Management of burial grounds, application for burial, exhumation, private burial and restoration of lairs: regulation in Scotland

Section 4 - Private burial

60. Private burial, also sometimes known as home burial, is defined in the 2016 Act as the burial of human remains in a place other than a recognised burial ground. Prior to the 2016 Act, the requirements of private burial were not defined in Scots law and practices were inconsistent across the country. It is understood that, in practice, it is often local authorities that are contacted with queries about private burial. In some cases, a local authority might carry out a feasibility study of the land proposed for burial to determine if the deceased can be safely buried there. The local authority may sometimes provide other relevant services if requested (for a fee), such as gravediggers, but again this is not consistent across Scotland.

61. The Scottish Government are now developing proposals to commence, amongst others, sections 22 and 23 of the 2016 Act and to bring in regulations which will, for the first time, provide a legislative framework for private burial in Scotland. This will seek to introduce a standard process which will require that an application for a private burial be made to the relevant local authority and must be approved before such a burial can take place. Regulations are intended to set out the process for dealing with private burial applications, as well as the information that is to be recorded in the private burial registers that the 2016 Act requires local authorities to prepare and maintain.

Where the regulations will not apply

62. It is proposed that private burial regulations will not apply to the private burial of human remains that have been cremated or the private burial of a pregnancy loss as defined in section 22(6) and (7) of the 2016 Act.

Private burial process

Initial contact

63. As a first step in the private burial process, it is currently envisaged that a person would contact the relevant local authority. The local authority would then provide the interested party with the application form together with Scottish Government guidance on private burial. The guidance will set out important factors and considerations that interested parties should take into account when deciding if private burial is the right option for them.

64. If the person decides to go ahead with an application for private burial, it is intended that they will become 'the applicant' and will be required to complete a private burial application form. Applications will require to be made to the local authority for the place in which the burial site will be located.

Written consent from landowner

65. As part of the application process it is proposed that, if the applicant is not the owner of the land where the burial is intended to be located, they will be responsible for demonstrating that they have written consent from the landowner and, if applicable, any other appropriate consents from relevant parties e.g. any standard security holder. It may be that a standard security holder will impose, as a condition of their loan to the landowner, that private burial is not permitted or might invalidate the mortgage contract. It is intended that written consent from the landowner and standard security holder will be required to be submitted alongside the application form.

Third party agencies and existing obligations

66. As part of the application process it is proposed that applicants will be required to carry out a number of checks as to their proposed private burial site to ensure it complies with public health, pollution and planning laws and guidelines. Scottish Government guidance will be available to assist applicants understand what these obligations are. Depending on the circumstances, this may include:

• Consideration of the potential impact on groundwater in line with guidelines from The Scottish Environmental Protection Agency (SEPA).
• Consideration of the potential impact on water and sewerage infrastructure and assets in line with Scottish Water's access and stand-off distances.
• Consideration of the potential impact on gas pipe lines and electrical cables in line with advice from Distribution Network Operators (DNO).
• Consideration of the impact on water sources used for drinking water purposes. For private water supplies, this should be in consultation with the relevant local authority environmental health department.
• Archaeological assessment in consultation with local authority archaeology services or Historic Environment Scotland ('HES').
• Consideration of planning aspects in consultation with the relevant local authority planning department.
• Consideration of public health (e.g. risk of infectious disease, nuisance etc.) in consultation with the relevant local authority environmental health department.

67. Applicants should use the guidance to assist them to undertake the relevant checks and should contact the third party agencies or local authority departments for further information and advice. It is proposed that applicants will be required to submit evidence, alongside their application, to demonstrate the steps that they have taken to ensure that the proposed private burial site is in compliance with third party rules and guidelines. Such evidence may be, for example, written correspondence, utility site maps etc.

68. The local authority will use the information provided by the applicant to determine the feasibility of the private burial site and will have the ability to request any further information it requires in order to determine the application.

Question 19 – What is your view on the proposed list of organisations that an applicant should engage with to ensure they are complying with local requirements?

• The list is complete
• The list is missing some organisations
• The list contains unnecessary organisations
• Not sure

Please give a reason for your answer.

