Finding your way around the Burial Ground Guidance for Managing Trustees

  • Section A - Introduction
  • Section B discusses the issues surrounding responsibility for and upkeep of burial grounds
  • Section C sets out the procedures on closing a burial ground
  • Section D sets out the procedures on moving headstones
  • Section E sets out the procedures and considerations should the Managing Trustees need to build on a burial ground or render a grave inaccessible
  • Section F summarises the key points on sale of a burial ground
  • Section G provides details of where to find additional help and information on burial grounds

Section A - Introduction 

A1 Introduction

Burial grounds can cause a great amount of anxiety for local churches, Circuits and those living in the vicinity of a burial ground.

Managing Trustees and their professional advisers will appreciate that any changes to a burial ground can be contentious and cause distress to those who have relatives buried in the grounds and to the local community in general.  This means that whilst Managing Trustees are sometimes left with little choice but to close a local burial ground, the closure itself and any proposed changes to the use or landscape of the property will need to be managed very carefully and with utmost sensitivity.

This note has been produced to provide guidance to Managing Trustees on burial grounds including; general responsibilities, closure, moving headstones, building on burial grounds and rendering graves inaccessible.

A2 Who is this guidance note for?

This guidance note is for Managing Trustees (and their professional advisers) who;

  • are responsible for a burial ground;
  • are considering whether to close a burial ground because there is no longer space for further burials or if the local church has ceased worship;
  • want to make alternative use of the burial ground for outside space; or
  • are looking to sell a redundant chapel and the burial ground and/or are considering whether to turn the burial ground into open space to help a sale.

If the Managing Trustees have decided to sell a closed burial ground, please also refer to the Burial Ground Sale Focus Note which concentrates on the Methodist law, policy and best practice requirements on sale.

The guidance note applies to England and Wales.

Section B - Being Responsible for a Burial Ground - What do Managing Trustees Need to Know?

B1 Legislation

Methodist burial grounds are generally not consecrated and therefore  (unless Managing Trustees have chosen to consecrate a burial ground) the legislation and rules that apply to Anglican cemeteries do not apply to Methodist burial grounds.  The relevant legislation when a private burial ground has closed and is no longer used is the Disused Burial Grounds (Amendment) Act 1981 (the 1981 Act).

B2 Who is responsible for burial grounds?

The Managing Trustees will remain responsible for the upkeep and maintenance of any burial ground until it is disposed of. This is the case even if a burial ground is closed and/or the local church has ceased worship. Until disposal, responsibility will therefore lie in the hands of whoever undertakes managing trusteeship. This is usually the local Church Council but could be the Circuit Meeting or another Church Council if managing trusteeship has been delegated or the local church has ceased to worship. Please do ensure that a record is kept of which body acts as Managing Trustees for the burial ground.

Although ongoing maintenance of burial grounds can prove costly, Managing Trustees will be anxious to do what they can to look after the burial ground. An unkempt burial ground can create a very bad impression of the Church.

The Local Authority can be approached about taking on the maintenance under the Open Spaces Act 1906. However, local authorities are often unwilling to take on responsibility for the upkeep of burial grounds given the cost implications.

B3 Insurance and health & safety considerations

Until a disposal of the burial ground, Managing Trustees will continue to be responsible for insurance (public liability) and for health & safety concerns. The Managing Trustees' insurer will be able to discuss the insurance position with Managing Trustees to ensure that they are sufficiently protected.

The Ministry of Justice has prepared a helpful guidance note regarding health and safety and general management issues entitled; “Managing the Safety of Burial Ground Memorials”.

As highlighted by the Ministry of Justice, Managing Trustees need to bear in mind that all headstones and memorials belong to the families of the deceased. Except in the case of an emergency, every effort should be made to contact relatives before carrying out any maintenance or repairs to headstones.

It is important to keep relatives and the local community informed about any works that need to be carried out and the reasons for this such as health and safety. Temporary fixes (which can look unsightly) should be avoided unless absolutely necessary to avoid offending relatives and the local community in general.

B4 Listed Buildings

Where a chapel is a listed building it is possible that the memorials and headstones in any adjoining burial ground also fall within the listing.  It is also possible for individual graves or memorials to be listed. The Managing Trustees should therefore speak with the Connexional Conservation Officer before making any proposals for the burial ground . Please see Section G for contact details.

Section C - Closing a Burial Ground

As Methodist burial grounds are ‘Private’ they can be closed by a resolution passed locally. The Managing Trustees need to consider whether to close all of the burial ground or leave parts open where plots have already been purchased for future burials.

