Fraser and Another v Canterbury Diocesan Board of Finance

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date24 Nov 2000
Judgment citation (vLex)[2000] EWCA Civ J1124-4
Docket NumberCase No: A3/2000/0127

[2000] EWCA Civ J1124-4

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

CHANCERY DIVISION

Deputy Judge Leaver Q.C.

Royal Courts of Justice

Strand,

London, WC2A 2LL

B E F O R E :lord Justice Peter Gibson

Lord Justice Mummery and

Lord Justice Latham

Case No: A3/2000/0127

Fraser & Another
Appellants
and
Canterbury Diocesan Board Of Finance
Respondent

Mr. Charles Turnbull (instructed by Messrs Blakeney of London WC2 for the Appellants)

Mr. Vivian Chapman (instructed by Messrs Furley Page of Canterbury for the Respondent)

MUMMERY L.J.: This is the judgment of the court.

Introduction

1

This is an appeal from the decision of Mr Peter Leaver QC, sitting as a deputy High Court judge in the Chancery Division, following the trial of four preliminary issues. The issues arise on the construction of the School Sites Acts 1841–1844 (the 1841 Act), the Education Act 1870 (the 1870 Act), the Education Act 1973 (the 1973 Act) and the Reverter of Sites Act 1987 (the 1987 Act) and their application to agreed facts concerning entitlement to the proceeds of sale of land and buildings formerly occupied by the village school in Chartham, Kent. The issues are of general application to sites of schools conveyed under the authority of the 1841 Act. This is, we are told, only the second case on the 1841 Act to reach this court.

2

In his judgment delivered on 20 December 1999 the deputy judge decided all four issues in favour of the defendant, the Canterbury Diocesan Board of Finance (the Board), for whom Mr Vivian Chapman appears. Mr Simon Fraser and Mr Nathan Fraser, who practise as a firm of genealogists, (the Claimants), for whom Mr Charles Turnbull appears, appeal on all issues. We are indebted to both counsel for their extensive researches and their careful arguments.

Background to the Legislation

3

Although there was still distrust of the idea of a secular system of State controlled education, the early decades of the 19th century witnessed the recognition by a growing number of people of the need to provide free education for those who could not afford to pay for it. Many of the better off were willing to subscribe considerable sums to voluntary charitable organisations established to build and maintain local schools.

4

Religious influences were strong. 1808 saw the foundation of a nonconformist body, the British and Foreign Schools Society, as it was later called. In 1811 the National Society for Promoting the Education of the Poor in the Principles of the Established Church throughout England and Wales (the National Society) was formed. It was incorporated by charter in 1817. It played a major part in pioneering the provision of elementary education throughout England and Wales. Many village schools were established with the assistance of the National Society, supported by Boards of Education of the Church of England and by the endowments of local benefactors interested in education. The involvement of the State increased in the 1830's in the form of periodic parliamentary grants to educational charities and by the encouragement of local initiatives for the provision of new schools, especially after the establishment of the Education Committee of the Privy Council in 1839.

The Statutory Framework

The 1841 Act

5

Reform of the law of real property also played its part in enabling and encouraging more landowners to make sites available for new schools. The 1841 Act was passed to facilitate and encourage grants of land for specified educational purposes by empowering owners of land (including limited owners) to grant small areas of land to be used as a site for a school, with an automatic reverter of the land to the grantor or his successors in title on the cesser of use for those purposes. The legislation, which was contained in a series of Acts passed from 1836 onwards, attempted to remove legal difficulties in the way of such grants caused by the law of mortmain, by restrictions inherent in the alienability of legal freehold estates in land by limited owners, by the uncertain legal status of unincorporated grantees of land and by the rule against perpetuities.

Omitting immaterial parts section 2 provided that-

" 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 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."

6

The Board contend that the effect of the proviso to section 2 in this case was to bring about a reverter of the site of Chartham village school in 1874, when it was transferred to a school board under the authority of the 1870 Act and lost its essential Church of England character. It is common ground that, if the reverter occurred in 1874, the claim to it is statute barred.

7

The Claimants contend that the reverter did not occur until the village school was actually closed down on 10 April 1992.

8

Section 2 is also relevant to the Board's contention that the Claimants are not in any event entitled to the reverter, because the reverter is to the owner or owners for the time being of the grantor's neighbouring land out of which the school site was carved and conveyed. The Claimants do not advance their case in that capacity. They claim as successors in title of the original grantor, tracing through beneficiaries named in the grantor's will, and not through those to whom neighbouring land held by the grantor at the date of the grant was later transferred.

9

Section 14 empowered the trustees of any land or building given or acquired under the provisions of the Act or "held in trust for the purposes aforesaid" to sell the same, if "it shall be deemed advisable to sell", and to apply the proceeds "in the purchase of another site, or in the improvement of other premises used or to be used for the purposes of such trust.." The section authorised an exchange of land or buildings in similar terms.

10

The Board contend that the section 14 power was exercised, so as permanently to bar the claim of anyone entitled to the right of reverter, on the sale of the site of the school on 9 April 1992.

The 1870 Act

11

This legislation made provision for the establishment of public elementary schools for children resident in a district. Such schools were non-denominational (see section 14 (2)) and were to be conducted in accordance with regulations in section 7 which provided that it should not be required that any child attend any religious observance or instruction in the school or elsewhere and that any parent could withdraw a child from religious observance or instruction at the school. Under section 23 the managers of an elementary school had power to transfer the school to a school board and to make an arrangement for the absolute conveyance or for a lease of the school to the school board.

12

These provisions are relied on by the Board in support of the contention that the reverter occurred when the village school was leased to the school board in 1874 and ceased to be a Church of England School.

The 1973 Act

13

Section 2 contains special powers for certain trusts for religious education. These powers are relied on by the Board. Where the premises of a voluntary school have ceased, before or after the coming into force of that section, or if the Secretary of State is of the opinion that it is likely that they will cease so to be used,then, subject to (amongst others) subsection (3), he may by order make "new provision as to the use of any endowment" shown to his satisfaction to be or have been held wholly or partly for or in connection with the provision at the school of religious education in accordance with the tenets of a particular religious denomination. An Order affecting Chartham school (and other schools in Kent) was in fact made in 1975.

14

Under subsection (3) the order may require or authorise the sale of property forming part of the endowment, including the premises of the school, and exclude the operation of the proviso to section 2 of the 1841 Act, if the Secretary of State is satisfied that the person to whom the land would revert cannot be found or, if that person can be found, he has consented to relinquish his rights in relation to the land under the proviso.

15

These provisions and the terms of the 1975 Order are relevant to the Board's submission that the reverter, if not statute barred, was extinguished by the sale of the school on 9 April 1992.

The 1987 Act

16

This Act was passed following the identification by a Working Party of the Law Commission (Law Com.No. 111) of a number of unresolved issues arising under the reverter provisions of the 1841 Act and under similar provisions in the Literary and Scientific Institutions Act 1854 and the Places of Worship Act 1873. In order to deal with the problem of making a good title to a purchaser after the occurrence of an event giving rise to a reverter, section 1...

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