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 may 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, restriction on use of land or positive covenant.

Note: Clause 92(1)(c) Public Health Regulation 2022 provides that burial or vault grounds may only be located on private land where the area of landholding is five hectares or more, and a local government authority has approved the location for that purpose.

For an easement, restriction on use of land or positive covenant to be validly created a dominant tenement must be identified. This is difficult in situations where 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, restriction on use of land or positive covenant could be conferred on a statutory authority such as the local council. The statutory authority must agree to accept the benefit.

Their 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 public 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, restriction on use of land or public positive covenant will need to contain terms regulating the conditions of access or use of the site for example, whether access is to be restricted to nominated persons (e.g. to only the direct descendants of the persons interred on the site) or open to the general public (e.g. 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 and access ways meet the NSW LRS compiled plan guidelines (e.g. the boundaries are parallel or perpendicular to existing title boundaries), then an exemption from survey may be sought from the NSW LRS Plan and Title Advisor at Plan-Info@nswlrs.com.au.

If a compiled plan is acceptable, the easement, restriction on use of land or public positive covenant may also be created by the registration of an appropriate Real Property Act dealing with an appropriate compiled plan as an annexure. The compiled plan must be signed by a registered surveyor.

NOTE:  It is also possible to lodge a Request form 11R to create easements, restrictions on use of land or public positive covenants for new burial plots to be used for future interments. Such a Request should comply with the above guidelines.

For more information contact plan-info@nswlrs.com.au

All NSW legislation can be accessed at www.legislation.nsw.gov.au.

 

Publication Date: September 2024