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Faculty granted to school built on consecrated land

10 March 2017


Authorised: Christ Church Primary School, Spitalfields, in London

Authorised: Christ Church Primary School, Spitalfields, in London

THE Consistory Court of the diocese of London granted an application for a confirmatory faculty in respect of a school building which had been erected by the governing body of Christ Church Primary School, on a disused burial ground in the churchyard of Christ Church, Spitalfields, a Grade I listed Hawksmoor church, consecrated in 1729 (News, 3 March).

The burial ground was consecrated, but was closed for burials in 1859 and used by the public as open space. It subsequently came under the public management of the London borough of Tower Hamlets.

In 1874, before the enactment of the Disused Burial Grounds Act 1884, Christ Church Primary School was lawfully erected on part of the site. Under Section 3 of that Act, 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 February 2012, Chancellor Nigel Seed QC granted an unopposed faculty for the dismantling of the current building and the development of a single-storey school and community centre in its place. The application form for the faculty had stated, quite erroneously, that the burial ground was not consecrated, and that no graves or reserved grave-spaces would be interfered with. If there was to be interference with graves, reburial conditions would have had to be imposed.

Spitalfields Open Space Ltd unsuccessfully applied to the Consistory Court for a restoration order, but succeeded in an appeal in July 2015 to the Court of Arches of Canterbury, which declared that, if the erection of the building would have been contrary to the 1884 Act, the Consistory Court had no power to grant a faculty for it. The case was then sent back to the Consistory Court to be heard by Deputy Chancellor June Rodgers.

The governing body of Christ Church School; the Rector of Christ Church, the Revd Andrew Rider; the current churchwardens, and a past churchwarden; the London Diocesan Board for Schools; and the London borough of Tower Hamlets (all collectively referred to as “the building parties”) applied for a confirmatory faculty to authorise keeping the new building currently standing on the disused graveyard.

The objectors — Spitalfields Open Space and others, including Spitalfields Trust and Friends of Christ Church Spitalfields — applied for a restoration order to demolish the new building and for the churchyard to be restored as an open space.

The Deputy Chancellor said that this case served as a “really dreadful warning to churches who seek to rely on moneys raised by active groups of ‘friends’ without giving thought to how such groups are organised or controlled, and what their legal relationship with the church . . . really is”.

The objectors sought a restoration order, “but a restoration to what?”, the Deputy Chancellor asked. The site had become “a useless eyesore” and “a failed disgraceful slum of an open space”, which was not a safe area for residents or their children. It was not, as some of the objectors described it, “a sacred site”. For more than a century, the public had abused this graveyard, and the Borough Council had done virtually nothing to stop that.

The Deputy Chancellor rejected the argument that Hawksmoor’s design included any element of landscape or gardening of the churchyard. The churchyard, was until closure, very much a functional adjunct to the church. But the historic interest in Christ Church, Spitalfields, was considerable. The objectors emphasised the churchyard’s part in the history of open spaces, but, although it was an early pioneer of urban open spaces, the continuing abuses of the presently open area displayed more significance as continuing anti-social challenges than as matters of welcome positive historic interest.

The setting of a building of this importance, however, was manifestly of some significant special architectural interest. The significance of this churchyard, both in architectural and historic terms, was as a part of the setting of the church itself.

The question was whether either a restoration order or a confirmatory faculty, if implemented, would result in harm to the significance of the church as a building of special architectural or historic interest. Neither of these would involve any alteration to the physical structure of the church building itself; what had to be assessed was the effect of either on the churchyard and the church.

As for the confirmatory faculty, any building in the graveyard would be different from the original open graveyard when it was in use. Given the 1874 building, however, the whole graveyard could not be brought back to that time. One third of it had been legally built on for more than 140 years.

Judgment on the quality of the new building was bound, to some degree, to be subjective, the Deputy Chancellor said, but she was “driven to find that this new building is innocuous in itself” and “does not impose its presence upon Christ Church or its setting”.

Its effect on the graveyard was at the lower end of the scale of seriousness. For a large part of the year, trees, which were the subject of tree preservation orders, screened the south façade of the church, and were a significant barrier to the new building’s being seen.

