A NEW church-school building in east London is threatened by demolition after the Court of Arches overturned an earlier church ruling.
A group of campaigners, Spitalfields Open Space Limited, applied for a restoration order under the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, in respect of a school building erected by the governing body of Christ Church Primary School on a disused burial ground in the churchyard of Christ Church, Spitalfields (News, 9 January).
It failed to persuade the Consistory Court of the diocese of London given in December 2014, but last month it won its appeal to the Court of Arches of Canterbury.
Christ Church, Spitalfields, was consecrated in 1729, and is widely recognised as one of the most important examples of European Baroque architecture. The site in question is consecrated ground, and, until 1859, when it was closed for burials and used by the public as open space, some 67,000 persons were buried there or in the vaults of the church.
By section 3 of the Disused Burial Grounds Act 1884, it is not lawful to erect any public buildings on a disused burial ground, except for the purpose of enlarging a church or other place of worship.
In 1873, Christ Church Primary School was lawfully erected on part of the site. That was before the enactment of the 1884 Act, and was therefore unaffected by it. In 1970, a recreation centre for children was lawfully erected, pursuant to the exception in the Ministry of Housing and Local Government (Provisional Confirmation Order) Greater London Parks and Open Spaces) Act 1967.
In November 2011, the governing body of Christ Church Primary School, and others, applied for a faculty for the dismantling of the youth centre, and the development of a single-storey school and community centre in its place.
In February 2012, the Chancellor of the diocese of London, His Honour the Worshipful Judge Seed QC, treated the application as an unopposed petition, and granted the faculty.
The application for the faculty had made no mention of the prohibition in the Disused Burial Grounds Act, and stated erroneously that the land was not consecrated ground. It answered "No" to the question: "Will any graves, reserved grave spaces, monuments or inscriptions be interfered with?" In fact, when work began on the building, numerous human remains, and remains of gravestones, were discovered.
In its application for a restoration order, Spitalfields Open Space Limited, which was incorporated in March 2013, argued that the grant of the faculty and the erection of the building were unlawful, in that they contravened the Disused Burial Grounds Act.
The Diocesan Chancellor refused that application, and said in his judgment of December 2014 that all the points raised by Spitalfields Open Space Limited could and should have been raised in response to the original petition for a faculty; that the application was nothing more than an attempt to relitigate settled issues long out of time; and that it was a "blatant abuse of the process" of the Consistory Court.
The Dean of the Arches, the Rt Worshipful Charles George QC, sitting with Chancellor Tattersall QC, and Chancellor Pittaway QC, in the Court of Arches of Canterbury, said that if, as at February 2012, the erection of the building would have been contrary to the Disused Burial Grounds Act, there was no power to grant the faculty for it.
The difficulty was that it was undecided whether the building was erected lawfully, because it might have been lawful under a combination of the faculty and the exception provided in certain limited circumstances in London by the 1967 Act.
It was "most regrettable", the Court of Arches said, that the petition for the faculty erroneously stated that the churchyard was not consecrated ground. While it was surprising that that assertion was not queried either in the diocesan registry, or by the Chancellor, it appeared that the faculty was granted on the basis that the erection would not be in breach of the prohibition in the Disused Burial Grounds Act. That Act did not seem to have played any part in the Chancellor’s reasoning in granting the faculty.
The Court of Arches said that there was no reason why Spitalfields Open Space Limited should have known, in 2011, of the existence and relevance of the Act, when no one in the diocesan registry, nor the Chancellor, appeared to have appreciated its relevance, and anyone reading the petition would have seen that it was being made on the basis that the land was unconsecrated.
The Court of Arches did not consider that the grant of the faculty did "settle the issue" whether the erection of the building was lawful, and the application for the restoration order should not have been considered to constitute a relitigation of the issue.
The application for the restoration order could not be castigated as a "blatant abuse of the process of the court", the Court of Arches said.
The application for a restoration order was remitted to the London Consistory Court to be determined by the Deputy Chancellor, or, if he was not available, by a chancellor of another diocese within England as the Bishop of London would appoint for that purpose. If granted, it means that the site must be restored to its state before the erection of the new buildings.
The London Diocesan Board of Schools and the London Borough of Tower Hamlets appeared as interested parties to the appeal. They supported the respondents, who included the governing body of Christ Church Primary School and the Revd Andrew Rider, in their opposition to the claim by Spitalfields Open Space Limited for the restoration order. The two interested parties were ordered to pay half the costs of the appeal, and the respondents were ordered to pay the other half.