Contents

Chapter 7
Reform options: a modern approach to cemetery management

Provision of places for burial

7.17In chapter 5 we reached the preliminary conclusion that New Zealand’s current legal framework for provision of places for burial has become unnecessarily restrictive and does not always adequately protect fundamental rights such as the right to religious freedom and the rights of cultural minorities. In chapter 6 we considered how well the legal framework was protecting the private and public interests in the maintenance and preservation of land used for burial. We reached the preliminary conclusion that there were significant problems with the current law and a lack of alignment with other statutes.

7.18We begin in this section by presenting a range of reform options relating to the provision of places for burial designed to address the inflexibilities we identified in chapter 5. We propose a new framework that will:

Obligations on providers of land for burial

7.19Under the framework we propose in this chapter, there will be several different categories of land used for human burial. As well as the existing distinction between local authority cemeteries, trustee-managed cemeteries, denominational burial grounds, and urupā, there will also be a new category of independent cemetery, and burial on approved areas of rural private land is also likely to become more common.

7.20One of the objectives of this review is to simplify the law in relation to land used for human burial. We therefore propose that, as far as possible, the management framework for different places of burial should impose consistent obligations and avoid a fragmented approach. However, some distinctions are necessary, such as that between private burial on rural land, and places of burial open to the public generally (whether provided as local authority cemeteries, trustee-managed cemeteries, independent cemeteries, or historic denominational burial grounds).

7.21We propose that managers of all places used for human burial should have an obligation to:

7.22 In addition, trustees, local authorities, and independent groups (including religious groups that currently provide denominational burial grounds) who provide places of burial must:

7.23Finally, all new places of burial other than new local authority cemeteries would require resource consent – providing an opportunity for the consenting authority to consider land use issues and impose appropriate consent conditions.

Cemeteries provided by local authoritiesTop

7.24We propose that local authorities would continue to play a central role in the provision of cemeteries. New legislation would retain the statutory obligation on local authorities to provide sufficient cemeteries to meet demand in their district.

7.25 However, in some regions it may be more appropriate for new cemeteries to be provided jointly by neighbouring local authorities, or by a regional council as a regional park.265 This could be provided for in the legislation, which could also clarify that the obligation to provide cemeteries may be delegated within a territorial authority structure so that, for example, neighbouring community boards in different districts could jointly provide a cemetery where this would better meet the needs of their residents.

7.26The combination of a more mobile population, improved transport, the ready availability of refrigeration and embalming, and the general desire for greater personalisation in decisions around funeral practices, suggests that out-of-district burial is likely to become more common. Better regional co-operation could enable neighbouring districts with low populations to take advantage of economies of scale in cemetery provision, and could provide more effectively for the burial of city-dwellers. Giving regional councils the power to establish cemeteries might help promote increased choice, and would be within the existing parks management mandate of these authorities.

7.27As a matter of best practice, local authorities should consult both formally and informally in making decisions about the management of any public asset. However, we do not think that additional statutory requirements are necessary to better facilitate this. We suggest however that local authorities should be required to consider and review the reserve status of their cemeteries, as many old cemeteries have never been reclassified under the Reserves Act 1977. For some cemeteries, this may result in a requirement for a reserves management plan after the new classification is established.

7.28 We also propose that legislation should contain more detail about providing separate areas within cemeteries for different sectors of the community. We anticipate that there may be less demand for separate areas once it becomes simpler to establish independent cemeteries. Yet this should not preclude the option of separate areas within public cemeteries. While we are of the view that a local authority monopoly is no longer justified, the historic policy rationales of encouraging local authority provision and discouraging small cemeteries remain compelling. Our earliest burial law was concerned that the proliferation of small cemeteries was inefficient and interfered with the productive use of land. Public cemeteries were intended to address this: diversity within these cemeteries was the corollary, and is an important feature of our current burial law, which reflects an admirable commitment to pluralism and respect for different cultural and religious needs. Furthermore, as we discussed in chapter 5, we are of the view that an essential public service such as cemeteries should be provided in a way that is responsive to public needs.

7.29We acknowledge that providing separate areas creates difficulties for local authority cemetery managers. We do not suggest that every request could be accommodated. However, local authorities should be required to genuinely consider requests from sectors of the community for separate areas, and work with the group requesting the area to accommodate their burial needs subject to statutory conditions and criteria. Providing more detail in the statute could help local authorities make these decisions, therefore we propose the statute would provide as follows.

