Distances for a crematorium are not measured from open areas within the crematorium grounds.

Facts:

Following a local inquiry, a planning inspector appointed by the Secretary of State for Levelling Up, Housing and Communities, Horizon was allowed to appeal the refusal by the District Planning Authority of its application for planning permission for a development which comprises a crematorium with a ceremony hall, memorial areas, a garden of remembrance, and associated parking and infrastructure. The development site comprises 4.5 hectares of open fields adjacent to the A25 which was previously used for grazing horses.

The site lies within an area designated as flood risk Zone 1 by the Environment Agency, meaning that annually it has a low probability of flooding from a river. Horizon also submitted a site-specific flood risk assessment which noted that there was a very low risk of flooding.

The development was by definition harmful to the green belt following the National Planning Policy Framework. However, the inspector found that the overall degree of harm would be moderated and such harm was outweighed by the benefits brought by the crematorium.

Mrs. Wathen-Fayed brought a case to the Higher Court for statutory review of the inspector's decision under section 288 of the Town and Country Planning Act 1990 which was dismissed. She then appealed to the Court of Appeal (CoA).

Decision:

The CoA dismissed the appeal to try to overturn a planning inspector’s consent for a crematorium in Surrey’s green belt. Lady Justice Andrews rejected the arguments that the inspector’s decision breached the Cremation Act 1902.

Lady Justice Andrews noted in her judgement that development in the green belt “is almost inevitably going to excite controversy”, but concluded the planning inspector involved had been right to conclude the crematorium’s benefits outweighed the harm to the green belt.

Lady Justice Andrews first restated the importance of statutory interpretation but also the fact that there is very little previous authority regarding the 1902 Act. Additionally, the existing case law was not concerned with the location of the structure. The Act not only was concerned “with the regulation of the burning of human remains. It also expressly empowered burial authorities to establish crematoria.” Consequently, “Parliament's intention was not to impede the establishment of crematoria but to facilitate it. A wide construction of the restrictions in section 5 of the statute which would create impediments to the establishment of new crematoria exceeding the objectives underlying those restrictions, would be contrary to that intention.”

When analysing the application of the Cremation Act 1902, the Judge noted that 1902 Parliament cannot have intended that distances of at least 200 yards away from the nearest dwelling and 50 yards away from a public highway should be measured from open areas within the crematorium grounds.

Moreover, she did not see any reason why the statutory definition of ‘crematorium’ “should be interpreted as including an open area where ashes are strewn, especially since that is not something which is ‘constructed’. There is no reason to suppose that public health considerations pertaining to the potential disposal of ashes in or on the ground after cremation had any bearing on the distances stipulated in section 5 of the 1902 Act.”

Regarding the assessment of surface water flood risk, the Judge noted that the Court of Appeal already interpreted the relevant policy in the same manner as the High Court did in this case. “On application of the relevant principles, the Judge was right to find that the inspector understood the policy, that he made no error in his approach to the issue of flood risk, and that he reached a decision that was open to him on the evidence as a matter of planning judgement.”

Implications:

This is one of the rare cases related to the Cremation Act 1902. The Court conducted a throughout analysis of the Act and applied a purposive approach to the requirements of section 5. The Court was not ready to expand the definition of crematorium to include open area and that public health consideration had no bearing on the distances stipulated in section 5.