Scottish Sheriff Court Decisions

SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES & GALLOWAY AT AIRDRIE

 

B147/09

 

 

 

 

NOTE

 

By

 

SHERIFF PETRA M COLLINS

 

In

 

SUMMARY APPLICATION

 

By

 

NORTH LANARKSHIRE COUNCIL

Civic Centre, Windmillhill Street, Motherwell

 

 

TO DISINTER AND REINTER BODY REMAINS

 

 

 

 

 

Airdrie: 25 March 2009

 

Act: Mr. A. Aitken, Solicitor, North Lanarkshire Council

 

1.                  On 9 March 2009 I heard evidence in a summary application by North Lanarkshire Council to disinter body remains at a burial site at Old Wellwynd Church, Wellwynd, Airdrie and to reinter those remains at New Monkland Cemetery, Glenmavis. I decided to grant the application.

 

Preliminary matters

 

2.                  North Lanarkshire Council owns the Church and its surrounding land, as elucidated upon below. It was submitted that as a planning authority with planning permission to develop the Church and its surrounding land, the Council, as a matter of law, requires no authority for the removal and reinterment of any human remains (Town and Country Planning (Scotland) Act 1997 section 197). However, given the local interest in this sensitive matter the Council considered it politic to apply to the Sheriff for authority.

 

3.                  Intimation of this summary application was made on 3 February 2009 to The Reverend Robert Hamilton of New Wellwynd Parish Church. In addition, on 4 February 2009 intimation of the summary application was made in the Airdrie and Coatbridge Advertiser, the Glasgow Herald and the on-line Edinburgh Gazette. One response was received from Ms. Lorraine Lowrie. The matter called on 26 February 2009. On that day Reverend Hamilton attended and, as I understand it, was supportive of the application. Ms. Lowrie attended and objected to the application. The matter was duly continued to 9 March 2009 for the hearing of evidence before me.

 

4.                  On 9 March 2009 Ms. Lowrie was able to confirm that she had not paid the requisite fee to enter this process, and perhaps more importantly, that she in fact had no colourable title to object to the application. However, I did consider that fairness dictated this matter of public concern should be properly aired, and as a courtesy to her, I allowed Ms. Lowrie to put her questions to the witnesses and to make submissions at the conclusion of evidence on the clear understanding that she did not appear in the capacity of objector.

 

5.                  I heard evidence from The Reverend Robert Hamilton, Kenneth Forbes, the Council's Open Spaces and Cemeteries Manager, Lynne Ward, Development and Funding Officer and the Council's day-to-day operational officer for the project at Old Wellwynd Church, and Ewan Green, the Council's Physical Regeneration and Funding Manager.

 

The evidence I heard

 

6.                  In about September 1995 the congregations of Old Wellwynd Church and West Parish Church joined together to form New Wellwynd Parish Church, Airdrie, with a new home in the West Parish Church building. The trustees of the newly formed New Wellwynd Parish Church then sold Old Wellwynd Church, together with the existing Church Hall to the North of the Church, the walled graveyard to the South of the Church, the tarmacadamed car park to the West of the Church and surrounding land to Monklands District Council, the statutory predecessor of North Lanarkshire Council. The sale was concluded in February 1996.

 

7.                  The intention upon this sale was that the Church and Hall buildings be used as a museum and art gallery, that use to continue for ten years. That intention was included as a burden upon the original sale. At a public meeting after the sale the "Wellwynd Heritage Group" was set up to encourage the use of the land and buildings for public benefit in that ten year period. In the event plans for the site were hampered by the reorganisation of Monklands District Council to North Lanarkshire Council in 1998. Changes in funding meant that it was no longer considered viable to develop the site as a museum and art gallery. In the ten years after sale only intermittent work was done on the site and it increasingly fell into a state of dereliction. Some of the original features of the Church, which is a C listed building, have been vandalised. The site became a magnet for anti-social behaviour. In 2008 the police received 167 calls in this regard, most of which related to youths drinking within the Church grounds.

