Red Cross Way Southwark London

[Valda]

Hi Ruskie


The London Burials website has a useful booklist

http://www.burial.magic-nation.co.uk/bgbooks.htm

and is in itself a must read/refer to website.


The indication is that for theis burial ground subsequent attempts at redevelopment have been made since the 1920s but have come to nothing so far and that resistance to development of the site dates back certainly to Lord Brabazon's letter to The Times in 1883 after the land was sold as a building site

'with a view to save the ground from such desecration and retain it as an open space for the use and enjoyment of the people'

(source Graveyard London Lost and forgotten burial grounds).
Lord Brabazon (of Meath)'s interest was probably in the fact that substantial numbers of poor Irish were buried at the burial ground.



Regards

Valda

[Valda]

Hi Teresaevans


I do think the 1981 amendments to the 1884 Act are key to whether building (since 1981) can take place or not, but you really do need to seek qualified legal opinion on this.


Section 3 to the amendment act (Rights, powers and duties of subsequent owners) covers private ownership as well as church ownership and gives private ownership the same rights under the amendment act, section1 already quoted (Exclusion of Disused Burial Grounds Act 1884 in certain cases) which allows development and therefore amends/changes the law of 1884 - whether the land has been built on previously or not doesn't seem to come into it.


Section 3

'Where a church or other religious body disposes of an interest in a disused burial ground, then the owner for the time being of that interest shall have the same rights and powers and be subject to the same obligations, restrictions, duties and liabilities conferred or imposed by this Act on that church or other religious body, as if that interest had not been so disposed of.'

http://www.legislation.gov.uk/ukpga/1981/18/section/3


Section 2 paragraph 7 of the Amendment Act concerns the Disposal of human remains under the 1857 Burial Act. That would only need to apply if building works went ahead and disturbed human remains (as it appears to have done in 1928 and certainly did in the1990s when the Amendment Act was in place).

'The provisions of section 25 of the Burial Act 1857 (prohibition of removal of human remains without the licence of the Secretary of State except in certain cases) shall not apply to a removal carried out in accordance with the provisions of the said Schedule.'

Section 2 in full (paragraphs 1-7) - Disposal of human remains

http://www.legislation.gov.uk/ukpga/1981/18/section/2



I have far less understanding of planning acts but the argument about whether building legally took place on the site in 1928 would surely be important for planning applications for the site since if building has legally taken place (other than concreting it over for a car park which is allowed) then the site has the status of brownfill and can be more easily redeveloped under planning law an argument that has been made on appeal to the Planning Inspectorate (information from your posts) and it appears has been accepted (from your information)?

I don't doubt that Transport for London have employed some very highly trained legal staff who know their way around these Acts of Parliament both Planning and Burial Acts since building development and burial grounds, usually more ancient, regularly come into the equation in developments in central London.
 

I understand statutory undertakers certainly have more rights under planning law (nothing to do with undertakers as in funeral directors).

http://en.wikipedia.org/wiki/Statutory_Undertakers

and it would seem building rights may have been extended by the planning act -  Housing and Regeneration Act 2008 in regard to disused burial grounds (part 3 and schedule 4 parts 1-4)?

http://www.legislation.gov.uk/ukpga/2008/17/contents


Part 3 Powers in relation to burial grounds and consecrated land etc.

http://www.legislation.gov.uk/ukpga/2008/17/schedule/3/part/3



The source for exhumations of 40 skeletons taking place in 1928 and being reburied at Brookwood Cemetery is the Museum of London publication their source apparently a newspaper article (my source Graveyard London Lost and Forgotten Burial Grounds). Brookwood Cemetery would be able to confirm whether that happened. The skeletons were disturbed during building works - legally or otherwise (the building works) though such exhumations could only have occurred with the necessary permissions needed under the 1857 Burial Act. That building work was stopped and in the following year the sale was declared void under the Disused Burial Grounds Act 1884 (quoted from same source as given above not actual primary source material) which would be the only legislation then applying in 1929. However in 2011 there is much more recent legislation to take into account, both the amendment to the burial act and it would seem more recent planning legislation as well (and including the Local Authorities Cemeteries Order 1977 - though Crossbones was the additional burial ground to St Saviours so this legislation which impacts on private cemeteries should not apply).


The adjacent London borough of Lambeth seem to have a churchyard and cemeteries action plan. At the end of the plan is a list where further advice on churchyards and cemeteries, their protection and conservation, can be found. Thes links might prove helpful.


http://www.rootschat.com/links/0eg6/



Regards

Valda

[teresaevans]

Hi Valda

Thank you for writing as such length.

I must make clear that my intention to approach the Secretary of State to not issue ‘directions’ or exhumation licences in the future is not to begin a ‘legal’ argument, but present an informal appeal based on what is lawful, and not simply rely on what is ethical or morally right.

