Wathen-Fayed v Secretary of State for Housing, Communities and Local Government (UKSC/2024/0081)

The appeal concerned the meaning of “crematorium” in section 2 of the Cremation Act 1902 for the purpose of the “radius clause” in section 5, which prohibits siting a crematorium within 200 yards of a dwelling house or 50 yards of a public highway. The central question was the point from which those distances fall to be measured. Three different interpretations had been advanced in the courts below. The Supreme Court unanimously dismissed the appeal, holding that “crematorium” in section 5 means the building fitted with appliances for burning human remains — the crematory building itself — and that the radius distances are to be measured from that building alone.

Facts

Horizon Cremation Ltd applied to Tandridge District Council for planning permission to develop a crematorium on an open field in the Metropolitan Green Belt in Surrey. The proposal included a ceremony hall, memorial areas, a garden of remembrance, and associated parking and infrastructure. Horizon confirmed there would be no disposal or scattering of ashes on site, but that storage of ashes in suitably designed receptacles within the memorial gardens was contemplated.

Tandridge refused the application. An inspector appointed by the Secretary of State allowed Horizon’s appeal and granted planning permission.

Mrs Wathen-Fayed, a local resident, sought to quash the inspector’s decision under section 288 of the Town and Country Planning Act 1990, contending that the radius distances had to be measured from an area including the memorial garden, and that the development therefore contravened the Act.

The Deputy High Court Judge (Mould KC) dismissed the claim, holding that a crematorium comprised any building, structure or open area used for the purpose of burning human remains, and that storage of ashes pending removal was not ancillary to that purpose ([2023] EWHC 92 (Admin)).

The Court of Appeal (Andrews LJ) dismissed the appeal, adopting a broader definition than the judge — the crematory and all other buildings or structures on site performing ancillary functions — but still excluding open areas such as memorial gardens ([2024] EWCA Civ 507).

The Supreme Court granted permission to appeal on 9 October 2024.

The Statutory Framework

Section 2 of the Cremation Act 1902 defines “crematorium” as:

“any building fitted with appliances for the purposes of burning human remains, and shall include everything incidental or ancillary thereto.”

Section 4 confers on burial authorities powers to provide and maintain crematoria, extending to “anything essential, ancillary or incidental thereto.”

Section 5 (the “radius clause”) provides:

“No crematorium shall be constructed nearer to any dwelling house than two hundred yards, except with the consent, in writing, of the owner, lessee, and occupier of such house, nor within fifty yards of any public highway, nor in the consecrated part of the burial ground of any burial authority.”

Section 7 empowers the Secretary of State to make regulations directing, among other things, “the disposition or interment of the ashes.” As originally enacted, section 7 provided that the regulations would “have the same effect as if they were enacted in this Act” — a provision repealed in 1952.

Regulation 16 of the Cremation Regulations 1903 (made simultaneously with the Act and originally having the same effect as if enacted in it) provided that ashes not collected should be “decently interred in a burial ground or in land adjoining the crematorium reserved for the burial of ashes” — treating land reserved for burial of ashes as adjoining the crematorium rather than as part of it.

Issues

1. What does “crematorium” mean for the purpose of the radius clause in section 5 of the Cremation Act 1902?
2. In particular, does the extended definition in section 2 — “everything incidental or ancillary thereto” — apply to the radius clause, such that the distances must be measured from ancillary open areas including memorial gardens used for the storage of ashes?
3. If not, from what point on a crematorium site are the prescribed distances to be measured?

Three Competing Interpretations

Court/Party	Definition of “Crematorium” for Section 5
High Court (Mould KC)	Any building, structure or open area used for the purpose of burning human remains
Court of Appeal (Andrews LJ)	The crematory and all other buildings or structures on site in which functions incidental or ancillary to the cremation process are carried out
Appellant	Any area on site the use of which is incidental or ancillary to the purpose of burning human remains, including areas for disposal and storage of ashes

Judgment

The Supreme Court unanimously dismissed the appeal. Lord Hamblen held that “crematorium” in section 5 means only the core definition: “a building fitted with appliances for the purposes of burning human remains.” The radius distances are measured from the crematory building itself. The extended wording — “everything incidental or ancillary thereto” — does not apply for the purposes of section 5.

