The petitioner, the City Council, was the freehold owner of Scotforth Cemetery. It sought a faculty for the widening of the highway by removing a length of hedgerow on consecrated land forming part of the cemetery and creating a footpath on that land. A replacement hedgerow boundary would be established. Objections were raised but the court was satisfied that these had all been satisfactorily addressed by the petitioner.
The court was satisfied that it had jurisdiction to grant a faculty even though it involved putting a small area of consecrated land to use for a secular purpose. It noted re St John's, Chelsea [1962] 1 WLR 706:
Faculties can be granted for throwing small parts of a churchyard (whether still available for burials or not) into a highway, or for granting other rights of user in the nature of wayleaves … This part of the jurisdiction must be sparingly exercised and should not be extended.
That case was relied upon in re St Mary the Virgin, Woodkirk [1969] 1 WLR 1867 (Chancery Court of York) as conferring jurisdiction to allow a local authority to take a strip of consecrated land for a road improvement scheme. In that case, the deputy auditor added:
In my judgment I ought not to grant a faculty unless I am satisfied that considerations of the public interest require that the proposed road improvements should be carried out; that there is no reasonable alternative and that the public interest outweighs the interests of the objectors and the public interest that consecrated land should continue to be used for the sacred use to which it was dedicated.
However, the case for any proposal must be proved conclusively or else it will fail, as noted in re Parish of Caister on Sea [1958] 1 WLR 309.
In the present case, the petitioner had demonstrated that the safety of pedestrians would be enhanced. While it had not conclusively demonstrated that there was no feasible alternative to the use of this particular land, none immediately presented itself. The public interest in promoting the safety of pedestrians outweighed the countervailing public interest that consecrated land should continue to be used for sacred use, because in this case there had never been any intention to use this particular area of land for any sacred purpose. There could therefore be no possible objection to releasing the land from the effects of its consecration (in the sense of authorising the use of the land for a secular purpose) in accordance with the wishes of the landowner to use it for improving the safety of highway users. [DW]
