Removal of human remainsE+W+S
41.—(1) Before the undertaker carries out any development or works which will or may disturb any human remains it must remove those human remains, or cause them to be removed, in accordance with the following provisions of this article.
(2) Before any such remains are removed the undertaker must give notice of the intended removal, describing the specified land and stating the general effect of the following provisions of this article, by—
(a)publishing a notice once in each of two successive weeks in a newspaper circulating in the area of the authorised development; and
(b)displaying a notice in a conspicuous place on or near to the land for a minimum of 28 days.
(3) As soon as reasonably practicable after the first publication of a notice under paragraph (2), the undertaker must send a copy of the notice to the relevant planning authority.
(4) At any time within 56 days after the first publication of a notice under paragraph (2) any person who is a personal representative or relative of any deceased person whose remains are interred in the land specified in the notice may give notice in writing to the undertaker of that person’s intention to undertake the removal of the remains.
(5) Where a person has given notice under paragraph (4), and the remains in question can be identified, that person may cause such remains to be—
(a)removed and re-interred in any burial ground or cemetery in which burials may legally take place; or
(b)removed to, and cremated in, any crematorium,
and that person must, as soon as reasonably practicable after such re-interment or cremation, provide to the undertaker a certificate for the purpose of enabling compliance with paragraph (10).
(6) If the undertaker is not satisfied that any person giving notice under paragraph (4) is the personal representative or relative as that person claims to be, or that the remains in question can be identified, the question is to be determined on the application of either party in a summary manner by the county court, and the court may make an order specifying who must remove the remains and as to the payment of the costs of the application.
(7) The undertaker must pay the reasonable expenses of removing and re-interring or cremating the remains of any deceased person under powers conferred by this article.
(8) If—
(a)within the period of 56 days referred to in paragraph (4) no notice under that paragraph has been given to the undertaker in respect of any remains in the specified land; or
(b)such notice is given and no application is made under paragraph (6) within 56 days after the giving of the notice but the person who gave the notice fails to remove the remains within a further period of 56 days; or
(c)within 56 days after any order is made by the county court under paragraph (6) any person, other than the undertaker, specified in the order fails to remove the remains; or
(d)it is determined that the remains to which any such notice relates cannot be identified,
subject to paragraph (9) the undertaker must remove the remains and cause them to be re-interred in such burial ground or cemetery in which burials may legally take place as the undertaker thinks suitable for the purpose; and, so far as possible, remains from individual graves must be re-interred in individual [F1containers which must be identifiable] by a record prepared with reference to the original position of burial of the remains that they contain.
(9) If the undertaker is satisfied that any person giving notice under paragraph (4) is the personal representative or relative as that person claims to be and that the remains in question can be identified, but that person does not remove the remains, the undertaker must comply with any reasonable request that person may make in relation to the removal and re-interment or cremation of the remains.
(10) On the re-interment or cremation of any remains under powers conferred by this article—
(a)a certificate of re-interment or cremation must be sent by the undertaker to the Registrar General giving the date of re-interment or cremation and identifying the place from which the remains were removed and the place in which they were re-interred or cremated; and
(b)a copy of the certificate of re-interment or cremation and the record mentioned in paragraph (8) must be sent by the undertaker to the relevant planning authority.
(11) The removal of the remains of any deceased person under powers conferred by this article must be carried out in accordance with any directions which may be given by the Secretary of State.
(12) Any jurisdiction or function conferred on the county court by this article may be exercised by the district judge of the court.
(13) Section 25 (offence of removal of body from burial ground)(1) of the Burial Act 1857 does not apply to a removal carried out in accordance with this article.
(14) Section 3 (burial not to take place after Order in Council for discontinuance)(2) of the Burial Act 1853 does not apply to a removal carried out in accordance with this article.
(15) In this article, “the specified land” means any land within the Order limits.
Textual Amendments
F1Words in art. 41(8) substituted (31.7.2023) by The A47/A11 Thickthorn Junction Development Consent (Correction) Order 2023 (S.I. 2023/886), art. 1, Sch.
Commencement Information
I1Art. 41 in force at 4.11.2022, see art. 1
1857 c. 81. Section 25 was substituted by section 2 of the Church of England (Miscellaneous Provisions) Measure 2014 (No. 1) and amended by section 96(1) of, and paragraph 1 of Schedule 3 to, the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 (No. 3).