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

Factual and Procedural Background

Company A applied to Company B for planning permission to develop a crematorium on land within the Metropolitan Green Belt. The scheme included a ceremony hall, memorial areas, a garden of remembrance and associated infrastructure. Although Company A stated that ashes would not be scattered on-site, it contemplated storing ashes within memorial gardens.

Company B refused permission. Company A appealed to an inspector appointed by the Respondent, who allowed the appeal and granted planning permission. The Appellant, a neighbouring resident, sought to quash that decision under section 288 of the Town and Country Planning Act 1990, alleging breach of the “radius clause” in section 5 of the Cremation Act 1902. Judge Mould (High Court) dismissed the claim; the Court of Appeal (Judge Macfarlane P, Judge Andrews and Judge Snowden) also dismissed the appeal. The Supreme Court granted permission and now delivers the present judgment.

Legal Issues Presented

1. How is “crematorium” to be interpreted for the purposes of the radius clause in section 5 of the Cremation Act 1902?
2. From what point must the statutory distances of 200 yards (from dwelling houses) and 50 yards (from public highways) be measured?
3. Does inclusion of memorial gardens or areas for storage of ashes bring the development within the statutory prohibition?

Arguments of the Parties

Appellant's Arguments

• Section 2 expressly extends the term “crematorium” to “everything incidental or ancillary” to burning human remains; that necessarily includes production, collection, storage and disposal of ashes.
• The Court of Appeal wrongly treated “constructed” as requiring a building, thereby narrowing the statutory definition.
• The radius clause serves not only public-health purposes but also the 1902 public sensibilities surrounding cremation, which justify a wider buffer.
• Parliament’s later intervention for London districts, longstanding governmental guidance and industry practice all recognise that grounds used for disposing of ashes fall within the statutory radius.

Respondent's Arguments

• The Act defines a crematorium “first and foremost” as a building; the radius clause therefore regulates where that building may be constructed.
• Words extending the definition (“incidental or ancillary”) embrace internal parts of that building, not external land uses such as gardens or access roads.
• Storage or disposal of ashes is a separate, subsequent activity and not within section 5.
• Historical context shows the distance restrictions were driven primarily by public-health concerns about emissions from the burning process.

Company A's Arguments

• It supported the Respondent and further contended that, even if the Appellant were right on construction, the illustrative layout was not part of the planning permission and therefore could not invalidate the consent.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began with the statutory text. Section 2’s “core” definition of a crematorium is a “building fitted with appliances for burning human remains.” The additional words “and shall include everything incidental or ancillary thereto” were inserted mainly to enlarge burial authorities’ powers under section 4, not to widen the restrictions in section 5.

Giving the extended words their literal breadth in section 5 would lead to absurd results: access roads, car parks and landscaping—each arguably “incidental”—would trigger the 50-yard highway rule, rendering any new crematorium unworkable. Applying the presumption against absurdity, the Court held that the extended wording cannot govern section 5.

Linguistic cues within section 5 reinforce this view. The clause regulates where a crematorium may be “constructed,” pointing to a physical structure. It also forbids construction “in the consecrated part” of burial grounds—logical only if aimed at the crematory building itself.

Historical materials—particularly public-health concerns about smoke emissions—show Parliament intended the distance to protect neighbours and road users from the burning process. That focus again singles out the crematory building, not later handling of ashes.

Regulation 16 of the 1903 Regulations treated land reserved for ashes as “adjoining” the crematorium, confirming that such land was outside the statutory definition when section 5 was enacted. The Court rejected reliance on later guidance (1978) and the 2008 Regulations as they post-date the Act by decades and lack persuasive reasoning.

The Court also addressed, and dismissed, contrary arguments based on subsequent London legislation, departmental guidance and alleged settled practice, finding no sufficient evidence that Parliament or the industry had adopted the broader meaning.

Accordingly, the word “crematorium” in section 5 means only the building housing the cremator. Measuring from that building, the proposed development complies with the 200- and 50-yard requirements, and the inspector made no error of law.

Holding and Implications

APPEAL DISMISSED.

The Supreme Court affirms that for the radius clause the relevant point of measurement is the crematory building itself. Memorial gardens, storage areas and other ancillary land uses do not extend the statutory buffer. The decision clarifies long-standing uncertainty and provides a clear, fixed reference point for planning authorities and developers; it does not create new precedent beyond statutory interpretation of section 5.