St Mary & St Michael Parish Advisory Company Ltd v Westminster Roman Catholic Diocese Trustee & Ors [2006] EWHC 762 (Ch)

Case No HC 05 C 04095 (TLC 102/05)[2006] EWHC 762 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of JusticeDate Thursday, April 6, 2006
Strand
London WC2A 2LL
Before
MR JUSTICE LAWRENCE COLLINS
Between
ST MARY AND ST MICHAEL PARISH ADVISORY COMPANY LTDClaimantTHE WESTMINSTER ROMAN CATHOLIC DIOCESE TRUSTEEDefendantHER MAJESTY’S ATTORNEY-GENERALDefendantTHE VERY REVEREND CANON DIGBY JOHN SAMUELSDefendantTHE REVEREND MARTIN JAMES HAYESDefendant
Mr Leolin Price QC and Mr Owen Rhys (instructed by Davies Arnold Cooper) for ClaimantMr Paul Morgan QC and Mr Gregory Hill (instructed by Winkworth Sherwood) for First, Third and Fourth DefendantsHearing: March 16, 17, 20, 22 and 24, 2006
JUDGMENT

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 of them or for the Trustee for the time being of these presents with the assent of the said Officiating Roman Catholic Priest or Head Priest for the time being at and for any period or periods … to appropriate enclose and set apart a portion of the said land or Ground hereby assured not exceeding in measurement one half part thereof as … a Roman Catholic Cemetery for the interment of the dead therein …”(b) “… the Trustees or Trustee for the time being … do and shall from time to time and at all times … permit and suffer … the use of the said School or Schools and Cemetery and manage the same respectively in the manner and upon and subject to the following terms and conditions that is to say That the said Church or Chapel for the time being shall from time to time be governed and superintended and the Divine Worship carried on therein according to the Doctrines Rites and Ceremonies of the Roman Catholic Church by the Priest or Chaplain for the time being officiating therein being in Holy Orders as a Priest in the Roman Catholic Church or if there shall be more than one Priest or Chaplain at any time or times officiating therein then by the Head Priest or Chaplain for the time being officiating therein …That it shall be lawful for the officiating Priest or Head Priest if more than one at the time being at any time or times to receive and apply for and towards Salary of a Master or Mistress and otherwise in the maintenance and support of the said Schools or School for the time being established on any part of the said Ground any periodical or other payments from the children who may resort to such Schools or School or from the Parents or Friends or otherwise for or in respect of the education of such Children THAT the person who for the time being shall or may hold or be or exercise the Office or Functions of Roman Catholic Bishop or Vicar Apostolic or Roman Catholic Ecclesiastical Superior over the Secular Roman Catholic Clergy of and for the District in which the said Church or Chapel for the time being shall be situate shall if he shall think fit be a Trustee of the said Trust Estate and these presents AND FURTHER that he shall from time to time have liberty to nominate and appoint any other persons or person to be Trustees or a Trustee for the time being of the said Trust Estate And these presents either in substitution of or in addition to all or any or either of the Trustees or Trustee for the time being immediately before such nomination or appointment and whether such last mentioned Trustees or Trustee shall or shall not have taken upon themselves or himself to act in the trusts of these presents or any or either of them but so nevertheless that the duly officiating or Head Priest for the time being of the said Church or Chapel shall always be a Trustee of these presents …THAT the Priest or if more than one the Head Priest for the time being of and officiating in the said Church or Chapel for the time being shall have and be entitled to the management and superintendence of all matters relating to the carrying on of the Divine Worship in the said Church or Chapel for the time being in or relating to the management or the said schools and in or relating to the management of the said cemetery and the burials therein and to the said dwelling house for the time being and to all other ecclesiastical educational and other matters relating to the said Church or Chapel and to the said schools and Cemetery respectively saving nevertheless and without prejudice to the lawful obedience of such Priest to his Ecclesiastical Superior for the time being …”[18]By a deed of appointment dated October 20, 1941 Cardinal Archbishop Hinsley as the ecclesiastical superior appointed the first defendant, Westminster Roman Catholic Diocese Trustee (a company limited by guarantee) to be the sole trustee under the 1851 Trust Deed.[19]The land which was the subject of the 1851 Trust Deed now principally comprises the church and the disputed land. What is now the Parish Centre was originally part of the land, but was conveyed by the first defendant with the consent of the Charity Commissioners to the local authority in 1955, and reconveyed in the late 1950s. The land on which the primary school was built was never subject to the 1851 trusts. The primary school used the disputed land as a playground for a long period, which the evidence puts at between 50 and 70 years. The Diocese applied for a new nursery school building to be attached to the primary school and additional classrooms for the junior school children. The project was agreed and completed in 2004/2005. The site on which the former nursery school was built is now a playground for the primary school.[20]On November 1, 1940 Cardinal Archbishop Arthur Hinsley and others executed a trust deed (“the 1940 Trust Deed”) which recited (among other things) that land and buildings described in the first schedule were vested in the trustees and that the trusts upon which the land were held (which had never been declared by any instrument in writing) should be recorded. Clause 1 contained a declaration of trust that the land was to be used “in or towards advancing the Roman Catholic religion in the Diocese by such means as the Archbishop may think fit and proper and for the service and support whether in the Diocese or outside the Diocese by such means as aforesaid of charitable works and objects promoted by the Church”. The express power was given by clause 3(a) to build (inter alia) schools “for the purposes of any charitable work for the time being promoted or carried on by the Church in the diocese.” By clause 4 all charitable work of whatever nature carried on for the time being under the trusts of deed was to be subject to the absolute control of the Archbishop and to be carried on under and in accordance with his directions in all respects, and all powers were exercisable only with his consent.[21]Schedule 1 of the 1940 Trust Deed includes some property in Lukin Street, but it is now common ground that the 1940 Trust Deed does not relate to, and has never related to, the disputed land.[22]Mr Barber gave evidence that he became aware of the 1851 Trust Deed in the second half of 2003, and discussed it with Mr Gibbs, with Bishop Stack, and the school buildings committee before solicitors were instructed in early 2004. Bishop Stack gave evidence that he became aware of the 1851 Trust Deed in late 2003, but was told by Mr Barber that the 1940 Trust Deed subsumed the 1851 Trust Deed. His understanding throughout was that the 1851 Trusts had been subsumed in the 1940 Trusts. Mr Gibbs gave evidence that he only became aware of the 1851 Trust Deed in late 2004. Mr Barber had assured him that he was satisfied that nothing in the packet of deeds which he had inspected prevented them from going ahead with the scheme.[23]In my judgment, although Mr Barber was aware of the 1851 Trust Deed from some time in 2003, if he appreciated its significance he did not bring it to the attention of the first defendant. Until early 2005 the first defendant and the Diocesan Education Board (later re-named the Diocesan Education Commission) proceeded on the basis that the relevant trusts were those in the 1940 Trust Deed. IV The scheme[24]The amalgamation of the Blessed John Roche Catholic School and the Bishop Challoner Roman Catholic School for Girls (“the Girls’ School”) had been under consideration by the Diocesan Education Board since 1998.[25]The Blessed John Roche Catholic School was opened in 1992 to provide five forms of entry for boys. It was formed by an amalgamation of St Bernard’s (boys) and St Philip Howard (mixed). It was found to have serious weaknesses following an Ofsted inspection in 1995, and again in 1999. Subsequently it was found not to be making satisfactory progress.[26]The Girls’ School was a long established foundation in the borough. According to R v Governors of the Bishop Challoner Roman Catholic Comprehensive Girls’ School, ex parte Choudhury [1992] 2 AC 182, 188, the school was established in about 1930 jointly by the Sisters of Mercy trustees and the Diocese. Until 1995 it was held in the trusteeship of the Sisters of Mercy. In 1996 the school, which had previously been on more than one site, was accommodated on one site. It then became a diocesan school under the trusteeship of the Diocese. By 2001 it had 1,000 pupils of whom half were Roman Catholic.[27]Because of the failure of the Blessed John Roche School, in early 2000 the Diocese and Tower Hamlets commissioned an assessment of a number of alternative sites in the borough to accommodate new educational facilities for a new boys’ school of 600 pupils. In March 2000 it was reported to the Diocesan Education Board that the local education authority was expected to announce the closure of the Blessed John Roche School and release plans to create a new school. The plans were the subject of continuing and sensitive dialogue involving the Department for Education, the Diocese, the local education authority and the governors of the Girls’ School. In May 2000 the local education authority published its formal intention to initiate the process of closure of the Blessed John Roche School, and various options for a new school were being put forward, including a new school having connections with the Girls’ School.[28]On May 17, 2000 the Corporate Director (Education) of Tower Hamlets set out, following discussion with the Diocese, five proposals, including closing the Blessed John Roche School and changing the character of the Girls’ School to that of a co-educational school; or opening a new Roman Catholic boys’ school on a different site twinned with the Girls’ School.[29]A consultation document summarising the options was circulated widely, and the consultation process included two public meetings in June 2000.