Fraser and Another v Canterbury Diocesan Board of Finance

Hearing dates : 6 th, 7 th, & 8 th May 2003

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgement and that copies of this version as handed down may be treated as authentic.

Mr. Justice Lewison

Mr. Justice Lewison:

Introduction

St Philips School, Maidstone was opened in 1863. A Church of England School was run on the same site until its closure in 1995. The land on which the school was situated was the subject of a conveyance made under the School Sites Act 184Under section 2 of that Act a reverter of the land takes place if the land ceases to be used for the purposes for which the land was conveyed. The Reverter of Sites Act 1987 abolished reverter, but substituted a trust mechanism. However, the substitution did not apply to titles that had become statute barred before the coming into force of that Act.

On 28 January 2002 Master Bowles ordered the trial of a preliminary issue. The issue I have to determine is whether a reverter took place before 17 August 1975, that is to say more than twelve years before the coming into force of the 1987 Act. If it did, then the Claimants' title is statute barred. If it did not, then subject to proof that they are the successors to the original grantors, they are entitled to the value of the school.

Background

The population growth of nineteenth century England brought many social problems in its wake. Two such problems were the inability of traditional parishes to cope with the growing towns and the lack of education of the working population.

The first problem was dealt with by the Church Building Acts 1818–1884 and the New Parishes Acts 1843–188By these Acts Parliament addressed the under-provision of churches in the expanding industrial towns and cities by funding the building of new churches and by reorganising ancient parishes.

Section 16 of the Church Building Act 1818 empowered Commissioners appointed for the purposes of the Act to recommend to the King in Council that a parish should be divided into two or more distinct and separate parishes. Upon such division, glebe land, tithes and other endowments were apportioned between the new parishes. At this time the incumbent of a benefice was regarded as having proprietary rights in such endowments. Thus the section provided that the division should not come into effect until the death or resignation of the existing incumbent.

As an alternative to dividing a parish, section 21 of the Act empowered the Commissioners to recommend to the King in Council that a parish be divided into ecclesiastical districts. Section 30 of the Act made it clear that the division of a parish into ecclesiastical districts did not affect entitlement to glebe land, tithes or other endowments.

In 1861 the ecclesiastical district of St Philips, Maidstone was created under these statutory powers.

Educational needs of the working population were addressed by the formation of a number of voluntary societies. The first in the field was the Society for Promoting the Royal British or Lancastrian System for the Education of the Poor (subsequently renamed the British and Foreign Schools Society). This society was concerned with the provision of non-conformist schools. In 1811 or thereabouts there was formed the National Society for Promoting the Education of the Poor in the Principles of the Established Church throughout England and Wales (usually known as the "National Society").

The National Society was incorporated by royal charter in 1817. Its purpose, as described in the charter, was that of educating the children of the poor in the doctrines and disciplines of the Established Church according to the liturgy and catechism provided for that purpose. The National Society made grants to promoters and managers of schools. A school aided by the National Society was "received into union" with the Society. The terms of union required children to be instructed in the holy scriptures and in the liturgy and catechism of the Established Church. The full terms of union may be found in National Society v. School Board of London (1874) L.R. 18 Eq. 608, 609.

By 1833 Parliament had voted to make grants to aid the erection of school houses for the education of the poor. The grant was repeated annually. Initially the Treasury administered the grant, but in April 1839 the responsibility for this was transferred to a Committee of the Privy Council on Education. Grants were normally made only to schools sponsored by one of the societies. Official inspection of schools began in 1840 and grants were made conditional on inspection. In 1856 an Education Department was formed separate from the Privy Council.

Although many landowners were willing to give land for the building of schools, there were legal difficulties. The principal difficulty was that limited owners were not able to make freehold grants of land. In other cases land suitable for the erection of a school would have been subject to rights of common, and no grant could have been made without the consent of the commoners. The National Society pressed for legislation to resolve some of these difficulties.

Pressure from the National Society resulted in the School Sites Act 1836. This facilitated the conveyance of settled land and common land, not exceeding half an acre in extent, for use as a school site. The 1836 Act was soon replaced by the School Sites Act 1841, which is the Act with which I am principally concerned.

The School Sites Act 1841

Section 2 of the 1841 Act provides:

"Any person, being seised in fee simple, fee tail, or for life, of and in any manor or lands of freehold, copyhold, or customary tenure, and having the beneficial interest therein, … may grant, convey, or enfranchise by way of gift, sale, or exchange, in fee simple or for a term of years, 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 that no such grant made by any person seised only for life of and in any such manor or lands shall be valid, unless the person next entitled to the same in remainder, in fee simple or fee tail, (if legally competent,) shall be a party to and join in such grant: Provided also, that where any portion of waste or commonable land shall be gratuitously conveyed by any lord or lady of a manor for any such purposes as aforesaid, the rights and interest of all persons in the said land shall be barred and divested by such conveyance; 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, or of any manor or land as aforesaid, as fully to all intents and purposes as if this Act had not been passed, any thing herein contained to the contrary notwithstanding."

It is the third proviso, dealing with reverter if the land ceases to be used for the specified purposes, that is at the heart of the preliminary issue.

Section 7 allowed a grant to be made to corporations or trustees to be held by them for school purposes. In the case of a grant to the minister of a parish, and churchwardens and overseers of the poor, the management, direction and inspection of the school was to "be and remain according to the provisions contained in the deed of conveyance thereof".

Section 10 contained a suggested form of conveyance. The suggested form of trust was a trust of the land "to be applied as a site for a school for poor persons of and in the parish of …..".

Section 14 empowered the trustees to sell land which had been conveyed under the Act and to buy other land or buildings suitable for the purposes of their trust. Received wisdom was that exercise of the statutory power to sell overrode the reverter under section 2, although there was no authority that actually said so. This was ultimately confirmed by section 6 (2) of the Reverter of Sites Act 1987.

The School Sites Act 1841 was amended by School Sites Acts passed in 1844, 1849, 1851 and 1852. Most of these amendments are irrelevant for present purposes. However, I should mention that section 1 of the 1851 Act extended references to a "parish" to ecclesiastical districts, and that section 1 of the 1852 Act extended the permitted statutory purposes to the education of the children of yeomen and tradesmen and to the education of candidates for holy orders.

In order for a school to qualify for a parliamentary grant, a conveyance under the School Sites Act had to be approved by the Education Department. That Department appears to have required conveyances to follow one of a number of model forms. A printed form was supplied to the promoters of a school, and they filled in the blanks in manuscript. The form of trust expressed in the printed model form was:

"Upon trust to permit the said premises and all buildings thereon erected or to be erected to be for ever after appropriated and used as and for a School for the education of Children and Adults or Children only of the labouring manufacturing and other...