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3. CONSTRAINTS
ON CEMETERIES CONSERVATION
3.1 THE
NSW HERITAGE ACT 1977 and AMENDMENT 1999
The Heritage
Act 1977 constituted the Heritage Council of New South Wales, which
is a broadly based statutory body. It gives advice and makes recommendations
to the Minister on matters affecting environmental heritage and on the
implementation of the NSW Heritage Act.
For the
purposes of the Heritage Act, the term "environmental heritage" describes
those buildings, works, relics or places of historic, scientific, cultural,
social, archaeological, architectural, natural or aesthetic significance
for the State of New South Wales.
The Heritage
Act is concerned with all aspects of conservation ranging from the most
basic protection against indiscriminate damage and demolition of buildings
and sites, through to restoration and enhancement.
3.1.1
CONSERVATION INSTRUMENTS
"Conservation
instruments" comprise various kinds of orders or constraints under the
Heritage Act 1977. They are imposed by the Minister for Planning (usually
on the recommendation of the Heritage Council). Where the National Trust
considers that a cemetery is under threat from unsympathetic works,
or from neglect, it may apply to the Heritage Council for an appropriate
conservation order.
Conservation
instruments may be either interim or permanent in nature and control
the following activities:
Demolition
of buildings or works
Damage
or despoliation of relics, places or land
Excavation
of any land to expose or move relics
Development
of land on which buildings, works or relics are situated
Alteration
of the buildings, works or relics
Displaying
of any notice or advertisement
Removal,
damaging or destroying of any trees.
A person
intending to carry out any of the above activities on land affected
by a conservation instrument must first advise the Heritage Council
and obtain its approval before submitting an application to a local
Council.
3.1.2
RELICS
The term
"relic" under the Heritage Act "means any deposit, object or material
evidence: (a) which relates to the settlement of the area that comprises
New South Wales, not being Aboriginal settlement, and (b) which is 50
or more years old."
Section
139 of the Heritage Act prohibits a person from disturbing or excavating
any land on which the person has discovered or exposed a relic, except
in accordance with an excavation permit.
As well,
a person must not disturb or excavate any land knowing or having
reasonable cause to suspect that the disturbance or excavation will
or is likely to result in a relic being discovered, exposed, moved,
damaged or destroyed unless the disturbance or excavation is carried
out in accordance with an excavation permit.
Such an
excavation permit may be granted by the Heritage Council on application,
but not if the relic is subject to an interim heritage order made by
the Minister or a listing on the State Heritage Register.
The Heritage
Council may create exceptions to this Section in respect of:
3.2
ZONING AND LOCAL GOVERNMENT LISTING
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.
3.3 HEALTH
REQUIREMENTS
The Department
of Health controls exhumations under legislative authority. Its general
practice since 1906 has been to refuse exhumation requests from seven
days after burial until seven years later.
The Health
Department's major interest in any work at older cemeteries is how the
work affects the burials. In cases where no disturbance occurs (eg.
roadwork where no excavation is needed; conversion to a Pioneer Park)
no objections are usually raised. Where graves are disturbed the development
will only be allowed if:
- sufficient
detailed knowledge is available to show that the Department's requirements
re health hazards are satisfied (eg no burials of persons with infectious
diseases);
- the
developer pays for the exhumations.
3.4 BURIAL
PLOTS AND RELATIVES' RIGHTS
In almost
all cases, the "ownership" of a burial plot does not involve any normal
title to the land but only a Burial Right and the right to erect and
maintain monuments (within the terms of the original grant). These rights
are generally transferable, but the transfer at death can be complicated.
3.4.1
THE LEGAL POSITION
- On death,
the Burial Right (technically referred to as an incorporeal hereditament)
automatically vests in the Legal Personal Representative of the Deceased
(the Executor or Administrator). The Burial Right will remain vested
in the Legal Personal Representative until it is transferred to a beneficiary
and the transfer is registered in the cemetery register.
- 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.
- 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.
- 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.
3.4.2
PRACTICAL EFFECT
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.
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