[30]There was opposition by the Girls’ School parents and governors to a mixed school. On July 4, 2000 the first defendant was informed that the Diocesan Education Board favoured the pursuit by the trustees of the establishment of a new school. On July 5, 2000 the Chairman of the Diocesan Education Board wrote to the Corporate Director (Education) of Tower Hamlets to say that the Board strongly supported the establishment of a new voluntary aided school on a completely new site. The Diocese would be supportive of the concept that the new school would work in close co-operation with the Girls’ School and post-16 provision would be provided by a completely integrated sixth form for pupils from both schools. The discussions between the Diocesan Education Board and Tower Hamlets were reported to the first defendant on September 5, 2000.[31]In November 2000 the local education authority published statutory proposals for the closure of the Blessed John Roche School and the Diocese published statutory proposals for the establishment of Bishop Challoner Roman Catholic Boys’ School “the Boys’ School”). It was intended to locate the new school on a permanent site as near as possible to the Girls’ School.[32]The Boys’ School was established in September 2001, with a Year 7 intake in rented premises at the Shadwell Centre, which is owned by Tower Hamlets. It is now housed in temporary accommodation at Hardinge Street on or near the site of the proposed school complex.[33]Negotiations to acquire a nearby factory site (and adjacent warehouses) for building the boys’ school failed in 2002. The Diocese engaged DTZ Debenham Tie Lieung (“DTZ”) to provide strategic development advice, and to assist in the identification of alternative sites.[34]At a meeting on July 31, 2002 the Diocesan Education Service and Tower Hamlets agreed to a vision of the collegiate school to raise the standards of young people in the borough. The Kent Architecture Centre was commissioned in that month to draw up a plan, and it proposed the concept of the “Learning Village.” By October 2002 it had been agreed in principle that a Learning Village would be established which in broad terms would create a combined campus for the education of both boys and girls from the ages of 3 to 18. Both the Boys’ and Girls’ Schools would be on the same site, sharing a sixth form and school facilities, resulting in a combined total of over 1,700 children. It was necessary to establish two separate schools below sixth form because the parents of the pupils in the Girls’ School had expressed a strong preference for single sex education, and the effect of current legislation is that it would not be possible to safeguard the proportion of places currently offered to girls.[35]The land under discussion included the whole of the Girls’ School site, which could be reconfigured, the whole of the primary school site, the land immediately surrounding the church (including that occupied by the presbytery and the caretaker’s house – but not the church or the new Parish Centre) and the public open space and surrounding roads in the ownership of Tower Hamlets.[36]In October 2002 a Steering Group was formed by the Diocese under the chairmanship of the Rt Rev Victor Guazzelli, a retired Auxiliary Bishop of the Diocese, who had considerable experience of the East End as former Area Bishop for East London. The Steering Group was intended to be the principal organ of consultation and discussion with architects and other professionals as the project progressed. It included representatives of the primary school and the secondary schools, and the Parish was formally represented on the Steering Group by the Parish Priest, Fr Van Son. It met regularly, usually monthly, throughout the formulation of the scheme.[37]The minutes of the finance board of the first defendant for 2003 show that the project was being kept under close review.[38]In the spring of 2003 Perkins Ogden Architects were selected as the design team for the project. An exhibition was held at the school in April 2003. In October 2003, following several months work, Perkins Ogden produced, in consultation with (among others) DTZ, a Master Plan Report (“the Master Plan”) for the Diocese.[39]The concept behind the proposals was to redevelop the existing land holding of the Diocese together with adjacent land owned by Tower Hamlets and Network Rail to provide a combined campus to form the Learning Village. It was to be achieved by integrating the primary school; the Boys’ School and the Girls’ School, and the existing sixth form. The federated school would comprise approximately 14,650 square metres, new educational floor space for new school buildings, gymnasium and drama hall, with outdoor play facilities and public areas, together with car parking and landscaping, and a youth facility. It would accommodate a four form entry (11 to 16 year olds) boys’ school (600 pupils); a five form entry (11 to 16 year olds) girls’ school (750 pupils) and a co-educational sixth form (16 to 18 year olds) (350 pupils).[40]The Master Plan recommended an option (Option C, with variants) which is substantially the present proposed scheme. For present purposes, the relevant part of Option C was that it involved an elevated teaching section (or spine) across Lukin Street, giving a secure access link between the Boys’ school to the east of Lukin Street and the Girls’ School facilities to the west of Lukin Street. The elevated section would have pillars on the disputed land, which would (apart from the pillars) remain as recreational space.[41]The Master Plan also included an option (Option D1) which had an elevated section over Lukin Street, but which did not encroach on the disputed land. The Master Plan illustrated option D1 but the benefits of D1 were outweighed by what it described as “many disadvantages”. The disadvantages included the fact that it provided only two-thirds of the external recreation area required by the Department for Education, and the fact that it would be extremely difficult to construct with the Girls’ School in place; and it failed to exploit the potential for community use.[42]The Steering Group recommended Option C following a meeting with the planning department of Tower Hamlets on November 4, 2003. Planning permission for the scheme (in the form of Option C3) was applied for in July 2004, and it was granted in April 2005.[43]Under the scheme facilities for community use will be grouped at the southern end of the site which will have their own separate entrance from Lukin Street. The majority of the proposed site currently accommodates the existing buildings and land which forms the Girls’ School, but the site includes the disputed land.[44]As I have said, the site on which the former nursery school was built is now a customised playground for the primary school, and this would allow the disputed land to be built on to support the elevated spine across Lukin Street.[45]The proposed new educational facilities represent a capital commitment in excess of £35 million to secure future educational provision in Tower Hamlets.[46]Although development of the site has been delayed because of the present dispute, the new Boys’ School is linked by a collegiate arrangement to the existing Girls’ School. Under the collegiate arrangement the governing bodies of the two schools operate jointly and the schools have a single management structure and a shared staff. Facilities are shared between the schools, so pupils move between the sites on a regular basis. The girls use the Information Technology Centre at the Boys’ School and the boys use the science laboratories and PE facilities at the Girls’ School. The schools share a single head teacher and one set of staff who move between the two sites and take classes on a regular basis at both sites. The Bishop Challoner Roman Catholic Collegiate School (“the Collegiate School”) is the first federated school in England and Wales, encompassing three separate institutions under the governance and teaching of one body.[47]According to the trustee defendants, the primary school has already benefited from the land swap and the governors support the proposed redevelopment. The nursery has been replaced, and a previous little used inner courtyard has been developed into a safe secure play space. Many of the students who attend the Collegiate School are from deprived backgrounds. There are 61 mother tongues spoken at the Schools. The Ofsted inspection in February 2004 said of the Girls’ School that it enjoyed an atmosphere of very good racial harmony, and gave good value for money, and in respect of the Boys’ School said that the school’s move onto the site had been managed with great efficiency, and in a very short time leaders had created a school which had learning at its centre and of which students were very proud.[48]Currently there are 1,143 students (girls and sixth form) and 488 boys on the roll. There are 105 teaching staff and 81 support staff. V The objections[49]On September 10, 2002 a letter from Fr Joe Boward (Poplar), Fr Adrian Walker (Millwall) and Fr Francis Van Son (the Parish Priest of St Mary and St Michael’s) was handed to Bishop George Stack, the chairman of the Diocesan Education Board. The letter said that the present situation in Tower Hamlets was unsatisfactory. The large percentage of non-Catholic pupils and teachers diminished or endangered the Catholic ethos of the schools. They recommended that Tower Hamlets would best be served by one Roman Catholic co-educational school, with six forms of entry comprising 90 girls and 90 boys, on the site of the Blessed John Roche School. Bishop Stack replied on September 19, 2002 to say that these issues would be addressed in consultation and publication of the Diocesan Education Plan.[50]Fr Van Son attended the first meeting of the Strategy Group on October 10, 2002, but did not go again.[51]In November 2002 a “Statement in Principle” was signed by “the leaders of the Catholic community” (Fr Van Son, governors of the Collegiate School and the primary school, the acting head teacher of the primary school, and the director of the Collegiate School) thanking the council members of Tower Hamlets for their help and support of Catholic education. The statement said that the signatories had a vision for a Learning Village to be built on land mostly owned by the Diocese which would educate young people from 2 to 18 years of age. On the campus they hoped to have a primary school with an early years unit, a girls’ school 11 to 16, a boys’ school 11 to 16 and a post-16 centre, the specialist facilities being shared by all schools. The statement said:
“The project is fully supported by the leadership of the Parish, the schools the Cardinal and the Diocese of Westminster and we now ask for your wholehearted support for this project, which will benefit the children and all sectors of the local community.”
