High Court of Ireland Decisions

1. This is an Application for an Interlocutory Injunction to restrain proposed alterations to the sanctuary of Carlow Cathedral. The items involved are the altar rails, the pulpit and the floor.

These and other proposed alterations have over the last two years being the subject of considerable local dissension. It is not necessary to deal with such matters in detail. When the original proposals were made known there was considerable opposition in the local community. This resulted in two separate reports, one by the Heritage Council and one by an Independent Forum. As a result of these reports, the proposals have been altered. These are still opposed strenuously by the Plaintiff, who while objecting to the alterations to the sanctuary to which I have referred is also critical of the absence of precise plans of the current proposals.

It is not part of the function of the Court to express views as to the suitability or otherwise of the proposed works. That is the matter for the Bishop and his advisers. What is of concern to the Court and the only matter with which it is concerned is whether the Bishop has the legal power to carry out his proposals.

Carlow Cathedral is Church property. The legal title is vested in Trustees for the benefit of the community of the Diocese. There is no written trust instrument.

The Plaintiff seeks relief upon several grounds:-

(1) that there is strong local opposition to the proposed changes because of the architectural merit of the features which it is intended to alter;

(2) that, although the reason for the proposed alterations is said to be founded in the requirements of Church Law, such is not the case;

(3) the balance of convenience favours the granting of relief.

The Plaintiff further seeks to rely upon the provisions of the planning code in that the Cathedral is a listed building; and to postpone determination of his application pending implementation of an Order for Discovery of documents to which he has brought a separate application.

In reply, the Defendants submit that they are empowered to carry out the proposals under the terms of Canon Law; and that in any event the Plaintiff has no locus standi by virtue of the provisions of Section 51 of the Charities Act, 1961.

The real issue arising on this application is whether the Plaintiff can show an arguable case that in carrying out these alterations the Defendants would be in breach of the Trust under which the Cathedral is held. The Plaintiff's sole argument under this heading is that the changes proposed are not mandatory under Church Law. But to make this submission he relies upon a document which so indicates but at the same time further states that it is the right and duty of the local Bishop to decide questions of the type in issue here. Perhaps realising this, Counsel for the Plaintiff seeks discovery, hoping thereby to obtain documents contradicting the assertions made by the Defendants as to their powers.

The Defendants maintain that the property is held subject to Canon Law and that they have the right under Canon Law to do as they propose. Nothing which the Plaintiff has submitted raises a substantial issue as to the validity of this contention; the contrary is the case. Nor has the Plaintiff made out a case for discovery.

In the course of the hearing an opportunity was given to the parties to make submissions as to the rights of the beneficiaries of a Public Charitable Trust and whether or not they could enforce their views on the Trustees. Consideration of the authorities to which I was referred establish in my view that the powers given to the Trustees cannot be overset by the beneficiaries. Although there was no authority directly dealing with the control of the Trustees' powers by the beneficiaries, the tenor of the authorities was against any such right. Nor was it at any time suggested that any such right existed in Canon Law.

I do not consider the fact that the Cathedral is a listed building in the development plan for the county as meaning that the interior features of the Cathedral are likewise listed. This dispute has now been going on for in or about two years and at no time has the local authority taken any steps to indicate that it would regard the proposed alterations as being a breach of its development plan.

The Defendants maintain that these proceedings cannot be continued by the Plaintiff in the absence of the consent of the Attorney General. Section 51(1) of the Charities Act, 1961 provides as follows:-

"In every case of a breach or supposed breach of any Trust for Charitable purposes or whenever the direction or Order of the High Court is considered necessary for the administration of any Trust for Charitable purposes, the Board or, with the consent of the Attorney General, any person may apply to the Court for such relief as the nature of the case may require and the Court may make such Order thereon as the Court thinks fit."

It is submitted that the Attorney General must be a party to any proceedings of the type now before the Court and that the Plaintiff cannot maintain any such proceedings by virtue of the provisions of this section. There is no doubt that the authorities support totally the contentions of the Defendants. However, in my view, the Plaintiff even if entitled to proceed in his own name would not be entitled to the relief which he seeks. It is not necessary now to determine the issue of locus standi. In any event, the Attorney General has refused to give his consent.

The final argument made on behalf of the Plaintiff is that the balance of convenience lies with the Plaintiff. Obviously, if the sole motivation of the Court was to prevent an irredeemable step being taken, then this balance would favour the Plaintiff. However, that is not the sole question arising on this issue. My view, it would be unfair to the Defendants to hold up their plans further balancing their case with that of the Plaintiff.

In the circumstances, the reliefs claimed will be refused.