“I’ll leave this place in a box” is a common phrase made by people who have worked hard for and are proud of their home or farm. Many people never want to leave a familiar environment for aged care facilities, but when they are no longer able to care for themselves, sometimes living at home is no longer feasible. However, there is an option to return home permanently – by being buried on their land. But it does not come without legal hurdles and consequences.

The Public Health Regulation 2012 provides guidance about burial on private land. The regulation states that a burial must be on a block which is more than 5 hectares (12.5 acres) and has been approved by the local council. So this will rule out burial in most back yards!

The site chosen for the grave must also not likely contaminate the drinking water supply for the area and investigations by a geologist may be required. The body must be buried at least 90 cm below the surface. The grave site should be fenced and the grave marked with a headstone.

Generally a surveyor would need to be used to identify the land in question. The local council will have to approve the site and may impose restrictions as to the use of the land which will need to be registered on title. In some instances they may contact adjoining land owners as part of the approvals process.

An easement for access (right of way) may be needed to be put on the block of land to maintain access to the site in the future if the property is ever sold. The easement would ensure that family and friends can continue to visit the graves and gives access if other family members wish to be buried there.

The title deed of the land will need to be amended to note the cemetery and any council restrictions. The presence of the grave and any restrictions on the use of the land may reduce the value of the land if it was ever sold in the future.

JMA Legal are experienced in estate planning and property matters and may be able to help plan for a burial on your beloved block of land. Burials requests can be mentioned in your Will but we always suggest that you also let your family know where you would like to end up before you go, otherwise you may be rolling over in the wrong grave.

This article is general information only and should not be relied on without obtaining further specific information.

Author: John English