Supreme Court hands down ruling on legislation governing siting of crematorium

Ms Wathen-Fayed’s brought the case against the Secretary of State for Housing, Communities and Local Government over interested party Horizon Cremation’s bid to build a crematorium in Oxsted, Surrey, which she argued would be unlawfully close to homes.

She had previously lost in both the High Court and the Court of Appeal.

Lord Hamblen gave the Supreme Court’s unanimous judgment. He said the Cremation Act 1902 defined a ‘crematorium’ as any building fitted with appliances for burning human remains, and everything incidental or ancillary thereto.

Its Section 5 provides: “No crematorium shall be constructed nearer to any dwelling house than two hundred yards, except with the consent, in writing, of the owner, lessee, and occupier of such house, nor within fifty yards of any public highway, nor in the consecrated part of the burial ground of any burial authority.”

The court said the essential issue on appeal was the point from which these radius distances are to be measured, which in turn depended on what is meant by “a crematorium”.

It found this meant a “building fitted with appliances for the purpose of burning human remains” and that distances were to be measured from that building.

Judges said the additional words “everything incidental or ancillary thereto” on the face of it applied to all parts of a crematorium site but made “little or no sense in the context of the restrictive purposes of section 5”.

This “results in an absurdity and renders the Act unworkable”. For example, a burial authority would never be able to connect its proposed crematorium site to a highway because any access road has to be 50 yards from the public highway.

That would mean a crematorium could only be built in cemeteries or burial grounds which already had the necessary access roads and “would completely undermine the Act’s purpose of facilitating the establishment of crematoria”.

The court concluded the solution was to hold that, for the purposes of that section, only the core definition applied.

Lords Reed, Leggatt, Stephens and Lady Simler all agreed.

Mark Smulian