In 1966 the church and churchyard had been appropriated to the use of St Edmund Hall, Oxford (‘the college’), as part of a pastoral scheme, but remained subject to the faculty jurisdiction. The college bursar petitioned for a faculty to undertake works in the churchyard, including provision for a new gardener's office, greenhouse, cold frames, storerooms and screens, and the replacement of bicycle racks. There were no objections to the proposals. When section 3 of the Disused Burial Grounds Act 1884, which makes it unlawful ‘to erect any buildings upon any disused burial ground, except for the purpose of enlarging a church, chapel, meeting house, or other place of worship’, was drawn to the attention of the petitioner, alternative plans were submitted whereby the proposed structures were to sit on a rigid base, rather than on foundations. The petitioner argued that the structures thereby became temporary and were therefore not ‘buildings’ within the meaning of the Act.

The deputy chancellor reviewed the case law about the meaning of the word ‘building’ within the Act. He rejected the suggestion that the relevant question was whether an ordinary man would consider something a building. He further rejected the suggestion that there was a principle of law permitting buildings where they are ancillary to the functions of the burial ground. Instead, he adopted the test of Lord Halsbury in Paddington Corporation v Attorney General [1906] AC 1 where he held that ‘anything that approaches to the character of a building, whether temporary or permanent, is obviously within the prohibition [of section 3 of the Act]’. The deputy chancellor granted a faculty for the screens, cold frames and bicycle racks but refused permission for the remaining items as they constituted ‘buildings’ for the purposes of the Act. In reaching this decision, the deputy chancellor expressed his dissatisfaction at the outcome, commenting that it was unclear that the prohibition under the Act served any useful purpose. He made clear that he would have granted a faculty for the entirety of the proposed works had that prohibition not been law. [RA]