 

8.                  In 2005 North Lanarkshire Council carried out a feasibility study into what could be done with the site. It was considered viable to redevelop the Church and site as a Social Enterprise Centre. The site is suitable in terms of size, location and has the advantage that it is owned by the Council. Between April and December 2007 the design stage was carried out. Planning permission was granted in March 2008 and takes full account of the C listed status of the Church. It is proposed that the Church and walled graveyard be refurbished, that a new extension be built to the West of the Church, serviced by a new car park to the North of the Church, the entire build to provide some 700 square metres of lettable office space. In terms of the planning permission granted it is not possible to develop the site without including the car park. It is not economically viable to refurbish the Church without the new extension.

 

9.                  The Council has joined with Clyde Valley Housing Association and the Council for Voluntary Services on this project. It is proposed that the office space will be let to a plethora of voluntary organisations, which on being brought together under one roof should be able to work more effectively for the increased benefit of the local economy. To split the project over more than one site would be to negate this benefit. There has to date been 100% up-take of the proposed lettable office space.

 

10.              The Church was constructed in 1847 and, as noted, is a Category C listed building. It is situated in Airdrie's Victoria and Town Centre Conservation Area. Historic Scotland is significantly involved in this project in so far as the refurbishment of the Church is concerned and is advising the Council in this respect. It is understood that Historic Scotland is very supportive of the project: under the proposed plan Old Wellwynd Church will not suffer the same fate as many Churches which become derelict because it is not economically viable to redevelop them. As noted, the refurbishment plan for Old Wellwynd Church includes the refurbishment of the existing walled graveyard to the South of the Church.

 

11.              The project will cost in excess of £3,500,000. North Lanarkshire Council is contributing £1,500,000. Clyde Valley Housing Association has raised £750,000 by a commercial loan. A further £750,000 is available through various grants and the European Regional Development Fund has made available £841,042. This latter sum has to be spent by 31 March 2010, otherwise that money will be clawed back. It cannot be transferred to an alternative project.

 

12.              The Council does not consider any other properties it owns as suitable for this project. The funding secured is specifically related to the scale of the building project. It would not be available were the Church alone to be developed. The funding package is not available for the lease of any building. It would not be economically viable for the Council to buy an alternative site.

 

13.              Work on the project has already begun and a total of £300,000 has already been expended. The Church Hall, which was constructed in 1939, was demolished in November 2007. The ground area of the former Church Hall is contaminated with oil which had been used for the heating system. Site investigations commenced in June 2008. Boreholes were made in the area to the North of the Church, where the Church Hall had been, and to the West of the Church under the existing tarmacadamed car park. Fragments of wood and bone were found in some of the boreholes. This was the first indication that these areas of ground might be burial sites.

 

14.              Work was immediately stopped in order that the extent of any body remains could be ascertained. The Council consulted with West of Scotland Archaeology Service, and thereafter instructed Archaeological Heritage Services Ltd (AHS) to substantiate, locate and quantify the burials. AHS carried out this work to the North of the Church, to the West of the Church and in a small strip to the East of the Church. AHS reported in November 2008, having identified 314 burials. This investigation was hampered by the existence of drains, power cables and the extent of the oil contamination. The actual number of burials is likely to be considerably higher than 314, and may number as many as 1,200 burials as there was evidence of burials in layers.

 

15.              The fact that work has stopped has meant that the Council are attempting to negotiate extensions of contracts with the contractors. The Social Enterprise Centre was meant to be completed within eighteen months. The project is currently running about a year behind time scale. If this application is granted it is estimated that the exhumation work will take some 8-10 weeks and cost £100,000. In the event that the project does not proceed the £300,000 already expended will not be recoverable.

 

16.              At the instigation of Ms. Lowrie a Petition has been drawn up objecting to the Council's application to disinter and reinter the burial site remains. Some 193 people have signed this Petition. The Council is aware of this Petition and has sent an open letter to the local community explaining the circumstances of this application. The Council has received enquiries from citizens labouring under the misapprehension that this application relates to the old walled graveyard.