Lord Hamblen accepted that the extended wording comprised wide words that most naturally referred to the activity of burning rather than the building, and that if given their ordinary meaning they would encompass all parts of a crematorium site, not merely areas used for dealing with ashes. However, applying that wide meaning to section 5 produced an absurdity: it would include access roads, meaning a burial authority could never connect its crematorium to a highway (since any access road would need to be 50 yards from a public highway). This would completely undermine the Act’s purpose of facilitating the establishment of crematoria. The appellant’s proposed “balloon and string” distinction between works on and off the site had no basis in the statutory wording.

The extended wording made good sense in the context of the permissive section 4, which conferred wide powers on burial authorities to provide and maintain crematoria. A burial authority needed powers extending beyond the crematory building to acquire land and provide chapels, ceremony halls, access roads, car parks, memorial gardens and fencing. The similarity of language between section 2 and section 4, and the legislative history showing both were added simultaneously, confirmed this linkage.

Multiple textual indicators supported confining section 5 to the core definition. The word “constructed” was apt for a building, not mere land use. The prohibition on construction in consecrated burial ground was understandable for a crematory building but made no sense for memorial gardens or chapels. Section 9, providing for fees for burning “in” any crematorium, could only refer to the building. Regulation 16 of the 1903 Regulations treated land for burial of ashes as “adjoining” the crematorium, directly inconsistent with the extended wording applying to section 5.

The primary purpose of the radius clause was public health — specifically, the hazard and nuisance from smoke emissions during the burning process. This was consistent with the focus being the crematory building and inconsistent with distance restrictions applying to other buildings or land uses. The appellant’s argument that the clause primarily protected religious sensibilities was rejected; even if such concerns informed other provisions of the Act, the burning itself was the cause for concern under section 5.

Lord Hamblen acknowledged that the strongest argument against his conclusion was the presumption that a word bears the same meaning throughout an Act, but held this was rebutted by the presumption against absurdity, the contextual indicators, and considerations of purpose. This was “one of those relatively rare cases where the presumption has been rebutted.”

The appellant’s reliance on subsequent legislation (the 1935 and 1971 London Acts), the 1978 Department of the Environment Guidance, the 2008 Regulations and alleged settled practice was rejected. The London Acts were consistent with the correct interpretation. The Guidance gave no reasoning for its view and was of little or no persuasive weight. The 2008 Regulations, made over 100 years after the Act, could not be a contemporaneous aid to interpretation. There was no evidence to support the assertion of settled practice.

Implications

1. Resolution of a long-standing ambiguity. Differing views on the correct measurement point — the cremator, the cremator room, or the site boundary — had persisted for decades. The judgment provides a simple, certain test: measure from the crematory building.

2. Narrower than the Court of Appeal. The Court of Appeal had measured from all buildings performing ancillary functions. The Supreme Court confined the measurement to the single building housing the cremator — a “fixed point on a single, permanent, substantial structure” — rejecting any test dependent on variable land use.

3. Practical effect on crematorium development. Ancillary facilities — memorial gardens, ceremony halls, chapels, car parks, and areas for storage or scattering of ashes — may lawfully be sited within the 200-yard and 50-yard buffer zones. This may make additional sites viable.

4. Extended definitions may serve different statutory purposes. The judgment illustrates a principled rebuttal of the presumption that a defined term bears the same meaning throughout a statute, driven primarily by the presumption against absurdity.

5. Weight of guidance and later secondary legislation. Departmental guidance without reasoning carries little or no persuasive weight. Secondary legislation made over a century after the parent Act is not a contemporaneous aid to interpretation.

6. Law Commission consultation. The Law Commission’s ongoing consultation (Consultation Paper No 263, October 2024) has put the radius clause out for consideration. The judgment provides a settled starting point.

Verdict

Appeal dismissed. “Crematorium” in section 5 of the Cremation Act 1902 means “a building fitted with appliances for the purposes of burning human remains.” The radius distances are measured from the crematory building. The development did not contravene the Act and the inspector made no error of law.

Source: https://www.supremecourt.uk/cases/uksc-2024-0081