Pyres, greenhouses and bicycle stands: What is a building?

Although R(o.a.o Ghai) v Newcastle CC & ors concerned the fulfilment of the wishes of Davender Ghai to be cremated in accordance with Hindu beliefs (i.e. on a traditional open air pyre), the appeal judgement turned upon the meaning of “building”, on which Lord Justice Moore-Bick, MR commented [para.36]

“[t]here have, predictably, been many cases which have required the courts to consider the meaning of the noun “building”, but the outcome has inevitably been governed by the context”.

Unsurprisingly, the same media attention was not given to Re St. Peter in the East, Oxford [2013] Oxford Cons Ct (Alexander McGregor Dep. Ch), which concerned the replacement of existing structures in the churchyard of a redundant church appropriated by a pastoral scheme for the use of an Oxford college. Nevertheless, both cases centred around what is meant by “building”, and some useful comparisons may be drawn between them.

R(o.a.o Ghai) v Newcastle CC & ors

The context of the case is summarized in the statement of Moore-Bick LJ who said [para.10]

“The combined effect of the [Cremation Act 1902  [1]] and the [Cremation (England and Wales) Regulations 2008 SI 2841 [2]] is, therefore, that a cremation can only lawfully take place in a structure (i) which is a “building”, reading regulation 13 together with section 2, (ii) which has been constructed in a location which satisfies section 5, (iii) which is “fitted with appliances for the purpose of burning human remains”, pursuant to section 2, and (iv) whose “opening has been notified to the Secretary of State”, under regulation 13.

Counsel for the Treasury Solicitors, named as an Interested Party, contended that a structure could only be a “building” within the Act if it was “an inclosure of brick or stonework, covered in by a roof”, and supported this by three arguments [3].  However, the judge considered [para. 33] that: the proper characterisation of the issue was the more specific question whether a structure acceptable to Mr Ghai would be a “building” within the section, [para.33]; there is no reason not to give the word “building” its natural and relatively wide meaning in section 2 of the Act, [para 32]; since if a restricted meaning were required by the Act, the type of structure in which cremations could occur would have been restricted by Regulations issued under section 7, [para.38]. The judge concluded [at para.39]

“[i]n these circumstances, I have come to the conclusion that Mr Ghai’s wishes as to how, after his death, his remains are to be cremated can be accommodated under the Act and the Regulations. This is because the various structures I have described in paragraphs 14 to 18 above, namely the cremation area in the Ceuta premises and the various structures in India, are “building[s]” within section 2 of the Act”.

In practical terms, however, it is likely that other legislation will govern whether an cremation on an open air pyre is permissible.  Following the judgement, Government (MoJ, Defra, DCLG) and the industry sector issued statements [4]  to the effect that burning bodies anywhere other than in an authorized crematorium remains a criminal offence and that any such building must have planning permission, meet environmental criteria and obtain the relevant licences.

Re St. Peter in the East, Oxford

The petition for a Faculty in Re St Peter in the East, Oxford concerned the replacement of existing structures in the churchyard of a redundant church which had been appropriated by a pastoral scheme for the use of an Oxford college, St Edmund Hall. These included: a new gardener’s office; greenhouse and cold frames; three storerooms; the removal of existing sheds and other structures; new bicycle stands to replace old ones; new fencing; and the relocation of re-location of six monuments within the churchyard (five headstones and one box tomb).  The appropriate planning permission had been applied for and granted by the college, and the Diocesan Advisory Committee had issued a certificate advising that it had no objection to the proposals. Likewise, the Parochial Church Council, with the concurrence of the incumbent, has passed a resolution consenting to the proposals, and no letters of objection were received either as a result of the public notice or otherwise.