 

17.              The burial site extends to about 1,200 square metres. It is presently an excessively muddy field of heavy clay which the Council has fenced off. This ground is separate and distinct from the old walled graveyard, which lies to the South of the Church. As noted, it is proposed to refurbish the old walled graveyard. There are no proposals to disinter the remains within that graveyard.

 

18.              The Council has made extensive enquiries in an effort to ascertain the identity of the remains within the burial site. Enquiries have been made with the Lanarkshire Family History Society, the National Archives of Scotland, Airdrie Library, the Church of Scotland's Headquarters in Edinburgh, and with New Wellwynd Parish Church. On the formation of New Wellwynd Parish Church all records relating to Old Wellwynd Parish Church were sent to the National Archives of Scotland. The burial records for the Church have not been traced, although a copy of "Rules of Regulations respecting the Well-wynd BuryingBurrying Ground" dated 10 January 1831 has been found. This document in the main sets out rules relating to the sale of lairs and the recording of the names of lair holders. The names of the buried are not recorded. The period(s) of time for which the lair holders retain a title in their respective lairs is not specified, other than in Rule 8 which provides:-

"For the accommodation of strangers and others a piece of ground at the north extremity will be sold off in single lairs at 2/6d each - the purchasers to have no further claim upon the lairs after interment."

It is to be noted that according to this Rule the right of the lair holder in the lair is extinguished upon the interment of the body.

 

19.              Investigations at the National Archives of Scotland have uncovered the Old Wellwynd Church Session Minute Book of 1939 which details information regarding the approval of the construction in that year of the Church Hall. In particular it is noted that "the Sheriff Principal had granted permission to build on the old Burial Ground to the North of the Church". It is thought that by the late 1870's the decision was taken to cease new lairs because of concerns as to the volume of burials. It is not disputed that in 1908 permission was granted for interments of spouses of persons already buried within the graveyard, although it is not clear whether these interments related solely to the old walled graveyard. It is not disputed that by 1927 all interments had ceased. It is not disputed that, with the approval of the Sheriff, the graveyard was closed in 1931.

 

20.              The Reverend Robert Hamilton has been the Minister of New Wellwynd Parish Church for the past seven and a half years. He was also a member of the Wellwynd Heritage Group until it stood down in 2006 after the expiry of the ten year period following upon the sale of Old Wellwynd Parish Church. The Council alerted Reverend Hamilton to the finding of the remains in the burial site. He assisted the Council in their efforts to identify the names of those buried. On behalf of the Kirk Session of New Wellwynd Parish Church Reverend Hamilton expressed the view that the Kirk Session was content for the Social Enterprise Centre to go ahead. It was recognised that Old Wellwynd Parish Church was not used, and had become a magnet for anti-social behaviour. It was felt that if Old Wellwynd Parish Church was used for something that would benefit the community, then that was in keeping with the philosophy underlying the original sale, that the site should be used for public benefit. Further, on 4 February 2009 the Kirk Session agreed that it had no grounds to oppose the application.

 

21.              In addition Reverend Hamilton spoke to his congregation on this matter, and asked anyone with an objection to the application, to tell him. One member of his congregation stayed behind. That person was under the misapprehension that the application to disinter related to the old walled graveyard.

 

22.              Reverend Hamilton expressed his own view that he felt it appropriate in the circumstances to disinter the remains, and reinter them at New Monklands Cemetery, Glenmavis. He pointed out that the remains had lain under a Church Hall and a car park for many years. The whole area was in a state of neglect, which was not very caring. Care and respect could be shown to the remains by disinterring and reinterring them at a specially designated site at New Monklands Cemetery. Reverend Hamilton is prepared to offer a service at both locations. He feels that is both appropriate and right.

