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)

Resolution Date:April 06, 2006
Issuing Organization:Chancery Division
Actores:St Mary & St Michael Parish Advisory Company Ltd v Westminster Roman Catholic Diocese Trustee & Ors

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

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



Royal Courts of Justice


London WC2A 2LL

Thursday, April 6, 2006



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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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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 District).

  9. The price was £3,000, £2,000 of which was to be paid on signature, and the balance within a year. Of that sum £1,500 came from the Rt Rev Dr Griffiths and £500 from a reserve which the chaplains had been accumulating. The land was to be used to build a church to accommodate 4,000 people, a presbytery for the pastors, and a burial ground.

  10. The land was conveyed by an Indenture dated February 11, 1843 to the Rt Rev Dr Griffiths, the Very Rev Edward Norris, and the Very Rev John Rolfe. The conveyance did not declare any trusts.

  11. The Rev Richard Horrabin had been at the Virginia Street mission almost continuously since 1815. To raise the remaining £1,000 he looked first to ``our own poor, but generous and devoted flock, for alacrity of aid and assistance, in a cause sacred to God ... In the second place, to our brethren whom Divine Providence has more abundantly furnished with the means of doing good, we stretch out the hand of earnest and confident supplication'' (advertisement in Orthodox Journal, December 10, 1842, p 380; and also separately printed and circulated).

  12. The Vicar Apostolic consecrated part of the plot laid out as a cemetery on July 24, 1843, but it was closed for burials in 1854 after burials in the metropolis were prohibited by legislation. It seems also that at some time in the 1840s a school/chapel was built on the land.

  13. In 1849 the Virginia Street mission was sub-divided, and a new mission was created with 12,000 Catholics in its area. The new mission was called Our Lady of Loretto. It was based at the land off Commercial Road purchased in 1843, and was placed in the care of Fr John Moore, formerly one of the assistant priests at Virginia Street, and Fr John Kaye. The remaining part of the Virginia Street mission was called St Mary and St Michael's.

  14. In 1851 the land was re-conveyed by the Very Rev Edward Norris (the survivor of the those to whom the land was originally conveyed) to Edward Cox, the president of St Edmund's College, and then from him to the four trustees of the 1851 Trust Deed, the relevant terms of which are set out in the next section.

  15. In 1852 Fr Horrabin entered into a contract with builders for the construction of the church for £14,674, and the foundation stone was laid in 1852 by Cardinal Wiseman. An entry seeking donations was placed in the Catholic Directory in 1853, and the Parish history suggests that part of the funds (£3,000) were raised from an anonymous lender in 1856. Documents before the court in this case indicate that bonds in the name of Cardinal Wiseman, the Very Rev John Wolfe, Rev Canon Thomas Long, and Rev Canon Robert Shepherd (probably held on behalf of the Diocese) were given as security for the loan.

  16. The new church was opened in December 1856 and dedicated to St Mary and St Michael in the same year, replacing the old chapel in Virginia Street. The newly re-combined mission of Commercial Road East, created around the new church, was raised to the status of a missionary rectorate. It incorporated the old Virginia Street mission as well as the Commercial Road East mission, and Fr William Kelly was appointed as its first missionary rector.

    III The 1851 Trust Deed and the 1940 Trust Deed

  17. On September 5, 1851 the Very Rev Edward Cox transferred the land on trust to the Very Rev Richard Horrabin, the Rev George Rolfe, the Rev James Holdstock, and the Rev James O'Neal. The trusts included

    (a) ``... that the Trustees ... shall ... have power to erect upon any part or parts of the said piece or parcel of ground or upon the site of the present or any future Buildings thereon a Church Chapel and also a Priest's House and Schools and that the present Chapel and Buildings and all future Buildings which shall be erected and standing on the said piece or parcel of land or ground or any part or parts thereof shall from time to time and at all times hereafter as to and concerning any Church or Chapel now or at any time or times hereafter standing or to stand on any part of the said piece or parcel of Ground be at all times and forever used and employed as a Roman Catholic Church or Chapel and as to and concerning any Messuage or Dwelling House now or at any time or times hereafter to be standing on any part of the said piece or parcel of Land or Ground upon trust to permit and suffer the same to be always used as and for the Residence of the Priest or Priests for the time being properly attached to and officiating in such Church or Chapel for the time being and for as to and concerning any School or Schools which shall at any time or times hereafter be standing on any part of the said Land or Ground to be always used as and for the purpose of bringing up and educating poor children according to and in the doctrines and tenets of the Roman Catholic Church and under the Superintendence of the officiating Roman Catholic Priest or Head Priest (if more than one) for the TIME being and further that it shall be lawful for the Trustees or the majority...

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