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Demolish £1.5-million Spitalfields nursery, church court rules

29 January 2019

Court of Arches gives school ten years to find new premises, at end of bitter legal row


Christ Church, Spitalfields, in London

Christ Church, Spitalfields, in London

THE Court of Arches of Canterbury has ordered the governing body of Christ Church Primary School, the London Borough of Tower Hamlets, and the Rector and churchwardens of Christ Church, Spitalfields, to demolish a new nursery school. Its erection on part of the disused but still consecrated churchyard was unlawful, the court confirmed.

The nursery, which cost £1.5 million to build, has an Ofsted rating of “Outstanding”, offers 46 places, and employs 16 staff. Its construction has been in dispute from its redevelopment in 2012. It has been given ten years to find new premises.

Christ Church, Spitalfields, in east London, a Grade 1-listed Nicholas Hawksmoor church, was consecrated in 1729, along with its substantial churchyard. In 1859, the churchyard was closed for burials, and in 1869 a faculty was granted for the erection of school buildings in the south-eastern part of the churchyard. Those buildings were erected in 1873.

In 1949, control and management of almost all the remaining part of the churchyard was transferred to Stepney Borough Council, the predecessor of Tower Hamlets. Subsequently, a children’s recreation centre, a tennis court, and other facilities were constructed under the borough council’s powers.

In February 2012, the Chancellor of the diocese of London, His Honour the Worshipful Judge Seed QC, treating the application as an unopposed petition, granted a faculty for the dismantling of the existing buildings and the development of a nursery school and community building (“the nursery”).

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?”

Soon after demolition work began and trenches were dug, brick burial vaults and human remains, including a child’s coffin with a name on it, were discovered. In August 2012, without any prior notification to the diocesan registry or any search for the descendants of the child’s family, the human bones and the coffin were placed into one of the brick burial vaults, during a service performed by the Rector, the Revd Andrew Rider.

In October 2012, the construction of the nursery began and was completed a year later. It was constructed by the governing body of Christ Church Primary School, in association with the London Diocesan Board of Schools, with funding of £1.477 million provided by Tower Hamlets Borough Council.

At the same time, Christine Whaite and a group of local residents who opposed the development formed a limited company, Spitalfields Open Space Ltd, and raised the issue that the churchyard had not been deconsecrated. They argued that it was unlawful under section 3 of the Disused Burial Grounds Act 1884 to erect a building on a disused burial ground (News, 28 June 2013).

In June 2013, they wrote in a letter to the Church Times: “The diocese of London and the local council are marking their own homework, which, it seems, they haven’t done in the first place: diocese and council proposed the development; diocese and council gave permissions for it; and diocese and council are the developers.

“Are we and our supporters just little people to be ignored, who shouldn’t expect legal protection?” (Letters, 5 July 2013).

It is now undisputed that the erection of the nursery was unlawful. Under section 72 of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018, church courts have the power to make a restoration order.

Open Space campaigned for such an order, and their application was considered by Chancellor Seed. In December 2014, he held that the application was an abuse of process and granted a permanent stay, stating: “This application is nothing more than an attempt to re-litigate settled issues long out of time” (News, 9 January 2015).

In July 2015, the Court of Arches of Canterbury, the court which hears appeals from decisions of diocesan consistory courts in the province of Canterbury allowed an appeal, ruling that the construction had, indeed, contravened the Disused Burial Grounds Act 1884, and disagreeing with Chancellor Seed that the granting of a faculty “settled the matter”. It remitted the case to be heard by a differently constituted consistory court (News, 2 October 2015).

In December 2017, the Deputy Chancellor, June Rogers, issued a 497-page ruling. She agreed that, since the Disused Burial Grounds Act had been “initially missed” when the faculty was granted in February 2012, the building had been illegally erected.

But she drew on section 4 of the Care of Churches and Ecclesiastical Jurisdiction (Amendment) Measure 2015, which states that a court may grant permission to erect a building on a disused burial ground on condition that no interments had taken place in the past 50 years.