[52]On April 9, 2003 Fr Van Son wrote to Mr Gibbs, the Financial Secretary of the Diocese, to protest at the fact that the whole of the football pitch used by the primary school would be taken away from the primary school and the land would be used to realise the plans which the Diocese had for a secondary school. The land belonged to the Parish. Subsequently other local people wrote in similar terms.[53]In November 2003 Fr Van Son e-mailed Mr Barber (who was then the Diocese’s Director of Schools and Diocesan Schools Commissioner, and is now the Director of Education) to say that Mr Gibbs had assured him in April that his concerns would be sent to the relevant departments, and that this had not been done. On November 7, 2003 Mr Barber responded that all development decisions had been made at the monthly strategy meetings and that Mr Barber was sorry that Fr Van Son had not made the most of the meetings nor sent a representative.[54]On December 15, 2003, Fr Van Son wrote to Mr Gibbs to say that the plans for the development showed that the village would be built across Lukin Street, taking in the plot of land which was then used by the primary school as a five-a-side football pitch. The parcel of land was formerly a cemetery and was in effect on loan to the primary school. If the primary school had no further use for the land then it was for the Parish to decide what, if anything, should be done with it. The Parish had never been consulted about the change of use. Although the Parish was in principle agreed to the concept of the Learning Village, it was never made aware that it would be built on Parish land. Fr Van Son said: “On several occasions when we have spoken to one another, you have always made it clear that our policy should be that we have a nest egg for a rainy day. This land was clearly ear-marked by the parish for this purpose. We see this parcel of land as being able to meet this objective. May I suggest that we look at ways in which this matter can be resolved satisfactorily for the parish’s sake?”.[55]Fr Van Son and Ms Teresa Elwes (a local resident and a leader of the opposition to the plan) attended a Strategy Group meeting on February 23, 2004, and expressed strong objection to the plan. The minutes record that Fr Van Son said that he was in dispute with the Diocese over the ownership of the disputed land. As a result, on March 1, 2004 Mr Allinson (DTZ) emphasised to Mr Gibbs the urgent need to resolve the land dispute.[56]At some stage in 2004 the Advisory Group was formed, and instructed Mr Howick (then a partner in Messrs Stephenson Harwood, and now a partner in Messrs Davies Arnold & Cooper) to write on its behalf. They wrote to H.E. Cardinal Archbishop Cormac Murphy-O’Connor (“the Cardinal”) on March 15, 2004. In their letter Stephenson Harwood said that they understood that initial development plans had been put forward in relation to the redevelopment, but no formal plans had been submitted to Tower Hamlets nor had any formal public consultation taken place. The purpose of the letter was to bring to the attention of the Diocese their clients’ serious concerns that the proposed development utilised land which they believed was held in trust by the Diocese for and on behalf of the parishioners of St Mary and St Michael’s and was thereby subject to covenants which would be breached by the proposed development. They asked for copies of all trust documents relating to the land forming the subject of the trust development, in particular the land abutting the Parish church.[57]Mr Gibbs responded on behalf of the Cardinal on March 22, 2004, asking Stephenson Harwood to identify their client. He said that the land was vested in the first defendant and was held by it on trust for “advancing the Roman Catholic Religion in the Diocese by such means as the Archbishop may think fit and proper and for the service and support whether in the Diocese or outside the Diocese by such means as aforesaid of charitable works or objects promoted by the Church.” This was a quotation from the 1940 Trust Deed.[58]On March 31, 2004 there was a meeting between the Cardinal and representatives of the Advisory Group to discuss their concerns. According to Ms Elwes, the Cardinal was told that the Parish had not been not aware that proposed building works would encroach upon Parish land. Mr Rigg (a member of the Advisory Group) told the Cardinal that the size of the proposed school development was wholly unnecessary, and the current attendance of Roman Catholic children only amounted to something like 50% of all pupils. According to Ms Elwes, the Cardinal expressed his concern and said that he thought that a 10% non-Roman Catholic proportion was more reasonable, and asked Mr Barber to ensure that the plans were changed, which Mr Barber agreed to do, and the Cardinal also apologised for the lack of consultation and said that he would like to come and talk to the Parish.[59]On April 7, 2004 Mr Barber sent an e-mail to Mr Allison to say that any meeting with the parishioners should be limited to a discussion of the plans, and should not extend to questions of land ownership, or whether there should be a school or of what size “(those decisions having already been taken)”.[60]There was a Strategy Group meeting on April 28, 2004, which Fr Van Son and Ms Elwes did not attend. The minutes record that the parishioners had objected to the use of the disputed land. It was agreed that Perkins Ogden would review the layout of the design and confirm whether the site density of the existing site, excluding the disputed land, was sufficient to meet Department for Education guidelines and the proposed student numbers.[61]On April 28, 2004, the Advisory Group lodged a caution against first registration of the disputed land.[62]On May 14, 2004 Mr Howick wrote to Mr Allison suggesting the site of the former Blessed John Roche School as the site for the new school.[63]A briefing note by Helen Fisher of DTZ on May 21, 2004 addressed the prospect of being able to develop the new school in a way which did not encroach on Parish land, and said that “Perkins Ogden believes that as a compromise it ‘should’ physically be possible to do this …”. Her note said that the reasons for including the Parish land were:(i) it was owned by the Catholic “community”;(ii) the use of the land helped to provide continuity of operation for the school in the course of construction;(iii) it would provide additional school recreational area;(iv) it would promote the long term ambition for the Learning Village to involve all stakeholder groups; and(v) it would re-allocate some of the overall site from the primary school to the secondary school.[64]Ms Elwes said that the briefing note shows that the architects did indeed believe it was possible to develop the new school in a way which would not encroach on Parish land and that the trustees decided not to pursue that option. Mr Allison said in evidence that Miss Fisher was simply recapitulating what DTZ had advised. His evidence was that Perkins Ogden advised him that without the elevated section over the disputed land it would be difficult if not impossible to provide the floor space required and to comply with Department for Education guidelines, and that it was not possible to re-configure the elevated structure away from the disputed land since planning permission would not be granted because of interference with television reception of the houses to the south of the disputed land.[65]On May 26, 2004 Fr Van Son wrote to the Cardinal to say that the ground being used to build part of the school was Parish land, and that if the matter were not resolved by the end of the following week, he would issue a press statement on the dispute.[66]At a Strategy Group meeting on May 27, 2004 Ms Elwes, on behalf of the Advisory Group, offered to lend the disputed land for the project provided it was not built on. Ms Elwes says that at the meeting one of the architects present told her that changes in the plan to avoid building on the disputed land were possible and Mr Barber in her presence asked the architect for plans to be drawn up. She says that at the end of the meeting Mr Barber said words to the effect that “we did not realise that it was Parish land”.[67]Following what Ms Elwes described as a fruitless meeting with Mr Barber, Mr Banham (the solicitor to the Diocese) and Mr Allison on June 10, 2004, the Advisory Group on June 27, 2004 sent a circular to parishioners to say that the plan would involve the Parish losing more than half its land, and that the land was an important financial asset for the whole Parish. Should they need money in the future for their own development, their mission to the local community and the maintenance of their buildings, they would no longer have a “nest egg” to use. The circular said that the Collegiate School was not a Parish school. Only 10% of the new pupils would come from the primary school. The majority of the primary school children were choosing to go elsewhere. At present 50% of the Girls’ School were non-Catholics, and the trend was likely to continue as more Catholic families left the area.[68]On July 3, 2004 the Cardinal met parishioners, who expressed the view that the disputed land was Parish land, and was important to the primary school, and that the proposed scheme was not for a Catholic school. The Cardinal said that he had asked for a further meeting to answer the parishioners’ concerns. That meeting took place on July 19, 2004 at the school. Slides were presented at the meeting, making the point (inter alia) that the primary school land was needed, that the proposals ensured that 25% of the whole redevelopment site would accommodate specific facilities for community use outside school hours, and that the proposals would provide contemporary education and community facilities with the Catholic church at the centre. There was plainly vociferous objection by parishioners to the proposals, since Mr Allison referred to the meeting as the most unpleasant meeting he had ever been to.[69]There was a further meeting with the Cardinal at his residence on September 8, 2004, at which (among others) Fr Van Son and Mr Howick were present. At the meeting the Diocese suggested compensating the Parish should it own the disputed land, and the possibility of mediation was explored.[70]Following further requests for documents, on September 16, 2004 Mr Gibbs wrote to Mr Howick enclosing a copy of the schedule to the 1940 Trust Deed.[71]The Department for Education also was informed by the Diocese that the 1940 Trust Deed was the governing instrument, and wrote to Stephenson Harwood on October 7, 2004 to say that the Diocese had assured the Department that it was allowed to vest the interests in the land in the project.[72]In October 2004 Fr Van Son referred the dispute to Rome.[73]On November 22, 2004 Mr Howick wrote to the Cardinal to say that the 1940 Trust Deed did not cover the disputed land, and that it was probable that from the 1840s it had been held in trust “for Roman Catholic religious charitable purposes in the parish or locality and not generalised and extended to the Diocese as in the Deed of 1940.”[74]On December 21, 2004 the solicitors for the Diocese wrote to Mr Howick to say that the unregistered land fell outside the 1940 Trust Deed and was subject to the trusts of September 5, 1851.[75]On December 23, 2004 Mr Howick wrote asking for a copy of the 1851 Trust Deed. Despite reminders, this was not provided until the second half of February or early March 2005, when it was inspected by Mr Howick. On March 17, 2005 at a meeting with the Cardinal, the Advisory Group said that the litigation would be inevitable unless the dispute could be the subject of mediation.[76]On September 7, 2005 work began disinterring bodies from the cemetery and digging up the disputed land ready to put in the supports for the elevated section. Fr Van Son was arrested for disrupting the work, and was released without charge after a few hours.[77]On November 13, 2005 the Cardinal informed parishioners that since Fr Van Son had refused a transfer to another Parish, the Cardinal had issued a decree of transfer from the Parish and had appointed Fr Martin Hayes as an administrator, pending Fr Van Son’s appeal to Rome.[78]These proceedings were commenced on December 2, 2005 for:(1) A declaration that on the true construction of the 1851 Trust Deed the trusts upon which the disputed land is held are trusts for charitable purposes (both religious and educational) within and for the sole benefit of the Parish of St Mary and St Michael and of its parishioners.