for indepth information, please read a special report from the Local Government Obudsman The Commission for Local Administration in England -
safety in local authority cemeteries

Statute Law
Health and Safety at Work Act 1974
The Health and Safety Executive has a duty to ensure that risks to people’s health and safety from work activities are properly controlled. It has power to take enforcement action. In relation to burial grounds, HSE may use its enforcement powers to achieve the objectives of the legislation, for example by issuing an Improvement or Prohibition

Note
Burial authorities, including councils, have duties under the 1974 Act to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees ,and that persons not in their employment who may be affected by their undertaking are not thereby exposed to risks to their health or safety. Various Regulations made under the Act lay down detailed rules. In particular the Management of Health and Safety at Work Regulations 1999 impose an obligation on an employer to assess the risk to employees and non-employees which arise out of the employer’s undertaking. This applies to burial authorities who are employers and includes a duty to assess the risk from all cemetery structures, including memorials.

Occupiers Liability Acts 1957 and 1984
Civil liability is imposed on ‘the occupier’ which could include not only the owner of the memorial but also the burial authority. The remedy is an action for damages by the injured party. In broad terms the obligation is to take reasonable care in all the circumstances.

Local Authorities’ Cemeteries Order 1977
Article 3(2)b empowers a burial authority to take any action that is necessary to remove a danger that arises by means of the condition of a vault, tombstone or other memorial. The burial authority has an obligation to keep the cemetery in good order and repair (Article 4(1)).

The burial authority has various powers under Article 16. Under Article 16(1), it may put and keep in repair any memorial in a cemetery. The primary responsibility to maintain the memorial rests with the owner. However, in practice, in particular with older memorials, it may not be possible to trace the owner. The burial authority may, under Article 16(2), also remove from the cemetery and destroy any tombstone or other memorial on a grave which is dilapidated by reason of long neglect. It may alter the position on a grave of a memorial etc, or re-erect it at another place in the cemetery. It may level the surface of any grave to the level of the adjoining ground.

These powers may only be exercised in accordance with Schedule 3 of the Order. This requires the authority to comply with publicity provisions on site and in the local press, and serve notification on the owner of the right to place and maintain the memorial or on the person granted permission to place it.

Planning legislation
Certain monuments may be subject to additional controls if listed as being of special architectural or historic interest or in a conservation area. Evidence given to the House of Commons Committee on Environment, Transport and Regional Affairs was that 2,286 buildings and monuments in cemeteries were listed and English Heritage’s Register of Parks and Gardens included 26 cemetery landscapes.

Common Law
A burial authority may be liable to an action in damages if someone is foreseeably injured by its acts or omissions. In general terms such an employer will be responsible for the actions of its employees both to third parties and to other employees.

Ecclesiastical Law
Ecclesiastical law governs not only churchyards but also consecrated areas in public and privately-owned cemeteries. A memorial may not be removed from a consecrated part of a cemetery without notifying the rural dean in the Church of England and allowing three months to make representations which then have to be considered by the burial authority. In a churchyard the removal of, or work on, a memorial will or may require a faculty. Local councils may take on responsibility for closed churchyards, that is, those that are no longer open for burial, under section 215 of the Local Government Act 1972