Wednesday 13 February 2019
Christ Church, Spitalfields: The Battle of the Churchyard
The Christ Church, Spitalfields Case: 2012-2019
This is a case of some importance – certainly within the ecclesiastical jurisdiction and potentially of wider significance – in which Thomas Seymour acted throughout, instructed by Richard Buxton Environmental Planning and Public Law Solicitors, and led in the Court of Arches by Mark Hill QC (2015) and Robert McCracken QC (2018).
In the wake of the magnificent multi-million pound restoration of Hawksmoor’s masterpiece, there has been a long-running legal dispute over the consecrated churchyard which forms the setting to the Church, a World Heritage Site. The dispute was finally brought to a close by the landmark judgment of the Court of Arches on 28 January 2019. The churchyard had been closed to burials in 1859 and was a disused burial ground where over 60,000 burials had taken place. For many years it had been managed by the local authority – now Tower Hamlets – under a management agreement with the Rector as freeholder, requiring its use as an open space for the public. In 1872 Christ Church School had been erected on the east end of the churchyard facing Brick Lane; it continues to operate as a primary, voluntary aided school on that site. S.3 of the Disused Burial Grounds Act 1884 prohibited the erection of any building on a consecrated churchyard with limited exceptions e.g. for an enlargement to the church or a building used for worship. This post-dated the 1872 school, but applied as from 1884.
By 1960 the church was derelict and might well have been condemned but for the efforts of the Betjeman Committee.
In the early 1970’s the Christ Church Adventure Playground Association was permitted to occupy the churchyard. A private Act of Parliament passed in 1967 enabled the local authority, where it holds or manages a disused burial ground as open space, to grant licences for recreational facilities and to erect related buildings, notwithstanding the prohibition in the 1884 Act. Under the auspices of the 1967 Act a building related to the adventure playground use was erected on the churchyard. The Association later gave way to a Youth Centre which by 2009-10 had become defunct.
At that time educational grants were made available for the refurbishment of the school premises. The London Diocesan Board of Schools (LDBS) was involved in the grant application process. The Rector, LDBS and the School Governors together developed the idea of extending the school’s operations over the churchyard: replacing the 1970’s building with a new building to serve as an additional school nursery, with ancillary community facilities for the parish. This was to be funded by the educational grant funds. Despite significant opposition, Tower Hamlets granted planning permission in 2011. The Rector and Churchwardens then applied to the Chancellor of London, Nigel Seed Q.C. for a faculty, stating – quite wrongly – in the petition that the land was not consecrated and that there would be no interference with graves. Christine Whaite, a local resident, and Chairman of the Friends of Christ Church Spitalfields, put in an objection, but did not become a formal “party opponent”. In February 2012 the Chancellor granted the faculty, noting that there were no ecclesiastical reasons for not granting it. In August 2012 the old building was demolished. At this stage no one had identified the fact that erection of the proposed building would be in breach of S.3 of the 1884 Act and so could not be authorised by faculty at all. On 12 September 2012 Mrs Whaite – who had by then started an informal association called Spitalfields Open Space (SOS), incorporated in March 2013 – to all concerned, including the Chancellor, objecting to the proposed works and warning that it would constitute a breach of S.3 of the 1884 Act. The works were commenced in October and carried out knowingly in the face of this objection and completed in mid 2013.
In March 2013 SOS instructed solicitors and intimated an intention to seek an injunction. Tower Hamlets responded months later by issuing a decision purporting to authorise the new building under the private Act of 1967, on the basis that the School was a “club, society or other organisation engaged in the provision of social, recreational or educational facilities”. SOS and Mrs Whaite challenged that by applying for judicial review. The proceedings were stayed by agreement, whilst the parties negotiated. Those negotiations proved abortive. In August 2014 the School announced its intention to go into occupation of the building, which in September the Chancellor permitted, in the face of objection from SOS and Mrs Whaite. SOS had sought to persuade the Attorney-General to bring a relator action, but the Attorney-General was not willing to take any action.
In August 2014 proceedings were brought by SOS in the Consistory Court for a Restoration Order – the equivalent of a mandatory injunction – under the Care of Churches and Ecclesiastical Jurisdiction Measure 1991. The Chancellor chose to call in the application and after making initial directions and hearing argument, stayed the proceedings as an abuse of process. This decision was appealed. In July 2015 the Court of Arches allowed the appeal and directed that the matter be tried before a Deputy Chancellor. June Rodgers, the then Chancellor of the Diocese of Gloucester was appointed for this purpose.
In 2015 a new Measure was passed, taking effect from 1st April, which authorised the Court, subject to certain conditions, to grant a faculty for the erection of a building on a disused burial ground, notwithstanding S.3 of the 1884 Act.
The Rector and Churchwardens petitioned for a “confirmatory faculty” under the 2015 Measure and argued that, irrespective of any past illegality, the Court could, and should, grant such a faculty, authorising the new building for the future, and on that basis dismiss SOS’s application.,
The trial, heard in June 2016, took 10 days – possibly the longest trial ever in the Consistory Court – and was followed by a judgment remarkable, as the Court of Arches later noted, for its length (over 500 pages) and outspoken criticisms of the parties. The Deputy Chancellor accepted that the 1967 Act did not apply to schools; that the building had been erected in breach of S.3 of the 1884 Act; and that had it come before her before April 2015, she would have had little option but to grant a restoration order. But she held that because of the 2015 Measure, it would be pointless for her to order demolition when an identical new building could be erected under faculty following its demolition. The judgment did not however indicate the source of the power to grant a confirmatory faculty. She also held that SOS did not have standing to sue and deplored the use of shell companies. She refused permission to appeal.
