Human remains on a development site: the licence

Planning permission does not permit you to disturb human remains. A separate licence is required, it comes from a different department of government, and on a former burial ground a separate statute governs whether you may build there at all. Developers who find this out during groundworks lose months.

The human remains development site licence question therefore belongs at due diligence, alongside contamination and utilities, not at the point a machine driver stops work.

Finding out before you buy

Burials are not confined to churchyards. Former workhouse and hospital burial grounds, plague pits, Quaker and Nonconformist burial grounds behind chapels, private family vaults, and medieval cemeteries under later buildings all sit under ordinary urban sites, frequently with nothing on the modern map to show for it.

An archaeological desk-based assessment is the document that finds them. It should consult the Historic Environment Record, historic Ordnance Survey editions from the 1840s onwards, tithe and enclosure mapping, burial registers, Nonconformist chapel records, and the records of nineteenth-century burial board closures made by Order in Council.

Where the desk-based work raises the possibility, evaluation follows. Trial trenching answers the question for far less money than discovering it at foundation stage, and it gives you numbers to programme and price against.

The licence that governs removal

Section 25 of the Burial Act 1857 makes it an offence to remove buried human remains from a place of burial without a licence from the Secretary of State, and that licence is administered by the Ministry of Justice. It applies to any burial place, consecrated or otherwise, and it applies whether the remains are medieval or Victorian.

The application names the site, the reason for removal, the archaeological contractor, the arrangements for screening the works from public view, the arrangements for storage and analysis, and the intended final destination of the remains. Licences are issued with conditions, and those conditions are enforceable.

Two situations sit outside this route. Where remains may be recent or where the circumstances suggest a crime, work stops and the police are called, because the coroner has jurisdiction over remains that may require an inquest. And remains of anyone who died less than a hundred years ago fall within the Human Tissue Act 2004, which brings its own consent and licensing framework.

Do not attempt to distinguish a medieval burial from a modern one by eye at the trench edge. If there is doubt, stop and report it.

Consecrated ground and the faculty route

Land consecrated according to the rites of the Church of England is subject to ecclesiastical jurisdiction, and removal of remains from it is authorised by a faculty granted by the diocesan consistory court rather than by a Ministry of Justice licence. Where a site is partly consecrated and partly not, you may need both, applying to each for the relevant area.

The faculty process runs on its own timetable through the diocesan registry, with public notice and the possibility of objection. It is not a formality and it is not fast. The related question of when listed building consent is displaced by the church system is dealt with separately under the ecclesiastical exemption.

Start the conversation with the diocese before you exchange contracts, not after.

Disused burial grounds and the 1981 Act

There is a separate prohibition on building on disused burial grounds, and it is older than the planning system. The Disused Burial Grounds Act 1884 bars the erection of buildings on land that has been used for burial, and the Disused Burial Grounds (Amendment) Act 1981 then creates a route through it.

That route has conditions. Notice must be published in a newspaper circulating in the area and displayed at the site, personal representatives and relatives of those buried there may object within the stated period, and where objection is made the remains must be removed and reinterred or cremated before building can proceed. The Act also restricts building where the ground has been used for burial within a stated recent period.

The practical consequence is a fixed, non-compressible period in the programme for notice and objection, running in parallel with but separate from the planning application.

Screening, decency and the compound

Licence conditions almost always require that the work is screened from public view and carried out with decency. On a churchyard site overlooked by houses that means solid hoarding to full height, not netting, and it means a covered working area where the weather or the overlooking makes an open excavation visible.

Plan the compound around it. Secure, lockable, dry storage for remains awaiting transfer. A separate area for washing and recording. Controlled access with a signed-in register. No photography of remains other than for the archaeological record, and a clear instruction to the whole site team that images do not go on social media.

Brief the groundworks crew before they start, not after the first burial appears. The person who finds a skeleton should know exactly who to call and that stopping work is the right answer.

Study, reburial and what happens to the remains

The licence sets out what may be done with the remains and for how long. Osteological analysis follows the guidance issued for archaeological burials in England, and typically covers ageing, sexing, stature, pathology and, where justified by a research question, isotope or ancient DNA sampling.

The licence specifies a period for study and an intended destination, either reinterment at a named location or deposition with a museum. Where analysis takes longer than allowed, an extension has to be applied for rather than assumed. Museums do not accept archives automatically, so agree the deposition in advance and budget for the archive charge.

Reinterment needs somewhere to go. A local authority cemetery, a designated area of the original churchyard or a consecrated plot elsewhere all work, but the arrangement has to be agreed and paid for, and it belongs in the cost plan from the outset.

Programme, cost and the community

Burial archaeology is slow because it is done one individual at a time. An urban cemetery site can hold a very large number of burials in a small area, stacked and intercutting, and each one requires excavation, recording, lifting and packaging. This is the item that most often breaks a development programme, and it cannot be accelerated by adding machines.

Consultation is worth doing properly. Descendant communities, a local history society, a congregation, or a faith group with specific requirements about handling and reburial will all respond far better to early engagement than to a notice in a newspaper. Where the burial ground served a particular religious community, take advice on their requirements before designing the methodology.

Set the heritage case out plainly in the heritage statement, including the significance of the burial ground as a heritage asset in its own right, and explain how the archaeological record will be preserved. Where the same site is also delivering habitat, read the note on archaeology and biodiversity net gain on one site, because the two constraints compete for the same ground.

This is general guidance, not legal advice. Burial law, ecclesiastical jurisdiction and the Human Tissue Act interact in ways that turn on the facts of the site, so take specialist legal and archaeological advice before starting work.

Draft the heritage and archaeology documents for a site in minutes at PlanScope, then have them reviewed by a suitably qualified archaeologist.

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