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This is one of the more unusual questions we have been asked recently. And it may surprise you to hear that, in principle, yes, you can be buried in your garden. But as you might expect, there are a number of considerations and legal requirements before your loved ones can carry out your wishes.
Is the property likely to be sold any time soon?
Perhaps your first consideration should be what happens if the property is sold following your death? You may be confident that it is likely to remain in the ownership of your family for many years, but circumstances can and do change.
Many people will not even entertain the idea of living in a house with somebody buried in the garden, so inevitably, a home burial will reduce the property’s value. In a well-publicised case earlier this year, an estate agent’s particulars carried the following notice:
“Please be aware this property is being sold by family members as part of a relative’s estate. It was the deceased’s wish to be buried in the garden as he was born and died in the house. This wish has been carried out and the property will be sold as is.”
Another consideration is that unless restrictive covenants are put in place, a future owner could apply to the Home Office for permission to exhume your body and bury it elsewhere or refuse your loved ones access to the grave. Therefore, it is always advisable to speak to your solicitor.
Do I need planning permission for a home burial?
As long as there is no material change of use, you do not require planning permission for a home burial. Even two or three graves would probably not lead to a suggestion that there has been a material change of use of the land, ie it is not being used as a cemetery. However, a large monument or mausoleum over the grave is very likely to require planning permission.
What are the legal requirements for a home burial?
First, the freeholder’s permission is required. This may sound obvious, but many homes are long leasehold. If you are not sure, ask your solicitor to check. Even if the property is freehold, there may be restrictive covenants attaching to the title prohibiting burial. Again, it is advisable to check.
Then there are environmental considerations. Human remains fall within the definition of ‘clinical waste’. As such, their disposal falls under the provisions of the Control of Pollution Act 1974 and the Environment Protection Act 1990, and breaching their requirements is a criminal offence. The grave must be far enough from a ditch or water source to not be at risk of polluting groundwater. This includes the risk of flooding. Details are available on the government website. To be certain, you should always speak to the environmental control team at your local authority, or to the Environment Agency.
There is a common misconception that a grave must be at least six feet deep, but the law provides no minimum depth for burial. However, the Ministry of Justice recommends a minimum depth of soil of two feet between the coffin lid and ground level. Arguably, shallower graves are more environmentally friendly in that the increased levels of oxygen near the surface aid decomposition.
The person who is responsible for the burial must have a ‘Certificate for Burial or Cremation’. This is usually referred to as the ‘Green Form’ and is issued by the Registrar (or in certain situations by the Coroner) when the death is registered. At the bottom of the Green Form is a slip. This must be completed with the date and place of the burial and returned to the Registrar within 96 hours of the burial.
The owner of the property on which a burial has taken place must create a simple burial register to be kept in a safe place. At the very least, it should include the deceased’s name, address, date of birth, date of death and the place of burial. A plan showing the exact location of the grave should also be kept with the register.
