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

The Court of Appeal dismissed the appellant's challenge to the grant of planning permission for a crematorium in the Green Belt. The court upheld the Inspector's and the Planning Court's approach to the Cremation Act 1902, holding that the statutory definition of “crematorium” (section 2) means a building (or part of a building) fitted with appliances for burning human remains and includes buildings or structures incidental or ancillary to that function, but does not extend to open outdoor areas such as memorial gardens. The court also upheld the Inspector's treatment of surface water and groundwater flood risk under the National Planning Policy Framework and the Planning Practice Guidance: the sequential test need not automatically be applied in Flood Zone 1 where, on planning judgment, alternative sites are not reasonably available and flood risk can be managed by conditions (notably the required surface water drainage scheme in condition 6).

Background and facts:

• The appeal concerned planning permission granted on appeal to Horizon Cremation Limited for a crematorium on a 4.5 hectare site in Tandridge, Surrey, in the Green Belt. The Inspector found the development was inappropriate in the Green Belt but that very special circumstances existed, including meeting an essential local need, and granted permission subject to conditions (including a surface water drainage condition).
• The site is in Flood Zone 1 but lies in an area identified as at risk from groundwater flooding in the local Strategic Flood Risk Assessment. Horizon submitted a site-specific Flood Risk Assessment. Objectors raised statutory and flood‑risk objections.

Procedural history:

• The appellant, a local resident, sought statutory review under section 288 of the Town and Country Planning Act 1990. The Planning Court (Timothy Mould KC, sitting as Deputy High Court Judge) dismissed the challenge in [2023] EWHC 92 (Admin).
• The appellant appealed to the Court of Appeal, raising four grounds: principally (1) and (2) the correct construction and application of the Cremation Act 1902 (sections 2 and 5) and whether the Inspector failed to take into account a statutory prohibition impeding deliverability; and (3) and (4) alleged error in the Inspector's approach to surface water/groundwater flood risk and the sequential test under the Framework and PPG.

Issues framed:

1. Whether the phrase “everything incidental or ancillary thereto” in section 2 of the Cremation Act 1902 extended the definition of crematorium to open outdoor areas (for example memorial gardens) and other parts of the site such that construction on the chosen site would contravene section 5’s minimum distances to dwellings and highways.
2. Whether the Inspector misapplied national planning policy on flood risk and the sequential approach, including whether he was misled by Horizon’s Flood Risk Assessment and whether alternative sites at lower flood risk were reasonably available.

Court’s reasoning and conclusions:

• On statutory interpretation the court analysed the Act as a whole and its history. It concluded that the 1902 Act defines a crematorium as a building (or part of a building) fitted with cremation appliances and that the words “incidental or ancillary thereto” extend to buildings or structures that are part of, or serve, the cremation function (for example chapel, porte cochère, other buildings closely connected to the crematory), but do not extend the definition to unconstructed outdoor areas such as memorial gardens where ashes might be strewn or stored in above‑ground receptacles. The court accepted that disposal of ashes is dealt with in later regulations but saw no reason to make the statutory definition depend on what happens to ashes after the cremation.
• On flood risk, the court followed the approach explained in the recent authority Substation Action [2024] EWCA Civ 12. The Inspector correctly understood the Framework and PPG, took a pragmatic planning‑judgment approach to groundwater risk in a Flood Zone 1 site, considered the Lead Local Flood Authority and other consultees, considered alternative sites (including the only actively advanced Farleigh site) and concluded that the sequential test did not require refusal because flood risk could be managed by conditions. The imposition of a condition requiring an approved surface water drainage scheme (condition 6) was a legitimate means of managing the risk.

Relief sought and disposition: The appellant sought quashing of the Inspector’s decision; the Court of Appeal dismissed the appeal and upheld the Planning Court judgment that the Inspector had not made legal error.

Appeal dismissed. The court held that (1) the Inspector and the Planning Court were entitled to conclude that construction and operation of the proposed crematorium, as designed, would not inevitably contravene the Cremation Act 1902: the statutory definition of “crematorium” is limited to a building (or part of a building) and related ancillary buildings/structures, not open memorial gardens; and (2) the Inspector had correctly applied the Framework and Planning Practice Guidance to surface water/groundwater flood risk, properly exercised planning judgment about the sequential test and permissibly relied on conditions (including the requirement for an approved surface water drainage scheme) to manage flood risk.

Appeal to the Court of Appeal from the High Court (Planning Court) judgment of Timothy Mould KC (sitting as Deputy High Court Judge) dismissing the statutory review: [2023] EWHC 92 (Admin). The planning permission was originally granted by a Planning Inspector following a local inquiry (Decision Letter referred to in the judgment).