Question 20 – Do you think an applicant should be required to submit evidence, alongside the application, to demonstrate that the proposed burial site is in line with third party agency and local authority rules and guidelines?

• Yes
• No
• Not sure

Please give a reason for your answer.

Private Burial Application Form Content

69. It is intended that the regulations will provide for a new application form which will be used by anyone wishing to apply for a private burial in Scotland.

70. It is proposed that the new application form will gather the following information:

• The applicant's name, address, contact details and relationship to the deceased
• The deceased's name, date of birth and date of death (or date of delivery for stillborn baby)
• The coffin/ casket details including external measurements (overall length and width at shoulder in cm) and weight (in kg)
• Proposed address and description and/or coordinates of the proposed burial site
• Consent from the land owner and standard security holder (if applicable)
• Confirmation that the applicant has undertaken third party agency and local authority checks (e.g. groundwater, gas and electricity, planning permission etc)
• The funeral director details (if using) including: name of representative, organisation, address and signature
• Confirmation that the proposed site has been assessed as feasible by the local authority to determine suitability of location and achievable depth
• The name of the local authority representative authorising the burial and the date of authorisation and signature

71. Additional accompanying documentation will be required to identify the deceased. These will be set out clearly in a 'forms checklist' on the application form and will be the same as the accompanying documentation required for a burial in a burial ground (e.g. Certificate of Registration of Death – Form 14) as described in the table above at paragraph 54, with the exception of a lair certificate.

Question 21 – What is your view on the proposed information to be collected in the private burial application form?

• Some of this is unnecessary information
• It looks right
• There is some information missing
• Not sure

Please give a reason for your answer.

Local authority feasibility study

72. It is proposed that once a local authority has received the private burial application, the local authority should arrange with the applicant to visit the site and complete a feasibility study to determine the suitability of the burial site, achievable depth and to carry out a risk-assessment. The local authority may charge a fee for this. The results of the feasibility report should be documented on the section of the application form which the local authority completes. This result may be either:

• Feasible
• Potentially feasible
• Not feasible at this time

73. The local authority representative will make comments on the result and will date and sign the application.

Local authority authorisation

74. Considering the application as a whole, including the results of the feasibility study, it is proposed that the local authority will have the option to either:

• refuse the private burial
• grant the private burial
• grant the private burial with conditions.

75. The local authority may also request any further information it requires to determine the application.

76. It is considered reasonable that applicants should have an indication of how long it will take to receive a decision from the local authority, especially as they will wish to progress with funeral arrangements. It is intended that regulations should require local authorities to make a decision on private burial within a set timeframe.

Question 22 – what do you think is a reasonable time limit for local authorities to give decisions on private burial applications?

• 1 week
• 2 weeks
• 3 weeks
• 1 month
• Other
• Not sure

Please give a reason for your answer.

Advance application

77. Regulations may enable an application to be made for a private burial of a person who, at the time of applying is still alive (i.e. apply for your own private burial).

78. The benefit of doing an advanced application is that some of the planning and organisation could be done in advance. A private burial application granted in advance by the local authority – with conditions attached – would recognise the preparatory work undertaken in advance of death, which may take some time to complete and could potentially lessen the burden on family members who will be arranging the funeral.

79. Whilst there are benefits in making arrangements and preparations in advance of death, there are also a number of important drawbacks to this:

• In the time between the advance application being made and death, a number of things could change (e.g. land ownership) so authorisation for private burial from a local authority could only be given with strict conditions.
• If the application is made many years in advance of death, some of the preparatory work may need to be repeated. For example, a new feasibility study may be required; the proposed burial plot may no longer be viable, e.g. the land may have become prone to flooding, erosion etc.
• Setting time limits as conditions on applications is not considered appropriate as no one knows exactly when they will die.
• An application being granted in advance may give a false sense of security to the person wishing to be privately buried
• An advance application could be confusing for families arranging the funeral as they may be under the impression that the private burial has already been granted and may not appreciate the extra steps required after the death, such as: submitting the Certificate of Registration of Death, obtaining written permission of current landowner (or heir), repeating the feasibility study if required, consulting SG guidance on private burial which may have changed in that time
• There would need to be different application forms depending on the circumstances. For example, an application form for the private burial of someone who has already died will necessarily have to be different from an advanced application. This could be confusing.
• It is likely there would need to be a third application form (or at least a second part to the advance application) whereby the person arranging the funeral would give details such as – date and time of burial, size and weight of coffin, funeral director details (if using) etc.