(a) The group requesting the separate area must be able to demonstrate that there is sufficient demand within the community for that style of burial, and that this is not otherwise provided for at a nearby public cemetery.
(b) The cemetery manager may refuse the request if the cemetery has fewer than 20 years’ capacity.
(c) The cemetery manager may refuse the request if the cemetery has more than 20 years’ capacity but fewer than 50 years’ capacity, and granting the request is likely to significantly alter the projections around the general capacity of the cemetery.
(d) A cemetery manager may impose reasonable conditions relating to the size, location and development of the area.

7.30We also propose that local authorities should be required to proactively consider the different burial preferences of their communities when establishing new cemeteries, or as new areas are developed within existing cemeteries.

7.31 A further option would be to allow plots to be pre-purchased in bulk by community groups and developed as they see fit. Alternatively, local authorities could contract out management of small areas within a cemetery to community groups. This might be preferred by cemetery managers as it would limit the financial risk associated with setting aside separate areas. Local authorities are concerned that separate areas might not be used at a rate equivalent to the general area, potentially leaving some plots unused by the time the cemetery as a whole is closed. If plots were pre-purchased, or if the management of a separate area was contracted out, the community groups who would benefit from the separate area would bear a greater share of the financial risk. If this option was adopted, we suggest it might be necessary to consider safeguards against community groups’ on-selling plots at a profit. Conversely, it would also be necessary to ensure that local authorities did not take advantage of these community groups and charge higher prices for bulk pre-purchase. We invite submissions on this option.

Trustee-managed cemeteriesTop

7.32This section presents a reform option that endeavours to:

7.33Local authorities cannot be expected to actively maintain several very small local cemeteries among a dispersed population, yet these sorts of cemeteries clearly fill an important community need.

7.34In our Cemetery Trustees Survey, we asked whether trustees would like to see control of the cemetery pass to the local authority. It was apparent from responses that many trustees were strongly opposed to the idea of local authority transfer, while others were actively exploring the option.

7.35We propose that the statute should create a new category of “Community Cemetery”. Existing trustee-managed cemeteries would be transferred across to this framework. This framework would retain key aspects of the current approach to trustee-managed cemeteries, such as the requirement to have three trustees, but would clarify the legal nature of these cemeteries and update the terminology to more accurately reflect the way these are managed.

7.36The precise legal status of each of these cemeteries has become increasingly blurred across the years, and it is appropriate now to bring in a framework that clarifies this important matter, and reflects the fact that existing trustee-managed cemeteries have their roots in a form of devolved management under the Cemeteries Act 1882, and most do not operate subject to a deed of trust. We suggest that a devolved management model continues to be suitable for these cemeteries. Under this approach, the trustees would remain wholly responsible for cemetery management until such time that they decide to transfer the management to the local authority.

7.37Full management responsibility would be exercised by the trustees, including the power to set plot prices and establish terms and conditions for the sale of burial plots. Trustees would be appointed by the local authority, rather than by the Governor-General. The local authority would alternatively be able to appoint a registered charitable trust266 to manage the cemetery if this was considered more suitable, in which case the trustees of the charitable trust would have the rights and responsibilities of cemetery trustees. Existing trustees of current trustee-managed cemeteries would be deemed to be appointed as trustees of community cemeteries under the new provisions.

7.38New legislation would vest the underlying title to community cemeteries in the relevant local authority, to allow for more effective transfer when this is desired. This legislation would address the current problem that some trustee-managed cemeteries are on Crown land, some are on local authority land, some are vested in the active trustees, and a small proportion are vested in trustees who are no longer alive. Alternatively, if the local authority has appointed a registered charitable trust rather than individual trustees, the underlying title could be vested in the trust. This would be an alternative way of providing the desirable outcome of long-term continuity of legal title, but it would also enable greater independence in the management of these cemeteries. In this instance, additional provisions would be needed to allow transfer of land to the local authority when the trustees so determine.

7.39Trustees would be able to resign their position by giving notice to the other trustees and the local authority. When this occurs, the local authority would be required to appoint a replacement in consultation with remaining office holders. However, if the trustees collectively resign, the local authority may either appoint new trustees, or take over direct management of the cemetery. In determining whether or not to appoint new trustees, the local authority should be required to consult with the local residents. We suggest that local authorities are best placed to determine the level of community consultation required before new trustees are appointed, based on the circumstances of their district.

