Burials, groundwater activities and related surface water discharge activities

On 29 September, Defra announced a consultation on proposed amendments to the Environmental Permitting (England and Wales) Regulations 2016 as they apply to groundwater activities and some related surface water discharges. The proposed amendments aim to address three policy objectives:

  • to provide an improved hierarchy of regulatory controls for groundwater activities;
  • to provide controls for a greater range of potential pollutants; and
  • to improve existing control measures for protecting groundwater from site-based activities.

The consultation document is here and the consultation closes on 22 December*. Submissions may be made either via a survey on the consultation page, via e-mail to EPRamendments2021@defra.gov.uk or by post to:

Consultation on Amendments to the Environmental Permitting (England and Wales) Regulations 2016, Consultation Coordinator, 2nd Floor, Foss House, Kings Pool, 1-2 Peasholme Green. YORK YO17 PX16.

Groundwater pollution from cemeteries

In September 2017 we posted Groundwater pollution from cemeteries which explored the new tranche of position statements from the Environment Agency on groundwater protection published on 14 March that year.  We indicated that the position statement relating to cemeteries was of particular importance in view of the present shortage of burial space and the need for future development, either by the extension of existing cemeteries or the creation of new ones, including grave plot reuse and ‘lift and deepen’ methods. At the time we suggested that whilst the protection of groundwater was an essential requirement at all burial sites, it was likely to be most onerous in the case of the new cemeteries and the extension of existing ones.

We also considered discharges into cemeteries where Environmental Permitting Regime (EPR) permits are required for such treatment installations, despite the relatively low volumes of effluent involved, as discussed here. Our monthly review of ecclesiastical court judgments includes new bespoke applications for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016 for discharges into churchyards from trench arch systems, such as those reported in September 2021.

Defra Consultation 

On Wednesday 29th September 2021, Defra issued the Consultation on Amendments to the Environmental Permitting (England and Wales) Regulations 2016 as applied to Groundwater Activities and related Surface Water Discharge Activities responses to which closes Wednesday 22nd December 2021 (time not specified). Annexes B and C of the consultation are of relevance to churchyards and a technique to assist achievement of “zero-emissions”, respectively, and these are summarized below.

Annex B: DRAFT Exemption conditions for small-scale cemetery developments in low- environmental risk settings.

They would impose the following conditions on any burials of human remains, other than a burial of human ashes from crematoria, within any existing operational cemetery or proposed new cemetery development:

  1. A burial within a cemetery must not cause pollution of surface water or groundwater.
  2. A burial within a cemetery must not be within 10 metres of any field drain, including any dry ditch.
  3. A grave must have at least 1 metre clearance between the base of the grave and the top of the water table and must not have any standing water in it when dug.
  4. A burial must not be undertaken directly into groundwater.
  5. A grave must not be dug in unaltered or unweathered bedrock.
  6. A grave must not be dug in an area susceptible to groundwater flooding.
  7. A grave must be deep enough so at least 1metre of soil will cover any part of the coffin or body.
  8. A grave plot must not be less than 5m2 in area.

There is also a series of tough restrictions on the siting of new cemeteries and burial grounds.

Annex C: DRAFT Exemption conditions for closed loop ground source heat pump activities in low-environmental risk settings

The following conditions apply to closed loop ground source heat pump activities, including closed loop ground source heating and cooling schemes.

1. The system must be closed loop only and have no discharge of pollutants other than transfer of heat to the environment.
2. The system must not cause pollution of surface water or groundwater
3. The system must not be either entirely or partly within a groundwater Source Protection Zone 1 or within 50 metres of a well, spring or borehole used for supply water for domestic or for food production purposes.
4. The system must not be within the following distance of a wetland designated as a Site of Special Scientific Interest, European site or Ramsar site:
4.1 Not within 20m for a single domestic system (assuming 45kW as defined by the Micro-generation Certification Scheme (MCS))
4.2 Not within 50m for a group of 4 or more houses or a single community building or
4.3 Not within 250m for a factory or large office
5. The system must not be within 10m of a watercourse.
6. The installation of the system must not mobilise any contaminants potentially present in the subsurface to the extent that pollution of groundwater occurs.
7. The system must not be adjacent to a septic tank or cesspit, including the infiltration system.
8. All equipment installed in relation to the system must comply with the relevant design and manufacturing standards set down in the British Standard that is in force and with the standards issued by the Ground Source Heat Pump Association at the time of the coming into effect of these conditions [Date] [Month] [Year].
9. The operator must ensure the system is appropriately decommissioned when it ceases to be in operation so that there is no risk of pollutants or polluting matter entering groundwater.