Some of the understandings that I have reached thus far is based on some communication I have made with the Ministry of Justice. Example: Valda states that “whether the land has been built on previously or not doesn't seem to come into it.” I have been given to understand by the MoJ that it actually does. This is the reason that I need to determine what took place in terms of building in the burial ground in 1928/29 as it would appear that any decisions made now relies on what took place at this time.

Valda you appear to be reading the Disused Burial Grounds Act 1884 and the Amendment to this Act in 1981 as two separate Act’s. They must be read as one Act.
It appears to me that the only real changes made in the 1981 Act is to afford undertakings under statutory powers, and not private ones.

I am not convinced that it has ever been legally determined that concreting over a disused burial ground is in fact legal. Do you have case law relating to this?

In respects of TFL’s legal team knowing their way around these Act’s, to my knowledge there is no way around, other than a private developer to obtain new legislation to override the DBGA’s.

Just thought that I would drop in that undertakers as in funeral arranging matters have ‘no’ statutory powers at all.

I am a little confused by your comments in the large paragraph before your last. You jump from 1928 to 1884 when a sale of the land was made null and void, though you mention 40 skeletons being removed in 1928. Does your source of information provide an exhumation licence number please?

I am aware that there is more recent legislation to take into account, but this applies only to statutory undertakings, not commercial undertakings even if a Private Act was sought.

Thanks for sharing Valda…good to discuss.

[Ruskie]

Hi Ruskie


The London Burials website has a useful booklist

http://www.burial.magic-nation.co.uk/bgbooks.htm

and is in itself a must read/refer to website.

Thanks Valda - I did stumble across this site just prior to posting. The book I am trying to remember does not appear here, but I will have a closer look in case I missed something.

[Added later: I just found it. "Necropolis: London and it's Dead" by Catharine Arnold -  a good easy to read introduction to the subject]

[Valda]

Hi


I was trying to indicate in my post that the term 'statutory undertakers' (really for others reading the topic) that this had nothing to do with funeral directors) - the link given clarified who and what it actually concerned.


I am reading the amendments to the burial act of 1884 as the changes that have taken place to the actual act itself. I am aware an amendment act like a codecil to a will cannot be read just by itself. Where in the 1884 act does it specify about the distinction between burial land that has been built on or not, or is the Ministry of Justice refering to planning acts where this would be important as in the brownfill land site distinction where this would be very relevant?

I only understand the term statutory powers as evidenced by a statute or law passed by parliament or a legal precedent set by a court of law. I don't think I really understand what you mean by the term 'private powers' in this context?

It appears to me that the only real changes made in the 1981 Act is to afford undertakings under statutory powers, and not private ones.

Car park - concreting over of burial grounds e.g. an example from Ecclesiatical Law Society case reports

http://www.ecclawsoc.org.uk/1992-case-reports/539-re-st-nicholas-hereford.html


I did state I was using a secondary source who appeared to have read the London Museum document (which in itself is a secondary source). I stated from this source (named previously) the land was sold as building land in 1883. The sale (as building land?) was declared null and void in 1929 (or a sale of the land post 1883 source doesn't specify) under the 1884 Disused Burial Act. Since I don't have access to the London Museum document I did state I was merely quoting from a secondary source which of course is a limitation which is why I stated it as secondary sources are always intrepretations and not necessarily proven as accurate.


I don't think the Housing and Regeneration Act 2008 is just about statutory undertakings it seems much wider than that?


Regards

Valda

[teresaevans]

Hi Valda

I too was making the distinction about undertakers and funeral arrangements as I already have a campaign up and running to make obvious the rights of newly bereaved people. It was not a swipe at you…promise!

Where in the 1884 act does it specify about the distinction between burial land that has been built on or not

I have the same understanding as you DO. The Moj has not been specific in what it says about “The provisions of the Disused Burial Grounds (Amendment) Act 1981 comes into play when an extant former burial ground is to be built on. If the site has been put to other use, then section 25 of the 1857 Act would apply”

In the letter that I am preparing I will question the MoJ about these details, but my argument does not rely on it.

In relation to private powers I maybe did not explain myself well. What I meant was that even if a private owner of a disused burial ground sought a private Act this would not override public legislation.

Re concrete and the case you point me to http://www.ecclawsoc.org.uk/1992-case-reports/539-re-st-nicholas-hereford.html there is no mention of concrete in this case. A flagged path is concrete slabs that can be lifted easily, opposed to needing heavy machinery to dig up a whole area that has been concreted. I struggle to imagine that a faculty would have been granted if the area was wanted for a car boot etc. it related to worship. If you manage to locate another case that does discuss concreting I would be interested to learn about this please.

The land was sold in 1883 and later made null and void in the courts in 1886 Re. St. Saviour’s Rectory Trustees & Oyler (1886)
The Trustees had sold the land for the purpose of a builder’s yard then the DBG Act 1884 came into force. The prospective buyer did not now want the land. The Trustees lost the case and was forced to pay costs.

