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CEMETERIES AND CREMATORIA ACT 2013 - SCHEDULE 4

SCHEDULE 4 – Conversion of cemeteries

Part 1 - Preliminary

1 Transferred provisions

(1) This Schedule re-enacts (with minor modifications) provisions of the Conversion of Cemeteries Act 1974 that are repealed by section 143 and are transferred provisions to which section 30A of the Interpretation Act 1987 applies.
(2) In the event of an inconsistency between Part 2 and any other provision of this Act, the provisions of Part 2 prevail to the extent of the inconsistency.

2 Definitions

In this Schedule--

"area" has the same meaning as in the Local Government Act 1993 .

"cemetery" means a cemetery of which a council has the care, control and management.

"council" has the same meaning as in the Local Government Act 1993 .

"Minister" means the Minister administering the Crown Land Management Act 2016 .

"monument" means a monument, headstone or other surface structure, or a vault.

"resolution" means a resolution of a council under clause 3 (1).

"the conversion date" , in relation to land within a cemetery, means the day on which a declaration made by the Minister under clause 7 (1) in respect of that land is published in the Gazette.

"the conversion land" , in relation to land within a cemetery, means the land declared by the Minister to be a public park under clause 7 (1).

Part 2 - Conversion of cemeteries into public parks

Division 1 - Dedication of cemeteries as public parks

3 Council may resolve to convert cemetery

(1) A council may, by resolution, decide to apply under this Part for the conversion of the whole or any part of land within a cemetery into a public park.
(2) The council must give notice of the resolution--
(a) twice, at an interval of not less than 2 weeks, in a newspaper or newspapers published and circulating in the locality and twice, at an interval of not less than 2 weeks, in a newspaper or newspapers published in Sydney and circulating widely throughout New South Wales, or
(b) in a manner approved in writing by the Minister having regard to the object of bringing notices of that kind to the attention of members of the public in the relevant localities and elsewhere in the State to whom the relevant resolutions may be of interest.

4 Objections

(1) A person may, within 3 months after the date of first publication of the notice referred to in clause 3 (2), object in writing to the council against its resolution and must state the grounds for his or her objection.
(2) The council must consider and determine all objections made under subclause (1) and must notify each objector of its determination concerning the objector's objection.

5 Council may apply to have a cemetery declared a public park

(1) The council may, after considering and determining the objections made under clause 4, make application to the Minister that the whole or any part of the land referred to in the resolution be declared a public park.
(2) An application under subclause (1) must be made in writing addressed to the Minister and must be accompanied by the following--
(a) details of the proposal to convert the cemetery into a public park in the nature of a rest park,
(b) information, so far as it can be obtained, indicating, in respect of the cemetery--
(i) the total number of burials, and
(ii) the dates of the first and last burials, and
(iii) the number of monuments, and
(iv) the number of monuments which have been provided or maintained by the Commonwealth War Graves Commission, and
(v) whether the monuments are proposed to be removed, re-arranged within the cemetery, relocated in another cemetery, or disposed of, and
(vi) the number of outstanding exclusive rights to burial, and
(vii) the number of graves for which money is held for perpetual care, and
(viii) the amount of money held for the perpetual care of graves, and
(ix) the amount of money held otherwise than for the perpetual care of graves, and
(x) the nature and proposed future use of any building erected on the land,
(c) estimates of the costs of--
(i) the conversion of the cemetery into a public park, and
(ii) the future annual maintenance of the land,
and information stating the means by which the council proposes to meet those costs,
(d) evidence of compliance by the council with clause 3 (2),
(e) copies of all objections received by the council pursuant to clause 4 and of the council's determinations in respect of those objections, and
(f) such other information as may be prescribed.
(3) The council must furnish such additional or other information as the Minister, by request in writing, may require for the purpose of considering the application under subclause (1).

6 Minister may notify intention to declare cemetery a public park

(1) If the Minister is of the opinion that the conversion into a public park of the land or any part of the land referred to in the resolution is desirable, the Minister may cause to be published in the Gazette a notification of the Minister's intention to declare that land or part, as the case may be, to be a public park.
(2) A copy of the notification under subclause (1) must be laid before each House of Parliament within 14 sitting days of that House after the date of publication.
(3) If either House of Parliament passes a resolution of which notice has been given within 15 sitting days of that House after a copy of the notification under subclause (1) has been laid before it, that it does not assent to the declaration of the land referred to in that notification as a public park, the Minister must not make that declaration pursuant to that notification.
(4) For the purposes of subclauses (2) and (3), sitting days are to be counted, whether or not they occur during the same session.

7 Minister may declare cemetery to be a public park

(1) Subject to clause 6, the Minister may declare, by notification in the Gazette, the whole or any part of land within a cemetery to be a public park.
(2) The land declared to be a public park under subclause (1) is deemed to have been dedicated as a public park under section 2.3 of the Crown Land Management Act 2016 .

