Burials on a development site: consents, cost and programme

Finding human remains on a development site stops work in that area the same day, and it starts two separate processes: a notification to the police and coroner, and an application for a licence to remove the remains lawfully. Neither is quick, and neither can be shortcut by a planning condition. If the land was ever a burial ground, chapel yard or workhouse cemetery, the right time to deal with all of this is before you buy it.

What follows is weighted towards the site rather than the discovery. The procedural detail of reporting and licensing is covered in human remains on site: the licence and the procedure. This is about the development consequences.

The legal position in outline

Three regimes apply and they do not overlap neatly.

Removal of buried human remains from a place of burial requires a licence from the Secretary of State under section 25 of the Burial Act 1857, with conditions about screening, decency and the eventual disposal of the remains. Where the ground is consecrated land of the Church of England, the Consistory Court of the diocese has jurisdiction and a faculty is needed. And where remains are found that could be recent, the police and the coroner must be told, because the coroner's jurisdiction over a body found in England and Wales sits in the Coroners and Justice Act 2009.

Separately, the Disused Burial Grounds Act 1884 restricts building on a disused burial ground. The Disused Burial Grounds (Amendment) Act 1981 provides a route to develop such land where remains have been removed and a prescribed notice and objection procedure has been followed. That procedure takes time and gives relatives a say, which is a planning risk as much as a legal one.

This is general guidance, not legal advice; take advice from a solicitor and from a suitably qualified archaeologist before relying on it.

Identifying the risk before you buy

Burial grounds are poorly mapped, and non-conformist chapel yards, workhouse and asylum cemeteries, Quaker burial grounds and plague pits are often absent from modern records entirely.

Start with the Historic Environment Record held by the county or borough archaeologist. Then the Ordnance Survey county series maps, which frequently annotate burial grounds that later disappeared, the tithe and enclosure maps, the first edition 25 inch mapping, and records of chapel closures. Finish with the title deeds, which sometimes carry covenants or rights of burial.

An Archaeological Desk-Based Assessment commissioned at option stage rather than at planning stage is the least expensive insurance available on an urban site with a chapel next door. Councils usually expect a suitably qualified author and professional review is strongly advised.

Stopping work and informing the coroner

If remains appear unexpectedly, the sequence is short and it should be in the construction phase plan before anyone breaks ground.

1. Stop work in that area and secure it against access and against view from outside the site.
2. Do not move or clean anything.
3. Inform the police, who will involve the coroner. If the remains are plainly archaeological the coroner will usually release them, but that is the coroner's decision rather than the archaeologist's.
4. Inform the local planning authority's archaeological adviser.
5. Do not resume work in that area until the licence position is settled and the archaeologist confirms in writing.

Screening matters more than people expect. Section 25 licences carry conditions requiring that the work be screened from public view and carried out with decency, and a site overlooked by flats needs hoarding and sometimes a temporary roof over the excavation area.

Licensing and the archaeological excavation

The licence application describes where the remains are, how many are expected, how they will be removed, where they will go and what will happen to them afterwards. Allow a lead time and apply before you need it.

Excavation of burials is slow work. Each grave is recorded individually, and skeletal remains are lifted by hand with associated coffin fittings and grave goods recorded in position. On a large burial ground that is a season of work rather than a fortnight, with a team size driven by the number of interments rather than by the area.

Osteological analysis follows, and it belongs in the post-excavation programme alongside the rest of the archive and publication work, as set out in post-excavation assessment, archive and publication.

Reburial, deposition and the ethical dimension

Licence conditions normally require reburial in a burial ground or cremation, and may allow retention for study for a defined period before that happens. The Advisory Panel on the Archaeology of Burials in England publishes guidance, produced with Historic England, on the treatment of human remains from archaeological sites, and councils and archaeological advisers expect it to be followed.

Two practical points. Reburial needs a receiving burial ground that will accept the remains, and arranging that late is a common cause of delay at the end of a project. And where a congregation or a descendant community has an interest, early engagement is worth far more than a well-worded notice. Objections at the notice stage of the 1981 Act procedure can be costly.

Where a chapel or church building is also being altered or lost, the statutory heritage duties apply independently of the burial question, and the way those duties bite on a decision is set out in sections 66 and 72 and what they require of decisions.

Programme and cost consequences

Burials are the archaeological risk most likely to move a programme by a season rather than by weeks, and the cost is driven by things you cannot see before you dig.

What to allow for: the archaeological contract itself, hoarding and screening beyond the normal site set-up, welfare and security for a longer enabling works period, the licence and faculty costs, osteological analysis, reburial arrangements and the receiving ground's fees, and a provisional sum for an assemblage larger than expected.

Price the known and hold a provisional sum for the unknown, with a stated mechanism for what happens if the burial ground extends beyond its mapped edge. It usually does. Boundaries moved, and interments were made outside the walls when the ground was full.

Designing around it

Sometimes the best answer is to leave the burials where they are.

Preservation in situ avoids the licence, the excavation and the reburial entirely. It needs a foundation solution that does not disturb the remains, which in practice means a raft or a piled solution with pile positions agreed on the basis of evaluation results, and a construction method that keeps plant off the sensitive area. Service runs, attenuation tanks and tree pits all have to be designed around the same constraint, so it has to be settled early.

Where the burial area can become open space, planting or parking at existing ground level rather than built footprint, the whole problem shrinks. That is a masterplanning decision made at the first layout, not a mitigation applied at reserved matters.

One honest uncertainty. Nobody can tell you the number of interments on an unexcavated site, and the estimates derived from burial registers are routinely exceeded. Treat any figure in an early assessment as a planning assumption rather than a quantity.

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