When is a Crematorium Actually a Crematorium?

On 10 May 2024, the Court of Appeal handed down judgment in Wathen-Fayed v Secretary of State for Levelling Up, Housing and Communities [2024] EWCA Civ 507. 

The Court of Appeal dismissed the claimant’s appeal against the High Court’s dismissal of her challenge to the grant of planning permission for a crematorium on land in the parish of Tandridge, near Oxted, Surrey.  
At first instance ([2023] EWHC 92 (Admin), Timothy Mould KC (sitting as a Deputy High Court Judge) dismissed the claim.  The first instance judgment is available here .

The appeal concerned two main issues – first, the proper construction, application and effect of interpretation of the Cremation Act 1902 and how to apply the definition of a crematorium and associated locational restrictions; second, the proper approach to the sequential assessment of sites with regards to policies relevant to flood risk in the National Planning Policy Framework and relevant guidance in the Planning Practice Guidance.

Lady Justice Andrews, giving the lead judgment, concluded that the appeal should be dismissed. In summary:

1. Although her reasons differed slightly from those of the Judge at first instance, the Court of Appeal agreed with his conclusion that the proposed development on this site would not inevitably contravene the requirements of the 1902 Act. The Inspector properly addressed that objection, and reached a decision that he was entitled to reach.  
2. So far as the risk of flooding from surface water is concerned, the judge and the Court of Appeal in 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 interpreted the relevant policy in the same way as the Judge did at first instance in the present case. On application of the relevant principles, the Judge was right to find that the Inspector understood the policy, that he made no error in his approach to the issue of flood risk, and that he reached a decision that was open to him on the evidence as a matter of planning judgment.

In respect of its discussion of the 1902 Act, the Court of Appeal judgment is of wider interest with regards to statutory analysis and the purposive approach to the interpretation of statutory provisions, mindful of historical developments over time. 

In respect of the flood risk sequential assessment issue, the Court of Appeal confirmed the correctness of its earlier approach in Substation Action, agreeing with the Claimant’s submission that the Inspector’s approach had been the “the epitome of the pragmatic approach urged upon decision-makers by the PPG.”

Jonathan Darby of 39 Essex Chambers acted on behalf of the Secretary of State before both the Planning Court and the Court of Appeal, instructed by the Government Legal Department.  Permission to appeal to the Supreme Court was refused by the Court of Appeal, but the Claimant has subsequently applied directly to the Supreme Court.