High Court upholds planning inspector decision on application for crematorium and 1902 law

The High Court has rejected an appeal against a planning inspector’s decision to allow a new crematorium after consideration of a 1902 law’s effect on how close these facilities can be to homes.

Timothy Mould KC, sitting as a deputy High Court judge, said in Wathen-Fayed v Secretary of State for Levelling Up, Housing And Communities [2023] EWHC 92 that neither this issue, nor a ground argued on flood risk assessment, justified overturning the inspector’s decision.

The case was brought by resident Heini Wathen-Fayed on behalf of the Oxted and Limpsfield Residents Group.

Horizon Cremation applied to build the facility on a site in metropolitan green belt and Tandridge District Council refused this as inappropriate with no ‘very special circumstances’ prevailing.

It was also concerned the crematorium would not respect the character and appearance of the Surrey Hills Area of Outstanding Natural Beauty.

The inspector allowed Horizon's planning appeal as it would meet an existing and growing need for cremation facilities and provide other social, economic and environmental benefits that he considered clearly outweighed its harmful effects.

A planning officer's report had noted that among objections were a claim that the site was prone to surface water flooding, and the crematorium and associated gardens were within 200 yards of the nearest dwelling and so breached section 5 of the Cremation Act 1902 Act.

Ms Wathen-Fayed argued that Horizon's case was based on the ability of the proposed development to meet the identified need for new crematoria and this provided the “very special circumstances” needed.

But she said if it was not possible to deliver the crematorium in compliance with section 5 of the 1902 Act, it could not justifiably be said it was capable of meeting that need; and so Horizon's case would be greatly undermined.

She submitted that on a true construction of the definition of ‘crematorium' in section 2 of the 1902 Act, the separation distances prescribed by section 5 would apply also to the memorial gardens used for the disposal of ashes and car parking areas, both of which were plainly within 200 yards of neighbouring dwellings.

In June 2020, Mercia Crematoria Developments wrote to Tandridge objecting to the proposed development saying it had identified the need for a new crematorium north of Tandridge and had a suitable site.

Mercia too raised the section 5 of the 1902 Act issue and argued that to comply Horizon had been driven to a layout and design that was contrived and substandard.

It said the 1902 Act restrictions applied to incidental and ancillary features and that Horizon had overlooked these would be located within 200 yards of neighbouring dwellings.

Horizon then provided Tandridge with a proposal for the sealed storage and management of ashes at the site to avoid the scattering of ashes in the memorial gardens.

Judge Mould said: “I do not think that the claimant is correct that the inspector failed to give consideration to the potential impact of the restrictions imposed by the 1902 Act on the delivery of the proposed development.”

He added: “In my view, it is clear that he found no reason to conclude that delivery of the proposed development at the site would contravene the restrictions imposed by the 1902 Act.”

Judge Mould said the 200 yards separation distance was to protect occupiers’ health from burning human remains. He said this meant other parts of the site were not covered by this if they were not used for the actual burning.

He said: “In my view, the evidence before the inspector did not support Mercia's contention that the location of the memorial gardens was subject to the restrictions imposed by section 5 of the 1902 Act.

“There was no evidence that any part of the actual process of burning human remains at the proposed cremation facility would be carried out in the memorial gardens.”

Turning to the flood risk ground, Judge Mould said the principal issue between Horizon and the residents’ group and Mercia was whether a sequential flood risk test should have been applied.

The residents argued the policy aim of steering development to sites at lower risk of flooding would be frustrated if the assessment of flood risk were only undertaken after planning permission has been granted.

“In my view, that submission goes too far,” Judge Mould said.”I see no reason in principle why the ability effectively to manage the risk of flooding at the site through conditional controls should not be brought into account, for the purpose of making an overall planning judgment whether the sequential test should apply to a site located in flood zone 1.”

He added: “It was plainly the judgment of the lead local flood authority that such conditional controls would enable the delivery and operation of the proposed development with effective management of groundwater flooding at the site.”

The inspector had been entitled to take these controls into account in reaching his conclusion that the sequential test need not be applied in this case, Judge Mould ruled.

Mark Smulian