The Cemeteries service

Scots law does not prescribe any particular method of disposing of the dead.

In normal circumstances, the first issue to arise following a death is whether disposal is by way of burial in a churchyard or cemetery or by cremation. The death must be registered and any procurator fiscal interest in the body must be resolved. The body can then be released to the next of kin or executor who must make the necessary arrangements for disposal.

Close relatives and possibly friends, usually determine the place and manner of disposal, often in accordance with the deceased's wishes. Failing that, it is the duty of the local authority under the National Assistance Act 1948 as amended by the Local Government etc. (Scotland) Act 1994 or the Social Work (Scotland) Act 1968 Section 28, to dispose of the body.

Relatives or friends may decide on the place for disposal other than a churchyard or cemetery subject to restrictions imposed under a number of different statutory provisions, for example, public health, planning, pollution or subject to the law of nuisance at common law. Certain local statutes may apply in the area (to which they apply).

There is no specific restraint under the law of Scotland on a person setting a portion of their ground as a family burial place, or as a place for a small number of graves and it is not considered illegal to create private cemeteries. 

A decision to provide any such private burial space could be defeated if proved injurious to health or to be a nuisance to neighbours.

Under the common law of nuisance, an adjacent proprietor would have a remedy in respect of any use of property which occasions serious disturbance or substantial inconvenience to them or material damage to their property.

A private burial place would not be a burial ground within the meaning of the Burial Grounds (Scotland) Act 1855 which deals with the functions of islands and local councils in relation to such burial grounds, for which certain consents and procedures are required under law.