7.40In addition, the local authority would have oversight of financial performance. Trustees would be required to submit financial records to the local authority. This would replace the existing requirement for yearly auditing of accounts by the Office of the Auditor-General. The local authority would also be required to retain records of all burials within community cemeteries in their region. There would also be a need to register the cemetery status on the certificate of title for the underlying land; unfortunately, this is not consistently the case at present.

7.41Finally, we propose that this model could also be adopted for cemeteries currently under the direct control of local authorities. We consider that it could be a useful alternative to closing small, rural cemeteries against the wishes of local residents. Local authorities would be empowered to designate an existing local authority cemetery as a community cemetery and appoint trustees, where considered appropriate and taking into account the views expressed in community consultation.

Independent cemetery provisionTop

7.42 We propose that new legislation should permit independent cemeteries to be established, subject to land use considerations and financial restrictions. This would replace the current provisions that allow for denominational cemeteries to be approved by the Ministry of Health.267

7.43While we consider that local authorities should continue to play a central role in the provision of cemeteries, we also think that many of the issues explored in this Part could be resolved by adopting a less restrictive approach to alternative providers. It is not reasonable to expect local authority cemeteries to be everything to everyone; nor should we unnecessarily restrict the diverse choices of members of a pluralistic society. It could also be argued that if new providers were able to operate cemeteries, this would ease the burden on local authorities.

7.44Under this proposal, independent cemeteries could be established either for the public generally, or for particular groups within the public – including religious groups. Independent cemeteries for the general public could set aside areas for different denominations. For example, a cemetery could be established jointly by an interfaith group that considers its different particular religious needs are not being adequately met in local authority cemeteries.

7.45 The detail of this reform option has been developed on the basis that legislation should focus on protecting the underlying land and facilitating standards of maintenance and service provision, rather than imposing restrictions on who may operate cemeteries. However, at the outset we note that the extent to which the sector should be opened up is yet to be determined. Some members of the community may feel more comfortable with an option that allows for new cemeteries to be established by registered charities268 but not by other entities. We invite submissions on this issue.

7.46Any move to open up the cemetery sector would be a potentially significant change to New Zealand’s burial practice, and therefore it is particularly important that we assess whether this option is supported by the public. We welcome all submissions on the overall option of allowing a greater range of alternative providers, as well as the details of how this reform could be given legal effect.

7.47As we discussed in chapter 5, the current provisions allowing the establishment of burial grounds by denominational groups are problematic in contemporary New Zealand. These provisions do not adequately protect the rights of New Zealanders to manifest their religions or beliefs, or to enjoy their cultural practices. The current provisions allow burial grounds to be established by religious groups but not by other equally deserving community sectors that lack a religious connection. Such groups could include ethnic groups that do not share a common religious basis but do share common burial practices, or environmental organisations seeking to establish an eco-burial ground.

7.48Notwithstanding the strong arguments in favour of allowing independent cemeteries, they raise several risks that are absent when local authorities establish new cemeteries.

7.49The first relates to the immediate effects of this use of land. In our Local Authority Survey, many expressed concern that private providers may not meet sufficiently high environmental standards and may provide inadequate ongoing maintenance. Concern was also expressed about the potential suitability of a given site for cemetery purposes. For example, regional councils may have concerns about leaching of embalming chemicals if a site is close to waterways, while territorial authorities will understandably wish to ensure that cemeteries are located appropriately with regard to the zoning of the site.

7.50In our view, these issues can be addressed through the resource consenting process. We suggest that this could be achieved through the proposed new National Environmental Standard on burial of human remains. The resource consent process is the appropriate forum for assessing the environmental effects, including amenity effects, of different uses of land. Requiring notification would mean the public will have an opportunity to submit, ensuring adequate consideration of the effects on the local community. Local authorities could also impose resource consent conditions, such as a condition requiring planting to screen the cemetery from adjacent land.

7.51The second risk is the long-term protection of land. This could also be addressed through the resource management framework, and made compulsory through the proposed National Environmental Standard. For example, conditions of consent could require a covenant with the local authority for long-term protection of the land. More generally, new legislation could impose an obligation on cemetery managers to maintain the grounds in a dignified and pleasant manner.

7.52 A further risk is financial failure. Our research suggests that local authority cemeteries are largely subsidised by rates, and trustee-managed cemeteries are subsidised by volunteer labour. The two cemeteries in New Zealand that are fully cost-recoverable are Purewa Cemetery and Mangere Lawn Cemetery: and both have the good fortune to have been established over a century ago near the centre of Auckland, ensuring steady demand for cemetery space.

