THE Rector and PCC of Christ Church, Spitalfields, have been granted a faculty to use part of the church’s disputed churchyard as a school playground.

The way is now clear for Christ Church to enter into a new management agreement with the London Borough of Tower Hamlets in respect of part of the closed churchyard, which will enable the borough to license back a section to the governing body of Christ Church C of E Primary School, for use as a playground.

This land has had a chequered history. The burial ground of the church was full by 1857, and was closed by order in council. It was converted to a public garden by the Metropolitan Public Gardens Association in 1892, but the church school was built on a large proportion of this. In 1970, the borough was granted permission to convert part of the remaining churchyard into an adventure playground, and to erect a building for use by children using the churchyard. The church itself, although closed in 1957 and near derelict, was brought back into use largely owing to the efforts of the Friends of Christ Church Spitalfields, formed in 1976.

In February 2012, a faculty was granted for the building known as the Garden Building, which, in 2014, was occupied by a nursery school (News, 9 January 2015). The erection of the Garden Building attracted extensive litigation (News, 3 March 2017), and, in 2019, the Court of Arches ordered its demolition by 1 February 2029 (News, 29 January 2019). An undertaking was then given that certain parts of the land would be kept open to the public during daylight hours.

Plan of the churchyard used in the judgment. A, B, and C are to be open garden areas, enlarged with F and G when the Garden Building is demolished. D and E will have limited public access

There had been objections to the current petition for a faculty by several parties opponent (“the objectors”), including Spitalfields Open Spaces. They submitted that, in 1859, the church had created an irrevocable charitable trust for public recreation by applying for a faculty dedicating the disused burial ground “in perpetuity as a lawn or ornamental ground . . . to secure an open space in a crowded dense population” and that that “public” trust was confirmed by “long use” and confirmed by the Open Spaces legislation culminating in the Open Spaces Act 1906.

The objectors submitted that that “charitable trust” could be varied or terminated only by a scheme issued by the Charity Commission, which had never happened.

The objectors argued that the borough’s powers required it to manage and control the open space so as to observe the purposes set out in earlier management agreements and the Open Spaces Acts, particularly that the entire space should be maintained as a public garden, and to ensure that the entire open space was kept open at all times for the public for open recreation. This would remove the joint control by the church and the borough proposed by the Rector and PCC.

In a preliminary judgment, the Chancellor of the diocese of London, the Worshipful David Etherington KC, decided that the faculty petition was a matter for the consistory court to decide. He held that the faculty of 1859, and also the management agreements made before 1949, had no continuing relevance, and that the consistory court had jurisdiction to grant the petition and also to decide points of civil law which arose in connection with it.

In a second judgment, the Chancellor granted the faculty in exercise of that jurisdiction, approving a new management agreement with the borough. This provides for most of the churchyard, including the part now occupied by the Garden Building (after its demolition), to be managed as a public open space under the Open Spaces Act 2006. Some parts of the land would, as before, be used as a playground and tennis court by the adjacent primary school, subject to the public having access during non-school hours by arrangement with the church.