(2) A declaration that the construction of part of the Collegiate School on the disputed land and the use of the disputed land for that purpose are not purposes which are authorised by the trusts of the 1851 Trust Deed.(3) A declaration that any decision taken by the first defendant as the purported trustees of the disputed land at a time when the Head Priest had not been appointed or consulted in his capacity as a trustee is invalid and of no effect.(4) If and insofar as the first defendant has made or purported to make a decision or decisions authorising the uses of the disputed land, a declaration that the decision or decisions were not made in accordance with or by reference to the 1851 Trust Deed, but by reference to the terms of the 1940 Trust Deed in the mistaken belief that this instrument governed the use of the disputed land, and are accordingly invalid and of no effect.[79]The claimant originally sought, but no longer seeks, the removal of the first defendant as trustee. In the course of these proceedings the claimant has added an additional claim that the project involves de facto a multi-faith school, that a substantial number of pupils will not be of the Roman Catholic faith and that this will be a departure from the trusts of the 1851 Trust Deed.[80]The trustee defendants counterclaim for a declaration that the decision of February 17, 2006 is valid and binding on the parties. The decision was by the first defendant (and two newly appointed trustees, who have been added as the third and fourth defendants) to approve the scheme. In the event that the court construes the 1851 Trust Deed in the sense for which the claimant contends, the trustee defendants seek a cy-près order under the Charities Act 1993, section 13, to permit the objects of the trust to be extended to permit the project to proceed in its present form.[81]I heard oral evidence from: Fr Francis Van Son; Miss Daphne Harvey, a parishioner; Ms Teresa Elwes; Mr Paul Barber; Bishop George Stack; Mr Gerald Allison; Mr John Gibbs; and Mrs Catherine Myers, the Head Teacher and Director of the Collegiate School. I also read the witness statements of Mr Kevin Rigg (a parishioner), Mr Paul Howick (a parishioner, and also the claimant’s solicitor), and Mr Robert Banham (the trustee defendants’ solicitor), who were not required for cross-examination. Mr Barber and Fr Van Son addressed questions of canon law in their witness statements. Fr Van Son dealt with these questions mainly by reference to a memorandum exhibited to his witness statement which he said had been prepared by another person whose identity he was not prepared to disclose. I ruled that the statements in the memorandum were not admissible unless he could speak to them from his own knowledge. VI Trustees’ meeting of February 17, 2006[82]On February 17, 2006 a deed of appointment of new trustees was executed, whereby the Cardinal Archbishop as ecclesiastical superior pursuant to the power in the 1851 Trust Deed appointed Canon Samuels and the Rev Martin James Hayes as new trustees. Canon Samuels is Dean of the Deanery of Tower Hamlets, and Fr Hayes is Administrator of the Parish. The deed of appointment recited that the Rev Hayes was the administrator of the Parish of St Mary and St Michael and by virtue of such office was the duly officiating or Head Priest within the terms of the 1851 Trust Deed.[83]At the meeting of the new trustees on February 17, 2006 it was resolved that if the court decided that the 1851 Trust Deed permitted the disputed land to be included in the proposed development it was appropriate to continue with that development; if the court decided that the trust did not permit the disputed land to be included, it was appropriate to continue with the applications initiated with the Charity Commissioners and/or the court for authority under the Charities Act 1983 to include the disputed land in the proposed development. VII The Parish point[84]The first issue, as to the interpretation of the 1851 Trust Deed, is whether or not the trusts of the disputed land are for religious and educational charitable purposes within and for the sole benefit of the Parish and its parishioners, and whether or not those trusts authorise construction on the disputed land of part of the proposed new buildings of the Learning Village, which are intended to take as pupils children resident outside as well as within the Parish. The claimant’s position[85]The 1851 trusts are trusts for charitable purposes (religious and educational) within and for the benefit of what became the Roman Catholic Parish of St Mary and St Michael and for the people and their families who treat the Church of St Mary and St Michael as the centre or focus of their Catholic lives and religious observance. The trusts were intended to operate for the benefit of the Parish, and not simply for any purposes which may be advantageous to the Diocese.[86]The superintendence of the local Priest in the education and the provision for the cemetery point to the local character of the trust, as do provisions binding the trustees: that the Church be governed and superintended and Divine Worship carried on therein by the Priest (or Head Priest) officiating therein; the receipt and use by the superintending Priest of fees, etc.; the Priest’s functions in respect of any school on the trust land; the requirement that the Priest shall always be a trustee; the Priest’s management and superintendence saving and without prejudice to his Ecclesiastical Superior.[87]The contemporary reference to “mission” and not “parish” in the organisation of the Roman Catholic Church is not inconsistent with the submission. It is accepted that there were no parishes in 1851, but although the 1917 Code codified and formalised the Catholic Parishes, “quasi parishes” could and did exist prior to that date. When the Church was completed the Priest was effectively in the position which later, when the designation “parish” became the norm, would make him the Parish Priest.[88]The 1851 Trust Deed reflects the contemporary situation and the history. Interpretation must take that background into account: ICS v West Bromwich Building Society [1998] 1 WLR 896, 912.[89]The acquisition of the land was largely funded by small donations from the parishioners over many years prior to 1851. Given the poverty of the local inhabitants, these efforts can properly be described as heroic. The purpose of these efforts was to establish a new church, and ancillary school, to serve the new mission or Parish. It is inconceivable that the donors contemplated that the land they had helped to acquire would be permanently alienated from the Parish for the benefit of a school over which they (through their Priest) would have no control and which would benefit a substantial number of non-Catholics. The declarations of Fr Kelly, the first “Parish Priest,” emphasise the sacrifices made by the local people and their achievement in acquiring the land.[90]If the trusts are for the benefit of the Parish, the proposal to incorporate the land within the Collegiate School will be outside the scope of the trusts for the following reasons (inter alia):(i) the suggestions put forward on behalf of the Parish as to how the land could be used for the purposes of the Collegiate School, but not be built on and therefore lost to the Parish for all time, have been ignored;(ii) the proposals will deprive the Parish of the land for all time; and(iii) the Collegiate School is designed to serve the wider community rather than the Parish, and the interests of the parishioners themselves have been completely ignored. The trustee defendants’ argument[91]Given that the relevant trusts are stated to be “expressed” in the 1851 Trust Deed, there are no words in the 1851 Trust Deed capable of bearing a meaning which imposes the suggested limitation on the permitted objects and purposes. The words actually used by the parties to the 1851 Trust Deed, to declare the trusts of the land, should be taken as correctly setting out the intentions of those who contributed to the funds subscribed for the purpose of those trusts: A-G. v Clapham (1854) 4 de G M & G 591, at 625-626.[92]The words of the 1851 Trust Deed declare charitable trusts for the Roman Catholic religion and Roman Catholic education, and authorise the use of part of the land as a Roman Catholic cemetery, but no geographical limits of the area of benefit are expressed.[93]It is accepted that evidence of relevant background circumstances is admissible to assist with the meaning of words used in a deed. There are no words used in the 1851 Trust Deed which pose any difficulty as a matter of interpretation.[94]The objection is guilty of serious anachronism. There was no Parish in 1843 or in 1851. In 1851, England was a mission territory, and there were no parishes in England until 1918. The claimant has not attempted to define the boundary of the Mission in Virginia Street nor the Mission of Commercial Road East at any relevant time. There is ambiguity as to what the claimant means by “its parishioners”. In 1851, the building of a church would have been seen to be primarily of benefit to those persons who habitually would attend such a church. But there would not have been any proper reason for providing that the relevant objects and purposes were for the sole benefit of those persons. It must have been envisaged that persons who were not habitual attenders at the church would attend from time to time. Further, habitual attendance at the Parish church might be related to the use of the Parish church but there is no reason why it should be a restriction on those who can benefit from the cemetery and the schools.[95]The claimant contends that the “central” position as trustee, and generally, of the Parish Priest (so described inaccurately as of 1851) “reinforces” the "Parish purposes only" construction. It is accepted that the trusts refer to certain activities on the land being “managed” by the officiating Priest. But the Head Priest of the church on the land is “the man on the spot” and therefore the obvious person to organise the day-to-day activities of the church and any school on the land. The “Roman Catholic Bishop or Vicar Apostolic ...” of the relevant District is entitled to be a trustee and has power to appoint additional trustees (without limit of number). The Head Priest as trustee has no special powers, and his “management” of (inter alia) the school or schools is specifically “saving nevertheless and without prejudice to the lawful obedience of such Priest to his Ecclesiastical Superior for the time being”.[96]When the land was bought in 1843, the Rt Rev Thomas Griffiths, the Vicar Apostolic, donated 50% of the purchase price for the land. There is no reason to infer that the Vicar Apostolic for the London District would have been determined to exclude persons from participating in the objects of the charity by reference to a narrow geographical area. In any case, the funds for building the church were not all from “local” sources, however one would define “local”. The Parish history makes clear that funds came from London and beyond.[97]The claimant erroneously contends that the Diocese lent money to Fr Kelly. The loan in fact was from a third party described as a “wealthy sympathiser,” and the Diocese assisted by providing security to the lender. But even if the transaction was a “loan” by the Diocese, it was made well after 1843 and does not affect the interpretation of the trusts. VIII Catholicity[98]By the 1851 Trust Deed any School or Schools standing on any part of the land were “to be always used as and for the purpose of bringing up and educating of poor children according to and in the doctrines and tenets of the Roman Catholic Church” The claimant’s argument[99]The Collegiate School is planned as a 9-form entry school, which will take some 1,700 pupils. Having regard to the number of Roman Catholic children who are likely to apply for entry to the school, and to the actual experience of the Girls’ School (whose Catholic intake was until recently only 50%), it is certain that the overall proportion of Catholic children within the school will never reach 100% and in all likelihood will be substantially below that, notwithstanding the preference given to Catholic applicants. This is the inevitable consequence of the decision by the Diocese to provide such a large school on the site. It could have decided on a smaller school which would have been consistent with the actual number of Catholic children seeking education locally.