7.53It is arguable that safeguards should be required to ensure new cemeteries are well-managed and retain funds from plot sales for maintenance once the cemetery is closed. At the same time, requirements should not be too prescriptive or onerous: the restrictions imposed must be consistent with the underlying rationale of providing a wider range of cemeteries to meet the diverse needs of the public.

7.54Overseas experience suggests that the management of for-profit cemeteries is particularly fraught with difficulties. There is an inherent tension between providing for the perpetual maintenance of an asset that will eventually cease to generate revenue, while also making sustainable profit for shareholders. Recent reviews of cemetery provision in the United Kingdom have determined that commercial cemetery companies established in the late 19th century have largely failed, with many entering liquidation shortly after the cemetery reached full capacity and new income from plot sales ceased.269 Some may consider this a further argument for limiting independent provisions to registered charities, which are subject to stringent financial reporting requirements.

7.55However, restrictions on profit making are unlikely to be enough to mitigate financial risk. Both charities and companies face similar risks as to capitalisation at the outset, determining prices for plots, and projecting future demand. A further option would be to require cemetery providers to reserve a portion of plot sales for future maintenance. We support in principle all independent cemeteries establishing a maintenance fund, but requiring this to be achieved through reserving a portion from the sale of each plot raises issues. The experience of Purewa and Mangere Lawn cemeteries suggests that a maintenance fund can be established relatively near the end of a cemetery’s lifespan and still provide sufficient funds for perpetual maintenance. Therefore, we propose a more flexible requirement, mandating that cemetery managers must prepare independently audited financial statements. These statements should demonstrate how income from plot sales will be managed to provide for an adequately financed perpetual maintenance fund by the time the cemetery is closed. Projections should be reviewed at least every five years and must be made available to persons wishing to purchase a plot.

7.56The financial risks may be heightened if the cemetery land is mortgaged. We note that retaining the current prohibition on mortgaging cemetery land would be a significant restriction, and could limit the ability to establish independent cemeteries. However, the mortgagee sale of a cemetery is likely to be deeply distressing for families of those who are buried on that land, and we consider that there is a valid public interest in precluding this possibility. Establishing a cemetery is different from other major developments. The land becomes more than a private asset; it also acquires a unique status as a public domain with strong connections to particular private individuals. We consider that this needs to be acknowledged in the management framework for independent cemeteries, and that it justifies a more restrictive approach than that adopted for other land uses. We therefore suggest retaining the current restriction on mortgaging cemetery land.

7.57 We also suggest that local authorities should be able to require a maintenance bond under section 108A of the Resource Management Act when granting consent for an independent cemetery, depending on the circumstances of the new cemetery (for example, size and location). This would not prevent financial failure, but it would help the local authority to maintain the site if such a failure did occur. This requirement would also ease the financial burden if the property is eventually transferred to local authority control. Similarly, a protective covenant could run with the land and bind potential successors in title, creating a back-stop protection if the land is transferred.

Denominational Burial GroundsTop

7.58If our proposals to establish independent cemeteries to accommodate the needs of different sectors of the community were accepted, we would suggest removing the current provisions allowing for new denominational burial grounds, as faith communities would be able to establish cemeteries under the new model we are proposing. Denominational burial grounds would no longer be needed.

7.59This leaves the question of how existing open and closed denominational burial grounds should be managed. During consultation we hope the owners of denominational burial grounds will express their views about possible future management arrangements for these special burial places, and protection of their heritage values. At this stage our preliminary proposal is for denominational burial grounds to gradually transition to the new framework for independent cemeteries. However, many of the requirements we are recommending for new independent cemeteries are dependent on a resource consenting process, and could not simply be applied to existing denominational burial grounds.

7.60To deal with this problem we propose a two-step transition process. As far as possible, existing denominational burial grounds will be subject to the same requirements as new independent cemeteries. This includes the requirement to prepare independently audited financial statements and make these available to persons seeking to purchase a plot, if the burial ground is still open to new burials.

7.61Under this option, legislation would also empower managers of these places of burial to enter into a covenant with the relevant local authority for permanent protection of the cemetery land. If such a covenant was entered into the land owners would be entitled to have existing caveats under section 31(4) of the Burial and Cremation Act removed by the Registrar-General of Land.

