Guidelines for Cemetery Conservation - National Trust of Australia

GUIDELINES FOR CEMETERY CONSERVATION
PART FOUR -- APPENDICES
2. Until the transfer is registered, the Legal Personal Representative (and his
successors as Legal Personal Representative ie his Executor or Administrator) is the only
person entitled to require the Cemetery to recognise him as the owner of the Burial Right
and the only person entitled to authorise a burial in the grave or conservation work on the
monumentation.
3. The Burial Right can be passed to another by will or on intestacy. Unless
specifically dealt with in a will, it will form part of the residuary estate and will belong
beneficially to all of the residuary beneficiaries (under the will) or all of the next of kin
(in case of an intestacy) and they may be numerous. The beneficial shares which belong
to each residuary beneficiary or next of kin may in turn be further fragmented among
their beneficiaries or next of kin who may not even know of their inherited rights.
4. Regardless of what may happen to the beneficial ownership of the Burial Right, the
legal title to it will remain vested in the Legal Personal Representative until transferred to
the persons beneficially entitled to it and he/she will be the only person legally entitled to
authorise a burial in the grave or conservation work on the monumentation.
6.1.5 Relatives’ rights in practice
Determining the legal ownership of Burial Rights to an old grave may be a difficult task
for descendants (or others) wishing to undertake conservation. Determining the beneficial
ownership may be a near-impossible task.
Often, if interested descendants can establish that they personally own some beneficial
share in the Burial Right and that reasonable steps have been taken to advise other
beneficial owners, the controlling authority will allow work to proceed.
6.2 What can you do? – legislation
6.2.1 Local government planning regulations
Most cemeteries are zoned “Special Use (Cemetery)” under current environmental
planning legislation. This zoning affords the cemetery statutory protection against other
uses or development on the site.
Many cemeteries are identified as “items of heritage significance” in the relevant
Council’s Local Environmental Plan (LEP). The inclusion of a cemetery within the
“heritage schedule” of a LEP (or a subsidiary Development Control Plan) identifies it as
an area of heritage importance which is to be conserved. This usually requires specific
approval by the local Council for any work other than routine maintenance, whether or
not the Council is the actual controlling authority for the cemetery.
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