Introduction

The case of Wathen-Fayed v Secretary of State for Levelling Up, Housing and Communities ([2024] EWCA Civ 507) revolves around the contentious issue of granting planning permission for a development within the Green Belt—a designated area intended to prevent urban sprawl and preserve natural landscapes. The dispute specifically concerns the construction of a crematorium, its adherence to the Cremation Act 1902, and the associated flood risk assessments. The appellant, Mrs. Wathen-Fayed, represented by the Oxted and Limpsfield Residents Group, challenged the decision of a Planning Inspector who had previously approved the development proposed by the First Interested Party, Horizon. The central legal question addresses the statutory interpretation of “crematorium” and its compliance with distance restrictions from dwellings and public highways under the aforementioned Act.

Summary of the Judgment

The England and Wales Court of Appeal dismissed the appeal brought by Mrs. Wathen-Fayed against the Inspector’s decision to grant planning permission for Horizon’s proposed crematorium in the Green Belt near Oxted, Surrey. The core of the judgment hinged on the correct interpretation of the term “crematorium” as defined in the Cremation Act 1902, especially concerning what constitutes "incidental or ancillary" structures related to the crematorium. The court upheld the Inspector’s finding that Horizon’s development did not infringe statutory distance requirements from nearby dwellings and roads. Additionally, the court affirmed that the Inspector’s handling of flood risk assessments, including the consideration of groundwater flooding and the evaluation of alternative sites, was both rational and in line with existing planning policies.

Analysis

Precedents Cited

The judgment extensively referenced prior cases to substantiate its reasoning. Notably, London Historic Parks and Garden Trust v Minister of State for Housing and others [2022] EWHC 929 (Admin) and R (on the application of Substation Action Save East Suffolk Ltd) v Secretary of State for Energy Security and Net Zero [2024] EWCA Civ 12 were pivotal in shaping the court’s approach to statutory interpretation and the application of planning policies regarding flood risk. Additionally, R(Ghai) v Newcastle City Council [2010] EWCA Civ 59; [2011] QB 591 provided guidance on the interpretation of "building" under the Cremation Act 1902, reinforcing the broad understanding necessary for such statutory constructs.

Legal Reasoning

The Court of Appeal undertook a meticulous statutory interpretation of "crematorium" as defined in section 2 of the Cremation Act 1902. The primary issue was whether "incidental or ancillary" structures, such as memorial gardens and service yards, fall within the statutory definition and therefore are subject to distance restrictions from dwellings and public highways.

The appellant argued that these ancillary structures should be included within the definition of "crematorium," thereby subjecting them to the same distance constraints. The Court disagreed, emphasizing that "crematorium" primarily denotes the building equipped for burning human remains. Open areas like gardens, even if used for storing ashes, do not equate to constructions and thus fall outside the statutory definition.

The court also addressed the flood risk assessment, affirming that the Inspector correctly applied the relevant planning policies and did not err in his judgment regarding the sequential test for flood risk. The court upheld that the Inspector’s decision was rational and adhered to the National Planning Policy Framework and Planning Practice Guidance concerning flood risks.

Impact

This judgment sets a clear precedent in interpreting the statutory definition of "crematorium" within the Cremation Act 1902. By distinguishing between constructed buildings and open spaces, the court delineates the scope of regulations concerning development in the Green Belt. This decision aids future cases by providing a framework for assessing what constitutes a "crematorium" and ensures that ancillary structures do not inadvertently trigger regulatory constraints. Moreover, the affirmation of the Inspector’s approach to flood risk assessments reinforces the importance of comprehensive and pragmatic evaluations in planning decisions.

Complex Concepts Simplified

Cremation Act 1902

The Cremation Act 1902 is a UK statute regulating the establishment and operation of crematoria. Key provisions include defining "crematorium," setting minimum distance requirements from dwellings and public highways, and outlining penalties for non-compliance. Section 2 defines a "crematorium" as a building equipped for burning human remains, including any ancillary structures directly related to the cremation process.

Green Belt

Green Belt refers to areas of open land around cities where development is heavily restricted to prevent urban sprawl, preserve natural landscapes, and maintain the character of surrounding areas. Planning permissions within the Green Belt are scrutinized rigorously to ensure they meet stringent criteria.

Sequential Test

In the context of flood risk, the sequential test is a planning policy tool used to guide development away from areas at high risk of flooding. It prioritizes building in areas with the lowest flood risk and only allows development in higher-risk zones when no suitable lower-risk alternatives are available.

Planning Inspector and Deputy High Court Judge

A Planning Inspector is an official appointed by the Secretary of State to conduct hearings and make decisions on planning disputes. A Deputy High Court Judge assists in judicial reviews of such decisions. In this case, the Deputy High Court Judge initially dismissed the appellant's case, which was subsequently appealed to the Court of Appeal.

Conclusion

The Court of Appeal’s decision in Wathen-Fayed v Secretary of State for Levelling Up, Housing and Communities underscores the importance of precise statutory interpretation in planning law. By affirming that "crematorium" under the Cremation Act 1902 pertains specifically to the constructed building equipped for cremations—and not to ancillary open spaces—the court clarified the boundaries of regulatory oversight within the Green Belt. Additionally, the judgment reinforced the validity of the Inspector’s assessment of flood risks and adherence to planning policies. This case enhances legal clarity for future developments involving crematoria, ensuring that ancillary structures do not unnecessarily constrain lawful and necessary community infrastructure projects.