Classification of cemeteries and crematoria

Crown reserves for cemetery purposes managed by council Crown land managers can fit into several categories dependant on the context, including ‘general community use’, ‘area of cultural significance’ and ‘natural area’.

Where management of the land as a cemetery or crematorium can continue if the land is classified as ‘community land’, any request to the Ministers for consent to classify these reserves as ‘operational land’ cannot be granted (section 3.22(5) of the CLM Act).

Where a council is the Crown land manager of a Crown reserve for cemetery related purposes, the council is defined as a ‘Crown cemetery operator’ by the Cemeteries and Crematoria Act 2013 (C&C Act). The provisions of the C&C Act and its regulations govern the operation of the cemetery/crematorium.

Interment rights, (formerly known as burial licences or burial rights), are granted under the C&C Act, not the LG Act and do not impact the ability for councils to manage the land as ‘community land’. This means the management of the reserve as community land under the LG Act places no restrictions on the granting of interment rights.

The preparation of a plan of management is required for all land classified as ‘community land’. The nature and the use of the reserve must not change until a plan of management is adopted by Council.

Plans of management are not a mandatory requirement of the C&C Act. Cemeteries & Crematoria NSW (CCNSW) can, however, direct a council, as a Crown cemetery operator, to prepare a plan of management under the C&C Act as appropriate.

A Crown cemetery operator can also seek consent from CCNSW to prepare a plan of management under the C&C Act. A plan of management prepared under the LG Act for the management of a cemetery on Crown land could also be considered for adoption under the C&C Act.

If CCNSW has adopted a plan of management under the C&C Act, that plan will supersede a plan of management made under or by the authority of the CLM Act under the LG Act, which will be rendered inoperative to the extent of any inconsistency (section 5 of the C&C Act).

To avoid duplication and inconsistency, the council Crown land manager should incorporate requirements in the C&C Act into the LG Act plan of management. This will ensure the requirements of CCNSW are met within the plan of management in addition to those set out in the LG Act.

You can view the guidelines for developing a plan of management under the C&C Act in the CCNSW Crown cemetery operator plan of management framework (PDF, 275 KB).

If a council is not the appointed council Crown land manager but instead responsible for the reserve under section 48 of the LG Act (devolved to council), councils are not required to develop a plan of management for the reserve under the LG Act.

If the management of Crown land has been devolved to council, the responsibility for the management of cemeteries and crematoria defaults to the council. In this case, councils have a responsibility to manage the land under the C&C Act and may be required by CCNSW to prepare a plan of management under the C&C Act.

If the Crown land is devolved, council is unable to authorise third party use of the land (e.g. issue leases or licences) however, council can issue interment rights under the C&C Act. If a council seeks to actively manage and use the land, they should contact Crown Lands to request to be appointed as the council Crown land manager of the reserve.