Division 2 - Functions of a council with respect to conversion land

8 Divesting of estate, interest etc in conversion land on conversion date

(1) On the conversion date--
(a) any estate or interest in the conversion land which, immediately before the conversion date, was vested in or held by any person or body of persons or the council is divested, and
(b) any person or body referred to in paragraph (a) and the council are discharged from any duties, liabilities or obligations existing immediately before the conversion date in respect of or in relation to the conversion land, and
(c) any trusts, conditions, encumbrances, dedications or reservations affecting the conversion land immediately before the conversion date are revoked and annulled, and
(d) any instruments of title issued in respect of any part of or including any part of the conversion land and subsisting immediately before the conversion date are cancelled in so far as they relate to the conversion land, and
(e) any money, securities or assets held by the council in respect of the conversion land or of any grave or monument in or on the conversion land immediately before the conversion date is freed from any conditions or trusts subject to or on which they were held immediately before that date and must be used by the council for or towards maintaining the graves or monuments preserved pursuant to clause 11 or for or towards maintaining the conversion land as a rest park.
(2) Any person who immediately before the conversion date was the holder of, or who was entitled to be the holder (either at law or in equity) of, any exclusive right to burial within the conversion land may, within a period of 6 months after the conversion date, apply in writing to the Minister to be granted a fresh exclusive right to burial.
(3) The Minister must, as soon as practicable after any application has been made under subsection (2), arrange for the provision to that person of a new burial site in a cemetery selected at the discretion of the Minister.

9 Council sole Crown land manager

(1) Subject to this Part, the council is to be the sole Crown land manager of the converted land and is taken to have been appointed as the sole Crown land manager under section 3.3 of the Crown Land Management Act 2016 .
(2) The conversion land must be maintained by the council as a rest park and, despite anything in any other Act, but subject to the provisions of this Part, the council must not use the conversion land or permit it to be used for any other purpose.

10 Duties and powers of council in relation to conversion land

(1) In this clause, a reference to a burial register includes a reference to any register or record in respect of the deaths or interments of persons who are buried in or whose ashes have been placed in or on the conversion land.
(2) The council must, as soon as practicable after the conversion date--
(a) if a burial register is held or received by it and that register is, in the opinion of the Minister, adequate and complete, deposit the burial register at the Mitchell Library, Sydney, where it is to be maintained so as to be available for inspection by any interested person from time to time, or
(b) if a burial register is held or received by it and that register is not, in the opinion of the Minister, adequate or complete--
(i) compile a supplementary register of the names of and other relevant information in respect of persons who are buried in or whose ashes have been placed in or on the conversion land, so far as those names and that information can by reasonable diligence be obtained and so far as those names and that information are not included in the burial register, and
(ii) deposit the burial register and that supplementary register at the Mitchell Library, Sydney, where they are to be maintained so as to be available for inspection by any interested person from time to time, or
(c) if no burial register exists--
(i) compile a register of the names of and other relevant information in respect of persons who are buried in or whose ashes have been placed in or on the conversion land, so far as those names and that information can by reasonable diligence be obtained and deposit and maintain that register at the offices of the council, so as to be available for inspection by any interested person from time to time, and
(ii) furnish a certified copy of the register to the Minister if required to do so by the Minister, and
(iii) furnish a certified copy of the register to the Mitchell Library, Sydney, where it is to be maintained so as to be available for inspection by any interested person from time to time.
(3) In addition to the duties conferred on the council under subclause (2), the council must, as soon as practicable after the conversion date--
(a) convert the conversion land into a rest park, and
(b) erect a memorial in a suitable position on the conversion land indicating--
(i) the sacred nature of the area, and
(ii) the place where the burial register, the supplementary register compiled under subclause (2) (b) (i) or the register compiled under subclause (2) (c) (i) may be inspected and that a copy of the register compiled under subclause (2) (c) (i) may be inspected at the Mitchell Library, Sydney.
(4) The council may grant to the Commonwealth War Graves Commission the right to erect and maintain, in or on the conversion land, a memorial to any person who is buried in or whose ashes have been placed in or on the conversion land and over whose grave that Commission has provided or maintained a monument.
(5) Subject to this Part, the council may do all such other things as it may consider necessary to convert the conversion land into a rest park.

