Contents

Chapter 7
Reform options: a modern approach to cemetery management

Other issues

7.93 A number of miscellaneous issues have arisen in our consultation. These are addressed below.

Contract for sale of a plot

7.94As indicated above in chapter 4, contracts for the sale of a plot often fail to clarify important matters affecting the respective rights and responsibilities of cemetery managers and plot holders. We consider that new legislation should include a set of “default provisions” for plot holder contracts,279 and that these provisions should be supplemented by a model contract prepared by an appropriate agency and distributed to local authorities. We invite submissions on what these default provisions should address. At this stage, we think that the following should be included as a minimum.

7.95The default provisions above could be altered by contract, and the model contract could include options other than the default provisions for selection by the purchaser. For example, the model contract could provide as follows in relation to a double-depth plot:

Select one of the following.
Indicate your selection by striking out the options that do not apply.

7.96Additional detail could also be contained in the model contract for plot purchase, for example, providing detail on the monuments permitted, the decoration of graves, the long-term maintenance of memorials after the heirs have themselves passed away, and the alteration of memorials.

Multiple burials in a plotTop

7.97Space pressures are not yet a significant concern in New Zealand. However, the cost of burial and the maintenance costs of cemeteries are both matters of current public interest. As our population continues to expand, particularly in urban centres, we may find ourselves facing a shortage of burial space or prohibitive plot prices in the future. In many other countries, multiple burials in a plot are used to increase the capacity of cemeteries and reduce plot prices. In jurisdictions that have adopted this approach, cemeteries are generally fully self-funding and often profitable.280

7.98Multiple burials within individual plots were historically common in areas of longstanding human settlement, including throughout Europe. Further burials generally took place only after the previous corpse had completely decomposed, so that no exhumation was necessary. Any bones inadvertently exposed were returned to the bottom of the grave, covered with a thin layer of soil, and then a new coffin placed on top. In this way burial grounds remain as burial grounds indefinitely, without running out of space. In the United Kingdom this was common practice until the early 1800s, when concerns about graves being prematurely uncovered prompted a shift to the idea of perpetual and undisturbed interment.

7.99There are currently no explicit restrictions on the multiple use of graves, except insofar as disinterment is controlled. Some forms of multiple burials are already common in New Zealand, such as the stacking of graves within a family plot. But it is not common practice to bury more than two bodies in a single plot.

7.100In contrast, many European jurisdictions allow the reuse of gravesites after 50 years, meaning that a steady income stream from plot sales is ongoing and cemeteries can remain self-funding in the long term. In some jurisdictions, including within some Australian states, a burial plot may be leased for 50 years with a right of renewal. If the lease is not renewed by the family of the deceased, any remains will be exhumed and reburied deeper within the same plot, and the grave space reused for a second burial. Combining stacked graves with exhumation and reburial of remains at a lower depth would allow for the burial of between three and seven bodies in a plot. This may appeal to some people as a way of providing for a greater number of family members to be buried together.

7.101As we are of the view that there is no compelling public policy reason to legally restrict this option for multiple burials (and indeed, some policy reasons to recommend it), we raise it as a question for debate and consideration. However, we also anticipate that public acceptance may not currently be strong, although it may develop over time. Whether rights to a burial plot are sold as perpetual interment, or a 50-year lease, or some other option, can be left to the contract for sale of a plot. Reflecting long-standing New Zealand practice, we suggest that the default position should be perpetual interment. Any alternative arrangement must be clearly explained to the person purchasing the plot and the agreement recorded in writing.

Scope of bylawsTop

7.102The Act grants local authorities very broad powers to make bylaws. Provisions in the Local Government Act 2002 also empower local authorities to make bylaws for cemeteries.

7.103As mentioned above, bylaws are the main tool with which local authorities manage cemeteries under their control. Bylaws therefore have significant implications for the rights in respect of a plot. This can be problematic if the bylaws change after the date of plot purchase in a way that adversely affects plot-holder rights. More generally, there is significant duplication of effort and resources with different local authorities separately preparing bylaws, often out of a concern that the statute contains insufficient detail.

7.104We consider that the bylaw-making powers should be more tightly confined, and that some matters currently regulated in bylaws should instead be controlled by the statute or other regulation, to avoid the risk of duplication and to promote clarity. We are interested in hearing the views of local government as to the appropriate scope of the bylaw-making powers, and areas that should more properly be regulated consistently throughout the country or determined through the contract for plot sale.

Reform of information provisionsTop

7.105A number of the reforms mentioned above have implications for the collection and retention of information about places of burial. For example, the proposal in this chapter for the management of cemeteries to be governed by a Resource Management Act framework will invoke the information provisions of this Act, such as section 35.281

7.106For burials on private rural land, we propose that the location of the burial be recorded on the certificate of title and the Land Information Memorandum. In addition, if local authorities are to maintain a burial register for their district, including independent as well as community and local authority cemeteries, there would be an option to include private burials in the register, with the resource consent applicant being required to notify the local authority of the burial within a specified time period.

279A default provision in legislation will apply unless modified. Examples exist in many areas of law, including residential tenancy law and company law. This provides for a clear legal position if the relevant contracts or other legal instruments are silent, but would not prevent individuals from making alternative arrangements.
280See Centennial Park “Burial Information” (Adelaide, December 2011) <www.centennialpark.org>; Cheltenham Cemetery “Terms and Conditions relating to Grants of Interment Rights” (Adelaide) <www.aca.sa.gov.au>.
281Section 35 of the Resource Management Act requires a local authority to gather such information as is necessary to carry out effectively its functions under the Resource Management Act, and to make such information reasonably available including records of applications for resource consents, records of resource consents granted, and a summary of complaints about breaches of the Resource Management Act.