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Church court orders demolition of nursery whose construction was funded by council

A church court has ruled that a nursery funded by the London Borough of Tower Hamlets must be demolished because it was built on consecrated ground with graves present.

The nursery has been given 10 years to find new premises.

The Court of Arches, which hears appeals from lower ecclesiastical courts, strongly criticised Tower Hamlets as “reckless and flagrant”.

The dispute arose over the construction of a nursery in 2012-13 by the Governing Body of Christ Church Primary School, in association with the London Diocesan Board of Schools in the disused, but consecrated, burial ground of Christ Church, Spitalfields.

A local amenity group objected to the loss of open space and eventually discovered the construction appeared unlawful under the Disused Burial Grounds Act 1884. The case has been through a number of hearings in church courts.

Spitalfields Open Space eventually appealed to the Court of Arches, which concluded both that it had the standing to bring the case and that it was correct in arguing the building should be removed.

It said in its judgment that Tower Hamlets granted planning permission in 2011 as the nursery project would involve the loss only of open space that was not publicly accessible.

Once work began a child’s body and other human remains were found. Opponents of the project had by this time established that the churchyard was consecrated, and that the 1884 Act therefore prohibited the erection of the nursery.

Objectors complained to Tower Hamlets which, the court said, mistakenly argued that the Disused Burial Grounds Act 1884 did not apply to consecrated land.

The court found: “The conduct of Tower Hamlets was reckless and flagrant, though we share the deputy [judge’s] view that it fell just short of contumacious.”

When seeking church permission for the construction, the rector had answered “no” to the question “is the land in question consecrated?”, and also “no” to “will graves, reserved grave spaces, monuments or inscriptions be interfered with?”. Both answers were wrong.

The court found the rector and church wardens as trustees of the school and freeholder of the churchyard had filled in forms in ways that were “reckless and, so it would seem, deliberately misleading”

From September 2012 the rector and church wardens knew of the allegation that the building works, which had not then started, were in breach of the 1884 Act, “yet they took no steps whatever to obtain legal advice or seek to stop the start of the works.

“This we consider to have been reckless and flagrant misconduct.” The governing body entered into a building contract and “again, in our judgment the breach was reckless and flagrant misconduct in both cases”.

The court said: “On the facts of this case the conduct of the [governing body, rector, council and London Diocesan Board for Schools] was extraordinarily cavalier. It is this deliberate, knowing defiance of the law which strengthens the appellants’ argument about the importance of the rule of law.”

It concluded: “When we take into account the flagrancy of the unlawful act, the prompt and coherent way in which [objectors] sought to stop the building programme at its outset and were ignored, as well as the potential markedly to improve the setting of the listed church and ensure that this disused burial ground will be available as potential open space, we conclude, albeit with some regret, that a [demolition] order should be made despite the cost and disruption this will necessarily involve.”

A Tower Hamlets spokesperson said: “The council notes the decision of the Arches Court of Canterbury. The council is in discussion with school leaders, the diocese and other partners to agree an appropriate way forward.”

Mark Smulian