Cur. adv. vult.
JUDGMENT
October 26. G. H. NEWSOM Q.C., Ch., read the following judgment. The Church of St. Peter, Bushey Heath, stands in the angle between the High Road and the Elstree Road. It is surrounded by a piece of ground, to some extent cultivated, which is occupied with it and undoubtedly is part of its curtilage, but the area between the two roads and the church is only a few feet wide. The church building is very close to both roads; the High Road especially is busy with much noisy traffic. Adjacent to the church curtilage on its east side is the garden of the former parsonage house, which is in the process of being sold to a development company, Leech's Developments Ltd. of Kilburn; the company intends to erect buildings comprising 27 flats on the development site, that is the site of the former vicarage and its garden. The flats will be reached from the High Road by a new access road close to the boundary between the development site and the church curtilage. The developers intend to let them on 99-year leases. When the negotiations for this transaction had proceeded for some time, the parties learned that the planning authorities would require a "splay," by which they mean a curved opening at the end of the new access road wider than that road itself. The purpose would be to make it easier for drivers leaving the access road to see the advancing traffic in the High Road. In circumstances which are not fully before me, those responsible for selling the vicarage site and the developers found that, in order to obtain the "splay," the access road must either be moved further to the east (thus losing the usefulness of a considerable amount of the development site, which I was told would reduce its value by about £5,000), or the western part of the "splay" must be put on the church curtilage. The plan supplied to me suggests that the area affected will be almost a triangle, its eastern and southern sides being straight and each about 20 feet in length. The triangle is edged green on the plan submitted with the petition, and I shall refer to it as the green land. It is all very close to the east end of the church, much of it being within five feet of the side chapel at the south-east corner of the building. This-obviously is not a proposition likely to he received with enthusiasm by this court, which is concerned to protect the church and the land surrounding it.
A petition was signed on July 28, 1970, by the incumbent and the two churchwardens. It was presented a few days later. It asked the court
"to authorise the incumbent and churchwardens acting on behalf of the parochial church council to enter into an agreement for providing a right of way across part of the consecrated churchyard of Bushey Heath to give access to the grounds of the former vicarage"
and it stated that a "draft deed of agreement together with a plan" was annexed to the petition. The draft was expressed to be of a deed of grant by which the incumbent was to grant an easement (apparently in fee simple) to the development company over the green land in consideration of £450 paid to the parochial church council.
On August 13, 1970, I directed a citation to issue and it was in due time returned without opposition. It appeared to me on examining the petition that there were strong grounds for supposing that it would fail. The petitioners referred to a consecrated churchyard, which cannot be used, even under the authority of a faculty, for secular purposes, save in very limited circumstances, none of which appeared to apply here. The rules on this subject are stated in my own judgment, as deputy chancellor of the Diocese of London, in In re St. John's, Chelsea [1962] 1 W.L.R. 706, which was followed by the Chancery Court of the Province of York last year in In re St. Mary the Virgin, Woodkirk [1969] 1 W.L.R. 1867. Technically, neither the decision of the consistory court of the Diocese of London nor that of the appellate court of the Northern Province binds the consistory court of the Diocese of St. Albans in the Province of Canterbury. But, as I have said, there were strong grounds for supposing that those decisions would be followed in this court and that the petition would therefore fail, at least in the court of first instance. Consequently, I directed that there should be a hearing in open court in order that the petitioners might have the opportunity of presenting their case and seeking to persuade me to grant the relief which they sought. This hearing occurred on October 7, 1970, in the church, and I inspected the surrounding premises just after it.
Mr. Goodman appeared for the petitioners. At the outset, he asked, and was granted, leave to amend the petition by describing the situation of the proposed right of way as the unconsecrated curtilage of the church and by asking for facilities for access for 99 years, the length of the proposed leases of the flats. He conceded that the petition, as presented, could not succeed, and I now hold that that concession was correctly made. The decision in In re St. John's, Chelsea [1962] 1 W.L.R. 706 thus becomes a binding authority in this diocese. Mr. Goodman also conceded, and in my judgment correctly, that it is impossible to create a legal estate in consecrated land, save under the authority of an Act of Parliament or a Measure: see St. Mary Abbots, Kensington (Vicar and Churchwardens) v. St. Mary Abbots, Kensington (Inhabitants) (1873) Trist. 17. Mr. Goodman put before the court certain documents and evidence which satisfied me that though the church was consecrated the curtilage was not, including evidence that the curtilage has never been used for burials. Moreover, the evidence, and indeed my own observations, made it clear that there is so much noise from the existing traffic in the roads that the addition of the noise of the traffic in the "splay" to and from the 27 proposed flats would not be significant.
