(1) Michael Rittson-Thomas v Oxfordshire County Council
| Jurisdiction | England & Wales |
| Judge | Richard Spearman |
| Judgment Date | 09 March 2018 |
| Neutral Citation | [2018] EWHC 455 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No. HC2017-000780 |
| Date | 09 March 2018 |
[2018] EWHC 455 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Spearman Q.C.
(sitting as a Deputy Judge of the Chancery Division)
Claim No. HC2017-000780
Matthew Smith (instructed by Lee Bolton Monier-Williams) for the Claimant
Nigel Thomas (instructed by Oxfordshire County Council) for the Defendant
Hearing date: 27 February 2018
Introduction
This case concerns two grants of land under section 2 of the School Sites Act 1841 (“the 1841 Act”), and gives rise to a question concerning the exercise of the power of sale contained in section 14. Although the operation of the 1841 Act has been amended by the Reverter of Sites Act 1987 (“the 1987 Act”), the 1841 Act remains in force, and has, it seems, generated a good deal of litigation. However, the question at the heart of this case has not previously fallen for determination. That question involves considering two rival approaches to interpretation: on the one hand, that land ceases to be used as the site for a school the moment the school is closed; and, on the other, that the power of sale exists to enable a school to be moved from one location to another, and that the intention behind section 14 of the 1841 Act would be frustrated if, in order to avoid the reverter of the land to the grantor, it was necessary for the school to remain in use at the original site until the new site is ready for it to move into.
The facts
The Claimants in this Part 8 claim are some of the heirs of the late Robert Fleming (“Mr Fleming”), who conveyed land to the Defendant in 1914 and 1928 under the 1841 Act for use as part of Nettlebed School (“the School”).
By a conveyance dated 29 September 1914 expressed to be made under the authority of the School Sites Acts, Mr Fleming freely and voluntarily conveyed without any valuable consideration to the Defendant certain land (“the First Site”) already “forming a portion of the playground of the school at Nettlebed” to the Defendant “for the purposes of the said Acts and to be applied as a part of the playground of the said School and for no other purpose whatever.” The First Site comprised about 0.13 acres of land.
By a further conveyance dated 5 April 1928, also expressed to be made under the School Sites Acts, Mr Fleming freely and voluntarily conveyed without any valuable consideration to the Defendant further land (“the Second Site”) “for the purposes of the said Acts and to be applied as a site for a public elementary school for children of and in the Parish of Nettelebed and adjacent Parishes and for the residence of the School Master (or School Mistress) of the said School or for other purposes of the said School and for no other purposes whatsoever.” The Second Site comprised about 0.79 acres of land.
The School was in existence prior to 1914. Indeed, other pieces of land which formed part of the school site had also been given to the Defendant for the purposes of the School under the School Sites Acts by other benefactors, including the fourth Lord Camoys. The 1928 conveyance permitted a new school building to be erected on the land conveyed by Mr Fleming while the pre-1928 school site continued in use as the School's kitchen and dining room.
The uncontested evidence of the Second Claimant contained in his witness statement dated 23 February 2017 is as follows. Mr Fleming died on 31 July 1933. The interest in any land which was subject to reverter, or in the trust of the proceeds of sale of any such land, now vests in the Claimants and other persons who have been given notice of these proceedings and who do not wish take part in them. The First, Second and Third Claimants each have 2/12 interests, the Fourth Claimant has a 1/12 interest, Mr David Hughes and Ms Victoria Young each have 1/12 interests, and the trustees of the Anne K. Brandt Trust have a 3/12 interest. The Claimants produced emails dated 26 February 2018 from the solicitors for the foregoing persons who are not Claimants confirming that their clients did not wish to be joined as parties to the claim.
The Defendant decided to relocate the School to its present site in the 1990s. A letter dated 18 April 2000 from the Defendant's then Joint Head of Legal Services to Currey & Co, solicitors for the trustees of the will of the late NPV Fleming, refers to the Defendant's “proposals for the school which include the sale of the area edged red on the attached plan in order to raise the capital required to build a new primary school on the area edged blue thereon”.
The Scheme for “Nettlebed Replacement School” was also an agenda item for the meeting of the Defendant's Executive Committee on 22 July 2003. The Defendant's revised detailed project appraisal at that time envisaged that total expenditure of £2,035,000 would be incurred in 2004/5, which would be funded as to £1,702,000 by borrowing, as to £193,000 by contributions from third parties, and as to £140,000 by grants; and that this would be defrayed in part by capital receipts of £1,300,000 in 2005/6, representing the proceeds of sale of land on which the School had operated prior to its relocation to the new site.
