Before a cemetery trust can enter into a lease/licence for the use of cemetery land and buildings in a public cemetery, the purpose of the lease/licence and its terms and conditions must be approved by the Minister for Health.
Ministerial approval of the purpose of a lease/licence is required under the Cemeteries and Crematoria Act 2003, to ensure cemetery land is not used in a manner that may be detrimental to the purposes for which the land is reserved (cemetery purposes). A trust (as the land manager) and the third party (as the tenant or user) are responsible for the conditions agreed to under the terms of a lease/licence.
In order for the Minister to consider a trust's request, the trust must first provide the department with a copy of the proposed lease or licence (prior to sign-off) using the applicable precedent lease or licence document (see Downloads).
Trusts should allow sufficient time for the approval process, which may take in excess of three months.
Trusts should check with their local council to see if a planning or building permit is required for the proposed activity referred to in a lease/licence.
For further advice please refer to the 'Licencing and leasing cemetery land' factsheet (see Downloads).
Victorian government policy requires that the rental amount stated in a lease be at the current market value as assessed by the Valuer-General Victoria. More information is available in the Victorian Government Land Transactions Policy and Guidelines.
The department has developed precedent lease and precedent licence documents to assist trusts. These documents are available for download.
General purpose lease/licence arrangements: if a trust is considering granting a lease/licence for general purposes such as grazing, agistment, operation of a temporary flower stall, or permitting transport access etc, it must first provide the department with a copy of the proposed lease/licence (before entering into an agreement), in order to seek ministerial approval. Trusts should seek their own independent legal advice when considering whether to enter into a lease/licence.
Telecommunication lease arrangements: The department has updated the process relating to leasing cemetery land for the installation of a telecommunications tower. A precedent lease document has been developed for this purpose and is available for download.
Lease or licence?
A lease is appropriate when the tenant requires exclusive use of land and/or premises for the permitted use.
Under a licence, the licensee does not have the right to exclusive use of land and/or premises and may have to share occupation with the licensor and third parties or may only be able to use the licensed area at certain times.
More information about the difference between leases and licences is available on the Victorian Government Solicitor's Office Blog under the topic 'Leasing'.
Property management and governance guideline
Further information about the legislative, policy and procedural framework for the acquisition, divestment, leasing and licensing of land by cemetery trusts is provided in the Property management and governance guideline.