Heini Wathen-Fayed v Secretary of State for Levelling Up, Housing and Communities

For statutory location restrictions governing crematoria, the definition of a crematorium under the Cremation Act 1902 may extend to buildings or structures carrying out functions incidental or ancillary to cremation. It does not extend to outdoor gardens or other open areas, and the restrictions do not depend on how ashes are later stored, scattered or interred. Flood Zone 1 does not end the sequential flood-risk inquiry: surface water and other sources must be considered. Whether a sequential test is required, how alternatives and mitigation should be evaluated, and whether conditions make development safe are matters of planning judgment.

Horizon obtained planning permission on appeal for a crematorium in the Green Belt. A local resident challenged the Inspector’s decision under section 288 of the Town and Country Planning Act 1990. The Planning Court dismissed the claim: [2023] EWHC 92 (Admin).

Before the Court of Appeal, the appellant argued that the crematorium could not lawfully be built under sections 2 and 5 of the Cremation Act 1902, and that the Inspector had misapplied national flood-risk policy and guidance. The central questions concerned the scope of the statutory definition and the proper approach to groundwater and surface-water risk, including the sequential test.

Appeal dismissed. Lady Justice Andrews gave the leading judgment. Lord Justice Snowden and Sir Andrew McFarlane agreed.

1. The court applied the objective approach to statutory interpretation. The words of the Cremation Act 1902 had to be read in their statutory context and in light of the Act’s purposes. The Act both regulated the burning of human remains and enabled burial authorities to establish crematoria. A construction creating impediments beyond the objectives of the location restrictions would be inconsistent with the latter purpose.
2. Sections 2 and 5 were read together. The definition of a crematorium includes buildings or structures on site in which functions incidental or ancillary to cremation are carried out, such as a ceremony hall, porte cochère and facilities for processing or collecting ashes. The section 5 distances principally concern the location of the burning process and directly connected buildings or structures. They do not extend to outdoor gardens or other open areas. The identification of a crematorium cannot depend on whether ashes are later stored, scattered or interred. The later Cremation (England and Wales) Regulations 2008 could not be used as an aid to construing the 1902 Act because they were made long after it: [1994] 2 AC 367; [2023] UKSC 28.
3. The Judge’s overall conclusion was correct, although his analysis went too far in treating open areas used for ash disposal as potentially within the definition. On the plans and evidence, the relevant buildings and structures could be located within the permitted zone. The Inspector was entitled to find that the development could be constructed without infringing section 5 and had adequately addressed the objections actually raised.
4. Flood Zone 1 did not make further flood-risk consideration unnecessary. The Framework and Planning Practice Guidance required surface-water and other sources of flooding to be considered. Following Substation Action [2024] EWCA Civ 12, the policies did not require an applicant to show that no reasonably available lower-risk site existed whenever surface-water risk was present. The application of the policies, including the need for a sequential test, mitigation and alternative sites, involved planning judgment. The Inspector rationally considered groundwater risk, drainage controls under condition 6 and the proposed alternative site. No public-law error was established.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the Inspector’s decision and the Planning Court’s conclusion that the development could be constructed without infringing section 5 of the Cremation Act 1902, and that the flood-risk approach was lawful.
2. High Court of Justice, King’s Bench Division, Planning Court: Timothy Mould KC, sitting as a Deputy High Court Judge, dismissed the statutory review claim and made an order dated 3 February 2023: [2023] EWHC 92 (Admin).
3. Planning Inspector: Allowed Horizon’s appeal against Tandridge District Council’s refusal of planning permission and granted permission subject to conditions.