HS2, Burial Grounds, (& Richard III)

In earlier posts we have indicated that it is not uncommon for section 25 Burial Act 1857 to be disapplied in relation to large-scale infrastructure projects[1]. It is therefore unsurprising that such provisions are included in the High Speed Rail (London – West Midlands) Bill, here and here: the Commons Second Reading is scheduled for 28 April. The removal of remains and monuments from burial grounds is one of the areas covered, but unlike the circumstances surrounding the exhumation of the remains that proved to be those of Richard III, the Bill envisages a statutory consultation procedure; gives the Secretary of State only limited discretion in this area; and includes a narrow definition of “relatives” and “personal representatives”.

The Bill is being promoted through Parliament by the Secretary of State for Transport, who will also appoint the “nominated undertaker(s)” responsible for delivering the proposed scheme under the powers granted by the Bill[2]. The High Speed Rail (Preparation) Act 2013 received Royal Assent on 21 November, and the Hybrid Bill[3] now under discussion confers the powers required to construct Phase One of the proposed HS2 scheme from London Euston to Birmingham Curzon Street and Lichfield with intermediate stations in West London (Old Oak Common) and at Birmingham Airport. In addition to the Explanatory Notes to the Bill, the House of Commons Library has produced a Research Paper and on 7 April, the Environmental Audit Committee published its report on the proposed HS2 rail link and the environment[4]. Further information, including that relating to archaeology, may be found on the HS2 web site.

The deregulation provisions within the Bill are wide ranging[5] and aspects of those with a potential impact on churches, burial grounds and consecrated land are summarised below.

Listed buildings

The extent of this first phase of the scheme may be gauged from its impacts on listed buildings: those of direct risk from construction works are designated “buildings authorised to be demolished, altered or extended” and are listed Table 1 of Schedule 17[6]; others potentially affected by the development are identified in Table 2 as “buildings authorised to be altered or extended for heritage or monitoring purposes”[7]. The latter includes two Grade 1 and one Grade 2 churches, and a number of tombs, memorials and mausolea.

Burial grounds

The powers to carry out the development works authorized by the Bill are conferred on the “nominated undertaker(s)” designated by the Secretary of State, and under clause 27(1)

“Nothing in any enactment relating to burial grounds and no obligation or restriction imposed under ecclesiastical law or otherwise has effect to prohibit, restrict or impose any condition on the use of any land comprised in a burial ground for the purpose of constructing any of the works authorised by this Act.”

Schedule 19 provides a regime for the removal of human remains and related monuments[8], and specific aspects to note include:

– the developer is designated as the nominated undertaker that issues the relevant licences, rather than the Ministry of Justice (or a faculty under the jurisdiction of an ecclesiastical court).  The nominated undertaker also is given the power to decide whether a person is a relative or personal representative of the deceased, although recourse to the County Court is also available.  When exercising their powers under the Bill, it is likely that nominated undertakers will be regarded as acting as “public authorities” and their decisions will therefore be subject to judicial review.

– The designation of nominated undertakers may precede the Bill receiving Royal Assent, although licences granted during this period will be issued under section 25 Burial Act 1857 by the Ministry of Justice.

– The nominated undertaker must to publish and display notice of the intention to remove any human remains or monuments[9] before any such removal; a personal representative or relative may within 56 days apply for a licence to remove the remains and monument themselves. No notice is required where:

– The Secretary of State has notified the nominated undertaker that the Secretary of State is satisfied that the remains were buried more than 100 years ago and that no relative or representative of the deceased is likely to object.

– The nominated undertaker already holds a licence to remove human remains under section 25 of the Burial Act 1857.

– Upon written application by a relative or personal representative of the deceased, the nominated undertaken must issue a licence to authorise the removal and reburying or cremation of the remains. The reasonable costs of removal and reburial must be paid by the nominated undertaker.

– Where no written application for a licence by a relative or personal representative is received, or where a licence has been issued but the remains have not been removed within 28 days, the nominated undertaker may remove the human remains to a burial ground or crematorium within 2 months.