Relocation of monuments

This aspect of the petition was relatively uncomplicated, and concerned the removal of some, but not all of the monuments in the churchyard in order to clear space for some of the proposed new structures.  The legal issue here was that the monuments are the property of the person who set them up during that person’s lifetime and thereafter become the property of the heir at law of the person commemorated (Corven’s Case (1612) 12 Co Rep 105, 77 ER 1380) [5]. Whilst their removal or relocation without the owner’s consent would amount to trespass at common law, section 3(2)(i) of the Faculty Jurisdiction Measure 1964 provides for “the moving, demolition, alteration or execution of other work to any monument” inter alia in such  circumstances, but requires that “reasonable efforts” have been made to find the owner.  Although the College Home Bursar had indicated that none of the monuments had been visited in the previous 12 years, the chancellor nevertheless advertised their proposed movement locally, and in the absence of any response or other objections, granted a faculty for their movement.

Building on disused burial grounds

Section 3 of the Disused Burial Grounds Act 1884 provides that “[i]t shall not be lawful to erect any buildings upon any disused burial ground, except for the purpose of enlarging a church, chapel, meeting house, or other places of worship”, for which the interpretation of “building” is given in section 2, ““building” includes any temporary or movable building [6]”.

However, the college stated in an email to the registry, [para. 10],

“[i]n order to comply with the requirements of ecclesiastical law [7], we believe we should meet our functional need with temporary structures rather than permanent buildings. We accept that there is a ban on permanent buildings, except for a few exceptions which do not apply to our proposals.

In that spirit, we have instructed our structural engineer to redesign our structures for that they would not be based on foundations but would rather sit upon a rigid base that would allow them to be lifted by a crane and taken away, should that be desirable at some future date. Outwardly they would appear as they do in all materials previously submitted. Internally they would have a steel grid that provides a rigid base. The structures would sit on top of the pavers that have already been proposed and discussed. A greatly magnified view of the detail of the design is attached to this email. All other elements remain the same. …”

Although proposals contained in the petition were ancillary to the use of the churchyard (as a garden and open space within the boundary of the College, and for the storage of bicycles), the deputy chancellor agreed that neither use is inconsistent with the consecrated character of the land, [para.21].

With regard to the meaning of “building” for the purposes of the 1884 Act, the deputy chancellor cited the decision of the House of Lords in Paddington Corporation v Attorney General [1906] AC 1, in which the Earl of Halsbury LC stressed that the principal consideration must be the wording of the statute, i.e. “the meaning of the prohibition contained in either of the Acts referred to” and “anything that approaches to the character of a building, whether temporary or permanent, is obviously within the prohibition”. Although referred to an alternative approach [8] adopted by Buckle Ch in Re St Peter the Great, Chichester [1961] 2 All ER 513 at 519I – 522C,  [para. 38] the deputy chancellor did not find this useful, nor did he accept the proposition, following the judgment of Hansell Ch in Bermondsey Borough Council v Mortimer [1926] P 87, that

“even if the structure technically falls within the description of a building or “anything that approaches the character of a building” … it will nonetheless involve no contravention of the Act if it is de minimis and/or is consistent with the overriding purpose of the land as an open space.”

and concluded

“I have to approach the petition on the basis that “anything that approaches to the character of a building, whether temporary or permanent, is obviously within the prohibition” (per Lord Halsbury) and that the word “buildings” in the 1884 Act “means erections which would cover some part of the ground, as the enlargement of a church would do” (per Buckley J).

Decision on Petition

Applying the above principles, the elements of the petition were decided as below:

(a) Cycle racks and screens: allowed, as not being buildings, and “a significant improvement on the present scheme”;

(b) Greenhouse and cold frames: the greenhouse does “approach the character of a building”, and permission was refused; the cold frames were allowed but without the greenhouse, it was assumed that there would be no point in constructing them.

(c) Gardener’s office and tool shed: although prefabricated, it was held that these approached the character of a building, were within the prohibition and were not allowed;

(d) Stores: whilst the proposed “store G01” clearly approached to the character of a building and was prohibited by the 1884 Act, the proposed “store G06” was more of a borderline case, being more akin to a large cupboard, and on balance was permitted.

