Brookwood Park Ltd v Guney & Ors

Exclusive burial rights under the Cemeteries Clauses Act 1847 may extend beyond individual burial plots to a larger area set aside for that purpose. Such rights are treated as personal estate, not an interest in land.

A defective or unexecuted grant may evidence an underlying agreement, but only where its terms, the land concerned and the parties’ intention to be bound can be deduced with sufficient certainty. Belief, imperfect records and later payments do not establish an enforceable grant or agreement where the area and consideration remain uncertain.

The claimant owned Brookwood Cemetery. The defendants were trustees of the United Kingdom Turkish Islamic Trust, which claimed exclusive burial rights over 19 acres of the cemetery.

The Trust relied principally on two purported instruments dated 20 January 1983, numbered 1723A and 1723a. In the alternative, it alleged an enforceable agreement for the grant of those rights, supported by consideration of £25,000. The claimant sought a declaration that the instruments were invalid and ineffective. The Trust counterclaimed for declarations and specific performance.

The central issues were whether either instrument constituted an effective grant, whether an enforceable underlying agreement could be inferred, and whether the claimed 19 acres and consideration had been sufficiently established.

1. The court granted a declaration that the defendants, as trustees of the Trust, had no exclusive burial rights over the claimed 19 acres under either 1723A, 1723a or any other purported grant relied upon in the proceedings. The counterclaim was dismissed. The declaration did not affect the separate grant numbered 1723, relating to 54 burial plots.

2. Sections 40 to 48 of the Cemeteries Clauses Act 1847, incorporated by the London Necropolis and National Mausoleum Act 1852, permitted the company to set apart parts of the cemetery for exclusive burial rights. The statutory scheme was not confined to individually identified burial plots. It could extend to a larger area reserved for exclusive burial use. Under section 44, the right was personal estate and could not constitute an interest in land.

3. The purported instruments were defective. 1723A was neither signed nor properly executed and referred to a missing plan. 1723a was also improperly attested, contained inconsistent descriptions and did not identify the consideration. Neither instrument reliably identified the claimed land.

4. A defectively executed instrument may, in principle, take effect as evidence of an underlying agreement. Whether it does so depends on whether the terms of the agreement and the parties’ intention to be bound can be deduced from the instrument and surrounding circumstances. Here the evidence did not establish when any agreement was made, what land it covered, that £25,000 had been paid, or that the parties had entered an enforceable commitment.

5. The various plans, records and later payments were inconsistent and speculative. The possibility that the alleged agreement was made after the first defendant’s father controlled both the Trust and the claimant also made the alleged transaction inherently doubtful. Estoppel could not assist without credible evidence that a grant had actually been made.