Mrs Heini Wathen-Fayed v Secretary of State for Levelling Up, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Timothy Mould |
| Judgment Date | 20 January 2023 |
| Neutral Citation | [2023] EWHC 92 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3847/2021 |
and
[2023] EWHC 92 (Admin)
Timothy Mould KC
(sitting as a Deputy High Court Judge)
Case No: CO/3847/2021
IN THE HIGH COURT OF JUSTICE
KINGS BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Brown KC (instructed by Fladgate LLP) for the Claimant
Jonathan Darby (instructed by Government Legal Department) for the Defendant
Peter Goatley KC and Sioned Davies (instructed by Addleshaw Goddard) for the First Interested Party
The Second Interested Party did not appear and was not represented at the hearing
Hearing date: 14 June 2022
APPROVED JUDGMENT
This judgment was handed down remotely at 2pm on Friday 20 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Timothy Mould KC (sitting as a Deputy High Court Judge):
Introduction
This is an application under section 288 of the Town and Country Planning Act 1990 [‘the TCPA’] to quash the decision of an inspector appointed by the Defendant allowing a planning appeal by the First Interested Party [‘Horizon’] and granting planning permission, subject to conditions, for a crematorium with a ceremony hall, memorial areas, a garden of remembrance and associated parking and infrastructure [‘the proposed development’] on land off Oxted Road, Oxted Surrey RH8 9NJ [‘the site’]. The inspector made his decision by letter dated 30 September 2021 [‘the DL’]. On 20 December 2021, Mr Timothy Corner KC (sitting as a Deputy High Court Judge) granted permission for the claim to proceed.
The site is located in the Metropolitan Green Belt. The Second Interested Party [‘Tandridge’] had refused Horizon's planning application for the proposed development for three reasons which were set out in its notice of refusal dated 2 October 2020. In summary, those reasons were that the proposed development was inappropriate development in the Green Belt and there were no very special circumstances which clearly outweighed its harmful effects. In addition, the proposed development failed to respect the character and appearance of the site and its surroundings, including the protected landscape of the Surrey Hills Area of Outstanding Natural Beauty. The inspector allowed Horizon's planning appeal essentially on the basis that, in his view, the proposed development would meet an existing and growing community need for cremation facilities; would provide other social, economic and environmental benefits; and that these factors, taken together, clearly outweighed its harmful effects and demonstrated the very special circumstances required to justify the grant of planning permission for inappropriate development in the Green Belt.
The Claimant is a local resident and a member of the Oxted and Limpsfield Residents Group [‘the OLRG’]. The OLRG is a formally constituted residents' association with over 2500 members. Since it was formed in 2008, a number of its members have been elected to serve as Tandridge Councillors. The OLRG had written to Tandridge raising objections to the proposed development. The Claimant supported the OLRG in raising those objections.
The inspector heard Horizon's appeal at a local inquiry which, due to the pandemic, was held virtually over four days between 10 th August 2021 and 13 th August 2021. Although the Claimant did not appear at the local inquiry, the OLRG did so through its acting chair, Catherine Sayer, who is also leader of Tandridge and a local ward councillor. The Claimant says that she was content that the OLRG would represent her interests at the inquiry.
In his detailed grounds of resistance, the Defendant declined to accept that the Claimant was a “person aggrieved” for the purposes of section 288(1) of the TCPA. However, in his skeleton argument on behalf of the Defendant, Mr Jonathan Darby informed the court that the Defendant no longer sought to challenge the Claimant's standing to bring her claim. That was also the position adopted by Mr Peter Goatley KC for Horizon at the hearing before me. Consequently, it is unnecessary for me to consider the submissions on the question of standing made by counsel in their skeleton arguments and I do not do so.
The Claimant raises two grounds of challenge to the validity of the inspector's decision –
(1) The inspector failed properly to consider whether the provision of the proposed crematorium on the site would be contrary to section 5 of the Cremation Act 1902 [‘the 1902 Act’] which was a material consideration to his determination of the First Interested Party's appeal.