80. Due to the various complex factors set out above, the Scottish Government's proposal is that there should not be an option to apply for a private burial in advance of a person's death. Instead Scottish Government guidance on private burial should be used to make preliminary preparations, if so desired.

Question 23 – Please share your views on the Scottish Government's proposal not to allow for an application for private burial to be made for a person who is not yet deceased.

Restrictions

81. Regulations can make provision for the size of any area of land on which private burials may be carried out, the maximum number of private burials and the minimum distance between lairs on the land. The current intention is not to set out these restrictions in regulations. There are wide variations in potential burial sites and these should be considered in the context of the individual circumstances and other relevant factors. A proposal for a private burial in a small city garden surrounded by close neighbours with the intention to create an elaborate memorial may be decided differently to a private burial in a similar sized rural garden with no neighbours and marked with a small headstone. Rejecting a private burial based on the size of the land alone may be considered arbitrary. For these reasons our proposal is that each private burial will be considered on a case-by-case basis.

Question 24 – Do you think private burial should be considered on a case-by-case basis?

• Yes
• No – restrictions should be included in the regulations
• Not sure

Please give a reason for your answer.

Charging of fees by local authorities

82. Section 22 of the 2016 Act provides a regulation making power in respect of private burial, which can be used to make provision for or in connection with local authorities charging fees for processing applications. We propose that local authorities should have the power to charge fees for administering private burial applications.

Question 25 – Do you think that regulations should give local authorities the power to charge fees for their role in private burial applications?

• Yes
• No
• Not sure

Question 26 – If you answered "yes" to question 25, what services should local authorities be able to charge for in relation to private burial?

Register of Private Burial

83. Regulations will prescribe the information to be contained in a Register of Private Burial which will be held by each local authority indefinitely to ensure consistent information is recorded across the country. It is suggested that the following information is contained in the register:

• Private burial number/ reference
• Type of burial (adult/ child/ stillbirth)
• Date of burial
• Full name of deceased
• Date of death of deceased (or date of delivery for stillborn baby)
• Age at death (for adult or child only)
• Last known address of deceased (for adult or child only)
• Address and postcode of burial site
• Location of burial site within the perimeter of the land
• Applicant details: full name, address, contact details and relationship to deceased
• Full name of landowner
• Funeral director (if using one)

Question 27 – What is your view on the proposed information to be collected in the Register of Private Burial?

• It looks right
• It does not look right
• Some of this is unnecessary information
• There is some information missing
• Not sure

Please give a reason for your answer.

Question 28 – Please provide any comments on an appropriate way to record the precise location of the private burial site (e.g. coordinates or description).

Appeal of private burial decisions

84. It is suggested that an appeal could be made against a local authority's decision to:

• reject the private burial application
• approve the private burial
• approve the private burial with conditions

85. The appeal could be made by the person who made the original application, as well as any other person who would have been entitled to make arrangements for the remains to be buried or cremated.

86. It is proposed that appeals should be made to the Sheriff Court within 21 days of the decision of the local authority. It will be up to the applicant to set out legitimate reasons for the appeal.

87. Consideration was given to the need for an initial internal review by the local authority prior to an appeal to the Sheriff Court. However, this was thought to be unnecessary as there will already be opportunities throughout the process – e.g. the feasibility study – where an applicant and local authority can address issues. It is thought unlikely that an internal review by the local authority would come to a different conclusion to the original decision. However, we are seeking your views on this point.

88. On appeal to the Sheriff Court, the Sheriff may decide to overturn the decision of the local authority, confirm the local authority's decision, or impose conditions.

Question 29 – Please provide any views on the proposed appeal process for private burial decisions made by local authorities.