Grave matters: Private Cemeteries and the Law Commission’s Consultation Paper

Approximately 500,000 people die each year in England and Wales and burial space is running out. The problem is most acute in the major cities, where large parcels of available land are scarce and competition with developers is often fierce. (and will be more so if the Government’s commitment to reform planning laws to meet the nation’s housing needs comes to fruition).

The funeral sector is estimated to be worth £1 billion annually and the cost of funerals is rising: the average cost of a basic funeral has increased to £4,141 and is apparently close to £10,000 in some London cemeteries.  Funeral costs, which we will all have to pay one day, will continue to increase unless the issue of the scarcity of supply of burial space is addressed.

Given the finite land available and the ever-present need, the Law Commission launched in October 2024 a Consultation Paper entitled “Burial And Cremation” with the stated aim to “create a future-proof legal framework to address what happens to our bodies after we die”.   The view of the Law Commission is that allowing for greater use of existing burial grounds by the reuse of graves and reclamation, or by reopening closed burial grounds, will help reduce the need for further burial grounds to be developed.  To do so, however, will require significant changes in the law to ensure that there are sufficient safeguards in place to maintain public trust.

Private cemeteries

The current law on burials and cremations is complex and patchwork in nature. The law differs between different burial grounds – those operated by the Church of England, by local authorities and by private operators.  Much of the law dates from the mid-nineteenth century and, so far as the Law Commission is concerned, is no longer fit for purpose.

The Consultation Paper pays considerable attention to private burial grounds and their regulation. The reader may be surprised to learn that there are many private burial grounds in England and Wales, most of which are subject to very little regulation. They may have been established for members of specific, non-Anglican religions – the oldest surviving Jewish burial ground was established in 1657 – or for those of all religions and none. Urbanisation in the nineteenth century overwhelmed the capacity of Anglican churchyards in large towns and cities, leading to the establishment of new burial grounds created and run by private companies, such as Highgate Cemetery, from the late nineteenth century onwards. A more recent trend is for natural burial grounds.

The current law

Some nineteenth century burial grounds were established by private acts of Parliament. If so, they are (still!) regulated by the Cemeteries Clauses Act 1847 which imposes, for example, an obligation on the owner of the cemetery to keep it in good order and condition.

Private burial grounds not established by acts of Parliament are not subject to the 1847 Act. Rights and obligations concerning those burial grounds are primarily governed by contract and common law, along with statutes of general application such as the Occupiers Liability Acts and some environmental regulations. The Government has the power to close a private burial ground to new burial by, somewhat anachronistically, applying to the Privy Council for an order under the Burial Act 1853, but powers of statutory regulation short of closure, e.g. to address lack of maintenance, are missing.

What is more, fundamental questions about rights over private burial grounds remain unresolved. For example:

• If the then owner of a private burial ground grants a family an exclusive right of burial in a particular plot, and then sells on the burial ground, is the new owner bound by the previous owner’s grant?
• What exactly is the legal nature of an exclusive burial right in a private burial ground?
• Can the owner of an exclusive burial right assign it and what is the duration of the right?

Mapara v Demetriou [2022]

These issues and others which the Consultation Paper seeks to address were germane to the case of Mapara v Demetriou [2022] EWCA Civ 1001, the only known case about private burial grounds not governed by the 1847 Act.

That case concerned a private burial ground known as Tottenham Park Cemetery (TPC). TPC was established in 1912 as a paupers’ cemetery, not by an act of Parliament and so the 1847 Act did not apply to it. During the 1980s the then owner of TPC granted burial rights by deeds of 999 years over sections of TPC to the then trustees of the Tottenham Park Islamic Cemetery Association, a burial society for the local Sunni Muslim community.  A new owner, PD, bought TPC in 2019 and a dispute arose over matters such as the grave-digging charges he sought to levy on members of the Association, represented by Mr Mapara and others, and the scope of the rights granted in the deeds.

Concerns about conditions and the lack of maintenance at other parts of TPC were raised in the House of Lords and TPC was subject to two investigations by the Ministry of Justice.  These included the discovery of human bones on the surface of the ground and a finding that the records for approximately 1000 burials were missing.

The question of the status of exclusive burial rights was briefly discussed but not resolved by the Court of Appeal.

At first instance ([2021] EWHC 1626 (Ch)) the trial judge noted that the authors of Gale on Easements considered that the validity of a non-statutory perpetual burial right is undoubted “but the nature of the right created is questionable”. The Judge did not have to resolve that question because it was conceded by PD that he was bound by the deeds (which had been noted on the register).

On appeal, PD sought to raise the issue of what sort of right a non-statutory burial right might be at the last minute, in a proposed amendment to the grounds of appeal. In the course of refusing permission to amend, Lewison LJ observed that the issue was not straightforward. He referred to Reed v Madon [1989] 1 Ch 408 in which Morritt J said that the legal nature of a right to exclusive burial in a part of a church yard was by no means clear and expressly refrained from deciding whether it was an interest in land.

Meanwhile, an alleged continuing failure to address complaints about record-keeping and the physical state of other sections of TPC not maintained by the Association led the previous Government to decide to apply to the Privy Council for an order requiring that burials be stopped at TPC except where plots have previously been reserved, thus illustrating the need for local or national government powers short of ordering closure.

The consultation paper

The consultation is wide in its scope; it invites responses from stakeholders on many proposals.  In addition to proposals regarding the reuse of graves and reclamation, a number of the proposals may arise in part from the decision in Mapara and the issues identified at TPC, including whether:

• all private burial grounds should be regulated;
• it should be a criminal offence for a cemetery owner who transfers an interest in that land to fail to register a transfer of the burial register to the new owner;
• statutory duties should be imposed on all burial ground owners to maintain cemeteries in good order appropriate to its current use and to publish management plans at regular intervals, as well as to introduce a statutory code of practice;
• an inspection regime should be introduced with the power for a local authority to step in when a cemetery is failing;
• to introduce statutory exclusive burial rights and to regulate their assignment, inheritance and duration; and
• to impose a statutory duty on burial ground operators to keep a burial register, a plan of the burial ground and a register of rights granted.

It is to be hoped that the issues experienced at TPC are atypical in the industry and that most private cemetery operators appropriately manage their cemeteries, keep burial records and maintain plans showing the extent of exclusive burial rights granted.

However, the serious nature of the issues at TPC, as well as the lack of regulation and legal uncertainty surrounding private burial grounds more generally, warrants this consultation.  

The consultation is open until 9 January 2025.

This article was previously published in EG.