Contents

Chapter 9
Cremation: options for reform

Role of the Resource Management Act

9.35As we note in the previous chapter, the only opportunity for taking account of community concerns about the location of crematoria is the resource consent process under the Resource Management Act 1991. The two-stage approvals process completed by the Ministry of Health, in coordination with local health protection officers, does not appear to necessarily examine the effect of the crematorium on those who live, work and play in the area. But one might expect the regulatory framework to take greater account of the unique effect of the presence of a crematorium on the community in which it is located.

9.36We have identified some preliminary options to strengthen public participation about new crematoria. The main option we put forward would be to establish a presumption that all new crematoria would require a resource consent, and that an application must be publicly notified. As secondary options we also consider whether public consultation should become an element of the approvals process, and whether location restrictions should be included in legislation or regulations.

9.37Our preliminary view is that the issues that impact on the local area or community are quintessential resource management issues, and so we prefer the first option at this stage. However we seek feedback on the range of these options identified to improve the level of community consultation.

9.38We also propose that questions about the closure of crematoria should be considered under the Resource Management Act framework.

Resource Management Act - mandatory public notification

9.39 Our preferred option is that a National Environmental Standard, such as the standard we propose in chapter 7 in relation to cemeteries, could classify the establishment of a crematorium as a discretionary activity, and require public notification of the consent application.414  This would introduce a consistent approach to the public notification of applications for consent to establish new crematoria, and enable public input into the consenting process.

Approvals processTop

9.40In chapter 7 we proposed that responsibility for certain matters relating to the management of cemeteries could be devolved to local authorities.415  Similarly, local authorities could assume responsibility for the approval process for establishing a new crematorium. Local authorities are well placed to consider the effect of the crematorium on the local community.
9.41This is the case in Ontario, where the local municipality is responsible for approving the opening of a new crematorium.416  The local municipality must grant the approval if it is in the public interest. The municipality can hold a hearing to determine whether that is so. It must approve or refuse within a reasonable time after receiving the request. It must publish its decision in a local newspaper, and its decision is open to appeal.

9.42One option is that the local authority could be required to notify the public of the application and accept public submissions; it would inspect and assess the proposed site from a community interest perspective, and it would assess the balance of the public interest in granting or declining the approval.

9.43If local authorities assumed responsibility for the approvals process, they would have the dual role of handling both approvals and resource consents. Public submissions to each process could be co-ordinated, although each process would remain separate and governed by different statutes. On balance, we note that this could result in duplication of consideration of similar issues if there are two separate processes for approvals and resource consent. Under the Resource Management Act, consent authorities are required to have particular regard to the maintenance and enhancement of amenity values, and consider the balance of environmental effects including social, economic, and cultural effects on people and communities. We consider that this is broad enough to allow for adequate consideration of the relevant public interests. Therefore, we prefer the option of public notification under the Resource Management Act and consideration of the effects of establishing a crematorium under the consents process.

Location restrictionsTop

9.44Another approach used in other jurisdictions is to include a prohibition on the siting of crematoria in certain areas within primary legislation. For instance the Crematorium Act 1902 (UK) prohibits construction of a crematorium within 200 yards (180 metres) of any dwelling, except with consent of the owner, lessee or occupier; or within 50 yards (45 metres) of a public highway; or within the consecrated part of a burial ground.417  This restriction also applies in Scotland, and the Scottish Burial and Cremation Review Group recommended in 2010 that it be retained, noting that it ensures a level of privacy and quiet for visiting mourners, helps prevent adverse effects on adjacent houses, and protects the public.418
9.45The Cemeteries and Crematoria Act 2003 in Victoria, Australia, prohibits a crematorium being established and operated “in any area set aside for interments of persons of a particular religious denomination or faith or community or other group”.419
9.46We note that the Ministry of Health’s guidelines suggest a crematorium should not be sited nearer than 200 metres to any residence, except with the consent of the owner, lessee and occupier of the residence, nor within 50 metres of a public highway,420  although the Ministry advised us that in considering location, its approval process is now based on council planning requirements and resource consent conditions. The question we raise for consideration is whether a limitation of this sort should be encapsulated in the primary legislation. Alternatively, a restriction of this type could be contained in a National Environmental Standard, complementing the option presented above.

9.47A restriction on siting might be considered desirable if it is thought that it is always inappropriate for crematoria to be located in certain places for cultural or other reasons. Such a provision would amount to a clear statement of public and community interests within the regulatory framework. However, the option of strengthening the opportunity for public consultation under the resource management framework may be sufficient to take account of these interests without imposing specific siting restrictions.

Closure of crematoriaTop

9.48As noted in chapter 8, the Cremation Regulations permit the Minister of Health to direct the closure of a crematorium where an offence has been committed, or where a local authority requests closure and the Minister is satisfied that closure is “expedient in the interests of health or by reason of a change in the character of the locality”.

9.49We propose that closure of crematoria in response to misconduct by the operator could be dealt with under a licensing framework as discussed above. We also suggest that review of consent conditions for air discharge is likely to be the appropriate response to public health issues, and that concern relating to “changing locality” can be more appropriately addressed through the resource management framework.

Consultation questions

Q7 Do you think those who operate crematoria should be licensed? Please give reasons.
Q8 Do you think resource consents should be required for all new crematoria and should they be publicly notified under the Resource Management Act?

Q9 Do you think there should be stronger regulatory controls over the operation of crematoria and the handling of human ashes by crematoria?

​Q10 Do you think there is a problem with the availability of cremation services in any particular area of New Zealand?

Additional questions

9.50In addition to the questions posed above, we also raise the following questions for consideration by those who wish to address or respond to them.

(a) In your view, what are the most important elements of a licensing regime? For example:
(b) In what circumstances should central or local government be able to require closure of a private crematorium?
(c) Which controls for the operation of crematoria and the handling of human ashes do you regard as most important? For example:

(d) If you have views and comments about any particular aspect of the regulatory framework for cremation, please outline these below. For example:
414See Resource Management Act 1991, s 87A(4) and 95A(2)(c).
415Similar issues arise in ch 12 regarding the regulation of funeral directors, and in ch 18 regarding disinterment licensing.
416Funeral, Burial and Cremation Services Act SO 2002 c 33, s 83(3) (except if the crematorium is to lie on Crown land “without municipal organization”).
417Crematorium Act 1902 (UK), s 5.
418Burial and Cremation Review Group Death certification, burial and cremation (consultation paper, 2010) at [99].
419Cemeteries and Crematoria Act 2003 (Vic), s 21.
420Ministry of Health Guidelines on the Siting and Construction of Crematoria (1992).