Wathen-Fayed (Appellant) v Secretary of State for Levelling Up, Housing and Communities and another (Respondents)

Hearing listed

Case summary
Appeal
Change log

Case summary

Case ID

UKSC/2024/0081

Parties

Appellant(s)

Heini Wathen-Fayed

Respondent(s)

Secretary of State for Levelling Up, Housing and Communities

Horizon Cremation Ltd

Issue

Whether the Court of Appeal erred in upholding the first instance decisions definition of “crematorium” for the purposes of the Crematorium Act 1902.

Facts

Horizon Cremation Limited (“Horizon”) sought planning permission from Tandridge District Council (“Tandridge”) for development of a crematorium on a site comprising an open field in the Metropolitan Green Belt to the north of Oxted Road in Surrey RH8 9NJ (“the Site”). Tandridge refused the application. Horizon appealed that decision. The appeal was considered by an Inspector appointed by the Respondent. The agreed premise upon which the appeal was considered before the Inspector was the same as before Tandridge namely that the proposed development was inappropriate in the Green Belt and was therefore harmful to it. Mercia, a third party objected on the basis that the parts of the crematorium other than the main building were located within 200 yards of an existing dwelling including the memorial gardens where ashes might be scatted such that the proposed development would be in breach of the prohibition in section 5 of the Crematorium Act 1902 which prohibits the siting of a crematorium within 200 yards of a dwelling house without consent. In response Horizon modified its plans so that ashes would be encased and stored in small cairn-like structures and therefore not strewn or disposed of, so that the area for the cairns fell outside the scope of the definition of “a crematorium” in section 2 of the Act. The Inspector granted planning permission for the modified proposal. The Appellant appealed to the High Court under section 288 of the Town and Country Planning Act 1990 (the “TCPA”) to quash the Inspector’s decision on the basis that the grant of planning permission was contrary to section 5 of the Cremation Act which serves to limit the construction of crematoria. Mr Mould KC dismissed the Appellant’s application and refused permission to appeal. Stuart-Smith LJ granted permission to appeal to the Court of Appeal. Before the Court of Appeal the argument focused on whether Horizon’s solution for the “storage” of ashes was so distinct from disposal as to fall outside section 2. The Court of Appeal also concluded that the “storage” of ashes was distinct from disposal as to fall outside the remit of section 2. The Court of Appeal held that the disposal of ashes did not fall withing the scope of “everything incidental or ancillary” to “the purpose of burning human remains” and therefore the area for the disposal of ashes did not fall within the definition of crematorium.