Town and country planning – Planning permission – Crematorium – Planning inspector allowing appeal against refusal of planning permission for new crematorium – Court dismissing application for statutory review – Appellant appealing – Whether inspector erring in considering whether location of proposed crematorium contrary to section 5 of Cremation Act 1902 – Whether inspector failing to apply sequential test in relation to flood risk – Appeal dismissed
The first interested party applied for planning permission for a crematorium on land in Tandridge, near Oxted, Surrey, in the green belt, together with a ceremony hall, memorial areas, a garden of remembrance and associated parking and infrastructure. It was common ground that the proposed development was inappropriate development in the green belt and should not be approved except in very special circumstances.
The site lay within an area designated as flood risk zone 1. In support of its planning application, the first interested party submitted a site-specific flood risk assessment which stated that, based on the available information, the site was not at risk of flooding. The proposals to develop the site would not have a significant impact on the current surface water regime.
The appellant was a local resident and a member of a group that had objected to the proposed development. She claimed that the site was prone to surface water flooding, and the proposed crematorium and associated gardens would be within 200 yards of the nearest dwelling and so in breach of section 5 of the Cremation Act 1902.
The second interested party local authority dismissed the application. Following a local inquiry, an inspector appointed by the respondent secretary of state allowed an appeal against that refusal. The appellant’s application for statutory review under section 288 of the Town and Country Planning Act 1990 was dismissed: [2023] EWHC 92 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) The relevant aims of the 1902 Act were to ensure that cremations were subject to uniform rules throughout the country, to enable the secretary of state to regulate the manner and places in which cremations were carried out, to require a crematorium to be a building which was appropriately equipped, and to ensure that a crematorium was not located near homes or roads. Provided it was relatively permanent and substantial, so that it could properly be said to have been “constructed”, and provided it could normally be so described, a structure would be a “building” within the Act. It was clear from the opening words of section 2 that the expression “crematorium”, in context, meant a building that had to be fitted with appliances for the purpose of burning human remains. There was no reason not to give the word “building” its natural and relatively wide meaning: R (on the application of Ghai) v Newcastle City Council [2010] EWCA Civ 59; [2010] PLSCS 45; [2011] QB 591 considered.
(2) Bearing in mind the underlying primary purpose of the statute of protecting public health, section 5 of the 1902 Act was not concerned with the distance of houses from open areas within the site of a crematorium, even if those areas were landscaped, planted or surrounded by walls (such as gardens of remembrance or memorial gardens) or contained structures of the type proposed by the first interested party for storage of the ashes. Its underlying concern was the distance of houses and roads from the location of the burning process and anything directly connected with that.
Reading sections 2 and 5 together, it was clear that the definition of “crematorium” included all those other buildings/structures on site in which functions that could properly be described as incidental or ancillary to the cremation process were carried out, such as the ceremony hall, the porte cochère and any part of the building in which the cremated remains were pulverised and the ashes collected. The use of the word “constructed” in section 5 made it clear that parliament could not have intended in 1902 that distances from local houses should be measured from open areas within the crematorium grounds.
(3) Section 5 was only concerned with the distance between roads, houses and a building (or buildings) and not with the location of the memorial gardens or any other open space. In the present case, although the judge’s analysis of the statute was broadly correct, the court did not agree that an open area of the grounds where ashes were to be strewn was encompassed within the statutory definition of a “crematorium”. The Crematoria Guidance was right to draw the distinction between certain features of the crematorium building(s) and others, such as staff housing, but it was wrong to make the distinction between areas designated for the strewing or interment of ashes and other parts of the landscaping.
It was clear from the plans that, on the correct interpretation of the statute, all the potentially relevant parts of the proposed crematorium building fell within the permitted zone. Accordingly, the judge was right to find that the proposed development could be constructed on the site without contravening the restrictions in section 5 of the 1902 Act.
(4) The inspector clearly recognised that the location of the site within flood zone 1 was not sufficient in itself to avoid the need to consider the risk of flooding from water sources other than rivers, how that might be mitigated and whether there were alternative sites which might be less susceptible to groundwater flooding. He rationally took into account the ability effectively to manage the risk of flooding at the site through conditional controls. The judge was entitled to take the controls into account in reaching a conclusion, in the exercise of his planning judgment, that a sequential test need not be applied. Even if he had reached the contrary conclusion, it was clear from his consideration and rejection of an available and better-situated alternative site that the application of such a test would not have led to any different result. There was no irrationality or any other public law error in that approach. Accordingly, there was no substance in the appellant’s complaints concerning the inspector’s treatment of the flooding issue: 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; [2024] PLSCS 15 considered.
Patrick Green KC and Kate Gardiner (instructed by Fladgate LLP) appeared for the appellant; Jonathan Darby (instructed by Government Legal Department) appeared for the respondent; Peter Goatley KC and Sioned Davies (instructed by Addleshaw Goddard LLP) appeared for the first interested party; the second interested party did not appear and was not represented.
Eileen O’Grady, barrister
