Fraser v Canterbury Diocesan Board of Finance (No 2)

JurisdictionEngland & Wales
JudgeLORD HOPE OF CRAIGHEAD,LORD HOFFMANN,LORD NICHOLLS OF BIRKENHEAD,LORD WALKER OF GESTINGTHORPE,LORD BROWN OF EATON-UNDER-HEYWOOD
Judgment Date27 October 2005
Neutral Citation[2005] UKHL 65
Date27 October 2005
CourtHouse of Lords
Fraser

and another

(Appellants)
and
Canterbury Diocesan Board of Finance

and others

(Respondents)

[2005] UKHL 65

Appellate Committee

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Hope of Craighead

Lord Walker of Gestingthorpe

Lord Brown of Eaton-under-Heywood

HOUSE OF LORDS

Appellants:

Christopher Nugee QC

Caroline Furze

(instructed by William Blakeney)

Respondents:

Christopher McCall QC

Vivian Chapman

(instructed by Furley Page)

LORD NICHOLLS OF BIRKENHEAD

My Lords,

1

I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hoffmann and Lord Walker of Gestingthorpe. For the reasons they give, with which I agree, I would allow this appeal.

LORD HOFFMANN

My Lords,

2

By a deed dated 5 April 1866 Jane Mercer and Lewis Wigan conveyed land in Maidstone to trustees under the terms of the School Sites Act 1841 ( 4 & 5 Vict, c 38) on trust?

"to permit the said premises and all buildings thereon erected or to be erected to be forever hereafter appropriated and used as and for a school for the education of children and adults of the labouring manufacturing and other poorer classes in the Ecclesiastical District of Saint Philip Maidstone aforesaid and for no other purpose."

3

The deed went on to provide that the school should always be "in union with and conducted according to the principles and in furtherance of the ends and designs of the National Society for promoting the education of the poor in the principles of the Established Church throughout England and Wales". There followed detailed provisions for ensuring that the management of the school should always be in the hands of members of the Church of England. The Canterbury Diocesan Board of Finance ("the DBF") are successors in title to the original trustees.

4

Section 2 of the School Sites Act 1841 empowers both fee simple and more limited owners to grant in fee simple up to one acre of 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 education of such poor persons in religious and useful knowledge"

5

The section then goes on to provide that?

"upon the said land being 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 …"

6

The effect of this section was that if a reverter occurred but the trustees of the school remained in possession for 12 years, the title by reverter would usually become statute-barred: see In re Ingleton Charity [1956] Ch 585. Section 1 of the Reverter of Sites Act 1987 abolished the reverter of the freehold under the 1841 Act and substituted a trust for sale coming into existence when there would previously have been a reverter. The trustees of the school become trustees to hold the proceeds of sale for the persons who would previously have been entitled under the reverter. That prevented the trustees from acquiring a title by limitation because time does not run in favour of a trustee against his beneficiaries. But section 1(4) provided that the section conferred no rights upon any person as a beneficiary in relation to property in respect of which that person's claim was statute-barred before the Act came into force on 17 August 1987.

7

The school continued in operation until July 1995 when it was closed and the site sold. The appellants claim to be beneficiaries of the proceeds of sale under the statutory trusts created by section 1 of the 1987 Act. They are assignees of the persons whom, as a result of genealogical investigation, they allege would have been entitled to the reverter under the 1841 Act.

8

The DBF claim that the title of the appellants is statute barred because the reverter occurred long before the school closed and in any event before 17 August 1975. The title was therefore already barred when the 1987 Act came into force. The DBF also dispute the appellants'paper title but a preliminary issue was directed to be tried upon whether the title was in any event statute-barred.

9

The ground upon which a reverter is alleged to have taken place is that the school had long ceased to be used for the "education of children and adults of the labouring manufacturing and other poorer classes in the Ecclesiastical District of Saint Philip Maidstone" in accordance with the trusts of the deed. The evidence adduced to support this claim consisted of extracts from the school log book which had been published in a commemorative booklet published in 1963, the school register from 1931 to 1944, rate books which showed the rateable values of houses given in the register as the addresses of children at the school and statement by Mr R C Harris, who attended the school between 1947 and 1950. All this evidence was admitted by consent and without cross-examination.

10

An inference which the judge drew from this evidence was that some of the children had come from middle class streets of owner occupied houses. Mr Harris's father, who worked for the local electricity board, lived in such a street and owned his own house. A friend of his, whose father was a police inspector, came from a similar house. On the other hand, the rateable value of the house was not a sure guide to the affluence of the occupants because many appear to have been in multiple occupation or to have included shops. What could be said was that a mixed variety of children were admitted, some from very obviously poor backgrounds but some from more wealthy areas. From 1891 the school had been free for children over 3 (toddlers were then charged 1d a week) and there was no evidence that any child from the "labouring manufacturing and other poorer classes" had ever been refused entry.

11

The addresses in the register also showed during the period 1931-1947 about 16% of the children lived outside the ecclesiastical district of St Philip.

12

On the basis of this evidence, the DBF says that by 1947 the purposes for which the land was being used had changed. Instead of being used for the purposes of a school for the children of the labouring manufacturing and other poorer classes in the ecclesiastical district of St Philip, it was being used as a school for any children, whatever their means or place of residence. That brought about a reverter.