(2) The inspector erred in concluding firstly, that having regard to the relevant policies of the National Planning Policy Framework [‘the Framework’] and relevant guidance in Planning Practice Guidance [‘the Practice Guidance’], there was no need for a sequential assessment of sites for the proposed development; and secondly, that there were no reasonable alternative sites upon which to bring forward the proposed development.
Before turning to the facts, it is convenient to refer to the relevant provisions of the 1902 Act and departmental guidance upon which Mr Paul Brown KC for the Claimant founds his submissions in support of the first ground of challenge. I shall also refer to the provisions of the Framework and the Practice Guidance upon which Mr Brown relies in support of the second ground of challenge.
The long title to the 1902 Act states that it is “[a]n Act for the regulation of the burning of Human Remains and to enable Burial Authorities to establish crematoria”.
Section 2 of the 1902 Act defined the expression “crematorium” –
“ In this Act –
…..
The expression “crematorium” shall mean any building fitted with appliances for the purpose of burning human remains, and shall include everything incidental or ancillary thereto”.
Section 5 of the 1902 Act states that –
“ No crematorium shall be constructed nearer to any dwelling-house than two hundred yards, except with the consent, in writing of the owner, lessee or 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”.
Section 8 of the 1902 provides –
“ Every person who…shall knowingly carry out or procure or take part in the burning of any human remains except in accordance with…the provisions of this Act, shall…be liable, on summary conviction, to a penalty not exceeding level 3 on the standard scale”.
In April 1978 the Department of the Environment issued a non-statutory memorandum entitled “The siting and planning of crematoria” [‘the guidance’] whose stated purpose was “to assist local authorities and others contemplating the construction of crematoria”. The guidance remains extant.
Under the heading “The Site”, paragraph 5 of the guidance advised that “[s]ufficient land is required to provide an appropriate setting for the crematorium, adequate internal access roads, car-parking space and space for disposal of ashes”. Paragraph 13 advises further on the disposal of ashes —
“ 13. The area for the disposal of ashes, by strewing or by burial, should form a pleasantly treated part of the grounds. There now appears to be an increasing preference for burying ashes. Where strewing is adopted the ground will sour from the continuing application of ash and the plans should include more than one plot, if space for them can be provided (as these plots would be subject to the statutory requirements mentioned in paragraphs 17 and 18)…”.
Paragraphs 17 to 53 of the guidance are headed “The Building”. Paragraphs 17 and 18 offer the following advice about the provisions of the 1902 Act —
“ 17. The Cremation Act 1902 (Section 5) provides that no crematorium shall be constructed nearer to any dwelling house than 200 yards (184.880m), except with the consent in writing of the owner, lessee or occupiers of such house, nor within 50 yards (45.720m) of any public highway, nor in the consecrated part of a burial ground.
18. By section 2 of the Act ‘crematorium’ means ‘any building fitted with appliances for the purpose of burning human remains, and shall include everything incidental or ancillary thereto’. The Department is advised that the crematorium buildings, chapels and parts of the grounds used for the disposal of ashes come within this definition, but not ornamental gardens, carriageways or house for staff”.
Paragraph 19 of the guidance identifies the primary elements of the crematorium building. Each is then described in greater detail in the paragraphs that follow. I should set out paragraph 49 which is headed “Ancillary space” —
“49. Adjoining the crematory there should be a small staff room, a workroom, lavatory and w.c. accommodation, a fan room, suitable accommodation for the pulverising machinery and for the storage of ashes and space for the central heating plan. It is inevitable that there will be some vibration and noise from the machinery; none of it ought to be audible in the chapel, and it is important that these rooms should be sited away from the chapel. Acoustic insulation will reduce noises from the fan room. The air inlet into the fan room should be through an opening at least 3m above ground level into an outside wall facing on to a yard so as to be as far as possible away from places used by mourners; the opening should be grilled or louvered so as to reduce noise. A cleaners' room should also be provided and at the larger crematoria an office may be desired for the senior operator. Information about the space required for meters should be obtained well in advance and their installation so arranged that the meters can be read...
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