 

23.              In the event that this application is granted, the Council propose that a specialist company observing all dignity deserving to human remains is employed to carry out the disinterment. It is thought that the majority of remains are likely to be in excess of 120 years old and that significant decomposition will have taken place. In general the soft body tissues are non-existent after 10 years of interment. There is a dearth of obvious markers at the burial site. However, it is still feasible to disinter and reinter what remains, being fragments of disarticulated bone and fragments of wood. The Council has identified a specific area at New Monklands Cemetery, Glenmavis in which lairs will be opened up. The capacity at New Monklands Cemetery is more than sufficient to accommodate the remains. It is proposed that Reverend Hamilton provide a service at both the original burial site and at New Monklands Cemetery, and that a memorial is erected at New Monklands Cemetery to identify and commemorate the grave site.

 

Submissions

 

24.              For the Council I was referred to a number of cases and the evidential position as set out above was rehearsed. It was argued that there was a necessity to disinter in the particular circumstances of this case. The Council was not aware of the burial site until after work on the Social Enterprise Centre had started. To abandon the project now would be a waste of public money. The burial site, having lain under a car park and Church Hall, was now a muddy field with no official public access. Decomposition would have taken place some ten years after interment. The proposals for reinterment would treat the remains with dignity and respect.

 

25.              Ms. Lowrie felt that there had been an insufficient period of public consultation. She emphasised the Petition and a letter from Reverend SheilaShiela Spense. From a personal point of view Ms. Lowrie said she had no objection to the regeneration of the Church, but that removing human remains was going a step too far. She didn't believe that the Council had looked at alternatives. She felt that if exhumation went ahead it was setting a precedent. She asked me to refuse the application.

 

Decision

 

26.              The cases to which I was referred rightly acknowledge the natural sanctity which the law attaches to places of burial. It has been held that buried human remains are sacred, and that the grave in which they are buried is protected against disturbance, at least until the process of disintegration is complete. There are however exceptions to this rule, both at common law and under statute, and common law applications to the court for authority to disinter human remains, whilst unusual, are by no means unknown in the law of Scotland.

 

27.              It would appear that the Council, under planning legislation, as a matter of law requires no authority to disinter and re-inter human remains on this site. On that view, this application is otiose. However, in a sensitive case such as this it is difficult to criticise the Council for deciding to lodge this application, and I have already indicated that in my opinion it is appropriate that this matter is fully aired.

 

28.              There are some similarities between this application and the case of Steel v. Kirk-Session of St. Cuthbert's Parish (1891) 18 R 911 where the proprietors in trust and kirk-session of St. Cuthbert's Church, Edinburgh proposed to encroach upon the common burying-ground to improve the sanitary and structural arrangements of that Church. The court found for the defender. Lord Adam, at page 919, observes that

 

"There have been numbers of cases where the churchyard has been appropriated for the extension of the church. The question therefore is one of necessity, desirability, or high expediency, and I think the kind of case which must be made out depends on circumstances."

 

29.              Lord Adam lists a number of circumstances in which a strong case would have to be made out before a common burying-ground might be disturbed, namely where patrimonial rights had been acquired in the common burying-ground, or where it was probable that the land in question would be required for its primary purpose of burial, or where in recent times burials had taken place, in which case it would be neither decent nor proper to disturb human remains. Like the present application, none of those circumstances applied in the case of Steel. As the Lord President observes at page 918:-

 

"In the first place, it is to be observed that the portion of the churchyard to be built over is no longer in use as a burying place. It has been shut up by lawful authority, and no more burials can take place there. And this has been the condition of that portion of the churchyard for a long period. It has not been for a great many years lawful to bury the dead in that portion of the churchyard. The ground proposed to be built over no doubt was part of the public burying-ground of the churchyard for a very long period; and human remains were for a long period of years undoubtedly consigned to mother earth in that portion of the ground. But it is a very well established fact, leading to a rule of law, that after a certain period human remains resolve into their original dust, and it is by no means necessary to maintain the ground, in which they are buried, intact."

