Ghai, R (on the application of) v Newcastle City Council & Ors

An undefined word in a statute which has an ordinary meaning must be construed in its statutory context. The court may begin with its natural, relatively wide meaning and then consider whether the context restricts it.

A structure is a “building” for the purposes of section 2 of the Cremation Act 1902 if it is ordinarily describable as such and is relatively permanent and substantial. It need not be fully enclosed by walls and a roof. Accordingly, a traditional fire cremation may lawfully occur in a suitably constructed, equipped and notified structure with openings that admit direct sunlight.

The appellant sought judicial review of the Council’s refusal to provide land for a traditional Hindu cremation. Cranston J proceeded on the assumption that the desired cremation had to occur entirely in the open air. He held that the statutory restriction engaged Article 9 of the European Convention on Human Rights but was justified: [2009] EWHC 978 (Admin).

Further evidence established on appeal that the appellant’s beliefs could be satisfied by cremation using traditional fire within a structure, provided sunlight could fall directly upon the body. The logically anterior issue was whether such a structure could be a “building”, and therefore a crematorium, under section 2 of the Cremation Act 1902.

1. The statutory issue was determined unanimously in the appellant’s favour. The Master of the Rolls, with whom Moore-Bick and Etherton LJJ agreed, held that the appellant’s religious requirements could be accommodated consistently with the Cremation Act 1902 and the Cremation (England and Wales) Regulations 2008. The court reserved the future conduct of the appeal for agreement or further submissions.

2. Reading section 2 of the Act with regulation 13, a lawful cremation had to occur in a building which was appropriately located, fitted with appliances for burning human remains and notified to the Secretary of State. The evidence established that a traditional fire, an ash-collecting grate and direct sunlight could be accommodated while satisfying those requirements.

3. The meaning of an undefined ordinary word depends upon its context. For “building”, the appropriate starting point was its natural, relatively wide meaning. The statutory context could then be considered to determine whether that meaning should be restricted. The court should ordinarily decide whether the particular structure falls within the statutory expression, rather than formulate an unnecessary exhaustive definition.

4. Lord Esher MR’s statement in Moir v Williams [1892] 1 QB 264 that a building ordinarily meant an enclosure of brick or stonework covered by a roof was obiter and should not be treated as authoritative guidance concerning the word’s general meaning. Ordinary usage encompasses structures made from other materials and structures which are not fully enclosed.

5. The statutory references to crematoria being constructed, equipped and associated with land indicated that a relevant structure must be relatively permanent and substantial. They did not require complete enclosure. The photographed cremation structures were buildings in the ordinary sense because they were solid, substantial and effectively permanent.

6. The Act did not justify an implied requirement that cremations be invisible to the public. Parliament had expressly regulated proximity to homes and roads and could readily have imposed a visibility restriction. An unexpressed statutory requirement should be implied only where it is obvious or necessary for the legislation to achieve its stated aim or operate effectively.

1. Court of Appeal (Civil Division): In [2010] EWCA Civ 59, the court unanimously held that a structure satisfying the appellant’s religious requirements could be a crematorium within the Cremation Act 1902. It reserved the future conduct of the appeal.
2. High Court, Administrative Court: Cranston J held in [2009] EWHC 978 (Admin) that Article 9 was engaged by the assumed prohibition of an open-air cremation, but that the interference was justified. Articles 8 and 14 were not engaged.