The document provides a definitions of “Closed loop”, Relevant British Standards and Standards issued by the Ground Source Heat Pump Association.


The implications for existing cemeteries and churchyards are obvious. Grave plots already reserved by faculty may be less than 5 square metres in area. A churchyard may be in an area susceptible to groundwater flooding. The presence of field drains may be unmapped. Whether or not the water table is more than 1 metre below the churchyard may be unknown.

The use of closed loop ground source heat pumps is one of the options available to churches in order to meet “net zero” carbon emissions criteria, as described in Living Faith for the  Earth, produced by the Diocese of Oxford.

[With thanks to Christopher Whitmey for alerting us to the document.]

Frank Cranmer and David Pocklington

*Update: On 24 December 2021, the Environment Agency posted Protecting groundwater when developing or expanding cemeteries during coronavirus, earlier Guidance which was updated to 23 December 2021 (i.e. the day after the closure of the Consultation on the proposed amendments to the Environmental Permitting (England and Wales) Regulations 2016); the only change in this coronavirus specific guidance is the extension of the date of the sunset clause in this guidance from 31 December 2021 to 31 March 2022.

In contrast, the above Consultation relates to generally applicable guidance – the Consultation document makes no reference to coronavirus.

Cite this article as: Frank Cranmer & David Pocklington, “Burials, groundwater activities and related surface water discharge activities” in Law & Religion UK, 24 November 2021, https://lawandreligionuk.com/2021/11/24/burials-groundwater-activities-and-related-surface-water-discharge-activities/.


4 thoughts on “Burials, groundwater activities and related surface water discharge activities

  1. I was concerned that the 5m2 limit, say 54 sq feet (8 ft x 6.75 ft), would mean that churchyards fill up far more quickly and will have to be closed and also the effect on reserved plots. DEFRA’s reply to my email was:
    “The condition for grave plot size will apply to all new grave plots. This does not include grave plots that have been already been allocated or reserved, but where a grave has not yet been dug. We will ensure that this distinction is made clear within the updated regulations. We have received feedback from multiple consultees about the feasibility of compliance with the 5m2 condition and will therefore be reviewing the appropriateness of the 5m2 gave plot exemption condition. We will be investigating alternative conditions which do not substantially reduce cemetery capacity whilst ensuring that levels of environmental protection are not compromised.”

    I’m also concerned as to who was given notice of the proposed changes. So I’ve asked DEFRA a FOIA question: https://bit.ly/DEFRA-consultation

  2. Is there a reason given for the increase of the area of a grave by 50%
    Do you know whether this is amenable to representation.
    All grave plots in old cemeteries are the fixed size of 9 x 4 ft^2 and are slotted between graves already used; does this mean that they will be unusable?
    Further if this proposal becomes law, reburial will be almost impossible because all reburials are in 9 x 4 graves in the matrix of 9 x 4 graves.
    Can you suggest which is the best way to represent out views.

    • No: there doesn’t appear to be a reason, and I’m afraid I don’t know the answer to your second question. I’ve brought the issue to the attention of the Churches’ Funerals Group (which includes representatives of the various groups of funeral directors).I hope that they’ll take the matter further.

  3. I asked DEFRA questions under the FOIA

    Q.1 Which organisations at national, county and/or parish level did you (A) consult before issuing the consultation; and (B) give direct notice to of the consultation?
    Q.2 In view of the number of open churchyards in England have you consulted directly with the Church of England on this matter in any way whatsoever?
    Q.3 If the answer to Q.2 is ‘Yes’ please may I have copies of all relevant communications?
    Q.4 Annex B says ‘8. A grave plot must not be less than 5m2 in area.’. On what information did you base this calculation?
    Q.5 Is DEFRA aware of the information that: (A) in many churchyards this area is in excess of the norm; and/or (B) that graves of the normal size have been reserved, under the jurisdiction of the diocesan consistory court, for use in the future?

    DEFRA replied on 09 December. It, and my response, is here: https://bit.ly/DEFRA-consultation

    The answer to Q.4 referred to a 2005 report which can be found here: https://bit.ly/cemetry_groundwater
    The report is not convincing. Its conclusions include:
    “6.1 Suggested further work
    If we are to improve our understanding of the risks that cemetery developments
    pose then there is a need for solid experimental science to quantify the processes involved. Though much could be achieved with laboratory and lysimeter studies and animal models eventually we would doubtless require some field scale evaluation.”

Leave a Reply

Your email address will not be published. Required fields are marked *