Newcastle Consistory Court: McClean Ch, July 2000
In 1990, the petitioner purchased the former vicarage of the parish subject to a restrictive covenant that it should not be used for any purpose other than a single dwellinghouse for private residential purposes. The evidence of the archdeacon was that covenants such as these were included not because the church authorities wished to stop development but to ensure that any subsequent development was performed with their considered approval. Following an earlier refusal, planning permission was granted in 1997 for the erection of a second house or bungalow on the site. The incumbent and the PCC were agreeable to the removal of the restrictive covenant and the petitioner therefore presented a petition praying that the court give leave to the incumbent to enter into an appropriate deed of variation. Nine parishioners lodged objections of whom five pursued the matter as parties opponent. The chancellor noted the similarity between this case and that of Re Christ Church, Chislehurst  1 WLR 1317, Rochester Cons Ct. He also considered Hansard v The Parishioners and Inhabitants of St Matthew Bethnel Green (1878) 4 PD 46, London Cons Ct, and Burial Board of St George's, Hanover Square v Hall (1879) 5 PD 42, London Cons Ct, in the latter of which Tristram Ch commented, 'This court ought to be most reluctant to grant faculties to the detriment of private property, and I should not do so unless compelled by a sense of necessity and duty'. (45-46). Reference was also made to Re St Peter and St Paul, Upper Teddington and St George, Fulwell  1 WLR 852, London Cons Ct, which emphasised that the objections of neighbours must be viewed objectively. As had been stated in Christ Church Chislehurst, the views of parishioners must be considered but they cannot be the sole or necessarily the primary factor in determining the petition. Applying the case law to the facts of this case, the chancellor posed two questions.
(1) Do the proposals have any adverse effect on the church and churchyard subject to the jurisdiction of the court?
(2) Despite traffic calming measures, the introduction of which were a condition of the planning permission, will there be a detrimental effect on the safety of pedestrians, especially children and those seeking access to the church or hall?
Mindful that the chancellor's role was not as an appellate body in relation to the LPA which had considered relevant planning matters, he concluded that there was no 'real and sensible' detriment and granted a faculty accordingly.
(2001) 6 Ecc LJ 82-83