What are the legal issues around natural burial?

During the past three decades, greater sustainability, lack of cemeteries and more people considering less traditional funerals and burials have led to an increased interest in natural burials across the world. 

While this is an opportunity for landowners, there are a number of legal issues to be taken into account to ensure they meet their long-term responsibilities and do not conflict with wider landholding and succession plans. 

A natural burial or green burial is defined in the Ministry of Justice's Natural burial ground: guidance for operators as 'the burial of human remains in an area which creates habitat for wildlife or preserves existing habitats such as woodland, flower meadows and orchards, sustainably managed farmland, in-situ or adjacent aquatic habitats or improves and creates new habitats which are rich in wildlife.’ 

Across the UK there are close to 300 natural burial grounds. If international experience is anything to go by, demand for these sites is likely to increase during the next few years.

This rise in demand is driven by concerns over emissions and use of fuel in cremations, sourcing and transport of materials for headstones and coffins, and the use of formaldehyde for embalming, which can have an adverse effect on groundwater. 

Finding the right site is not easy for would-be operators given current planning restrictions and upfront land costs, so they are likely to approach landowners directly for a lease. 

In addition, a number of landowners are now considering if natural burial sites can be a useful diversification project and what the revenue-generating potential might be and whether there are benefits in increased biodiversity.

That way, both parties have certainty that once planning is granted, the lease will be entered into.

Every site will be different but, depending where the site is in the overall landholding, land grade and elevation, landowners should ensure the wider area and any commercial or agricultural operations are not affected by its use. 

The first legal consideration is to check if there are any restrictive covenants that prohibit the burial of human remains on the land or prohibit the erection of buildings, i.e. a ceremonial hall being erected.

Second, as the site will likely be open to the public either for the burials or to visit later, think how this will be governed, who will manage it and how to minimise the impact on adjoining land or premises. 

In a recent case I dealt with on behalf of the landowner, it was important to make clear the boundary provisions as the land was not fenced. This was to define the site and to indicate where visitors can and cannot go. 

Considerations such as who erects this boundary, the materials used and when it will be installed and maintained, need to be agreed. 

A third significant legal consideration is what happens when the site reaches capacity. Sites typically hold 300–400 plots per acre, but site management may allow more. Depending on location it could take several years to fill the site. 

Once full, the tenant will want to exit and pass a maintenance fund to the landowner to allow them to manage it. 

The landowner needs to consider if this fund is sufficiently large, how long it should last and where the fund will be held and accessed. For example, if a car park has been created as part of the burial ground, it may require resurfacing at regular intervals.  

Any boundary features that have been put in place will need regular maintenance. You should also factor in accidental and deliberate damage, and it will be important to have the correct insurance and make provisions to cover the costs of it. 

Signage maintenance and removal is another ongoing consideration along with removing pictures, flowers, tributes, candles and other items that may be left by relatives. Ideally, the burial contract should include a clause forbidding these items to ensure the site stays natural and safe for wildlife.

Every person buried at the site will have an individual contract with the site operator, which the landowner may not be familiar with, but they need to ensure that none of the terms of this agreement are breached. 

It's therefore important to have a standard operator contract before the lease is signed. This should be limited so the contract that will be granted is in the same form as the one that the landowner has approved. 

Finally, there may be questions from relatives and friends of those buried at the site, so you should factor in additional administration costs.

As planning permission was required, I prepared an agreement for lease. For this particular parcel of land, extra consideration was needed to ensure that the surrounding landholding was not impacted by the burial site. 

The term of the lease is 150 years, with break options when the site reaches capacity, enabling the site operator to exit. The site will then be handed back to the landowner who will manage it in line with terms contained in a conservation deed. 

The landowner will have restrictions on their ability to build on or sell the land without the site operator's permission. 

The landowner's responsibilities include keeping the site tidy and well maintained, or managing woodland areas if overplanted. Safety will be a consideration for woodland plantations that can be accessed by the public and paths will need to be defined and maintained.

Depending on the landowner's future plans, including succession, they need to consider whether the value of their overall holding, as well as the individual land parcel, will be affected in the future.

Clearly there is much to consider, but at a time when landowners are looking for opportunities to diversify, natural burial sites should not be overlooked.

A version of this article was previously published by Estates Gazette on 6 July.