Unconsecrated church curtilage has probably always been within the faculty jurisdiction, but it was expressly declared to be so by section 7 of the Faculty Jurisdiction Measure 1964. There is no statutory guidance as to the principles upon which this jurisdiction ought to be exercised, but it is implicit in my own decision in In re St. John's Church, Bishop's Hatfield [1967] P. 113, a decision binding on me now, that although the court should act by analogy with the cases about consecrated land, it has a somewhat greater, if undefined, latitude in respect of unconsecrated church curtilage. It follows that faculties for secular user, and particularly user for private purposes, of unconsecrated church curtilage can be granted in some circumstances, but ought to be granted very sparingly and normally only after a hearing in open court in which the circumstances are inquired into throughly, preferably with the assistance of the archdeacon, who should put the petitioners to proof of their case. Among other things, the court must always be satisfied that the church building itself will not be injured and that the services held therein will not be disturbed. The court is only in a secondary way concerned to see that proper consideration money is paid for whatever privileges are granted, church curtilage and rights in it not being in the ordinary sense for sale. Any consideration money must, of course, go for the benefit of the person who has the legal estate.
In the present case, I hold on the evidence that the legal estate is vested in the incumbent as a corporation sole. It appears to be implicit in the Bishop's Hatfield decision [1967] P. 113, that the incumbent is capable, at least in some circumstances, of creating or transferring a legal estate in unconsecrated curtilage if he acts with the authority of a faculty. But if he does so, the land may well cease to be curtilage, and the court would thus lose control of it. I am not disposed to allow that course here. The green land is so close to the church that the control should remain. All that is necessary is that this court should grant a licence or faculty authorising the user for the desired purposes of part of the church curtilage, the legal estate remaining in the incumbent, and that is what I propose to do. There will be a faculty authorising for 99 years, or until further order, and so long only as the conditions mentioned below are observed, the occupiers of the former vicarage site and of the 27 flats now to be erected thereon, their servants, agents, invitees and licensees to use the green land for purpose of passing and repassing from the High Road to the flats with or without vehicles. The faculty will be issued to the development company and it should be joined as a petitioner. The parochial church council should also be joined as a petitioner since it is by Measure the party responsible for the upkeep of the church and its curtilage. The faculty will be made subject to conditions forbidding the doing on the green land of anything which in the opinion of the incumbent for the time being is a nuisance to the church or a disturbance to divine service therein, and requiring the surface of the green land to be made up properly and so maintained. There will also be a provision requiring the developers to mark the boundary of the church curtilage by distinctive stones or metal markers of a permanent character in the "splay" and to maintain these marks. This will indicate that the green land remains church curtilage. The proposed consideration money of £450 will be paid to the diocesan board of finance to be held as capital of the benefice. There will be provisions for its investment. The income will be paid to the incumbent. The legal estate in the green land will remain vested in the incumbent and thus he will be able to proceed in the civil courts in trespass against anyone who uses the green land in breach of the conditions of the licence comprised in the faculty, which will, as I have said, be expressed to operate only so long as the conditions are observed. Both the incumbent and the archdeacon are also to have liberty to apply in the proceedings at any time for the discharge of the faculty on the ground that the conditions have been or are being broken.
Further, there will be general liberty to any of the petitioners to apply, and in making this direction I have particularly in mind that Mr. Goodman informed me that the parties might one day wish the green land to be thrown into the highway. If an application for that purpose is made, the court will consider whether it ought to be allowed. On that matter I now express no opinion.
ORDER
Faculty granted.
Crown Copyright acknowledged
These cases are provided freely for use by anybody by lawindexpro. Visit lawindexpro.co.uk
http://www.swarb.co.uk/c/hl/ .html
Date:
