Court of Arches: no retrospective permission where works were illegal when carried out Re Christ Church, Spitalfields [2019] EACC 1

A school building constructed illegally on a disused burial ground must be demolished. To mitigate the waste of public funds, it can stand for 10 years.

In 2013, a Nursery was built on the disused graveyard of Christ Church, Spitalfields. Although a faculty had been granted for the work, it was (unappreciated at the time) unlawful under the Disused Burial Grounds Act 1884, as the ground was still consecrated. This was discovered, and brought to the church’s and the court’s attention, in late 2012, but the building was still completed (conduct described by the court as “extraordinarily cavalier”).

An application for a restoration order (requiring the unlawful works to be undone) was struck out as an abuse of process, as the issue of illegality should have been raised at the earlier stage. (This was a bit rich. The church had falsely certified that the ground was unconsecrated. If the court was misled, how can objectors be taken to know the truth?) This decision was overturned on appeal in 2015, and remitted to be heard by a different judge.

In the meantime, the law changed: from March 2015, s.18A Care of Churches and Ecclesiastical Jurisdiction Measure 1991 empowered the court to permit building on a disused burial ground. In an epic, 523-page judgment in December 2017, the court refused to make a restoration order, and instead exercised its power under s.18A to grant a confirmatory faculty.

One final appeal: did s.18A give the court the power to legitimise works which had been carried out illegally? The Court of Arches held that s.18A was entirely prospective. It did not permit a confirmatory faculty, whether the illegal works were carried out before or after it came into effect. The remedy? The court took into account the need to preserve the rule of law; the flagrancy of the church’s misconduct and the failure to stop work when the unlawfulness was disclosed made a restoration order appropriate despite the inevitable cost and disruption. The building would be allowed to stand for at most 10 years, so that the cost would not be entirely wasted.

David Willink advised the successful Appellants on aspects of the appeal.


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