Considering the costs of demolition — estimated at £93,000 — and the “marginal” benefit that the comparatively “modest” amount of open space restored by the demolition, she refused to make a restoration order to demolish the nursery, instead granting a confirmatory faculty in respect of the nursery. The deputy chancellor also ruled that the opponents, Spitalfields Open Space and Mrs Whaite, had no sufficient interest in the case to seek a restoration order and to oppose the grant of a confirmatory faculty. She also lamented the legal cost of the dispute, then standing at £750,000 (News, 3 March 2017).

In 2018, the opponents brought their second appeal to the Court of Arches of Canterbury. The court, comprising Charles George QC, Dean of the Arches; Geoffrey Tattersall QC, Chancellor of the dioceses of Manchester and Carlisle; and David Pittaway QC, Chancellor of the diocese of Peterborough, heard the appeal over a period of two days in November 2018.

The opponents reminded the court of the value of open space, particularly to those of modest means, even if it was not superficially idyllic or justifying an elegiac description, and the role of open space in “spiritual wellbeing”. On a site visit, they drew the court’s attention to the noisiness of the western part of the churchyard compared to the quieter areas further east, including the location of the nursery.

Emphasis was also placed on the damage caused to the setting of the church by the erection, which was close to it and intrusive.

In its ruling, issued on Monday, the Court of Arches declared that Spitalfields Open Space Ltd had sufficient interest to take part in the proceedings, and that the consistory court and Deputy Chancellor had no power to grant a confirmatory faculty.

It was appropriate, the Court of Arches ruled, to make a restoration order, not only because the erection of the nursery was unlawful, but also because those concerned had been formally notified, in a letter of 14 September 2012, written on behalf of Mrs Whaite and others, before erection started that there was a statutory prohibition under the 1884 Act. Despite that, they had proceeded with the building works.

The court was critical of several people involved, including the Rector and churchwardens for “reckless” and “deliberately misleading” form-filling in the application for the faculty, and the London Borough of Tower Hamlets and the governing body of the school, as well as the London Diocesan Board of Schools, for “reckless and flagrant misconduct” in proceeding with the work after being notified of its unlawfulness.

In summarising its reasons for ordering the demolition, the court stated : “When we take into account the flagrancy of the unlawful act, the prompt and coherent way in which Mrs Whaite and others sought to stop the building programme at its outset and were ignored, as well as the potential markedly to improve the setting of the listed church and ensure that this disused burial ground will be available as potential open space, we conclude, albeit with some regret, that a restoration order should be made despite the cost and disruption this will necessarily involve.”

Time was allowed for the occupants of the nursery to relocate. Restoration of the site did not need to be completed until February 2029. The court observed that by January 2029 the nursery would have functioned for 13 years, so that the public money spent would not have been wasted, even though there would inevitably be substantial costs in dismantling the building and clearing the site.

The parties were asked to submit, within 14 days, a draft order as to costs, preferably agreed between them, and dividing responsibility for any costs where appropriate.

In its final observations, the Court of Arches said: “This highly unusual litigation arose from a misunderstanding of the relevant law which never should have occurred,” and from a failure to pause the construction programme when the 1884 prohibition was first identified.

It had been a “bitterly fought battle”, and it would “take time for the wounds to heal on both sides”. Nevertheless, the court was “very mindful of the role of all churches as local centres of worship and mission”, and welcomed what appeared during the hearing “to be the first, if very tentative, steps towards a rapprochement between the parties”.

In a statement in reaction to the judgment, issued on Tuesday, Mr Rider and Julian Morant, head teacher at Christ Church Primary School, expressed their “great disappointment”, writes a staff reporter.

“Our primary focus is, and continues to be, the needs of the local community — especially its children. Our school is now ranked third-best in Tower Hamlets on results, and the most recent OFSTED report praised the Garden Building as a key factor in our appeal and popularity. It has greatly improved the site . . . and has helped our church family to double in size to more than 250 people. The building plays a vital role in supporting children, families and local residents in need.

“We entered into the Garden Building project with good faith and enthusiasm, placing the wellbeing of our young people at the heart of that. We shall keep promoting the use of this resource for their benefit, and for the whole community. We hope that everyone can work together to realise the value in that, both now and in the years to come.”

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