13

The first question raised by this appeal is the meaning of the words "upon the said land…ceasing to be used for the purposes in this Act mentioned". Does it mean for one of the three purposes mentioned in the Act, that is to say, (1) the education of poor persons (2) the residence of the schoolmaster or schoolmistress, and (3) otherwise for the education of such poor persons in religious and useful knowledge; or does it mean for the purposes specified in the grant? These had of course to be within one or more of the three statutory purposes but could be a good deal narrower. For example, the purpose specified in this deed fell within the statutory category of "the education of poor persons" but was narrower in being confined to (1) persons in the ecclesiastical district of St Philip and (2) education in accordance with the principles of the National Society.

14

As a matter of language, I should have thought that there was no doubt about the matter. The Act says "the purposes in this Act mentioned". It does not say "the purposes in the deed of grant mentioned". The National Society, which promoted the 1841 Act, would have been well aware of the difference. Their standard form of grant specified that the purpose of the school was to be education in accordance with the principles of the Church of England. That was the form used in this case. But the purpose mentioned in the Act was education in general.

15

That does not mean that the restrictions in the deed could have no effect. They could be enforced in the same way as those in any other charitable trust. But a breach of those restrictions would not have the drastic consequence of causing a reverter.

16

The matter is not however free from authority. In Attorney General v Shadwell [1910] 1 Ch 92 the terms of the grant were for practical purposes identical with those in this case, save that the parish was Northolt. In 1907 the school was closed, another school having been opened by the local authority nearby. Thereafter the building was used only once a week for a Sunday school. The Board of Education contended that there had been no reverter because although the land was no longer being used for the general education of poor persons, use as a Sunday school provided them with "religious and useful knowledge". The argument, at p 96, of Mr Cave KC for the successor to the grantor was that a reverter occurred if the land ceased to be used for the statutory purpose chosen by the grantor. It did not matter that it was still being used for some other purpose which he could have chosen but did not:

"The provision for reverter means that the land is to revert if it ceases to be used for such of the purposes of the Act as are specified in the grant, namely, in this case, the first purpose only."

17

Warrington J accepted this argument. He said that the Act specified three purposes and that "the grantor may select his own purpose from amongst those three". In the judge's opinion, at p 99?

"you must read 'the purposes in this Act mentioned' as meaning such of those purposes as are applicable to the case in question"

and he went on to say:

"looking at the substance of the matter, as I consider I am bound to do, I must hold that the premises have ceased to be used for the purposes in the Act mentioned."

18

This case may be regarded as having glossed the statutory language. But it has stood without...

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7 cases
  • (1) Michael Rittson-Thomas v Oxfordshire County Council
    • United Kingdom
    • Chancery Division
    • 9 March 2018
    ...reverter clause comes into operation, as if the Act had not been passed.” 23 In Fraser v Canterbury Diocesan Board of Finance (No 2) [2006] 1 AC 377 land was conveyed in 1866 pursuant to section 2 of the 1841 Act for use as a school for the education of “the labouring manufacturing and othe......
  • (1) Simon Richard Fraser (2) Nathan George Fraser v (1) Canterbury Diocesan Board of Finance (2) Integrated Services Programme
    • United Kingdom
    • Chancery Division
    • 6 July 2007
    ...occurred before 17 August 1975. On 27 October 2005, however, the House of Lords (see Fraser v Canterbury Diocesan Board of Finance (? 2) [2005] UKHL 65; [2006] 1AC 377) reversed the Court of Appeal and restored the declaration made by Lewison J. 21 Three points of relevance to the issues wh......
  • Michael Rittson-Thomas v Oxfordshire County Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 February 2019
    ...of Clauson J in Dennis v Malcolm [1934] 1 Ch 244 and of the House of Lords in Fraser v Canterbury Diocesan Board of Finance (No 2) [2006] 1 AC 377, both of which considered the question whether a reverter under s.2 had occurred. The judge also referred to the 1981 report of the Law Commissi......
  • Rittson-Thomas and Others v Oxfordshire County Council
    • United Kingdom
    • Supreme Court
    • 1 January 2021
    ...Diocesan Board of Finance (No 2) [2003] EWHC 1075 (Ch); [2003] WTLR 1125; [2004] EWCA Civ 15; The Independent, 6 February 2004, CA; [2005] UKHL 65; [2006] 1 AC 377; [2005] 3 WLR 964; [2006] 1 All ER 315, HL(E)Fraser v Canterbury Diocesan Board of Finance (No 3) [2007] EWHC 1590 (Ch); [2007]......
  • Request a trial to view additional results
2 firm's commentaries
  • An Education In Selling School Land
    • United Kingdom
    • Mondaq UK
    • 19 August 2021
    ...that "a broad and practical approach" was necessary, echoing the words of Lord Walker in another case on the 1841 Act, Fraser (No 2) [2006] 1 AC 377. The court should look at the purpose of the overall statutory regime, which was to provide for education in accordance with one of the three ......
  • An Education In Selling School Land
    • United Kingdom
    • Mondaq UK
    • 19 August 2021
    ...that "a broad and practical approach" was necessary, echoing the words of Lord Walker in another case on the 1841 Act, Fraser (No 2) [2006] 1 AC 377. The court should look at the purpose of the overall statutory regime, which was to provide for education in accordance with one of the three ......

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