity status is the most restrictive activity status available, and requires the applicant to demonstrate that the adverse effects of the activity on the environment are minor, and that the activity will not be contrary to the objectives and policies of a relevant plan or proposed plan.275 Given the importance of addressing land management issues when a cemetery is established, we consider that this restrictive activity status might be appropriate where the activity is not otherwise controlled by the relevant plan. This would not preclude local authorities from establishing a different activity status for new cemeteries after public consultation, as part of the process of developing a district or regional plan.
7.75The National Environmental Standard would also address some matters that are currently covered in bylaws, including burial depth. The detail of the National Environmental Standard would be determined by the Ministry for the Environment in consultation with stakeholders. We also suggest that it could require public notification of all applications for resource consent to establish cemeteries, to ensure public involvement in the consenting process.276

Protection of land used for burialTop

7.76In principle we have argued that land used for human burial should be subject to special protections. Cemeteries and burial grounds fulfil a number of public and private functions. As well as being places where the deceased are memorialised, they are also repositories of our collective heritage. In chapter 6 we reached the preliminary conclusion that the law does not always adequately protect these interests, particularly in respect of the preservation of our historic burial grounds and cemeteries. However, we also recognise that disused historic cemeteries pose significant maintenance costs, especially if maintenance of monuments is taken into account. In some cemeteries, it is simply not financially viable for local authorities to keep all monuments in a state of good repair. When this happens, it may be preferable for the general amenity of the site for decaying monuments to be removed and the area planted over.

7.77The current statute recognises this reality, but requires the assent of the Minister of Health before monuments may be removed. There is scope for current provisions to be improved. In developing the proposals below, we have sought to give better effect to the policy considerations that underpin the current statute, and to make better use of existing mechanisms for considering land use matters.

Closed cemeteries and closed former denominational burial grounds

7.78As with the current law, the statute will retain a distinction between open and closed cemeteries.277 However, in accordance with our proposal new legislation would provide that the Environment Court, rather than the Minister of Health, would have the authority to close a cemetery.

7.79Once burial capacity is exhausted or if burials are to discontinue for any other reason, cemetery managers would be able to apply to the Environment Court for an order closing the cemetery. Managers could alternatively apply for an order closing a section of a cemetery. A closed cemetery, or a closed section of an open cemetery, could continue to be used for the interment of ashes but not for the burial of bodies. Once a cemetery is closed, the cemetery manager would have to lodge the Environment Court order with the Registrar of Land, who would then record the status of “closed cemetery” on the certificate of title. Unlike the current processes, which rest on the discretion of officials, the details of this process would be set out in statute, including, for example the supporting information required and the timeframes for the decision.

7.80We also propose that the Environment Court should be able to authorise the clearance of monuments from closed cemeteries (currently this power also rests with the Minister of Health). Cemetery managers would be able to apply for an order allowing clearance when applying to close a cemetery, or at any time after a cemetery is closed. The Environment Court could then grant the authority for clearance subject to conditions, including conditions mirroring those contained in section 45(2A) to 45(3) of the current Act. Where monuments pre-date 1900, the Historic Places Trust would also need to be notified of an application for clearance. Necessary archaeological consents would also be required, as well as the permission of plot holders where relevant. Best attempts would also need to be made to notify relatives, who should have the opportunity to submit.

7.81Cemetery managers could continue to remove unsafe monuments at any time without the permission of the Court, provided records were kept of the precise burial location of individuals and all reasonable efforts were made to notify the family of the deceased.

7.82The current law requires the permission of the Minister of Health for the alternative use of burial grounds, and an empowering statute for the alternative use of cemeteries. There are no criteria to be taken into account. There is a potential conflict of interest in these provisions, and no requirement for independent assessment of clearance for public works favoured by central government. It is our view that this process should instead be open and transparent, and provide for public submissions and independent decision making. We therefore suggest that applications to change the use of a cemetery should be lodged with the Environmental Protection Authority and referred either to the Environment Court or a Board of Inquiry. New legislation would introduce a modified process under sections 145 to 147 of the Resource Management Act to achieve this.

7.83The Environment Court or the Board would proceed to assess the application as if the proposed activity had a discretionary status and had been publicly notified. In addition to the usual considerations under the Resource Management Act,278 the Environment Court would be required to have particular regard to the importance of cemeteries for the social and cultural well-being of communities. If the application is granted, the Environment Court could impose conditions relating to the disinterment of remains, the removal of any monuments, and the re-interment of remains or re-erection of monuments elsewhere. If the proposal included the disinterment of human remains, the applicant would have to prepare a report by an environmental health protection officer and environmental health issues would have to be considered by the Environment Court.

Further protections

7.84In addition to statutory provisions, individual councils could establish additional protections through district or regional plans. Independent cemetery managers could also enter into covenants for future maintenance, or fetter the ability of themselves and future landowners to use the land for alternative purposes, for example, through trust ownership structures.

7.85We consider that statutory restrictions on alienation of local authority-owned cemeteries should remain. Under the recommendations above, local authorities would be able to devolve cemetery managements to community groups. Management could also be contracted out under the general provisions of the Local Government Act 2002. However, it is our view that allowing local authorities to sell cemeteries is inconsistent with their long-term role in providing this public service.

Maintenance of individual gravesTop

7.86Most local authorities and other cemetery and burial ground managers appear to be of the view that the responsibility to maintain a monument rests with the person who has erected the monument, usually the estate of the deceased or their relatives or friends.

7.87Unsurprisingly, this creates a problem for maintenance. In short, by the time a monument reaches the point of requiring maintenance, those close to the deceased are likely to have died themselves and it will not always be clear where the responsibility for maintenance lies. Local authorities could charge an additional fee at the outset to provide for ongoing monument maintenance, but this is not a universally adopted practice. Instead, it appears that most local authorities leave monuments unmaintained and undisturbed until they pose a danger. At this point, they are required to make the monument safe or remove it under section 9(h) of the Burial and Cremation Act.

7.88 There are significant heritage implications of the current failure to adequately maintain monuments. There is also conflict between the requirement to remove dangerous memorials under the Act, and the requirement under the Historic Places Act to leave archaeological sites undisturbed unless an authorisation is granted. A lack of maintenance is also detrimental to the general amenity of these public spaces.

7.89We consider that for new graves, these issues should be addressed in the contract for the sale of a burial plot. However, the statute should contain clear default rights and responsibilities for existing graves. Local authorities have responsibility for general maintenance of their cemeteries, and this should include considering the heritage and amenity values of monuments and undertaking appropriate work to protect and enhance those values. This should be a flexible requirement, given the different priorities in different areas of the country. Local authorities are best positioned to determine the appropriate level of maintenance for their cemeteries, taking into account community views and the cost/benefit analysis for their districts. This approach views local authority cemeteries as primarily public places, with maintenance required to enhance the overall public space and maintain community heritage rather than out of respect to the individual deceased. It is intended that this role for the local authority would not preclude individuals undertaking maintenance of particular graves or paying for their restoration, provided they have the appropriate authority to do so.

7.90We also note that it would be costly to require an authorisation from the Historic Places Trust for all maintenance work on pre-1900 headstones. It may be preferable to provide an exception to this provision of the Historic Places Act, and instead require that local authorities consult with the Historic Place Trust when determining how best to protect heritage within public cemeteries. Similar issues arise for removing unsafe pre-1900 monuments. We invite submissions on whether the local authority power to remove unsafe monuments should override heritage protection provisions in the Historic Places Act.

7.91We consider that it may be too onerous to require cemetery trustees to maintain historic monuments, especially given that for many community cemeteries the majority of graves will be of historical significance, and the yearly revenue is often barely sufficient to cover grounds maintenance. It may be more appropriate to require local authorities to consider the heritage value of graves within trustee-managed cemeteries in their districts, with a view to providing grants for memorial maintenance, if this is considered justified by heritage protection values.

7.92For new graves, local authorities and managers of independent cemeteries should be able to charge an upfront payment for monument maintenance, depending on the type of memorialisation. Families who do not wish to pay this additional charge could choose a low-maintenance option or could choose to retain responsibility to maintain the monument, subject to the reserved right of the local authority to remove it in future if it becomes a hazard, or after a certain period of time.

271We note that under s 15 of the Resource Management Act 1991, if the activity involves a discharge of a contaminant to land resource consent will be required even if the relevant plan is silent.
272It is our understanding that this scenario occurred when Auckland Memorial Park was established.
273See s 87A of the Resource Management Act for an explanation of different classes of activities.
274As mentioned above at [7.10], the National Environmental Standard could also direct local authorities to address the activity status of new cemeteries in their plans.
275Resource Management Act, s 104D.
276Under s 43A(7)(a) of the Resource Management Act, a National Environmental Standard may specify activities for which the consent authority must give public notification.
277For the sake of brevity, in the discussion under this heading we use the term “cemetery” to include denominational burial grounds.
278See ss 5, 6, 7, 8 and 104. Under the framework established in the Resource Management Act, an application for a resource consent will be granted or declined based on the balance of effects, taking into account both the adverse effects and the positive effects and the degree to which adverse effects can be mitigated.