[100]Although it is accepted that the new school will formally be a Roman Catholic school, the inevitability that it will take a substantial non-Catholic minority will lead to a dilution of its Roman Catholic ethos. Although in many ways a bold and innovative experiment, the school will de facto be a multi-faith school. The project envisages that a substantial number of those being educated – and, indeed, of those doing the teaching – will not be of the Roman Catholic faith, and this will be a departure from the terms of the trusts, which contemplate that any school on trust land will be a Roman Catholic school for Catholic children with an essentially Catholic character as part of the provision for the congregation and locality served by St Mary and St Michael.[101]The use of the disputed land for a school which recently has had, in the Girls’ School, nearly 50% non-Catholics and may be expected to have under the new Learning Village arrangements a smaller but still substantial percentage of non-Catholics is not within the contemplation, authorisation or spirit of the 1851 Trust Deed. Even if as few as 30% are non-Catholic, that is a diversion and an unauthorised diversion from the proper use of 1851 trust land for the purpose of bringing up and educating children according to and in the doctrines and tenets of the Roman Catholic Church. The Cardinal was surprised, thinking 10% non-Catholic acceptable. That reaction is consistent with the view that the Learning Village project has been conceived and put forward without regard for the 1851 trust purposes and for purposes which include purposes directed to inter-faith understanding and social cohesiveness in the community and therefore in education. The trustee defendants’ argument[102]It is accepted that the objects and purposes expressed in the trusts in relation to schools are that they are used for educating poor children according to and in the doctrine and tenets of the Roman Catholic Church.[103]The doctrines and tenets of the Roman Catholic Church on the teaching of children do not have any element which restricts Catholic education to children who are already baptised Catholics. The Roman Catholic Church is a missionary Church. It is not only compatible with Catholic doctrine but it is a part of Catholic doctrine that the Church will bring its beliefs to persons who are non-believers.[104]A Roman Catholic school is one which is under the control of the competent ecclesiastical authority. Formation and education in a Roman Catholic school must be based on the principles of Roman Catholic doctrine and the teachers must be outstanding in true doctrine and uprightness of life. No school may bear the title “Catholic School” except by the consent of the competent ecclesiastical authority. The formation and education in the Catholic religion provided in any school is subject to the authority of the Church. The Diocesan Bishop has the right to inspect Catholic schools situated in his territory. He also has the right to issue directives concerning the general regulation of Catholic schools.[105]Every one of the children in the Collegiate School is taught in Roman Catholic doctrine. Admission priority is given to Roman Catholic pupils in accordance with the criteria therein set out. As a maintained school, if the school is over-subscribed, the governors are entitled to give priority in accordance with the admission criteria and turn down non-Catholic children[106]If, after having taken all Catholic pupils, the school still has places, then the school will take non-Catholic pupils. The 1851 Trust Deed does not state that the only persons who can go to a school established under the 1851 Trust Deed must already be practising Roman Catholics. But even if the 1851 Trust Deed had so provided, it would not be a breach of trust for the Trustees to carry on a school for the purpose of educating Roman Catholics, and in the event of there being available places, admitting non-Catholics: Fraser v Canterbury Diocesan Board of Finance (No.2) [2005] 3 WLR 964 per Lord Hoffmann at [24] and per Lord Walker of Gestingthorpe at [44]-[45]. VIII Trusteeship and decision-making The claimant’s position (1). Decisions prior to February 17, 2006[107]Until late 2004 the first defendant did not know that it held the land on the 1851 Trusts or that the Parish Priest ought to have been a trustee. All decisions relating to the use of the disputed land were taken by other bodies, to whom in law the first defendant could not delegate its discretion. Insofar as the acquiescence of the first defendant in decisions made by others can be regarded as its own decision or decisions, such decision or decisions are invalid because(a) the Parish Priest was not a trustee in breach of the 1851 Trust Deed;(b) the first defendant was unaware of the terms of the applicable trusts; and(c) it was making decisions applying different charitable trusts. The purposes in the trusts in the 1940 Trust Deed are very much wider than those declared by the 1851 Trust Deed and, in particular, the trusts in the 1940 Trust Deed are expressly stated to be for the benefit of objects both within and outside the Diocese.[108]Mr Gibbs made it clear that he did not know of the 1851 Trust Deed until December 2004. Although Mr Barber suggested in cross-examination that he had mentioned the 1851 Trust Deed to Mr Gibbs in late 2003 or early 2004, he does not seem to have done so. Mr Gibbs’ correspondence is only explicable on the basis that he was unaware of the 1851 Trust Deed. Bishop Stack was given a summary of the 1851 trusts by Mr Barber, but was convinced that the earlier trust was subsumed into the later one, and he could not recall being told that the Parish Priest had to be a trustee. In cross-examination he said that he believed that he first knew of this requirement in February 2006.[109]Accordingly, to the extent that any decisions were taken by the first defendant prior to February 16, 2006 with regard to the disputed land, the decisions were taken on a false basis, namely by reference to the 1940 Trust Deed. Such decisions are void: Dundee General Hospital Board of Management v Walker [1952] 1 All ER 896, at 905. Since it did not know the nature and extent of the trusts on which it held the land, the first defendant cannot possibly have directed its mind to the correct issues.[110]The first defendant was told very little indeed about the scheme. Individuals such as Bishop Stack may have been aware of the details, but no formal steps were taken to inform the Board as a whole. Bishop Guazzelli (chairman of the Strategy Group) ceased to be a director in 2001. Accordingly, the only body entitled to make the decision to include the disputed land in the project, and to build on it, was not apprised of the need to make a decision.[111]Various decisions relating to the disputed land were made by other bodies. Indeed, all the relevant decisions were made by the Strategy Group, in conjunction with Tower Hamlets at the joint meetings recorded in various minutes. Neither body reported either directly or indirectly to the first defendant. The Master Plan was never seen by the first defendant or discussed by it. The compromise suggested in May 2004, that the Parish land be lent for the purposes of the project provided it was not built on, was never reported to it and it was never given the chance to consider it. It never saw the application for planning permission before it was made. To the extent that decisions were taken by delegated officers, or by the Diocesan Education Board/Commission, that was an unlawful delegation of a trustee’s duty and a void exercise of the power.[112]To the extent that any decision was taken at a time when the Parish Priest was not a trustee, the decision was void since the express requirements of the management of the trust have not been complied with. The obligation to include the Parish Priest as a trustee is mandatory and essential for the protection of the rights of the Parish. (2). February 17, 2006 decision[113]The decision is flawed for the following reasons: the first defendant ought not to have participated in the decision-making process at all; the Parish Priest was not a trustee at the date of the meeting; and there were material omissions in the information provided to the trustees.[114]It was entirely inappropriate for the first defendant to have purported to “repair its breach of duty” by making a “new” decision regarding the disputed land. It cannot possibly have reached the decision without having regard to its own prior conduct in having allowed the project to develop to the point of implementation without ever having properly considered whether it was right to use the disputed land in the project. The first defendant did not inform itself as to the trusts on which it held the land, until the true position was pointed out to its solicitors by the claimant. It never purported to take an informed decision as to the use of the land by reference to the trusts declared in 1851. It allowed the project to proceed – even to the extent of disinterring the burial ground on the disputed land – by acquiescing in the decisions of others who were not entitled to decide. Even after it was eventually accepted by the first defendant that the 1851 Trust Deed governed the land, it took no steps to consider the matter afresh until after the issue of these proceedings, by means of a new appointment of trustees and the meeting on February 17, 2006.[115]Furthermore, it is manifest that the first defendant – in the person of the individual directors – had already made its mind up as to the desirability of the project and the associated use of the disputed land. The trustees have de facto made the decision and now seek to justify it. It is unrealistic to accept that the trustees can genuinely consider the matter afresh, unaffected by the prior history. Furthermore, the presence of the Board of the first defendant – in the form of all its Board members, from the Cardinal downwards – at the decision-making meeting inevitably raises doubts about the degree of pressure, unwitting as it may have been, on the new trustees to have come to a concurring decision. It is submitted that, at minimum, the first defendant should not have participated in the decision. Indeed, it should have stood down as trustee of the 1851 trusts, or surrendered its discretion to the court.[116]The trustees were advised by Mr Barber that it was “ simply impossible” to proceed with the project without the use of the disputed land, and by Mr Allison of DTZ, that the use of the disputed land was “absolutely fundamental” and “essential.” But the trustees were not informed that the Strategy Group had investigated the possibility of the buildings being re-configured so that the disputed could be omitted. Advice had been given (as reflected by the DTZ briefing note of May 21, 2004) by Perkins Ogden that it was possible to develop the school without encroaching on the disputed land. This advice is reflected in the evidence of Ms Elwes, who attended the Strategy Group meeting on May 27, 2004, at which it was agreed with Mr Barber that plans would be drawn up to reconfigure the building so as not to encroach on the disputed land. This was never done.[117]Under the 1851 Trust Deed, “the duly officiating or Head Priest” is required to be one of the trustees. A Parish Administrator is not the same as the “the duly officiating or Head Priest”. It is essentially a temporary appointment, and as such he cannot properly represent the interests of the parishioners which is the principal purpose behind the provision. The trustee defendants’ position (1). Position prior to February 17, 2006[118]Failure to appoint the Head Priest as a trustee of the 1851 Trust Deed did not as a matter of law invalidate decisions taken by or under the authority of the first defendant as trustee of that Deed. The 1851 Trust Deed requires the Head Priest for the time being to be one of the trustees; that requirement has not been observed since 1941, and was not invariably observed before then. From 1941 to February 16, 2006 the first defendant was trustee of the 1851 Trust Deed, and was able to exercise the powers annexed by that Deed to that office:
“... the Trustees or Trustee for the time being of the said hereditaments by virtue of these presents shall from time to time and at all times hereafter have power ...”; “every new Trustee shall succeed to the powers and authorities of the Trustee in whose place he shall be appointed ...”
