Wathen-Fayed v Secretary of State for Housing, Communities and Local Government

For the radius clause in section 5 of the Cremation Act 1902, a crematorium means the building fitted with appliances for burning human remains. The prescribed distances are measured from that crematory building, not from other buildings, gardens or areas used for ashes.

Although the statutory definition generally includes everything incidental or ancillary to cremation, that extended wording does not govern section 5. Applying it there would produce arbitrary restrictions and the unworkable result that an access road could not connect the site to a public highway. Context, purpose and contemporaneous regulations rebut the usual presumption that a statutory expression bears the same meaning throughout an Act.

Horizon Cremation Ltd obtained planning permission for a crematorium development in Surrey. The proposed site included a ceremony hall, memorial areas and a garden in which ashes might be stored. A neighbouring resident sought to quash the planning inspector’s decision under section 288 of the Town and Country Planning Act 1990.

The High Court dismissed the claim in [2023] EWHC 92 (Admin). The Court of Appeal dismissed a further appeal in [2024] EWCA Civ 507, holding that the statutory definition extended to buildings or structures where functions incidental or ancillary to cremation were performed.

The central issue before the Supreme Court was whether the distances prescribed by section 5 of the Cremation Act 1902 should be measured from the crematory building, from additional buildings and structures, or from wider areas of the site used for matters such as storing ashes.

1. Appeal dismissed unanimously. Lord Hamblen gave the judgment, with which Lord Reed, Lord Leggatt, Lord Stephens and Lady Simler agreed. For section 5 of the Cremation Act 1902, “crematorium” means the building fitted with appliances for burning human remains. The statutory distances must therefore be measured from the building housing the crematory.

2. Section 2 contains a core definition and extended wording which includes everything incidental or ancillary to burning human remains. The extended words are broad and can encompass things other than buildings. They naturally relate to the activity of burning human remains. In section 4 they sensibly confer upon burial authorities the wide powers needed to provide and maintain an entire crematorium site, including its supporting facilities.

3. The extended wording cannot sensibly govern section 5. If every incidental or ancillary feature formed the starting point for measurement, an access road could not connect the site to a public highway because the road itself would have to remain 50 yards away. Similar restrictions on landscaping, ornamental gardens, chapels, car parks and gate lodges would lack any rational basis. The presumption against absurdity therefore strongly favoured applying only the core definition.

4. That construction was reinforced by the word “constructed”, the prohibition against construction in consecrated ground, and other provisions contemplating cremation inside a building. Regulation 16 of the Cremation Regulations 1903, which originally had effect as if enacted in the Act, treated land reserved for ashes as adjoining rather than forming part of the crematorium.

5. The primary purpose of the radius clause was protection of public health from smoke, emissions and nuisance arising from burning human remains. Religious sensibilities also explained some provisions, but did not displace that primary purpose. Both considerations focused attention upon the crematory building rather than other site uses.

6. The usual presumption that the same word bears the same meaning throughout an Act was rebutted by context, purpose and the consequences of the competing construction. Later guidance lacked supporting reasoning, the 2008 Regulations were not contemporaneous, and the alleged settled practice was unsupported by evidence. None justified a different interpretation.

7. The proposed development did not contravene the Act, and the planning inspector made no error of law. It was unnecessary to determine Horizon’s alternative argument concerning whether any error would have affected the planning permission.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously. The court affirmed the result reached by the Court of Appeal but held that section 5 measures the prescribed distances solely from the crematory building.
2. Court of Appeal: In [2024] EWCA Civ 507, the court dismissed the appeal. It held that a crematorium included the crematory and other buildings or structures where incidental or ancillary functions were performed.
3. High Court, Administrative Court: In [2023] EWHC 92 (Admin), the court dismissed the statutory challenge. It treated buildings, structures or open areas as part of the crematorium when actually used in the process of burning human remains.
4. Planning inspector: The inspector allowed Horizon’s planning appeal and granted planning permission.