– The Secretary of State may direct that this period is extended to 12 months or longer to enable archaeological or other studies to be carried out. He/she may also dispense with the requirement to bury or cremate the remains but instead authorise them to be dealt with in some other manner, i.e. in a museum.

– Monuments which are removed by the nominated undertaker may be re-erected at the place where the remains are reburied or removed to some other appropriate place. If that is not done, they are required to be broken up and defaced to prevent inappropriate use.

With regard to “relatives and personal representatives”, clause 11 provides that

(1) In [Schedule 19], references to a relative of the deceased are to a person who—

(a) is a husband, wife, civil partner, parent, grandparent, child or grandchild of the deceased, or

(b) is, or is a child of, a brother, sister, uncle or aunt of the deceased.

(2) For the purposes of [Schedule 19], a person is to be taken to be a relative or personal representative of the deceased if—

(a) the nominated undertaker is satisfied that the person is a relative or personal representative of the deceased, or

(b) the county court, on the application of the person, has declared that the person is a relative or personal representative of the deceased.

Consecrated land

Unlike the other deregulation provisions, those relating to consecrated land are relatively straightforward and are contained in a single clause which disapplies the church law that may hinder development on relevant parts of the route.  Clause 27 states:

(1) No obligation or restriction imposed under ecclesiastical law or otherwise in relation to consecrated land has effect to prohibit, restrict or impose any condition on the exercise of the powers conferred by this Act with respect to works.

(2) Subsection (1) does not apply in relation to the use of land comprised in a burial ground for the purpose of constructing any of the works authorised by this Act.

[1] See annotations relating to section 25 in legislation.gov, here.

[2] There may be more than one nominated undertaker, e.g. HS2 Ltd could become the nominated undertaker for the main railway works, while Network Rail could become the nominated undertaker for works to an existing station such as Euston. But, whoever they are, all nominated undertakers will be bound by the obligations within the Bill and the policies established in the Environmental Minimum Requirements (EMRs).

[3] i.e. it has elements of both a public and a private Bill: it gives both Parliamentary approval and planning permission for the scheme. Those directly and specially affected by the construction of the route will be able to petition a specially-convened select committee on the Bill.

[4] This stated inter alia “better safeguards need to be implemented if harmful environmental impacts of HS2 are to be minimized”.

[5] These include: listed buildings, (clause 24 and Schedule 17); Ancient monuments, (clause 25 and Schedule 18); Burial grounds, (clause 26 and Schedule 19); Consecrated land, (clause 27); Commons and open spaces, (clause 28); Trees, (clause 29); Overhead lines, (clause 30); Water, (clause 31 and Schedule 20); Buildings, (clause 32, Schedule 21(Buildings), Schedule 22 (Party Walls)); Street works, (clause 33 and Schedule 23); Lorries, (clause 34 and Schedule 24); Noise, (clause 35 and Schedule 25); and Local Acts, (clause 36 and Schedule 26).

[6] These include: a monument and an obelisk, both in the London Borough of Camden and both Grade II.

[7] These include: Church of All Souls, (Grade II), 21 Loudon Road,  London Borough of Camden; Parish Church of St Giles, (Grade I), Parish of Chalfont St. Giles; Church of St Lawrence, (Grade I), Parish of Radstone, South Northamptonshire; Church of St John The Baptist, (Grade I), Parish of Thorpe Mandeville; and within Kensal Green Cemetery, Royal Borough of Kensington & Chelsea: four tombs, (Grade II*), and twenty seven tombs, (Grade II); eight mausolea, (Grade II): eight Monuments, (Grade II).

[8] Defined in clause 27(3) as including “a tombstone or other memorial; and references to a monument to a person are to a monument commemorating that person, whether alone or with any other person.”

[9] This includes: notice of removal of remains or monument; removal of remains under licence; removal of remains by nominated undertaker; removal of monuments; records; discharge of functions by nominated undertaker, relatives and personal representatives.

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