Home burials

General

1. Scots law does not prescribe any particular method of disposing of the dead. In normal circumstances, the first issue to arise following a death is whether disposal is by way of burial (in churchyard or cemetery) or cremation. The death must be registered, and any procurator fiscal interest in the body must be resolved. The body can then be released to the next of kin or executor who must make the necessary arrangements for disposal.
2. Close relatives and possibly friends usually determine the place and manner of disposal, often in accordance with the deceased's wishes. Failing that, it is the duty of the local authority under the National Assistance Act 1948 Section 50(1) (2) as amended by the Local Government etc. (Scotland) Act 1994 or the Social Work (Scotland) Act 1968 Section 28 to dispose of the body.
3. Relatives or friends may decide on the place for disposal other than a churchyard or cemetery, subject to restrictions imposed under a number of different statutory provisions, for example public health, planning, pollution or subject to the law of nuisance at common law. Certain local statutes may apply in the area (to which they apply).

Private Burial Grounds

There is no specific restraint under the law of Scotland on a person setting apart a portion of his ground as a family burial place, or as a place for a small number of graves and it is not considered illegal to create private cemeteries. However a decision to provide any such private burying place could be defeated if it were shown to be injurious to health or to be a nuisance to neighbouring proprietors. Under the common law of nuisance an adjacent proprietor would have a remedy in respect of any use of property which occasions serious disturbance or substantial inconvenience to him or material damage to his property. A private burying place would not be a burial ground within the meaning of the Burial Grounds (Scotland) Act 1855 which deals with the functions of Islands and Local Councils in relation to such burial grounds, for which certain consents and procedures are required under that Act.

Public Health Aspects

Under section 16(11) of the Public Health (Scotland) Act 1897 a "home burial" might constitute a nuisance within the meaning of the Act if it could be demonstrated that is was "so situated or so crowded or otherwise so conducted as to be offensive or injurious to health". Clearly the context of the burying place would be relevant; a "home burial" in a remote part of a farm would be less likely to constitute a nuisance than within a domestic garden. If in the opinion of the local authority or the designated medial officer such a nuisance existed, the local authority could serve a notice on the author of the nuisance requiring him to remove it. The authority can thereafter take proceedings in the sheriff court against the nuisance.

Planning Aspects

The question of whether planning is required for a private burying place depends on whether the proposed burying place involves the carrying out of development, which means building operations or the making of any material change of use in terms of the Town and Country Planning (Scotland) Act 1972. It would be for the planning authority to decide, in the circumstances of each case, whether any particular proposal did in fact amount to material change of use. The decision is largely a matter of fact and degree, taking into account the characteristics of the proposal and in particular the likely physical planning and environmental implications. Although planning permission may not be required for individual graves on private land, a person contemplating a home burial particularly involving the erection of a headstone would be well advised to seek advice at an early stage from the local authority planning and environmental health officers, as well as checking whether there are restrictions in any local legislation.

Effect on Public Water supplies

Under the Control of Pollution Act 1974, as modified by the Water Act 1989, it is an offence to cause or knowingly permit to enter "controlled waters" any poisonous, noxious or polluting material or any solid waste matter. The disposal of human remains might well come within the scope of the above provisions. It would be prudent therefore for those contemplating or arranging a home burial to contact the River Purification Board for the appropriate area and should also contact the local water authority to ensure there will be no contamination of the local water supply.

Effect on a Mortgaged Property

If the property is subjected to a mortgage, permission will have to be obtained from the company which issued the mortgage loan. As the property may be unsaleable once a "Home Burial" has been carried out within the grounds, they may not allow the burial or may place very restrictive provisions on it.

Registration of Burials

Although there is no statutory requirement in Scotland to register burials on private land it is desirable, in order to guard against the possibility of the inadvertent disturbance of remains, that particulars of the burial should be noted and the information kept with the deeds to the property concerned. Burials in Private Ground. (Home Burials)

Having given due consideration to the foregoing legal, public health and planning aspects of Home Burials. (In all instances except where the deceased was stillborn and less than 24 weeks gestation, registration of the deceased must take place within 8 days from the date of death) you should give consideration to the implications of such action.

Burial in private ground is viewed by some members of the public as a suitable place of rest, and it is assumed that this will be the final resting place for yourself or that of a loved one. Little consideration is given now to how permanent this resting place might be:

1. will your family choose to remain in the family home after your death?
2. can you be sure that the property can be sold when the prospective purchasers are made aware that a burial has taken place within the garden area?
3. Will your family be granted the right of access to visit the grave or carry out necessary maintenance on any memorial?
4. will the prospective purchasers demand that the human remains are removed prior to settlement of the contract?

(It is a criminal offence to disturb human remains without the authority of the Sheriff)

This raises another question:

1. would it be the new owner of the property or
2. the relatives of the deceased, who may not now be the land owners.

It should be borne in mind that either party might be able to prevent the exhumation.

If the new property owners wished to exhume the human remains to allow for the extension to existing dwellings, the relatives of the deceased can object.

You cannot assume that the Sheriff will always grant an Exhumation Grant for the removal of the remains if you decide to leave your property and seek accommodation elsewhere.

Only land owners having the unencumbered title to the ground can carry out interments of human remains outwith designated burial land.

If the property is subject to a mortgage, permission will have to be obtained from the company which issued the mortgage loan. As the property may by unsaleable once a "Home Burial" has been carried out within the grounds, they may not allow the burial or may place very restrictive provisions on it.

For further information or assistance, please contact the Registration and Bereavement Services Manager, Masonhill Crematorium, Ayr or any Cemetery Office.