[119]The 1851 Trust Deed does not provide for trustees’ powers to be suspended if the Head Priest is not a trustee; in the absence of express provision to that effect, non-appointment of Head Priest is an irregularity liable to be corrected, but does not make decisions of the actual trustee void. Such a provision is directory and not mandatory.[120]There is power to use the disputed land for the project, and the first defendant’s decisions in the past as to such a use of the disputed land are not invalidated because the first defendant believed that the disputed land was the subject of the 1940 Trust Deed rather than the 1851 Trust Deed. Alternatively, whether a decision to use the disputed land for this purpose is bad, because of a mistaken belief that the 1940 Trust Deed applied, depends on the Re Hastings-Bass principle, so the question is: would the decision have been made in the contrary sense if the decision-maker had appreciated that the 1851 Trust Deed applied? The trustee defendants submit that on the evidence the answer is clearly “No.”[121]As for the claim that decisions made by the first defendant which concerned the disputed land but which were not “by reference to” the 1851 Trust Deed but instead were “by reference to” the 1940 Trust Deed were invalid, if the first defendant had power under the 1851 Trust Deed to make the decision which it did make as to the use of the disputed land and had power under the 1851 Trust Deed to use the disputed land for the project, then the decisions made are not invalidated and the future use of the land for the project is not disallowed merely because the first defendant thought that the source of its powers was the 1940 Trust Deed rather than the 1851 Trust Deed: cfMogridge v Clapp [1892] 3 Ch 382.[122]Where trustees or other fiduciaries exercise a discretionary power by reference to irrelevant considerations or without taking account of relevant considerations, their exercise of that power is bad if it is clear that they would have acted otherwise had they considered the relevant matters and left irrelevant matters out of account; in the case of a discretionary power, as opposed to a discretionary trust, their decision is not vitiated if all that is shown is that if they had correctly understood the position they might have acted otherwise. Any claim that an exercise of a power is bad must be clearly made out: Sieff v Fox [2005] 1 WLR 3811. If the 1851 Trust Deed is not restricted to “Parish purposes”, neither the first defendant nor the Education Commission made any fundamental mistake: they thought the power was conferred by the 1940 Trust Deed, whereas in fact the power was that under the 1851 Trust Deed, “to erect upon any part or parts of the said piece or parcel of ground or upon the site of the said present or any future Buildings thereon a Church Chapel and also a Priest's House and Schools ...”, which authorises what is proposed. The 1940 Trust Deed directs the property subject to it to be held in trust to use and apply capital and income “in or towards advancing the Roman Catholic religion in the Diocese [of Westminster] by such means as the Archbishop may think fit and proper.” It cannot be suggested that the Learning Village project was believed to have been decided on by the Cardinal in such a way that the first defendant had no discretion to exercise. The Board meeting of the first defendant on July 4, 2000 decided not to endorse a “City Academy” scheme, but to prefer a new boys' voluntary aided school, to be promoted by the Diocesan Education Board, reporting to the first defendant.[123]The first defendant and the Dicoesan Education Board would not have acted differently if they had known their powers over the disputed land arose from the 1851 Trust Deed not the 1940 Trust Deed. (2). February 17, 2006 decision[124]As regards the claim that the first defendant ought not to have participated in the decision-making process at all, at all material times the first defendant was a duly appointed Trustee under the 1851 trusts and as such, had a responsibility to act as a trustee and ought not to have abdicated that responsibility. At the lowest, the claimant has not begun to show that the decision would have been different if the first defendant had not participated.[125]Accordingly, Fr Hayes was on, and since, February 17, 2006 the duly officiating or Head Priest for the time being of St Mary and St Michael’s Church. As Administrator he is currently the “officiating Priest” and required to be a trustee.[126]The information provided to the trustees was completely accurate. There was no material omission in that information.[127]The material establishes that:(i) the trustee defendants were fully informed as to the nature of the project, the claimant’s contention that the 1851 Trust Deed did not permit use of the disputed land for that project, and the objections which might be advanced to support the conclusion that even if the 1851 Trust Deed permitted the project, the disputed land should not be so used;(ii) the trustee defendants considered and discussed the project, having received advice that the question it should decide was, “what is the right course to adopt now if the 1851 Trust Deed allows the disputed land to be used?”;(iii) the trustee defendants came unanimously to the informed conclusion that if the project was authorised by the 1851 Trust Deed, it should proceed.[128]As to the rationality and propriety of that decision, the project is a highly desirable one and if the 1851 Trust Deed is not restricted to “Parish purposes”, the balance of advantage is in favour of proceeding with it. As to the striking of the balance, so far as affecting the community generally, the decision fell to be made and has been made through the appropriate planning procedures; so far as affecting the Church, and on the assumption that the 1851 Trust Deed is not restricted to “Parish purposes”, the decision is to be made by the trustees of that Deed, and they are entitled to take account of, and to give significant weight to, the interests of Catholic secondary education in the whole of Tower Hamlets; the court should not override the considered decision of a properly constituted body of trustees, at the instance of a faction or pressure group (which in reality is what the claimant is), without strong evidence that the decision is misguided and incapable of being supported. The onus of proof is on the claimant, and no such case is made out, or anywhere near to being made out.[129]If the decision-making before February 17, 2006 was in any respects defective, that of itself does not mean the first defendant is precluded from acting further and following correct procedures: Re Locker's Settlement [1977] 1 WLR 1323. IX Conclusions[130]I repeat, for convenience, the express trust in the 1851 Trust Deed as to the use of the land comprised in it, namely that it was to:
“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 of them or for the Trustee for the time being of these presents with the assent of the said Officiating Roman Catholic Priest or Head Priest for the time being at and for any period or periods … to appropriate enclose and set apart a portion of the said land or Ground hereby assured not exceeding in measurement one half part thereof as … a Roman Catholic Cemetery for the interment of the dead therein …”
A The Parish point[131]The claimant contends in effect that the trusts of the disputed land are for Parish purposes only, “within and for the sole benefit of the Catholic Parish of St Mary and St Michael within the Diocese of Westminster and of its parishioners.” The trustee defendants contend that the disputed land can properly be used for any Catholic religious or educational purposes which can in fact be furthered by such use.[132]I am satisfied that the trustee defendants are right. The habendum of the 1851 Trust Deed expressly states that the conveyance of the land is “upon the trusts and to and for the intents and purposes hereinafter expressed”. There are no words in the 1851 Trust Deed capable of bearing a meaning which imposes the suggested limitation on the permitted objects and purposes.[133]The formulation put forward by the claimant is impossible to reconcile with the position in 1851. There was no parish in 1851 when the Trust Deed was executed (nor in 1843 when the land was bought, nor in 1856 when the church was completed).[134]Parts of the world in which it is not possible to implement canon law in full, and where more flexibility is needed to deal with unusual and abnormal situations, are known as “mission territories.” The department of the Holy See with responsibility for Church activity in mission territories was known (until 1967) as the Congregation for the Propagation of the Faith. Where the Church is more established in a mission territory, a Bishop will be appointed as the superior of the mission. The Bishop is known as a Vicar Apostolic because he governs his vicariate in the name of the Holy See as vicar of the Pope rather than in his own name as Diocesan Bishop. The new Church finally ceases to be mission territory when it is transferred from the jurisdiction of the Congregation for the Propagation of the Faith and becomes subject to the various specialist congregations which deal with all other dioceses around the world.[135]In the 1840s England was governed by the specially adapted version of canon law appropriate to the government of the Church in a mission country, which was intended to give the maximum flexibility for unusual and rapidly changing circumstances. In 1843 there were no parishes, nor could any be created because the law did not allow such a form of government in mission territories. There were only missions with temporary (if any) boundaries. By letters apostolic in September 1850 the Hierarchy of Bishops in Ordinary of Dioceses was restored. In theory the ordinary canon law applied again, but not all of its provisions were capable of being complied with, and this was particularly the case in relation to parishes. Under the canon law in force in 1850 parishes were benefices, and a benefice required an endowment sufficient to support the rector before they could be created. As a step towards the eventual erection of stable parishes, the First Provincial Synod of Westminster (1852) created a more stable form of mission, and the incumbent in this new type of mission, which could be established by the Bishop on the advice of his chapter, was to be styled “missionary rector”, which was to be a permanent appointment. Even in these new forms of missions the synod made it clear that the Bishop was still free to change the boundaries of a mission without the consent of the missionary rector. The dioceses of England remained mission dioceses until June 29, 1908 when Pope Pius X re-organised the Roman Curia and took the opportunity to remove England from the jurisdiction of the Congregation for the Propagation of the Faith. There were no actual parishes in England until after the new code of canon law came into force in 1918.[136]Consequently, the mission territories which existed in the 1840s and 1850s did not have fixed boundaries. In 1851 the Virginia Street Mission, the priests of which promoted the acquisition of the land and the building of the Church of St Mary and St Michael, served a much larger area than that which eventually became the Parish. The Commercial Road East Mission had been formed in 1849 out of the territory of the Virginia Street Mission.[137]In his first witness statement Mr Howick, the solicitor for the claimant, accepted that in the 1850s none of the Roman Catholic churches or chapels were parishes under canon law. The anonymous note on canon law exhibited to Fr Van Son’s witness statement accepts that there was no parish in the 1850s although it suggests that it could develop into a “quasi-parish.” In evidence Fr Van Son accepted that there were no parishes in London in 1851. He agreed that a mission and a parish were different, and that a mission had a fluid character. A quasi-parish was not a parish according to canon law. An example of a quasi-parish was a community of (say) Brazilians living in different parts of London, but worshipping in one church.[138]I would accept the claimant’s submission that when the church was completed the Priest was effectively in the position which later, when the designation “Parish” became the norm, would make him the Parish Priest. But that does not mean that the locality was a Parish or that the “Head Priest” was the Parish Priest.[139]It follows also that the role given to the Head Priest in the 1851 Trust Deed does not limit the trust purposes. The Head Priest as trustee has no special powers, and his “management” of (inter alia) the school or schools is specifically “saving nevertheless and without prejudice to the lawful obedience of such Priest to his Ecclesiastical Superior for the time being”.[140]Nor is there is any background material (admissible or not) to support the claimant’s case. The available evidence does not support the claimant’s position that the acquisition of the land was largely funded by small donations from parishioners, who would not have contemplated that the land might be used for the benefit of a wider locality.[141]When the land was bought in 1843, the Rt Rev Thomas Griffiths, the Vicar Apostolic, donated 50% of the purchase price for the land. There is no reason to infer that the Vicar Apostolic for the London District would have been determined to exclude persons from participating in the objects of the charity by reference to a narrow geographical area.[142]To raise the remaining £1,000 (after the £1,500 from the Vicar Apostolic and the £500 from the chaplains’ fund), Fr Horrabin 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).[143]The Catholic Directory 1843 said (p 7):
“The congregation of Virginia-street numbers 21,000 persons, who, with very few exceptions, are of the labouring and humbler classes. They are generous but poor, and therefore the contributions of their wealthier brethren are humbly and earnestly solicited towards the furtherance of objects so eminently dear to humanity and true religion. Subscriptions and donations received by the Right Rev. Dr. Griffiths, 35, Golden-square; the Very Rev. E. Norris, V.G., 30, Duke-street, Bloomsbury; the Chaplains of Virginia-street; the Joint Stock bank, 69, Pall Mall ; and by the London and Westminster Bank, Waterloo-place.”