If the Managing Trustees wish to close all or part of the burial ground then they should (1) pass a formal resolution authorising closure of the burial ground and then (2) publish the fact that such a decision has been taken in the local press and on the church door or at the entrance to the burial ground. The notice should also set out the local church’s proposals for the burial ground, such as moving headstones. This is covered in more detail in Section D.

Given the extreme sensitivity of any decisions regarding burial grounds Managing Trustees will want to ensure that they let relatives and the local community know what is happening. By keeping people informed the Managing Trustees can avoid people only hearing about it third hand. The Managing Trustees can also try to explain the reasons why such a difficult decision is having to be made.

Please note that particular care will need to be taken with any members of the local community who believe that they have a right to be buried in the burial ground. This includes both those who have a reserved a right to be buried and those who simply believe they will be buried there because that is where their relatives have always been buried. Please contact anybody who has reserved a right to be buried as soon as possible so that you can explain the situation. The local church is obliged to compensate anybody who loses the right to be buried in the burial ground and the Managing Trustees will need to budget for this. Great care needs to be taken to try and reduce hurt feelings and disappointment.

Section D - Moving Headstones 

D1 Introduction

Managing Trustees may need to move headstones if they are considering landscaping a burial ground in order to utilise the area as open space.

It is important to remember that that monuments and tombstones belong to the families of the deceased and not to the Church as discussed in Section B3. Statute underlines this fact by ensuring that appropriate notice must be served before any headstones are moved to give these relatives the chance to object.

Please note that under the 1981 Act, the Managing Trustees are required to pay the reasonable expenses that relatives or the War Grave Commission incur in relation to removing headstones and the reinterment or cremation of remains. This can be very costly.

D2 Keeping records

A plan should be prepared before any changes are made to a burial ground. This plan should record:

  • the location of each grave;
  • inscriptions on each headstone; and
  • (ideally) photographs of all these details.

The plan and records should be stored safely in the local church safe or with the Circuit if the chapel is being sold.

If memorials are removed from the burial ground a record of the date and manner of the removal as well as details of the memorial must be sent to the local district council and Registrar General.

Old burial registers should also be preserved and they can be lodged in the public archives if necessary.

D3 The process for moving headstones

Managing Trustees and their advisers should refer to the Schedule to the 1981 Act for full details of the statutory process to be followed when moving headstones.

In short, before moving headstones, memorials or tombstones, the Managing Trustees must:

  1. arrange for a notice stating their intention to move the headstones to be placed in the local newspaper at least once during each of two successive weeks;
  2. display a copy of the notice in a prominent place in the burial ground;
  3.  serve a copy on the Commonwealth War Graves Commission (even if the Managing Trustees are certain that that there are no war graves in the burial ground); and
  4. serve a copy on any personal representatives or relatives of those interred within the last 25 years who can be contacted through reasonable enquiries.

Please refer to paragraph 2 of the Schedule to the 1981 Act for details as to what information must be specified in the notice. 

The notice should allow a period of at least 6 weeks for objections and representations to be received. It is deemed good practice to wait at least two months from the date that notices are served before taking any action to move headstones.

Once notice has been provided and any objections have been withdrawn or dealt with, the headstones or memorials can be moved.  Memorials, headstones and tombstones should ideally only be moved to the side of a burial ground.

If it is necessary to remove the headstones or memorials completely rather than moving them to the side, and no objections have been received, then the memorial or headstone should be completely broken up before being disposed of and any relatives should be informed of this intention before it is carried out.  Any disposals should be dealt with sensitively. Note that criminal or civil proceedings could ensue if headstones are removed without consent.

Headstones and memorials must not be sold in any circumstances.

Section E - Building on a Burial Ground or Rendering a Grave Inaccessible  

E1 The process to be followed

It is possible to build on a disused burial ground subject to obtaining any necessary planning permissions and complying with all applicable burial ground legislation. Please refer to the 1981 Act  for full details of the process to be followed.

In summary, it is illegal to build on a disused burial ground, or to take any action that will render a grave inaccessible e.g. hard surfacing to create a car park or a play area unless:

  1. Notice has been served on all the personal representatives or relatives of those buried within the last 50 years;
  2. No objections have been received or, if they have, these have been resolved or withdrawn;
  3. All the human remains have been removed and reinterred or else cremated in accordance with an appropriate licence obtained from the Ministry of Justice;
  4. All headstones and monuments have been removed in accordance with the 1981 Act .

You also need to ensure that the burial ground has been formally closed (see Section C).