 

30.              The evidence in Steel was that some sixteen years had elapsed since the last interment, and that some eight to ten years in such a soil as the common ground of St. Cuthbert's would result in the complete decomposition and disappearance of the soft parts of the human body, with only decomposed pieces of bone and fragments of the wood of coffins remaining. It is thus clear that the law of Scotland does not require the complete disintegration of bone before a body might be said to have resolved into its original dust.

 

31.              The Lord President's observations in the case of Steel might equally be made in the present application. In this case the burial site has not been in use as a burial ground since, at the very latest, 1927. The burial site has been closed, by lawful authority of the Sheriff, to any new burials since 1931. On the evidence in a soil such as that at Old Wellwynd Church human remains would be expected to resolve to their original dust in about ten years. It has to be surmised that the process of disintegration was considered to be complete in 1939, when authority was given to build the Church Hall. Certainly today, at the very least eighty two years have elapsed since the last interment. As a matter of fact and law the process of disintegration cannot be said to be anything other than long completed.

 

32.              I am satisfied that the Council, assisted by Reverend Hamilton, has made extensive efforts to trace the relatives of the buried. I have to say that, even if relatives of the dead were traced, on the evidence before me it would be difficult to hold that they had a colourable title to object to this application. There is no specification in the 1831 Rules (excepting in Rule 8 which provides for the extinction of the lair-holder's right upon interment) as to the length of time any lair-holder's right persists. The situation therefore would appear to be governed by the common law. Lord Penrose, under reference to Duncan's Parochial Ecclesiastical Law, discusses the common law rights of lair-holders in Paterson, Petitioner (OH) 2001 SLT 869 at page 871 thus:

 

"It is clear from the discussion in the chapter as a whole that apportionment of a plot for burial did not imply appropriation of the plot as a resting place in perpetuity. What was conferred was a temporary right of repose until the body had returned to dust, a period generally thought to be between 18 and 25 years."

Given the length of time which has passed since the last interment at Old Wellwynd Church the common law rights of any lair-holders have been long ago extinguished. Even if there was evidence of a persisting right of a lair-holder, it would appear, given the state of this burial site, to be a matter of extreme practical difficulty to identify and marry any specific set of remains to a name.

 

33.              The burial site has been closed for some seventy eight years, and the Church itself has ceased to be used as a place of worship since 1996. Had work not begun on the Social Enterprise Centre this burial site would have remained, unmarked and unremembered, under a tarmacadamed car park and a 1939 Church Hall, presumably for many years hence. I have to agree with Reverend Hamilton that that state of affairs does not show care and respect for the dead.

 

34.              Now that the burial site has been rediscovered, there is the argument that the remains should be left where they are, in peace. What would that mean in practical terms? On the evidence before me to refuse this application would result in the cessation of this project as currently conceived. Specific plans have been drawn up for a specific project with specific funding, the whole to benefit the local community and revitalise an Airdrie landmark which has fallen into sad decline. Public money already expended would be lost. The money available is for the Social Enterprise Centre as conceived and already begun: it is not as I understand it available for the stand-alone refurbishment of the Church and graveyard. Whilst the burial site could conceivably be re-grassed and a memorial put in place, work on the site would otherwise end. In that eventuality, it has to be asked how long it would be before Airdrie's anti-social element reasserted its claim on both Church and surrounding land.

 

35.              It does not follow that the process of disinterment and re-interment is in itself necessarily disrespectful to human remains. It is possible to carry out such a process observing the dignity and respect due to human remains. I am satisfied that in this case the proposals for disinterment and re-interment are not only feasible but show appropriate respect for the dead.

 

36.              Ms. Lowrie was concerned that to grant this exhumation would be to "set a precedent". There was no evidence before me to suggest that the Council hadhadhas any other plans to disinter and re-inter human remains, in fact the evidence was to the contrary. It is not my view that to grant this application would set a precedent for the Council in any other case.

 

37.              Matters have reached a stage where I am satisfied that there is both an element of necessity and desirability in granting this application. In the whole circumstances as considered above, I shall do so.