Court of Appeal upholds decision by planning inspector to allow crematorium to be built on Green Belt

A crematorium can be built on Green Belt land with contravening the Cremation Act 1902 or environmental protections, the Court of Appeal has found.

Lady Justice Andrews noted in her judgment that development in the Green Belt “is almost inevitably going to excite controversy”, but concluded the planning inspector involved had been right to conclude the crematorium’s benefits outweighed harm to the Green Belt.

Heini Wathen-Fayed, of the Oxted and Limpsfield Residents Group, brought the case against the Secretary of State for Levelling Up, Housing and Communities.

Tandridge District Council had refused planning consent but Horizon Cremation overturned this on appeal to the inspector.

Andrews LJ said it had been common ground that the crematorium was inappropriate development in the Green Belt, which should be approved only in very special circumstances.

The inspector had found it would cause moderate harm to preserving openness and to the character and appearance of the area.

But these factors though were outweighed by the benefits of providing cremation services to meet an essential, growing and currently unfulfilled community need, which justified the development.

Wathen-Fayed had her claim for statutory review of the inspector's decision under section 288 of the Town and Country Planning Act 1990 dismissed by the High Court.

She went to the Court of Appeal on four grounds.

Andrews LJ said the first two were inextricably linked concerning the proper construction, application and effect of the 1902 Act, part of which provides that crematoria should normally be located at least 200 yards away from the nearest dwelling and 50 yards away from a public highway.

She said that in 1902 Parliament cannot have intended that distances from local houses should be measured from open areas within the crematorium grounds.

“I cannot accept that it was ever the intention of Parliament that what constitutes a ‘crematorium' should depend upon what happens to the ashes after a cremation has taken place, or whether (or where) the ashes happen to be strewn, stored or interred,” the judge said.

Andrews LJ said it made no difference to the interpretation of the 1902 Act whether it is proposed that memorial gardens will contain a structure which acts as a repository for urns which contain the ashes.

She could see no reason why the statutory definition of ‘crematorium’ “should be interpreted as including an open area where ashes are strewn, especially since that is not something which is ‘constructed'. The inspector had therefore been entitled to conclude that the proposed crematorium did not offend the 1902 Act.

The other two grounds were also inextricably linked, the judge said, and concerned assessments of surface water flood risk.

The appellant said the inspector misinterpreted or failed to properly understand and apply the relevant policies and guidance.

Andrews LJ said the proposed development would not inevitably contravene the requirements of the 1902 Act and the inspector properly addressed that objection, and reached a decision that he was entitled to reach.

Turning to the risk of flooding from surface water, Andrews LJ said the Court of Appeal in the Substation Action case had interpreted the relevant policy in the same way as the High Court had in this case.

She said: “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.”

Andrews LJ dismissed the appeal and Lord Justice Snowden and Sir Andrew McFarlane both agreed with her conclusions.

Mark Smulian