In 2012–13 the first respondent constructed a nursery and community building in the disused but consecrated burial ground of Christ Church, Spitalfields. During the building works human remains were disturbed, including those of a child, Philip Ouvry, which had been buried in 1767. The child's remains were re-buried within the churchyard in 2012. In December 2017 the deputy chancellor granted a confirmatory faculty for the erection of the nursery and refused to make a restoration order requiring a demolition of the building. Spitalfields Open Space Ltd (SOS), a company incorporated to pursue the interests of a campaigning group concerned about the physical environment in Spitalfields, together with a number of others, appealed against the deputy chancellor's decision, relying, inter alia, on the prohibition in section 3 of the Disused Burial Grounds Act 1884 of the erection of buildings on disused burial grounds other than for the purpose of enlarging a place of worship. The terms of the 1884 Act had been brought to the attention of the respondents by the appellants in September 2012. Three issues of relevance to this appeal were determined by the deputy chancellor: first, that SOS (then unincorporated) did not have sufficient interest to appear in the proceedings; second, that the court had power to grant a confirmatory faculty for the construction of the building; and third, that the court had power to grant a restoration order requiring the demolition of the building. In August 2018 Mr Jonathan Ouvry, a relative of the child Philip Ouvry, applied to intervene in the proceedings, objecting to the grant of a confirmatory faculty. Five issues arose for determination in this appeal:
i. Was the deputy chancellor wrong in respect of the insufficient interest of SOS?
ii. Was she wrong to hold that there was power to make a confirmatory faculty?
iii. If not, should her finding be changed as a result of Mr Ouvry's application to intervene?
iv. If there is no power to make a confirmatory faculty, should a restoration order now be made? and
v. If so, on what terms should it be made?
As far as the issue of the standing of SOS was concerned, the requirements for having sufficient interest to apply for a restoration order (now under Rule 16(1)(b) of the Faculty Jurisdiction Rules 2015) and to oppose the confirmatory faculty application (now under Rules 10(1) and 10(2)) were identical. The faculty jurisdiction should treat each case where sufficiency of interest arises on its own merits, and as a question primarily of fact and degree. In that way vexatious busybodies with insubstantial interests can be guarded against. That said, there was no reason to insist on some form of proprietary interest, nor need consistory courts be instinctively hostile to public interest groups, including those recently incorporated. The facts of this case were highly unusual, namely the apparent breach of the Disused Burial Grounds Act 1884 in circumstances where there had been no other party prepared to seek to uphold the rule of law. It was entirely reasonable to establish SOS and then incorporate it. There were a number of individuals involved and a number of bodies which supported the incorporation. SOS had a legitimate co-ordinating function. The appeal in relation to the sufficient interest of SOS was allowed.
The deputy chancellor was wrong to hold that there was power to grant a confirmatory faculty. Section 18A of the Care of Churches and Ecclesiastical Jurisdiction Measure had come into force on 1 April 2015. It provided that, notwithstanding section 3 of the 1884 Act, the court could grant a faculty for the erection of a building on a disused burial ground providing either that there had been no interment in that land for 50 years prior to the date of the petition or that no relative of a person interred in that land in that period maintained an objection to the grant of such a faculty. The wording of that section made it clear that it did not operate retrospectively. The section referred solely to the future erection of a building and was prospective in its wording. It was not expressed to authorise the retention of an existing building.
Mr Ouvry was given permission to intervene in the proceedings. He objected to the grant of a confirmatory faculty, inter alia, on the basis that, under section 18A(2)(b) of the 1991 Measure, his relative Philip Ouvry's remains were interred within the relevant land within 50 years of the date of the petition and that he maintained his objection to the grant of a faculty. In light of the finding that the court lacked power to grant a confirmatory faculty in this case, it was not necessary to determine this issue, but, obiter, the court found that section 18A(2)(b) should be narrowly interpreted. The reference to interments in that section did not apply to the replacement of human remains already interred in the same burial ground.
The parties agreed that the erection of the nursery was an act in relation to a churchyard which was unlawful under ecclesiastical law such that the court had jurisdiction to make a restoration under section 13(5) of the 1991 Measure. Further, the court found that the conduct of the respondents in pursuing the commencement of the works, despite having notice of the issue of legality under the 1884 Act, amounted to reckless and flagrant misconduct. Their deliberate defiance of the law was extraordinarily cavalier. Such conduct strengthened the arguments in favour of upholding the rule of law. In deciding whether to grant a restoration order the court considered a number of other issues: the fact that the appellants had brought the matter to the attention of all parties early in the scheme; the impact of the building on the setting of the Grade I listed church; the fact that the building conferred public benefit and had been erected at public expense; the benefit accruing from the availability of the site as open space. On balance, a restoration order should be granted.
It was not contested that the requirement under section 13(5) of the 1991 Measure to restore the position so far as possible to that which existed before the unlawful act was committed did not require the re-erection of the derelict recreation centre which had stood on the site prior to the nursery. The restoration would be limited to requiring the demolition of the nursery. The restoration order would require that demolition within ten years. To allow a longer period would be to sanction illegality and indirectly encourage unlawful acts. [RA]
