Burial grounds and human remains in development

Human remains on a development site trigger a licensing regime that is separate from planning permission and separate from any archaeological condition. Removing buried human remains in England normally requires a licence from the Secretary of State under section 25 of the Burial Act 1857, or a faculty where the ground is consecrated Church of England land. A planning permission does not authorise the disturbance, an archaeological written scheme of investigation does not authorise it either, and discovering this after the groundworks contractor has mobilised is an expensive way to learn it.

Which regimes can apply at once

On a site with burials, up to four regimes run in parallel, and each has its own decision maker.

Planning permission deals with the acceptability of the development. Heritage consents deal with listed structures, monuments and, where relevant, scheduled status. Burial law deals with the removal of remains. And where the ground is or was a burial ground held by particular bodies, statutory restrictions on building may apply in their own right.

They are not sequential and they are not alternatives. A scheme can have planning permission and still be unable to lawfully lift a single burial.

Establish which apply during due diligence. Old maps, tithe records, the Historic Environment Record, the Archaeological Desk-Based Assessment and the title documents between them usually reveal a former chapel yard, a Quaker or Nonconformist burial ground, a workhouse cemetery or a plague pit. These are common in urban sites and are frequently unmarked on modern mapping.

Licences to remove remains

A licence under section 25 of the Burial Act 1857 is issued by the Ministry of Justice and authorises the removal of remains from a place of burial. Applications are made on the department's form and are normally dealt with in a matter of weeks rather than months, though that should not be relied on where a programme is tight.

Licences carry conditions. The usual ones require the work to be screened from public view, that remains are handled with due care and attention to decency, that a specified method is followed, and that remains are reinterred or cremated within a defined period, or retained for study for a stated time where research value is accepted.

The licence is about decency and public order rather than archaeology. That distinction explains why its conditions can sit awkwardly with an archaeological research design, and why both documents have to be written with each other in view.

Where remains may be recent, the position changes. Anything that could be a modern burial, or that raises a question of unexplained death, is a matter for the police and the coroner before anyone continues.

Disused burial grounds and the restriction on building

The Disused Burial Grounds Act 1884 prohibits building on a disused burial ground, subject to limited exceptions. The Disused Burial Grounds (Amendment) Act 1981 created a route to build, but only on conditions.

Those conditions include publishing notice of the intention, giving personal representatives and relatives an opportunity to remove remains themselves or to object, removing the remains that are affected, and reinterring or cremating them in accordance with the Act. The notice period and procedure are prescribed, so the timetable is not within the developer's gift.

Check whether the restriction bites before assuming the 1981 route is available. It applies to particular categories of ground, and the answer depends on the history of the land, who held it, and whether burial rights have been extinguished. This is a legal question for a solicitor with the title deeds, not a planning question.

Consecrated ground and the faculty route

Land consecrated according to the rites of the Church of England is governed by ecclesiastical law. Removal of remains from consecrated ground normally requires a faculty from the diocesan consistory court rather than a Ministry of Justice licence, and the process runs on its own timetable with its own petitioning requirements.

Consecration follows the land rather than the building. A churchyard sold decades ago and now in commercial use can remain consecrated, and a burial ground attached to a demolished chapel may still be within the jurisdiction. The chancellor of the diocese decides.

The wider framework here overlaps with the ecclesiastical exemption and listed building consent, and the two questions are often answered by the same diocesan advisory body at the same time. Approach them together.

Archaeological requirements sit alongside, not instead

Where remains are of archaeological interest, the council's archaeological adviser will expect excavation, recording and analysis to a professional standard, usually secured by condition through a written scheme of investigation.

That work includes osteological assessment: age, sex, stature, pathology, and where research questions justify it, isotope or ancient DNA analysis. It needs specialists, and the Chartered Institute for Archaeologists publishes standards for the treatment of human remains that councils expect to be followed.

An Archaeological Field Evaluation is the usual way of establishing how many burials there are before the main works, and the number matters enormously. A dozen burials is a manageable variation. Several hundred is a project in itself, with implications for programme, cost, storage and eventual reburial.

The licence and the archaeological condition must agree with each other on retention. A licence requiring reinterment within twelve months and a research design proposing long term curation are in conflict, and the time to resolve that is at application, not at excavation.

Consultation with faith communities and descendants

This is the part that cannot be reduced to a procedure, and the part that most affects how a scheme is received.

Where a burial ground is associated with a living congregation or a defined community, early consultation with that community is both expected and sensible. Jewish and Muslim burial grounds raise particular requirements about disturbance and reburial that should be understood from the community itself rather than from a checklist.

Descendant interest is real for burials of the nineteenth and twentieth centuries. The statutory notice procedures exist partly to give relatives the chance to act, and local and family history societies often surface interest that the notices alone would not.

Handle press and site security accordingly. Screening is a licence condition for a reason, and images of exposed burials circulating locally will damage a scheme in ways no planning argument recovers.

Reburial, memorialisation and programme

Reburial needs somewhere to go. That means a cemetery or burial ground willing to accept the remains, a plot, a fee, and sometimes an agreement with the local authority or diocese. Secure it early, because the licence will require it and availability is not guaranteed.

Memorialisation is often the element that resolves community concern. A recovered and relocated headstone, an interpretation panel, a plaque, or a named memorial listing those reinterred, agreed with the community rather than designed for it.

For the programme, assume the following sequence and price each stage separately: desk assessment, evaluation to establish numbers, licence or faculty application, notice periods where the 1884 restriction applies, excavation with screening and supervision, osteological assessment, reburial arrangements, and reporting. Each of those has a lead time, and the notice periods in particular cannot be accelerated.

Treat this as a material risk in the appraisal rather than a contingency line. Sites with burials have derailed more schemes than sites with bats.

This is general guidance, not legal advice. Check the position with your local planning authority, the relevant licensing authority and a solicitor before relying on it. A Heritage Statement should set out the significance of the burial ground and its setting as part of the application.

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