It was once a common practice for members of a farming/grazing family to be buried in a private cemetery located on the property. When the property is sold to new proprietors, the original family wish to retain access to these burial plots. Although a plan of subdivision could be prepared excising the burial plot out of the parcel, the usual method of retaining access to the site is by the creation of an appropriate easement and/or covenant.
For an easement or covenant to be validly created a dominant tenement must be identified. This is difficult in this situation as the family seeking to retain access to the burial plot will have moved away and will usually not own any adjoining land. As an alternative the benefit of such an easement or covenant could be conferred on a statutory authority such as the local council. The statutory authority must agree to accept the benefit.
There interest could be created as either:
- An Easement for Burial Site affecting the land comprising the burial plot. The relevant statutory authority would be listed in the Section 88B Instrument as the dominant tenement or
- A Restriction on the Use of Land or positive Covenant over the burial site. The relevant statutory authority would be listed in the Section 88B Instrument as the dominant tenement.
Rights of Access or Rights of Way across the property to the burial plot may also need to be created.
The easement or covenant will need to contain terms regulating the conditions of access or use of the site for example, whether access is to restricted to nominated persons (e.g. to only the direct descendants of the persons interred on the site) or open to the general public (eg for heritage and/or historical reasons). The terms must also specify who will be responsible for the on-going maintenance and upkeep of the site. Councils may also require further conditions to be included in the terms.
A plan of survey is usually required to define the site of the burial plot within the parcel, however, if the boundaries of the plot meet NSW LRS compiled plan guidelines (i.e. the boundaries are parallel or perpendicular to existing title boundaries) an exemption from survey may be sought from the Plan and Title Advisor.
If a compiled plan is acceptable, the easements or restrictions may also be created by the registration of a Real Property Act dealing with an appropriate sketch plan as an annexure. The sketch plan must be signed by a registered surveyor.
Note 1 It is also possible to lodge a Request to create easements and/or restrictions for new burial plots to be used for future interments such a request should comply with the above guidelines.
Note 2 Clause 22(1)(c) Public Health (Disposal of Bodies) Regulation 2002 stipulates that an easement or restriction for burial grounds may only be created affecting a parcel of land of an area greater than or equal to five hectares.