a. Tombstones and memorials

The term “burial ground” is to include all sites in which interment is being or has been carried out, whether consecrated by any particular denomination or not. The word “memorial” is used to include tombstones, walled graves, monuments and all other memorials, whether placed on a grave or elsewhere in a burial ground.

Legal responsibility, occupierʼs liability and negligence

A council is legally considered an occupier of land if it exercises day-to-day control over it, regardless of ownership. As an occupier, the council has a legal obligation to ensure the land is safe for people who may enter. In cases of negligence, a council is responsible for ensuring the safety of memorials in burial grounds it oversees, regardless of ownership or maintenance obligations. However, this responsibility is limited to safety, not the appearance of the memorials.

Burial grounds which are the responsibility of local councils

Local councils may become responsible for three types of burial grounds:

• Where, as a burial authority, they provide and control their own cemetery.

• Where they have been required by the parochial church council to maintain a Church of England churchyard closed by Order in Council (s.215 of the Local Government Act 1972 (“the 1972 Act”)).

• Where they have acquired a disused burial ground for use as an open space (s.6 Open Spaces Act 1906 (“the 1906 Act”)).

Local council cemeteries

Local councils are burial authorities under the 1972 Act and can provide and maintain cemeteries. They are considered occupiers of their cemeteries, and grave spaces remain their property. A right of burial allows only for the interment of a body, not control over the grave’s surface.

No memorial may be placed in a local authority cemetery without the council's consent, which is granted for a period of up to 100 years and may include conditions such as maintenance requirements. Consent creates a legal right that passes to the heirs of the original grantee. All consents must be recorded in a statutory register.

Memorials placed with consent are owned by the person granted consent, and they are responsible for its maintenance. After the consent period, the memorial can be removed by the owner, or the council may relocate or destroy it. Councils can enforce maintenance conditions and may remove unsafe memorials if no responsible party is found, though this is a fallback provision.

Councils should have regard to the following points in respect of their own cemeteries:

• In the case of urgent safety issues, the council must act promptly to remove the risk and look for reimbursement later.  Removal of the risk does not necessarily mean restoring a memorial to its original condition; it could mean, for example, providing safety fencing.

• Where there is a potential rather than an immediate safety risk the council should advise the owners of the memorial and require them to put it in a safe condition or  to remove it.

• Where the consent imposed conditions regarding maintenance the council should enforce those conditions.

• In the absence of conditions, the council can only require the owner of a memorial to keep it in a safe condition; they cannot require it to be maintained in an attractive state.

• Where the owner of a memorial is liable for safety work or has failed to carry out conditions in a consent a council is bound to take reasonable steps to recover the costs or enforce the conditions.

Identifying the current owner of a memorial can be challenging due to the 100-year period. Councils must weigh the costs of identifying owners against the costs of ensuring safety and maintenance. They should avoid a blanket policy of never seeking reimbursement and carefully assess each case individually.

If a council cannot identify the owner of a memorial, it must cover the cost of safety work. Under article 16(1)(a) of the 1977 Order, the council can also carry out further work, such as restoration or regular maintenance, at its own expense to keep the memorial in good condition.

When the consent period ends or the owner agrees, the council may remove or relocate the memorial to another part of the cemetery, or destroy it, following specific notice procedures outlined in the 1977 Order. Memorials that are illegible or in poor condition, with no recorded consent, may also be removed or destroyed by the council after giving notice.

Closed churchyard

A local council may be responsible for maintaining a Church of England churchyard that has been closed by Order in Council. The council's duty is to keep the churchyard in decent order, ensuring it does not offend reasonable churchgoers. However, the council does not own the churchyard or its contents and cannot make alterations, such as removing memorials. The church authorities retain these rights. Memorials in the churchyard are owned by the individuals who erected them or their heirs. If the owners cannot be traced, the council may need to take action at its own expense. Special rules apply to the Church in Wales under the Welsh Church Acts. See article c. Closed Churchyard

Safety work on memorials

In churchyards or consecrated parts of local authority cemeteries, any alteration or removal of a memorial requires the consent of the bishop (a faculty). This includes actions like testing for stability or laying down dangerous tombstones for public safety. The Church insists that even minor work requires a faculty. However, NALC believes councils have a duty to keep closed churchyards in decent order and to ensure public safety. They argue that councils should have the right to take necessary actions to make memorials safe without needing additional consent.

Disused burial grounds

The 1906 Act allows local councils to acquire disused burial grounds, which include any churchyard, cemetery, or ground set aside for burials, whether consecrated or not. Once acquired, the council must maintain the burial ground as an open space for the public and may make improvements, including altering or removing memorials. Specific provisions for public notice and consent apply, especially for Church of England consecrated grounds.

In cases where the disused burial ground is not a local authority cemetery or Church of England closed churchyard, ownership of memorials can be unclear, as certain denominations or cemetery companies may have made arrangements for ownership and maintenance. The terms of the council’s acquisition may also address these issues. Special rules apply in Wales, but the situation generally mirrors that of Church of England churchyards. See article c. Disused burial grounds 

Planning considerations

Apart from the need to obtain consent for work on memorials in Church of England consecrated ground, some memorials are ʻlistedʼ under the planning legislation. Consent must be sought from the local planning authority before work is carried out, except in cases of danger when a report must be made as soon as possible.

Insurance and safety inspections

All councils should have public liability insurance, which assumes they exercise reasonable care in fulfilling their legal responsibilities. To prevent insurers from disclaiming liability and as good practice, councils should implement regular inspections of their burial grounds. Some insurers now require this, so councils should consult their insurer for guidance on the inspection level and system, as these may vary. It is essential to follow the insurer's requirements and any professional advice received.