The Supreme Court considered whether the definition of ‘crematorium’ under section 2 of the Cremation Act 1902 includes areas for the disposal or storage of ashes, for the purpose of the 200-yard radius clause prohibition in section 5 restricting siting near dwelling houses.
Background
Horizon Cremation Limited (‘Horizon’) sought planning permission from Tandridge District Council for a crematorium development on a site in the Metropolitan Green Belt in Surrey. Tandridge refused the application, and Horizon appealed. The appeal was considered by an Inspector appointed by the Secretary of State. It was agreed that the proposed development was inappropriate in the Green Belt.
Horizon’s proposal included a hall, a memorial garden, parking and associated infrastructure. It contemplated storing ashes in receptacles in the garden, without scattering or disposing of ashes on the site. A dwelling was within 200 yards of the proposed memorial area. Section 5 generally requires a 200-yard distance from a dwelling unless the owner, lessee and occupier consent in writing. It also requires a 50-yard distance from a public highway.
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An inspector allowed Horizon’s appeal and granted planning permission.
The appellant, Heini Wathen-Fayed, appealed to the High Court under section 288 of the Town and Country Planning Act 1990 to quash the Inspector’s decision, arguing the grant of planning permission was contrary to section 5 of the Cremation Act 1902. Mr Mould KC dismissed the appellant’s application and refused permission to appeal. Stuart-Smith LJ subsequently granted permission to appeal to the Court of Appeal.
The Issue(s)
The central issue before the Supreme Court was whether the Court of Appeal erred in upholding the interpretation of the definition of ‘crematorium’ in section 2 of the Cremation Act 1902 for the purpose of the radius clause prohibition in section 5. Specifically, the question was whether the ‘storage’ or disposal of ashes in memorial areas fell within the statutory definition of a crematorium — and thus within the 200-yard radius clause — or whether such activities were sufficiently distinct from the burning of human remains to fall outside the scope of that definition.
Proceedings Below
The Court of Appeal dismissed the appeal. It treated the crematorium as including the crematory and other buildings or structures used for functions ancillary or incidental to cremation. It held that the proposed storage of ashes in the garden did not fall within that definition.
The Court’s Reasoning
Lord Hamblen, with whom the other Justices agreed, held that for section 5 a crematorium means the building fitted with the equipment used to burn human remains. The distances are measured from the building that houses the crematory. The wording of section 5 concerned the construction of a building. Extending it to all ancillary land uses would produce unworkable results, such as requiring a crematorium’s access road to remain 50 yards from the highway it serves. The statutory history supported a focus on public health risks from the burning process. Measuring from a fixed building also gave a clear and stable result.
Practical Significance
The planning permission did not breach the distance requirements. The Supreme Court unanimously dismissed the appeal.
Reported citations: [2025] 1 WLR 3693, [2025] WLR 3693, [2025] PTSR 1568, [2025] WLR(D) 436
Source: Full judgment in Wathen-Fayed v Secretary of State for Housing, Communities and Local Government
Read more on the Wathen-Fayed case and statutory interpretation here.