11 Preservation of certain monuments

(1) The council must, subject to clause 12, preserve in its existing position on the conversion land or remove and preserve in a new position, as provided in subclause (2)--
(a) any monument which--
(i) is erected over any grave which, in the opinion of the council, is of historical importance, and
(ii) is, in the opinion of the council, reasonably capable of being preserved, and
(b) any monument erected over any grave in respect of which the council holds any money, securities or assets for the perpetual care of that grave.
(2) The new position in which a monument removed by the council pursuant to subclause (1) must be preserved is, at the discretion of the council, to be anywhere on the conversion land or in another cemetery, whether that other cemetery is a cemetery within the meaning of this Part or otherwise.
(3) Subject to clause 12, the council may remove such other monuments erected on the conversion land as it thinks fit, and dispose of them at its discretion.
(4) Before determining which of the monuments the council will preserve, or remove and preserve pursuant to the subclause (1), or remove pursuant to subclause (3), the council must take into consideration any views of--
(a) the Royal Australian Historical Society relating to the historical importance of each or any monument, and
(b) the Commonwealth War Graves Commission relating to any monument provided or maintained by it,
which are furnished to the council within 3 months of the conversion date.
(5) If any monument preserved in accordance with subclause (1) ceases at any time after the expiration of the period of 3 months referred to in clause 12 (3) by reason of its condition to be, in the opinion of the council, reasonably capable of being preserved, the council may dispose of it at its discretion.

12 Advertisement to be published before removal of monuments

(1) At least 3 months before any monuments are removed by the council pursuant to clause 11, an advertisement of the intention to remove them and drawing attention to the right conferred by subclause (3) on the representatives (or persons claiming to be representatives) is to be inserted--
(a) twice at an interval of not less than 2 weeks in a newspaper or newspapers published and circulating in the locality, and
(b) twice at an interval of not less than 2 weeks in a newspaper or newspapers published in Sydney and circulating widely throughout New South Wales.
(2) The council must send a copy of the advertisement to the Commonwealth War Graves Commission within one week after the date of the first publication of the advertisement.
(3) At any time after the first publication of the advertisement and before the expiration of 3 months after the publication of the last of those advertisements--
(a) the representatives (or any persons claiming to be representatives) of any person who is buried in or whose ashes have been placed in or on the conversion land, or
(b) subject to subclause (5), the Commonwealth War Graves Commission,
may, at their or its own expense, and with the permission of the council, remove the monument erected over the grave of or in respect of that person, whether or not that monument is one which is referred to in clause 11 (1).
(4) The representatives (or persons claiming to be representatives) or Commission may, at their or its own expense, and with the permission of the Director-General of the Ministry of Health, remove the remains or ashes of that person to another cemetery for burial, whether that other cemetery is a cemetery within the meaning of this Schedule or otherwise, or to a crematorium for cremation.
(5) Subclause (3) does not authorise the Commonwealth War Graves Commission--
(a) to remove a monument unless that Commission has provided or maintained the monument, or
(b) to remove the remains or ashes of a person unless that Commission has provided or maintained a monument over the grave of or in respect of that person in or on the conversion land.

13 Remains not to be disturbed

(1) The council, the Commonwealth War Graves Commission or any person or body of persons must take due care not to unearth or disturb the remains of any person who is buried in, or the ashes of any person which have been placed in or on, the conversion land.
(2) If any remains or ashes referred to in subclause (1) are unearthed or disturbed, the council must cause those remains or ashes to be reverently interred anywhere in the conversion land.
(3) Nothing in this clause prevents the removing of any remains or ashes pursuant to clause 12 (3).

14 Maintenance etc of building on conversion land

(1) The council may maintain any building erected on the conversion land at the conversion date and may, from time to time, repair, rebuild or replace it.
(2) If any building referred to in subclause (1) is a dwelling, that dwelling may, with the approval of the council, be used as a residence for a caretaker or groundsman of the conversion land, on such terms and conditions as may be agreed upon from time to time between the council and the caretaker or groundsman.
(3) So long as the land on which any dwelling is erected is so used for the purposes of a residence for a caretaker or groundsman of the conversion land, the public must not be entitled to enter upon or use it, or any land which is within the curtilage of the dwelling and is bounded by a substantial fence, as a public park.
(4) Despite the provisions of subclauses (2) and (3), the council may use any dwelling, and the land within the curtilage of the dwelling and bounded by a substantial fence, for such other purposes and subject to such terms and conditions as the Minister may approve in writing.
(5) A reference in this clause to any building, being a dwelling or otherwise, erected on the conversion land at the conversion date includes a reference to that building as repaired, rebuilt or replaced from time to time under the provisions of this clause.

Division 3 - Miscellaneous

15 No compensation payable

Except where otherwise in this Act expressly provided, no compensation is payable to any person or body of persons in respect of the divesting of any estate or interest by this Part or in respect of the performance of any act authorised by this Part.

Part 3 - Bodangora General Cemetery

16 Application of Part 2

Part 2 applies to the land described in Schedule 2 to the Conversion of Cemeteries Act 1974 , as in force immediately before its repeal by this Act, as if--

(a) a reference to the
"conversion date" were a reference to 1 July 1974, and
(b) a reference to the
"conversion land" were a reference to the land so described, and
(c) a reference to the Council were a reference to Wellington Council.



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