[144]The Catholic Directory for 1850 has this entry:
“The above mission was commenced on Sunday, the 2nd September, 1849. It comprises that portion of the old Virginia-street district situate east of Cannon-street and New Gravel-lane, and numbers about 12,000 souls; leaving to Virginia-street about an equal number. The site of the intended new church forms part of that plot of ground known as the Catholic Cemetery, Commercial-road. It is, perhaps, scarcely necessary to state, that in the attempt now being made to erect a temple to the Living God, the proverbial zeal and alacrity of the poor Catholics of this locality are exerted to the utmost limits of possibility; and will, it is confidently hoped, challenge the generous and prompt co-operation of their more affluent brethren elsewhere in a work of such permanent importance. It is not contemplated to construct a gorgeous temple, but one of commodious proportions, and truly Catholic in every line and feature. The schools recently constructed in John-street for the accommodation of three hundred boys and three hundred girls, only require internal fittings to render them immediately available for the use of the poor children attached to the New Mission. Donations towards the above church and schools will be gratefully received by the Right Rev. N. Wiseman, D.D., V.A.L., 35, Golden-square; by the Rev. R. Horrabin, Virginia-street, Ratcliff Highway, and by the resident pastors, the Revv. John Moore and John Kaye, to whom communications may be addressed at the Catholic schools, John-street, Commercial-road East.”
[145]The available evidence suggests that the balance of the money came from a range of sources, and not exclusively from those served by any particular mission at that time. B Catholicity[146]By the 1851 Trust Deed any School or Schools standing on any part of the land were “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.”[147]The claimant accepts that the new Collegiate School will formally be a Roman Catholic school, but says that it will de facto be a multi-faith school. The claimant does not go so far as Ms Elwes who suggested in evidence that only Catholics may be admitted. Mr Leolin Price QC accepted in argument that not every pupil had to be a Roman Catholic. The claimant’s position is that it is a matter of degree, and that the trusts do not allow the present plans. Ms Elwes in particular relied on a remark said to have been made to her by the Cardinal expressing surprise that the number of non-Catholic pupils exceeded 10%. Bishop Stack accepted that 10% non-Catholics was the intended norm in Catholic schools, but was firm in his evidence that that was not a requirement.[148]The Girls’ School is about 65% Catholic, and the Boys’ School about 80% Catholic, and the primary school about 90%. It is accepted on both sides that the designation of a school with a religious character for the purposes of the School Standards and Framework Act 1998 does not determine whether a school is Catholic for the purposes of canon law, nor whether the use of the land will be within the 1851 trusts.[149]The evidence is that the doctrines and tenets of the Roman Catholic Church as to the children it teaches do not have any element which restricts Catholic education to children who are already baptised Catholics. The Catholic Church is a missionary Church. It is not only compatible with Catholic doctrine but it is a part of Catholic doctrine that the Church will bring its beliefs to persons who are non-believers. Bishop Stack’s evidence is that the constituent elements of a Catholic school are(a) Catholic worship;(b) the teaching of religious education by means of a Catholic religious education syllabus; and(c) the maintenance of a Catholic ethos.[150]By Canon 803(1) a Catholic school is one which is under the control of the competent ecclesiastical authority or of a public ecclesiastical juridical person, or one which in a written document is acknowledged as Catholic by the ecclesiastical authority. The evidence is that a Diocese is automatically a public ecclesiastical juridical person, and the Diocesan Bishop is the competent ecclesiastical authority within his dioceses. The requisite “control” is ensured because the Diocese owns the school and the Diocesan Bishop appoints (and may remove) a majority of the governing body. Foundation governors are appointed for the purpose of securing that the Catholic character of the school is preserved and developed, and that the school is conducted in accordance with its trusts.[151]The Girls’ School and the Boys’ School, in their respective instruments of government (para 2), refer to the ethos of the school:
“The school was founded by and as part of the Catholic Church. The school is to be conducted as a Catholic school in accordance with the canon law and teachings of the Roman Catholic Church and in accordance with the Trust Deed of the Archdiocese of Westminster and in particular: (a) religious education is to be in accordance with the teachings, doctrines, discipline and general and particular norms of the Catholic Church; (b) religious worship is to be in accordance with the rites, practices, disciplines and liturgical norms of the Catholic Church; And at all times the school is preserved as a witness to the Catholic faith in our Lord Jesus Christ.”