As in 2015, SOS and Mrs Whaite received a more favourable hearing and outcome before the Court of Arches. Permission to appeal was given on two grounds: standing to sue and the jurisdiction to grant the confirmatory faculty.
On the standing issue, the issue was whether SOS had “sufficient interest”: the expression used in the case both of restoration orders and opposition to faculty applications is the same as that used in the context of judicial review, where use of a limited company is commonplace. The Court of Arches reviewed authorities in public law/judicial review cases, and took into account that any concerns as to the inability of shell companies to pay costs were met by the security for costs jurisdiction. On the facts SOS, which had been founded by members who were resident in Spitalfields with the bona fide objective of protecting open space in Spitalfields did have a sufficient interest. The Court noted that on other facts, for example where the company had no connection with the parish, a sufficient interest might not be established. It acknowledged that views it had expressed obiter in its 2015 judgment that a proprietary interest was required appeared to be too narrow., no standing.
On the jurisdiction issue, the Court reversed the decision of the Deputy Chancellor, holding that there was no jurisdiction under the 2015 Measure to grant a confirmatory faculty. The 2015 Measure as a matter of construction only authorised a court to grant a faculty to authorise the erection of a future building: it did not authorise the Court to grant a confirmatory faculty. The fundamental difficulty was that the building, erected as it was in breach of S.3 of the 1884, could never have been authorised by faculty, as is well established by ecclesiastical caselaw. This could not be remedied by praying in aid the 2015 Measure.
This enabled the Court to consider afresh whether or not a restoration order should be made. The Court focussed on the fact that development was carried out in reckless disregard of the objection and specific warning given in September 2012 that the erection was in breach of S.3 of the 1884 Act, It characterised the conduct of all those responsible – Rector, Churchwardens, School, LDBS and Tower Hamlets – as “reckless and flagrant misconduct”. It noted that case law indicated that the breach of S.3 entailed a criminal offence at common law. It held that there was a public interest in public Acts of Parliament being obeyed, noting that there was no other remedy afforded by the legislation. It took account of the fact that the breach was, according to case law, an indictable offence, and that Tower Hamlets was as borough council was responsible for enforcement. The court accordingly concluded, albeit with some regret, that a restoration order should be made. The order was suspended for an unusually long period until 1 February 2029, but to take effect earlier if the School closed or moved premises before that date. The rationale for the long suspension was that the new building was fulfilling a useful purpose and that by allowing it to stand till 2029, the expenditure of public funds would at least in part have been justified. (Compare Wrotham Park Limited v Parkside Homes Limited  1 WLR 798 in which Mr Justice Brightman refused to make an order to demolish new homes as being an unpardonable waste of public funds and awarded damages instead).
Ecclesiastical Law. The case is important, particularly as it is an authoritative appellate decision. In particular:
(i) The first case on the meaning and effect of S.4 of the 2015 Measure which confers the new power to grant a faculty on a disused burial ground which is a consecrated churchyard. Not only is there a detailed analysis of the statutory provision and its effect, but, in consequence of a further argument pursued on appeal, the Court had to consider the meaning of “interment” and “relative” in the section.
(ii) Sufficient interest. The decision on standing is relevant not only for restoration order applications but in the context of the faculty jurisdiction where the same test applies.
(iii) Restoration Orders. There are not many reported cases on restoration orders, and very few, if any, concerning the erection of a building. The Court’s approach to the the principles and to the exercise of discretion will be important.
(iv) Breach of statute. Most cases concern breaches of faculty control: this case is unusual in that it was a breach of statute. The case endorses the important principle that faculties cannot authorise breaches of statute.
(v) Confirmatory Faculty. It also demonstrates the limitations of confirmatory faculties. Unless there is an express source for a confirmatory faculty, it seems that a confirmatory faculty cannot be granted to authorise works in breach of statute which no prospective faculty could have authorised.
(i) Mandatory injunctions. The decision provides a further and drastic illustration of the principle that those who erect buildings, when put squarely on notice that they are acting in breach of the law, cannot expect to find sympathy from the Court when a mandatory injunction is applied for. A developer is likely to get short shrift if he resists the application on the basis that no interim injunction was applied for. Applying for an interim injunction entails substantial cost and risk and it is not unreasonable for the claimant objector simply to register the objection in writing.
(ii) Sufficient interest. The case will stand together with the judicial review cases as showing that a limited company formed at the time of the events in question to bring proceedings may have a sufficient interest.
(iii) Enforcement of the law. The case is of wider interest in the context of the relator jurisdiction of the Attorney-General in relation to civil injunctions. Gouriet v Union of Post Office Workers  AC 435 confirmed that the Attorney-General’s discretion was absolute and uncontrolled, and that no member of the public could bring proceedings for an injunction to restrain a breach of statutory duty. In the Spitalfields case the Attorney-General was unwilling to take action, despite the ostensible breach of statute; he expressed the provisional view (wrongly as it transpired) that the private Act applied, and that there was no criminal offence. It is likely that for costs reasons the Attorney-General will very rarely intervene in practice. Because of the “sufficient interest” test, SOS and Mrs Whaite were nevertheless able to enforce in the Consistory Court. But had it been a secular matter, no member of the public could have brought civil proceedings against the wrongdoers. This seems inherently unsatisfactory. Some assistance is provided by Section 222 Local Government Act 1972 under which local authorities can bring proceedings to enforce a breach where expedient for the promotion or protection of the interests of the public in their area. But local authorities, increasingly cost-conscious, are unlikely to invoke these powers except as a last resort. S.222 affords no assistance where, as in this case, the local authority condones or is implicated in the wrongdoing. Returning to the role of the Attorney-General, if the relator jurisdiction is to have any useful role in practice, surely the Attorney General’s discretion should be susceptible to judicial review.
To download the case report, please click here.
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