A legal perspective of green burials. Providing insight into potential disputes regarding environmental and property issues.
Green burials are an increasingly popular option in Scotland as more individuals seek environmentally friendly alternatives for end-of-life arrangements. They often take place in woodland areas, and we are aware of at least ten local authority woodland/meadow burial sites, and nine privately run woodland burial sites in Scotland. However, they may be opposed if there are concerns regarding the location of the site and about the potential risk of water and soil contamination. This article looks at the legal position in Scotland and at some of the factors that must be borne in mind if there is a desire to use land for green burials. [A1]
What is the background of green burials?
In 2022, Peter and Annica Quakenbush, a couple from Michigan, bought a 20-acre woodland area with the intention to create a space where people could have a 'green burial' in a native forest. This area was to be set up as the West Michigan Burial Forest.
A green burial is simply a burial directly into the earth. There is no vault and no embalming. No headstone and no chemicals. The body is simply contained in organic non-toxic materials such as a biodegradable coffin or in a cotton or linen shroud. It is generally considered to be highly environmentally conscious.
However, after some locals discovered the proposal, they complained due to concerns relating to fears of water contamination and an increase in traffic along their dirt road. In response, local officials issued a blanket ban on the establishment of all new cemeteries in the area.
In August 2024 the couple then successfully sued their local authority as the Judge held there to be no legitimate concerns regarding public health, safety, or welfare. Furthermore, the ban was contrary to the Michigan Constitution of 1963 which defends the right for individuals to use their own property for business purposes provided it does not cause public harm.
The case involving the West Michigan Burial Forest has since received worldwide attention and the site has hundreds of people currently on the waitlist.
What is the current position for green burials in in Scotland?
In Scotland, the Burial and Cremation (Scotland) Act 2016 sets the framework for burials. While green burials are generally lawful, the process for applying and registering for a green burial is different in each local authority, and compliance with the 2016 Act and any local byelaws or policies is key.
The Scottish Government is currently considering the results of a recent consultation: On the Management of burial grounds, application for burial, exhumation, private burial and restoration of lairs. This consultation may bring potential reform to this area of law and may for the first time provide a united legislative framework for private burials in Scotland.
What factors should be borne in mind when considering green burials?
There are a number of factors that should be borne in mind when considering green burials, depending on the size and scale of the burial site.
- Environmental concerns
An intrinsic part of a green burial is that there is no vault to seal the body away from the ground. This is so the body eventually decomposes into the soil, but this has its own risks. In general, each local authority provides its own process regulating green burials. This should involve careful planning of the burial site in relation to things such as the proximity to water sources and the potential impact on groundwater and soil. These need to be followed precisely to avoid the leeching of contaminants into the ground. Otherwise, there may be environmental damage leading to disputes and legal action if there is a negative impact on nearby neighbouring land.
- Title conditions and use
It is important to check the title deeds to ensure there is no title condition which prevents the use of the land as a burial site. Planning considerations also need to be checked before using an area of land for green burials. If a private garden is being used for a green burial, it is important to bear in mind that this is likely to affect the value of the property and may also lead to objections from neighbours.
- Future development of the land
For larger community green burial sites, future land use is usually restricted to natural burials by title conditions or provisions contained in long leases.
However, for smaller private burials, these protections are far less practical. It may be possible to retain ownership of part of an area of land which contains the burial site, but this could prove problematic and would impact the sale price of the property. However, without retaining the land, if the property is later sold, the new owner can apply for an exhumation licence to remove the body from the ground and will not need permission from the deceased's family.
- Memorial options
As traditional headstones are not used in green burials, more subtle and natural markers tend to be used, such as trees and wildflowers. Thought may need to be given to marking the burial site in some way, for example by an electronic tag) so it can be located at a later date if required.
- Access
If a landowner sells their property which they have used for green burials, they will not retain a right of access to the site, and establishing a right of access may prove difficult or even impossible to implement. This is because the requirements to create a right of access may fail to be met as there may be deemed to be no practical reason for the right to be created. Especially within a concentrated site, it is easy to see how access may become controversial. It is important to consider how to ensure the burial sites will remain accessible for future generations who may wish to visit.
Comment
A green burial offers a meaningful way to commit to an environmentally conscious and sustainable planet even in death. If green burials are carried out responsibly and in accordance with all legal and environmental requirements, this objective may be achieved. However, particularly as the scale of green burial sites increases, it is important to consider a number of practicalities to ensure that the potential for disputes is avoided.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
