May 13th, 2024 by James Goudie KC

In WATHEN-FAYED v SoS and TANDRIDGE DC ( 2024 ) EWCA Civ 507 the Court of Appeal held that a proposed development would not inevitably contravene the provisions of the CEMATORIUM ACT 1902 ( the 1902 Act ). Section 2 of the 1902 Act defines “ crematorium “. It means  “ any building fitted with appliances for the purposes of burning human remains “. That is expressed to include “ everything ancillary or incidental thereto “. Section 5 of the 1902 Act prohibits construction of a crematorium nearer to any dwelling-house than 200 yards ( except with the consent of the occupier ), or within 50 yards of any public highway, or in the consecrated part of a burial ground. The proposed development comprises a crematorium with a ceremony hall, memorial areas, a garden of remembrance, and associated parking and infrastructure. The site consists of 4.5 acres of open fields.

The Court of Appeal discussed, from para 60, the interpretation, as to which there was little previous authority, of the 1902 Act, and in particular the extended definition in Section 2. Andrews LJ said at para 74 that public health was the primary purpose behind the Section 5 logistical restrictions on the siting of a crematorium, and at para 88 that Section 5 is not concerned with the distance of houses from open areas within the site of the crematorium. The underlying concern is the distance of housing and roads from the location of the burning process and anything directly connected with that.

At para 98 she said that, reading Sections 2 and 5 together, the definition of “ crematorium “ includes all those other buildings/structures on site on which functions that can properly be described as “incidental or ancillary “ are carried out. It does NOT (para 104) extend for example to memorial gardens or other outdoor OPEN SPACES.

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