St Mary & St Michael Parish Advisory Company Ltd v Westminster Roman Catholic Diocese Trustee & Ors, Court of Appeal - Chancery Division, April 06, 2006, [2006] EWHC 762 (Ch)

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St Mary & St Michael Parish Advisory Company Ltd v Westminster Roman Catholic Diocese Trustee & Ors, Court of Appeal - Chancery Division, April 06, 2006, [2006] EWHC 762 (Ch)

Case No: HC 05 C 04095 (TLC 102/05)

Neutral Citation No: [2006] EWHC 762 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand

London WC2A 2LL

Thursday, April 6, 2006

Before

MR JUSTICE LAWRENCE COLLINS

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Between

ST MARY AND ST MICHAEL PARISH ADVISORY COMPANY LTD

Claimant

and

(1) THE WESTMINSTER ROMAN CATHOLIC DIOCESE TRUSTEE

(2) HER MAJESTY'S ATTORNEY-GENERAL

(3) THE VERY REVEREND CANON DIGBY JOHN SAMUELS

(4) THE REVEREND MARTIN JAMES HAYES

Defendants

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Mr Leolin Price QC and Mr Owen Rhys (instructed by Davies Arnold Cooper)

for the Claimant

Mr Paul Morgan QC and Mr Gregory Hill (instructed by Winkworth Sherwood)

for the First, Third and Fourth Defendants

Hearing: March 16, 17, 20, 22 and 24, 2006

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JUDGMENT

Mr Justice Lawrence Collins:

I Introduction

1. The claimant is a non-profit making company limited by guarantee, the successor to an unincorporated body known as the St Mary and St Michael Planning Advisory Group (``the Advisory Group''), which was originally organised by Ms Teresa Elwes to represent members of the congregation of St Mary and St Michael Roman Catholic Parish Church on the Commercial Road, London, E1. At the time these proceedings were commenced the claimant had approximately 350 members. The first, third and fourth defendants (``the trustee defendants'') are the trustees of a trust constituted by an Indenture dated September 5, 1851 (``the 1851 Trust Deed'').

2. The underlying issue in these proceedings is whether part of the land (``the disputed land'') in the precincts of St Mary and St Michael Roman Catholic Parish Church can be used for building part of a ``Learning Village'' being promoted by the Diocese of Westminster (``the Diocese''), the London Borough of Tower Hamlets (``Tower Hamlets'') and the Department for Education and Skills (``the Department for Education'').

3. The project is to integrate the adjacent St Mary and St Michael Catholic Primary School (``the primary school''), the Bishop Challoner Roman Catholic Girls' School, the Bishop Challoner Roman Catholic Boys' School, and a co-educational sixth form on one campus.

4. The disputed land, which (like the church) is on the west side of Lukin Street, was originally used as a cemetery (between 1843 and 1854) and was in modern times (until 2005) used by the primary school as a playground and football pitch, and by local youth outside school times. The primary school acquired the former nursery school site as a playground in 2005. The plan envisages that the disputed land will be a play area for the integrated school, but that it will be built upon to support an elevated ``spine'' bridging Lukin Street and linking elements of the Learning Village.

5. The claimant's members object to this use of the disputed land, on the ground that the trusts on which the land is held require its use only for Parish purposes and also that if a school is to be built upon the land, the disputed land can only be used for a Roman Catholic school. They say that the use of the disputed land for the Learning Village is not use for Parish purposes, and that the schools on the site will not, because of the proportion of non-Catholic pupils, be Roman Catholic schools. They also say that there have been defects in the decision-making process of the trustee defendants.

II Purchase of the land and the building of the church

6. In the 1840s and 1850s land in the Roman Catholic Church in England was usually held absolutely by the Vicar Apostolic, or by him together with two or three senior clerics in the District. In the 1840s the Vicar Apostolic of the London District was the Rt Rev Dr Thomas Griffiths. The London District covered Middlesex, Berkshire, Hampshire, Hertfordshire, Essex, Surrey, Sussex, Kent, the Isle of Wight, and the Channel Islands. It is common ground that in the 1840s and 1850s none of the Roman Catholic districts were parishes under canon law. They were referred to as missions. By 1840 the area covered by what are now the Greater London Boroughs in the east of London had 6 missions. These were St Mary Moorfields, Virginia Street (from 1762), Poplar (from 1818), Stratford (1815) and Tottenham (1826). The next nearest mission after those was Brentford in Essex (1814). A mission was begun in Islington in 1841 and there was a mission somewhere in Hackney by 1843.

7. In 1842 the Virginia Street mission covered an area from Blackwell to London Bridge.

8. A piece of freehold land of about an acre was purchased on Commercial Road East for an intended new church of St Mary and St Michael. The agreement to purchase the land from Mr James Frost was made on September 15, 1842 by Mr Stephen Hutchinson as agent for the Rt Rev Dr Thomas Griffiths, the Very Rev Edward Norris (his Vicar-General), and the Very Rev John Rolfe (the incumbent of the principal church in the London Dist...

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