However, the Deputy Chancellor concluded by stating [paras. 64 and 65]

“I consider the outcome of this petition to be unsatisfactory. In my view the entirety of the petitioners’ proposals were not only satisfactory but also desirable  . . . . . . The fact that a number of elements of the proposals (which would represent significant improvements to the churchyard) cannot be authorised is entirely because of the prohibition imposed by section 3 of the 1884 Act. Were it not for that statutory prohibition I would have granted a faculty for the proposals in their entirety.

The petitioners have gone to some trouble in seeking to produce proposals that would not infringe the 1884 Act and [counsel] has argued everything that could properly be argued in favour of the proposals. It is unfortunate that the 1884 Act presents an obstacle to various aspects of them. It is not at all clear that the Act serves a useful purpose. It certainly has not done so in the present case. Its effect has already been modified to a significant extent by the Disused Burial Grounds (Amendment) Act 1981 which permits the erection of buildings on disused burial grounds where certain conditions are met. Unfortunately the 1981 Act does not apply to any consecrated ground so it is of no assistance to the petitioners.”

Comment: Whilst the arguments on Ghai succeeded as a result of the broad interpretation given to the scope of the term “building”, those in Re St Peter in the East, Oxford were unsuccessful on account of the narrow meaning given to the term.  Nevertheless, the approach of the court in each case was shaped by the nature of the underlying legislation which was, respectively: inclusive, allowing any building “fitted with appliances for the purpose of burning human remains, and shall include everything incidental or ancillary thereto” and meeting the criteria established by the Secretary of State under section 7; or exclusive, restricting “[the erection of] any buildings upon any disused burial ground…“

In terms of the continuing usefulness of these restrictions on disused burial grounds, it should be noted that  where major infrastructure works are envisaged, the enabling statutory measures may disapply the ecclesiastical and secular provisions, e.g. in relation to burial grounds, e.g. section 39(1), Channel Tunnel Rail Link Act 1996 which states

“[n]othing in any enactment relating to burial grounds and no obligation or restriction imposed under ecclesiastical law or otherwise shall have effect to prohibit, restrict or impose any condition on the use of any land comprised in a burial ground for the purpose of constructing any of the works authorised by this Part of this Act.”

[1] Place where cremation may take place: Regulation 13.  No cremation may take place except in a crematorium the opening of which has been notified to the Secretary of State.

[2] Section 2: 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.

[3] (i) the view of Lord Esher MR in Moir v Williams [1892] 1 QB 264, 270; (ii) the desirability of having a clear and simple meaning for the word, as breach of the Act would be a criminal offence; and (iii) the need to ensure that cremations could not be seen by the general public.
[4] Joint Statement from the Federation of British Cremation Authorities, the Cremation Society of Great Britain, and the Association of Private Crematoria and Cemeteries following the issue of “final orders” regarding the Court of Appeal ruling on funeral pyres, 26th February 2010; and Ministry of Justice Statement, ‘Funeral Pyres – Court of Appeal Judgement in the Case of Ghai, 29th March 2011.
[5] In an earlier post we noted the comprehensive guidance on the ownerships of headstones &c that had been given in Re St Thomas Kilnhurst [2013] Sheffield Cons Ct (David McClean Ch).
[6] Although section 2 of the 1884 Act as it now stands was only inserted by the Statute Law (Repeals) Act 1993, the same definition of “building” has applied for the purposes of the 1884 Act since 1887 when section 4 of the Open Spaces Act 1887 enacted that the expression “building” in the 1884 Act included any temporary or movable building: see Bermondsey Borough Council v Mortimer [1926] P 87, 91.)
[7] Although disused burial grounds fall within the faculty jurisdiction of the Church of England, the relevant controls are governed by statutory legislation. [8] i.e. (i) Would the ordinary man think it was a building? (ii) Has the relevant structure four walls and a roof? (iii) Can one say that the structure is built?”.

3 thoughts on “Pyres, greenhouses and bicycle stands: What is a building?

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