An appeal against declarations concerning burial rights in Tottenham Park Cemetery has failed in Demetriou v Mapara and others [2022] EWCA Civ 1001 with the Court of Appeal refusing permission to amend the grounds of appeal to argue that a burial right is a proprietary interest.
Tottenham Park Cemetery is a private cemetery owned by the appellant. Under a series of deeds, the appellant’s predecessor in title – Badgehurst – granted burial rights to the Tottenham Park Islamic Cemetery Association, an unincorporated association formed to acquire and manage burial plots and cemeteries for its members, who are Sunni Muslims. Following the appellant’s acquisition of the cemetery a disagreement arose between him and the trustees of the association as to whether the appellant had succeeded to the exclusive right to dig graves accorded to Badgehurst under the deeds. If not, could he make regulations which would confer that right on him?
The appellant accepted that he was bound by the deeds and so the judge did not have to decide whether the rights granted under them were licences or rights in real property. The judge decided that the appellant did not succeed to Badgehurst’s exclusive right to dig graves under the deeds: the right was a personal one. The appellant was not able to insist on digging graves for the trustees pursuant to his regulations at the date of trial but he might in the future be able to draft regulations that went further from the current position without derogating from grant.
Both parties appealed. Shortly before the appeal was due to be heard the appellant tried to introduce a new ground of appeal which went to the heart of the judge’s order. The appellant asserted that the right of burial was proprietary, that section 78 of the Law of Property Act 1925 applied because the covenant touched and concerned the land and so the appellant as successor in title to Badgehurst was entitled to enforce it.
The Court of Appeal refused permission. In substance, the application sought to appeal another part of the judge’s order a year out of time. Applying the three-stage approach in Denton v TH White Ltd [2014] EWCA Civ 906 it decided that the failure to comply with the time limit was serious; and a change of counsel was not a good reason for the failure. As regards all of the circumstances of the case: the authorities on whether a burial right is a property right are inconclusive; it does not obviously feature in section 1(2) of the 1925 Act as being a right or interest in land which is capable of subsisting at law; and if it was a property right consideration would need to be given to whether section 78 of the 1925 Act – which relates to covenants – applied to the right and whether it touched and concerned the land. These were issues which were not raised before the court below.
The substantive appeals also failed: the appellant’s challenge to the wording of the order made no difference of any substance and the respondents re-ran an argument that had failed before the judge.
Louise Clark is a property law consultant and mediator