The land was sold again by auction and the District Railway Company purchased it in 1892. 

I am given to understand by a reliable source that Section 7 (Saving for Town and Country Planning) of the DBGAA 1981 only applies to land that has been acquired by a compulsory purchase order. My understanding of the Housing and Regeneration Act 2008 allows for land that is compulsory acquired or by agreement. I am not certain what the term ‘agreement’ would mean in this context.

Thank you again for sharing. Your input is valued. If you can manage to find any information relating to 1928/29 I would be very grateful if you could post.

Kind regards
Teresa

[Valda]

Hi


'Open space is defined in the Town and Country Planning Act 1990 as land laid out as a public garden, or used for the purposes of public recreation, or land which is a disused burial ground.'

As my knowledge of planning law is limited I don't know how much further planning laws have eroded the 1990 Act.

http://www.legislation.gov.uk/ukpga/1990/8/contents

My understanding of the importance in planning law would be whether the land has ever legally been built on in which case it is brownfield land and therefore available for reuse and can be developed.

“The provisions of the Disused Burial Grounds (Amendment) Act 1981 comes into play when an extant former burial ground is to be built on. If the site has been put to other use, then section 25 of the 1857 Act would apply”

As I said the Amendment Act 1981 severely limits the 1884 Disused Burial Act. The MOJ refers to 1981 not the 1884 Act. Since private owners under the Amendment Act have the same rights as church authorities they don't need to seek private Acts of Parliament. The Amendment Act is sufficient.

Section 25 of the Burial Act 1857 is only about what needs to happen if bodies have to be removed because of development.

http://www.legislation.gov.uk/ukpga/Vict/20-21/81/section/25


Building under the Disused Burial Act 1884 is interpreted as 'any temporary or movable building'. Concreting or paving over the surface isn't a building, it isn't erected 'it shall not be lawful to erect any buildings upon any disused burial ground.'

The Financial Times article 2008 already linked to in a previous post.

'After years of rejecting planning applications, including one for three office blocks, Southwark Council planners have accepted TfL’s most recent scheme, for a temporary car park for use during the upgrade of the Thameslink rail line. However, it comes with a proviso: “The proposed use of the site as a temporary car park will be north of this area [Cross Bones] and will not interfere with the gates or the shrine.” '

The photograph (link previously given) shows the area is concreted.

http://spitalfieldslife.files.wordpress.com/2009/12/img_8065.jpg


There is nothing in the 1884 Act about burial grounds which had already been developed as many had by 1884. It was just about preventing building development on those that still existed either in part or completely. That would cover the period 1884 until the Amendment Act in 1981 which allows for development on disused burial grounds - this covers burial grounds which have had no previous development on them.

I tend to think the argument is, if the land has never legally been built on then it is an 'open space' and not brownfield land. This coupled with the fact this open space land is also a disused burial ground of historic importance and you can prove over a considerable time developing it has been contested, along with the present public campaign that has been mounted since at least the 1990s (which is a very powerful campaign) then it is always worth trying, though as I said I don't know enough about planning law to know whether there is a legal argument here - you have to seek legal opinion. However and I think this is where we disagree, I don't think the Disused Burial Act 1884 coupled with the Amendment Act 1981 which weakened the original Act considerably is an argument which will now get much legal mileage.

The MOJ should be 'swayed' by two things - legal argument (legal advice essential) and public opinion. The present campaign may already have sought legal advice which might be why they continue to mount a public campaign, but have not chosen, not just because of the reasons of cost, to mount a legal challenge?


Regards

Valda

[teresaevans]

Hi

I think we have to agree to disagree on certain points of law and definition of Open Spaces. 

I do not observe any ‘saving’ for private land owners in the 1981 DBG Amendment Act.

I too have limited knowledge about planning legislation. I sense that what is important is to determine by what ‘authority’ the land owner built on the burial ground in 1928/29. I say this because it appears from my research and enquiries which I have made that decisions made by planning authorities since the appeal decision in 2003 have been made on what was erected in 1928/29 (presumably warehouses) coupled with the fact that the electricity sub-station was built on the land in the 1990’s. It is likely that legislation giving power to statutory undertakers was relied on to build the sub-station, (yet to be confirmed by TFL) which is quite different matter.

It seems to me that Section 25 of the Burial Act 1857 was intended to ensure that exhumations can take place within active burial grounds, e.g. moving bodies from one grave to another or one burial ground to another. I cannot find any evidence to prove that Section 25 was intended to be relied on without appropriate legislation to allow the wholesale destruction of burial grounds or parts of burial grounds.

What we do agree on is that the Cross Bones campaigners are doing a marvellous job thus far in protecting the burial ground. As for their request to Mayor Boris Johnson gifting the land…I struggle to imagine that this will come to fruition.

Best wishes

teresaevans