[152]Mr Barber’s evidence is that there is no suggestion in Catholic doctrine that Catholic education is, ought to be, or can be measured in terms of the faith being professed or practiced by the children at the school. Nor is the question, of “how Catholic” a school is, determined by how many pupils are either Catholics or practising Catholic. The Church does give first priority to Catholic pupils in its admission criteria but that is because, as Canon 796 points out, Catholic schools are the principal means whereby the Church assists Catholic parents to fulfil their role in education.[153]All three schools give first priority to Catholic applicants, and all three schools are obliged to offer remaining places to other applicants, and all three schools currently have a proportion of non-Catholic children attending the school, 10% in the case of the primary school.[154]The canonical inspection under Canon 806 on behalf of the Archbishop and inspection of denominational education under section 23 of the School Inspections Act 1996 reported in 2005 in the case of each school under “the Catholic school as a whole” that the provision for prayer and worship was good, and the school’s commitment to the Catholic life, prayer and its development was very good. The school chaplain was a significant figure, fully committed to the school and offered daily Mass for staff and pupils. The provision for spiritual and moral, social and cultural development of pupils was excellent. There was a strong emphasis on personal, spiritual and moral growth, self-esteem and wellbeing. The different cultures and ethnicity of the school were welcomed and respected and there was a keen sense of purpose. The governors were involved and supportive of all the initiatives and the leadership team knew the priority of the school’s Catholic mission and purpose.[155]In my judgment, there is nothing in the point that the project is outside the trust that any School or Schools standing on any part of the land were “to be always used as and for the purpose of bringing up and educating of poor children according to and in the doctrines and tenets of the Roman Catholic Church.” C Trustees’ decisions[156]In my judgment the principal question is whether the decision taken on February 17, 2006 was one which could properly be taken, and whether it was properly taken. This point only arises if the claimant is wrong on the first two points. It must therefore be approached that there was at all material times power under the 1851 Trust Deed to approve the project in the form in which it was approved on February 17, 2006. On this hypothesis the trustees were entitled to proceed on the basis that the disputed land was not reserved for Parish purposes, and that the scheme was within the Roman Catholic purposes of the 1851 trust. In my judgment, therefore, the arguments on both sides in relation to the validity of the decision-making process gave too much weight to the parish/catholicity points. In any event, I am satisfied that there is nothing in the objections.[157]The principal objection is that the trustee defendants did not take a properly informed decision. The evidence is that the trustees had before them (inter alia) details of the claimant’s claim, the witness statements on both sides, and notes by Mr Barber, the diocesan Director of Education, and Mr Allison of DTZ, the project consultants, summarising the then position in relation to the project. The note from Mr Barber stated that the extensive professional advice which the Diocese had received was that the project could not be completed without using the disputed land. That was by reason of the overall size of the site, phasing and planning issues. He said that exploration of whether it had been possible to configure the site in a different way had been made in response to representations by the objectors, but the consistent advice received by the Diocese was that this was “simply impossible” and he referred to the witness statement of Mr Allison. The exclusion of the land would mean the closure of one of secondary schools and the loss of the collegiate concept. A memorandum of advice from Mr Allison was also put before the trustees. He pointed out that the site included the former public open space at Lukin Street and the disputed land, so as to provide the required educational facilities and social facilities to be used by the local community in accordance with the conditions in the planning permission and the section 106 agreement. Although the recreation and outdoor play areas were below the normal Department for Education standards, a relaxation had been given because of the important local need in an urban location. Without the disputed land, the school would fall too far below those guidelines for the development to be viable. Mr Allison described the use of the disputed land as “absolutely fundamental” and “essential.”[158]Mr Howick was invited to make written representations prior to the meeting, but wrote on the day prior to the meeting to say that his clients challenged the right of the trustees to make any decision.[159]The attendance note of the meeting by Mr Banham, the solicitor to the Diocese, states that he advised that the question to which the trustees needed to address their mind was whether, in the light of the current circumstances, it was in the interest of the trust that the disputed piece of land formed part of the development. Mr Allison attended the meeting and advised that the disputed land was essential to the scheme; that even with the design configuration they were trying to get “a quart into a pint pot” and the disputed land was absolutely fundamental.[160]Bishop Stack raised the question whether it was far too big a development because there were not enough Roman Catholics, and he asked for an overview of non-Roman Catholics in the school. The meeting was informed that in 1992 the Girls’ School was just over 60% Catholic, but by 2005 it was approximately 65% or 66% Catholic and the boys’ school was 90% Catholic when it started, but in 2005 it was 80%.[161]It is plain that the meeting was given the fullest information about the dispute. There was no material omission in that information. Mr Barber, Mr Allison and Mrs Myers gave evidence in these proceedings and were not cross-examined as to the information they provided to the trustees on February 17, 2006. It was not suggested to any of them that the views they expressed to the trustees on that occasion were in any way inappropriate. It does not matter whether or not the meeting was told in terms about the Advisory Group’s proposal to lend the disputed land against an undertaking to reconfigure the design. The trustee defendants were fully entitled to approve the scheme in the light of the following factors:(i) the Blessed John Roche School site was unsuitable;(ii) the Learning Village concept had considerable educational, pastoral and community advantages; and(iii) the disputed land was essential to implementation of the project, not only because without it, the project would fall so far short of Department for Education requirements that the project would be impracticable, but also because it was essential to start by building on the disputed land to enable the development to be so phased that the schools could operate throughout.[162]Nor is the decision flawed by the first defendant’s participation. Even if there were a defect in the decision-making process prior to February 17, 2006, that would not have disqualified the first defendant. It had a duty as trustee to participate.[163]Nor is there anything in the point about the position of Fr Hayes as a trustee. The 1851 Trust Deed empowers the “Roman Catholic Bishop ... of and for the District” [where the Church is] to “nominate and appoint any other persons or person to be Trustees or a Trustee ... either in substitution for or in addition to all or any or either of the Trustees or Trustee for the time being ...”. The person now entitled to exercise that power is the Cardinal Archbishop. Fr Hayes’ position is governed by Canon 539 and 540. Under Canon 539, when a Parish is vacant the Bishop may appoint a parochial administrator who is described as “a priest who will take the place of the Parish Priest in accordance with Canon 540”. Canon 540(1) provides:
“The parochial administrator is bound by the same obligations and has the same rights as the Parish Priest, unless the Diocesan Bishop prescribes otherwise.”
The Bishop has not prescribed otherwise. Fr Hayes as Administrator is currently the “officiating Priest” and required to be a trustee. His appointment to the Parish is not permanent, but that is not essential: in 1851 Fr Horrabin’s appointment to the Virginia Street Mission was terminable by the Bishop.[164]Accordingly, Fr Hayes was on and since February 17, 2006 the duly officiating or Head Priest for the time being of St Mary and St Michael’s Church. When cross-examined, Fr Van Son accepted that Fr Hayes was the officiating Priest of the Parish of St Mary and St Michael. Accordingly, all three of the current trustees are validly appointed trustees with the powers and responsibilities laid down in the 1851 Trust Deed.[165]I do not consider that any defects in the procedure prior to February 17, 2006 would have affected the validity of that decision, but in any event I do not consider that there were any defects.[166]First, I do not consider that the failure to appoint the Head Priest as a trustee of the 1851 Trust Deed invalidated decisions taken by or under the authority of the first defendant. The 1851 Trust Deed does not provide for trustees’ powers to be suspended if the Head Priest is not a trustee. I am satisfied that, in the absence of express provision to that effect, non-appointment of Head Priest is an irregularity liable to be corrected, but does not make decisions of the actual trustee void: cf. A-G. v Cowper (1785) 1 Bro. C.C. 439 (trusts required trustees to be “inhabitants of Great or Little Blencowe”; persons who were not inhabitants could not be removed without evidence that there were proper persons in Blencowe to be trustees); A-G. v Earl of Stamford (1839) 1 Ph. 737 (Manchester Grammar School: statutes provided that vacancies in the body of trustees were to be filled from “honest men of the parish of Manchester”; trustees appointed from adjacent parishes not removed: at 748). Such a provision is directory and not mandatory.[167]Secondly, I do not consider that the case has anything to do with the Re Hastings-Bass principle. That principle is that where trustees act under a discretionary power, but the effect of their action is different from that which they had intended, the court would interfere with their action if is clear that they would not have acted as they did had they not failed to take into account considerations which they should have taken into account, or taken into account considerations which they ought not to have taken into account. Where they were exercising discretionary powers the relevant test was whether the trustees “would” have acted as they did had they not misunderstood the effect that their exercise of the discretionary power would have: see Sieff v Fox [2005] 1 WLR 3811. On the hypothesis that the purposes are within the 1851 Trust Deed, there is not any significant difference between the powers in the 1851 Trust Deed and the 1940 Trust Deed, and the fact that the first defendant may have thought that it was acting as trustee under the 1940 Trust Deed makes no difference, and would have made no difference.[168]The power under the 1851 Trust Deed is “to erect upon any part or parts of the said piece or parcel of ground or upon the site of the said present or any future Buildings thereon a Church Chapel and also a Priest's House and Schools ...”, which authorises what is proposed. The 1940 Trust Deed directs the property subject to it to be held in trust to use and apply capital and income “in or towards advancing the Roman Catholic religion in the Diocese [of Westminster] by such means as the Archbishop may think fit and proper.” It cannot be suggested that the Learning Village project was believed to have been decided on by the Cardinal in such a way that the first defendant had no discretion to exercise. The Board meeting of the first defendant on July 4, 2000 decided not to endorse a “City Academy” scheme, but to give preference to a new boys' voluntary aided school, to be promoted by the Diocesan Education Board, reporting to the first defendant.[169]Mr Barber’s evidence was that the question of the proposal to vary the design and its subsequent rejection was not reported to the first defendant, because the first defendant did not deal with design issues. He accepted that it was an important matter, but that all school buildings matters were important. It was not surprising that there was no report to the first defendant about the reaction of parishioners to the proposal, because the Diocese undertook a huge range of work, and matters such as that were delegated to various levels. Bishop Stack gave evidence that the Diocesan Education Board/Commission was responsible to the Cardinal. Its job was also to report the trustees. The trustees had devolved responsibility to different bodies, such as the Diocesan Education Board/Commission and other Boards. Mr Gibbs’ evidence was that the first defendant was kept informed throughout. It had made a decision in principle in 2000, and that was a sufficient involvement of the corporate trustee.[170]I accept the first defendant’s evidence that the first defendant, either in its board meetings or in meetings of its finance board, was kept fully informed of, and approved, all aspects of the scheme. It did not delegate any of its decision-making powers. I do not think that the first defendant needs to rely on the Trustee Act 2000, section 11(3)(a) (in force since February 1, 2001), under which charity trustees can delegate any function consisting of carrying out a decision which they have taken. It is clear from the evidence that the Diocese did consider, following the meetings in April and May 2004, whether it would be possible not to build on the disputed land. Perkins Ogden advised Mr Allison that it would be difficult if not impossible to provide the floor space required and to comply with guidelines. Any re-design beginning in April 2004 would have had to go back to first principles and the whole process of consultation would have to start again. Mr Allison stated that the re-design would not work and it was therefore appropriate not to spend money and waste time in further exploring it. XI Cy-près[171]The trustee defendants submit that if the claimant is right on the Parish point and/or the Catholicity point which would inhibit the trustees in going forward with their scheme, then any such inhibition should be overcome by an appropriate cy-près scheme. The trustee defendants rely on the Charities Act 1993, section 13(1)(a)(ii), (1)(c), (d), and (e)(iii). Since I have come to a very firm conclusion on the first two issues, it is not necessary or desirable for me to decide the question.[172]If a form of order cannot be agreed I will hear argument.