7.62As indicated above, particular problems can arise if the managers of denominational burial grounds seek to sell the land. The authorisations required for sale of burial grounds have proved problematic on a number of occasions. We think these processes need to be improved to ensure the long-term protection of these sites once the original owners are no longer willing or able to continue managing them. The second element of our reforms for denominational burial grounds focuses on this stage. Under this option, a change in ownership would trigger a requirement to transfer to the framework established for independent cemeteries.

7.63We suggest the proposed National Environmental Standard could provide that the transfer of ownership of a denominational burial ground is deemed to be a change in use from an historic denominational burial ground to an independent cemetery. The change in use would require a resource consent as a controlled activity (that is, consent must be granted, but conditions may be imposed). This would provide consent authorities an opportunity to impose equivalent conditions to those that would have been imposed at the outset for independent cemeteries. It also mirrors the arrangement under the Burial and Cremation Act where the Minister of Health can impose conditions when authorising a sale of part or all of a burial ground.

7.64Most denominational burial grounds are associated with small rural churches, and where these are sold, the use of the cemetery land is usually a secondary consideration. Although there may be a significant change in the use of the church buildings – going from a public place of worship to a domestic residence, for example – these changes would not usually trigger a requirement for a resource consent under the current law. However, in our view, the nature of a denominational burial ground is fundamentally altered if the denominational group involved in its initial establishment ceases to be involved in its ongoing management. We therefore think it is appropriate to consider land management issues afresh.

7.65As mentioned above in chapter 6, the sale of deconsecrated churches and associated burial grounds tends to be a matter of local public concern. A central agency is not ideally placed to consider the local ramifications. Given that many transfers will occur after burials have been discontinued, it is especially important to have a process that will allow long-term land management issues to be considered. Requiring a resource consent from the local authority would allow appropriate conditions to be imposed, for example to protect the heritage of the site, or to allow ash interments or second interments in existing graves at the request of relatives. If the local authority considers the application should be subject to public notification or limited notification (for example, to the descendants of those buried), a resource consent hearing would provide an appropriate forum for public input into the ongoing management of these historic sites.

7.66Alternatively, long-term land management issues could be considered when an open denominational burial ground applies for a closure order from the Environment Court under the new processes proposed below, pre-empting the need for these to be considered at point of sale. If a burial ground has been closed under the new processes, land use issues would be able to be considered, and conditions of the closure could bind future owners. This would mean the future sale of the burial ground could be unrestricted.

Private landTop

7.67 We are of the preliminary view that current provisions for burial on private land are unnecessarily restrictive, and may not meet the needs and expectations of rural communities or remote settlements. On the other hand, given the ease of modern transport the current exception for burials on private land when the closest cemetery is more than 32 kilometres away may be seen as inappropriately lenient. We propose that the statutory restrictions prohibiting burial on private land should be removed.

7.68Under this proposal, local authorities would become responsible for determining the circumstances in which private burials should be restricted through land use provisions under their district plans. Regional councils would also have a role in assessing the implications for soil and water quality. As with the current process under section 31 of the Burial and Cremation Act, it would be necessary for a person wanting to be buried on private land to obtain approval in advance. However, this approval would be in the form of a resource consent rather than Ministerial sign-off. Some national consistency may also be desirable, and could be achieved through the proposed National Environmental Standard. For example, this could provide that burial on private land is prohibited in urban areas.

7.69 If resource consent is granted for burial on private land, we propose it should be mandatory to record the location of the burial on the certificate of title and on the Land Information Memorandum; and to enter into a covenant for non-disturbance of the area of land used for burial, under section 108(2)(d) of the Resource Management Act. Burial on private land without resource consent would trigger the infringement provisions of the Resource Management Act. In our view, this is a more appropriate response to unauthorised burials than imposing criminal sanctions,270 and could include retrospective consenting where appropriate.
264This would encompass unitary authorities.
265The joint provision of cemeteries by more than one local authority is currently enabled by s 25(3) of the Health Act 1956, but requires the approval of the Director-General of Health.
266That is, a charitable trust that has been incorporated under the Charitable Trusts Act 1967 and registered under the Charities Act 2005.
267Burial and Cremation Act 1964, s 31.
268The Charities Act 2005 provides for the registration of charitable entities.
269See Environment, Transport and Regional Affairs Committee Eighth Report: Cemeteries (HC 91-I, 2 April 2001) at [115].
270Burial and Cremation Act, ss 46 and 54.