E2 Notice

The notice requirements are similar to those set out in Section D3 but please refer to the 1981 Act for full details. Please bear in mind that notice must be served on relatives and personal representatives of those buried within the last 50 years rather than 25 years as is the case with moving headstones.

E3 Objections

Any objections to the proposed works by relatives will be fatal to plans to build on a disused burial ground unless they are resolved or withdrawn. Managing Trustees proposing any works to a burial ground would therefore need to deal with any objections very carefully.

E4 Exhumation and reinterment or cremation

Before building on a burial ground or doing anything that would potentially disturb the human remains or render the graves inaccessible, all human remains must first be removed and reinterred or cremated. To do this an appropriate licence must be obtained from the Ministry of Justice (MoJ Licence) and its directions would need to be followed. An application form is available on request to the Ministry of Justice.

As well as having regard to the terms of the MoJ Licence , whoever carried out the exhumations would need to work closely with the local environmental health authority to ensure that all appropriate regulations were observed such as appropriate screens put around the site and steps taken to uphold the dignity of the remains.

In practical terms the removal and reinterment or cremation of remains would need to be undertaken by appropriate undertakers. The 1981 Act allows the relatives of the deceased or the Commonwealth War Graves Commission to organise this themselves (at the Managing Trustees cost). If neither party wanted to organise it themselves the Managing Trustees would need to organise the removal and reinterment or cremation in accordance with the 1981 Act and any directions in the MoJ Licence. Note that the costs of exhumation and reinterment are very high.

If it is believed that the works will not disturb any human remains then you can apply for a dispensation order and, if granted, the remains would not need to be removed and reinterred or cremated. Please discuss this with the Ministry of Justice if you believe that the works will not disturb any human remains.

E5 Removal of headstones and monuments

Please refer to Section D for details regarding removing headstones and monuments.

E6 Accidental disturbance

It is not always possible to know where human remains are located in burial grounds if records have not been kept up-to-date or the remains are very old. If remains are disturbed accidentally please ensure that work is stopped immediately. Managing Trustees should initially contact the Police and Coroner. You will need to obtain a licence from the Ministry of Justice to sanction continuance of the work.

E7 Records

Within 2 months of the removal and reinterment or cremation of remains a certificate should be sent to the General Register Office and to the local authority with details of the removal and reinterment.  The exact details which need to be provided can be found in paragraph 8 of the Schedule to the 1981 Act.

Section F - Sale of a Burial Ground

It is possible to sell a burial ground either by itself or together with the chapel and/or other buildings on the Church site. Please refer to the Burial Ground Sale Focus Note for guidance on the sale of a burial ground. In short, a burial ground must be sold by way of the grant of a long term lease to the buyer (tenant). This helps to ensure that the Methodist Church can enforce the covenants placed on the former burial ground and the history of the land as a burial ground continues to be recognised. It also helps to ensure that the buyer indemnifies the Methodist Church against any future activities undertaken.

Note that where the sale of the burial ground forms part of the sale of other land and buildings, only the burial ground itself should be disposed of under the long lease. The rest of the property should be sold freehold as usual. This means that two sales projects will need to be logged. You may need to create a separate property record to log the burial ground sale against if there is not already a separate property record for the burial ground.

Section G - Further information on Burial Grounds

G1 Further information

TMCP Legal  

Conference Officer for Legal and Constitutional Practice 

Connexional Conservation Officer

G2 Ministry of Justice

The Ministry of Justice is currently updating its treatment of burial ground and the application of burial ground legislation. TMCP is keeping an eye on this and will provide a link to any further information that becomes available on the Ministry of Justice website.

Disclaimer

 

Please note that this document is to provide guidance and assistance to Managing Trustees and their professional advisers. This guidance note is general in nature, may not reflect all recent legal developments and may not apply to the specific facts and circumstances of any particular matter.

 

Also note that nothing within the documents and guidance notes provided by TMCP nor any receipt or use of such information, should be construed or relied on as advertising or soliciting to provide any legal services. Nor does it create any solicitor-client relationship or provide any legal representation, advice or opinion whatsoever on behalf of TMCP or its employees.

 

Accordingly, neither TMCP nor its employees accept any responsibility for use of this document or action taken as a result of information provided in it.

 

Please remember that Managing Trustees need to take advice that is specific to the situation at hand. This document is not legal advice and is no substitute for such advice from Managing Trustees' own legal advisers. 

 

 If you have any queries in relation to the guidance in this Guidance Note please contact TMCP Legal for further assistance.