The Defendant implemented these plans, by (a) building new (and improved) school facilities on land which it already owned, adjacent to the existing premises, (b) in or about February 2006, transferring the children who attended the School to the new premises, and (c) marketing and selling the old premises.
On 28 September 2007, the Defendant sold 0.844 acres of land to Bluespace Property Nineteen Limited for the sum of £1,355,000 (“the 2007 Land”) pursuant to an agreement for sale dated 1 August 2007. The 2007 Land comprised a small part of the First Site and all, or almost all, of the Second Site. The Claimants' surveyor has calculated that 93.17% of the 2007 Land had been given to the Defendant by Mr Fleming under the 1914 and 1928 conveyances. Based on that calculation, the Claimants contend that 93.17% of £1,335,000 (i.e. £1,243,819.50) has been held on trust for them since September 2007. The Defendant accepts that calculation, but disputes that there was any reverter.
The Defendant explained the basis upon which it had proceeded in a letter from its solicitor dated 18 August 2010 to the Claimants' solicitors. This included the statements that “It was at all relevant times the Council's firm and settled intention to apply the proceeds of sale of the former school site towards the construction of buildings for the school on the alternative site” and “In practical terms, the pupils of the old site need somewhere to receive their education and therefore they need the new buildings to move into before the old site [is] sold”.
In a further letter dated 24 September 2010 passing between the same parties the Defendant stated (among other things) that “the closure, sale and use of proceeds is an event or series of events which does not cause a reverter to arise under the 1841 and 1987 Acts. The holding of a school site pending a planned s14 sale is, in the Council's position, entirely in accordance with the statutory purposes set out in s2 of the 1841 Act and set out in the relevant conveyances”.
The issue
On behalf of the Claimants, Mr Matthew Smith submitted that a notional reverter occurred in February 2006 when the School ceased to operate from its then site such that, as a result of the 1987 Act, the Defendant held a substantial part of the subsequent proceeds of sale on trust for Mr Fleming's descendants.
On behalf of the Defendant, Mr Nigel Thomas submitted that no reverter occurred in circumstances where the Defendant conceived and implemented a composite scheme, plan or transaction pursuant to which the School was to be relocated to new premises, and the funding of a new school on an alternative parcel of land adjoining the old site was to be provided (in part) by using the entire net proceeds of sale of some or all of the land comprised in the old site.
So far as material to this case, section 2 of the 1841 Act provides as follows:
“… any person, being seised in fee simple, fee tail or for life, of and in any manor or lands of freehold … and having the beneficial interest therein, … may grant, convey or enfranchise by way of gift, sale or exchange, in fee simple … any quantity not exceeding one acre of such land, as a site for a school for the education of poor persons, or for the residence of the schoolmaster or schoolmistress, or otherwise for the purposes of the education of such poor persons in religious and useful knowledge … Provided also, that upon the said land so granted as aforesaid, or any part thereof, ceasing to be used for the purposes in this Act mentioned, the same shall thereupon immediately revert to and become a portion of the said estate held in fee simple or otherwise … as fully as to all intents and purposes as if this Act had not been passed, any thing herein contained to the contrary notwithstanding.”
The purposes expressed by, and the powers conferred by, the 1841 Act were enlarged by subsequent Acts, but not in any way material to the present case.
So far as material to this case, section 14 of the 1841 Act provides as follows:
“… when any land or building shall have been or shall be given or acquired under the provisions of … this Act, or shall be held in trust for the purposes aforesaid, and it shall be deemed advisable to sell or exchange the same for any other more convenient or eligible site, it shall be lawful for the trustees in whom the legal estate in the said land or building shall be vested … to sell or...
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Rittson-Thomas and Others v Oxfordshire County Council
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Michael Rittson-Thomas v Oxfordshire County Council
...School. I can take the facts from the judgment below of Mr Richard Spearman QC (sitting as a Deputy Judge of the Chancery Division): [2018] EWHC 455 (Ch): “The facts 2. The Claimants in this Part 8 claim are some of the heirs of the late Robert Fleming (“Mr Fleming”), who conveyed land to ......