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

This appeal concerned the meaning of "crematorium" in the Cremation Act 1902 and the point from which the statutory radius distances in section 5 are to be measured. The Court held that the core meaning in section 2 is a "building fitted with appliances for the purpose of burning human remains" and that the extended words "and shall include everything incidental or ancillary thereto" do not expand the term for the purposes of section 5.

The principal reasons were: (i) the presumption against absurdity — a natural wide reading would produce impracticable results (for example preventing any access road within 50 yards of a public highway); (ii) the statutory context, including section 4 and contemporaneous regulations, shows the extended wording was intended to confer permissive powers on burial authorities but need not govern the restrictive radius clause; and (iii) the primary purpose of the radius clause is public health, which points to measuring distance from the crematory building itself. Regulation 16 (1903) treating land reserved for ashes as "adjoining" the crematorium was a relevant contextual pointer.

The court therefore concluded that the distances in section 5 are to be measured from the building housing the crematory and dismissed the appeal.

Background and factual matrix. Horizon Cremation Ltd applied for planning permission to build a crematorium on an open field in the Metropolitan Green Belt. The proposal included a ceremony hall, memorial areas and a garden of remembrance in which storage of ashes in receptacles was contemplated. Tandridge District Council refused permission, an inspector appointed by the Secretary of State allowed Horizon's appeal and planning permission was granted. The appellant, Mrs Wathen-Fayed, sought judicial review under section 288 of the Town and Country Planning Act 1990 to quash the inspector's decision on the ground that the grant of permission contravened the radius clause in section 5 of the Cremation Act 1902.

Procedural history. The High Court (Deputy High Court Judge) dismissed the claim ([2023] EWHC 92 (Admin)); the Court of Appeal dismissed the appeal ([2024] EWCA Civ 507). Permission to appeal to the Supreme Court was granted and the appeal was heard on 20 May 2025. The relief sought in the Supreme Court was to quash the inspector's decision on the basis that the statutory 200-yard and 50-yard distances should be measured from the memorial garden or other areas on the site where ashes might be stored or disposed of, not only from the crematory building.

Issues framed by the court. (i) What does "crematorium" mean in section 2 of the Cremation Act 1902 and, in particular, do the words "and shall include everything incidental or ancillary thereto" extend the term for the purposes of the section 5 radius clause? (ii) If the extended wording applies, from which point on a proposed crematorium site are the section 5 distances to be measured? (iii) Whether storage or disposal of ashes on site falls within the radius clause.

Reasoning and conclusions. The court accepted that the words "everything incidental or ancillary thereto" are wide but concluded that giving them their full natural width when applied to section 5 would produce absurd and impracticable results (for example rendering access roads or chapel buildings subject to the 50-yard highway restriction). The judgment explained that the extended wording sensibly supports the permissive powers in section 4 to provide and maintain all necessary facilities at a crematorium site, but that the restrictive purpose of section 5 — primarily public health concerns related to emissions from the burning process — points to measuring the statutory distances from the crematory building itself. The court relied on contemporaneous regulations (in particular regulation 16 of the 1903 Regulations, which treated land for burial of ashes as "adjoining" the crematorium) and on the statutory language referring to construction of a crematorium to support the building-centred reading. Guidance and later regulations (including the 2008 Regulations) were held to be of limited or no weight in interpreting a 1902 Act. The court rejected the appellant's contention that the extended wording must apply to open memorial areas used for storage of ashes and concluded that "crematorium" for the purposes of section 5 means the building housing the crematory, so the statutory distances are measured from that building.

Subsidiary points and wider context. The court considered and rejected contrary arguments based on the Guidance, subsequent legislation (the 1935 and 1971 Acts), and alleged settled practice. The judgment noted the Law Commission consultation on burial and cremation and observed that legislative reform could address any practical consequences. The Supreme Court dismissed the appeal, concluding no error of law had been made by the inspector.

Appeal dismissed. The court held that for the purposes of section 5 of the Cremation Act 1902 "crematorium" means a building fitted with appliances for the purpose of burning human remains, and the distances prescribed in section 5 are to be measured from the building housing the crematory. The extended words in section 2 do not expand the term for the purposes of the radius clause because a wider reading would produce absurd and unworkable results and is inconsistent with the statutory context and purpose (primarily public health).

Planning permission refused by Tandridge District Council; appeal to an inspector appointed by the Secretary of State allowed (planning permission granted). Judicial review under section 288 TCPA 1990 dismissed by the High Court (Timothy Mould KC sitting as Deputy High Court Judge) [2023] EWHC 92 (Admin); appeal dismissed by the Court of Appeal [2024] EWCA Civ 507. Permission to appeal to the Supreme Court was granted and the Supreme Court dismissed the appeal [2025] UKSC 32.