As for whether a restoration would result in harm to the significance of the church, the answer to that question was “obviously not”, the Deputy Chancellor said, but, correspondingly, the benefit to the setting of Christ Church by the demolition of the new building would be “relatively minor”.

If any of the building parties had gone ahead in a malicious way, or had attempted to “manipulate the system to achieve what otherwise would not have been possible to achieve”, the Deputy Chancellor said that she would have had “no hesitation in refusing a confirmatory faculty”, because a faculty would not be granted to “a maliciously contumacious applicant”. She exonerated each of the building parties of conduct of that class. But the way that they behaved in this matter meant that each of them had been severely criticised.

The Rector was not learned in the law, and this was the first time he had had to deal with the faculty system. He told the court that he would not have gone ahead had he had known the land was consecrated, and he was contrite.

But his carelessness in filling in the form was appalling, the Deputy Chancellor said, and he could not say that the graveyard was not consecrated without properly checking. If a clergyman did not know whether his graveyard was consecrated or not, “the only safe and prudent course is to assume it is consecrated,” she said.

Much was made by the objectors of a supposed conflict of interest between the school and the Rector. That was a misconception, the Deputy Chancellor said: the school was a Church of England school, and part of the mission of the church. There was no conflict, and the interest was the same. The evidence for the school’s need for, and use of, the new building was “convincing and entirely credible”.

The open parts of the churchyard had been, ever since the mid-19th century, a serious problem for successive rectors. Management of the open space had always failed — unpleasantly so in the consequences for anyone trying to use the area. If the area of the new building was returned to open space, there was no evidence to suggest that management would be any more successful, and there was overwhelming history to say that it would not. The borough of Tower Hamlets had simply ignored its responsibilities.

In carrying out the Deputy Chancellor’s balancing exercise, she said, a restoration order would “most certainly mark” the conduct of the building parties as “deplorable, even if short of contumacious, in a very public fashion”. But the purpose of the balancing exercise was not to punish those whose conduct had fallen short.

A restoration order would involve expense, both in the form of moneys thrown away and costs of demolition. A return to open space would “simply restore a long-standing and festering management nightmare”. There would be a “modest amount more of open space”, and it would be only of some marginal benefit to the setting of Christ Church.

On the other hand, a confirmatory faculty would result in a substantial public benefit, and benefit to Christ Church, in that it would promote worship and mission. The balance of benefit was firmly towards granting a confirmatory faculty and not a restoration order, the Deputy Chancellor ruled.

Judgement welcomed

by Gavin Drake

THE judgment in the Spitalfields case has been welcomed by the diocese of London and the London Borough of Tower Hamlets; but the lead objector, Christine Whaite, from Spitalfields Open Spaces, declined to comment this week.

The legal saga has been running since 2011, when an application for a faculty was made for the building. Permission for the building was originally given in February 2012. This was challenged in the London Consistory Court in December 2014, which upheld the faculty; and the ecclesiastical appellate court, the Court of Arches, which remitted the case back to London in September 2015 for a fresh decision after it was revealed that the faculty application had erroneously stated that the churchyard was not consecrated. The latest judgment puts the total legal costs incurred to date at £750,000 (News, 3 March).

In a statement, a spokeswoman for Tower Hamlets Council said that the council was “pleased” that Christ Church Primary School’s Garden Building has been allowed to stay.

“It is a well-used and much needed space for the youngest children at the school and their families, as well as being a focal point for community activities for local people,” she said. “We will be looking in more detail at the judgement, but hope that this outcome brings a welcome certainty for the future use of the building.”

In a written response, on behalf of the school, church, and diocese, a spokeswoman for the diocese of London said that they “welcome” the judgment and confirmatory faculty, and said they were “examining the detail of the judgment with our partners”.

The spokeswoman said: “The Garden Building is home to the school’s nursery and reception class, as well as being a vital community resource used on a daily basis by church and community groups.

“We hope that this will now be a resolution to the situation, which means the building will continue to provide a home for the school and facilities for the local community.”

Ms Whaite, who led opposition to the building, appeared to suggest that a further appeal to the Court of Arches was being considered. She said: “The latest judgment about Spitalfields churchyard has been published before corrections and amendments . . . have been submitted by the legal teams.

“The time limit for comment, correction or amendment of the judgment has not yet expired."

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