It can be scary starting any development. You can only anticipate to a certain extent what problems you may discover once you break ground. A recent incident experienced by a developer client was certainly not what they expected.

The site they were working on was formerly used as a car park for a neighbouring church and suite of halls. Whilst excavating the ground for development their contractors came across a number of coffins and skeletal remains. The site turned out to be part of an old graveyard. The clients contacted us for urgent advice as to how to deal with this situation.

This is not an uncommon scenario. According to records there are an estimated 2,240 known burial grounds in Scotland, the bulk of which are under local authority control. However, it is impossible to give a precise number of how many private burial sites there are especially sites of a historical nature. There are probably thousands of historical burial grounds which have not been publicly recorded. These can be private sites that exist for family burials or small groups of graves on private property or could be larger area of unmarked graves located just outside established public burial sites, such as at Glasgow Necropolis.

It is not illegal to bury remains within privately owned property. There is no specific restraint under Scots Law on setting a portion of your property aside as a family burial place and it is not illegal to create a private cemetery. It is, however, unlawful in terms of the current legislation (the Burial and Cremations (Scotland) Act 2016) to carry out a private burial without the consent of the local authority. It would be for the local authority to establish whether there were any health issues with regard to the nominated location. An adjacent proprietor of an area which is to be used as a private burial space could also seek a remedy under the common law of nuisance if what is proposed would cause serious disturbance or inconvenience to the use of their own property. There is however no obligation on the part of the owner to mark out the area as a private burial ground nor is there any maintained register of such areas.

In 2022 a development by AS Homes and the Home Group in the Calton area of the Glasgow uncovered a number of skeletal remains and remnants of coffins. Prior to commencing the development, the site investigation work had uncovered that the site lay near to an historic burial ground. They had anticipated this issue occurring and had researched what would be required should this situation arise. This meant that they were prepared for a potential delay in the development but were able to mitigate that delay by having procedures in place to deal with the problem that arose.

Accordingly, what should you do if this situation should arise?

Not surprisingly it depends upon the circumstances and these fall into three categories:-

  1. where the discovery is of human remains which may appear of recent history;
  2. where the discovery is of remains which are clearly historic; and
  3. where the development is in proximity to a known burial ground and the issue has to a certain extent been anticipated.

First, with regard to human remains which may be of a more recent nature and are a “chance find”, the development should stop immediately and the matter reported to Police Scotland. They have an agreed procedure for managing chance discovery of human remains and that procedure can be found on the Police Scotland website. The Police may consult with the local authority’s archaeologist to determine the age of the remains. Where the remains were obviously recent, the Police will investigate in accordance with their standard procedure. Clearly in this instance the relevant area will require to be cordoned off and nothing can proceed until the developer is advised otherwise by Police Scotland.

Where there are discovered human remains but those remains are of historical nature then the position is different. Where it is established that the remains are over 100 years old the Crown Office would make a decision on whether to investigate the matter further or hand over the matter to the local authority archaeology services and Historic Environment Scotland to deal with. Accordingly, the matter does again require to be reported to the Police as it would not be for the developer to ascertain the age of the remains and the Police would make the decision in that respect. Again, development would require to stop until the agreed procedure is clarified.

Thirdly, where a building development is proceeding near to an established or known burial ground and there is a chance that human remains will be uncovered, this is normally dealt with as part of the planning process. There may be conditions within the Planning Consent requiring the developer to carry out an archaeological watching brief and pay for any required exhumations and reinternments. In the case of AS Homes that was the position and they had already made application to be Sheriff Court for a blanket exhumation order and a warrant to reinter. They had therefore an agreed procedure with the local authority as to what was to happen in the event of this situation arising.

It is possible that the Scottish Government will make regulations in terms of the 2016 Act to simplify this process, involving inspectors established by the local authority rather than having to petition the Sheriff Court but that has not happened to date.

Contributor

Charles Hay

Managing Associate