Michael Rittson-Thomas v Oxfordshire County Council

JurisdictionEngland & Wales
JudgeLord Justice Patten,Lord Justice Hamblen,Lady Justice Nicola Davies
Judgment Date21 February 2019
Neutral Citation[2019] EWCA Civ 200
Docket NumberCase No: A3/2018/0757
CourtCourt of Appeal (Civil Division)
Date21 February 2019

[2019] EWCA Civ 200

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

PROPERTY, TRUSTS AND PROBATE LIST (ChD)

Mr Richard Spearman QC

HC2017-000780

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Patten

Lord Justice Hamblen

and

Lady Justice Nicola Davies

Case No: A3/2018/0757

Between:
(1) Michael Rittson-Thomas
(2) Hugo Rittson-Thomas
(3) Kim Hughes
Claimants/Appellants
and
Oxfordshire County Council
Defendant/Respondent

Mr Matthew Smith (instructed by Lee Bolton Monier-Williams) for the Appellants

Mr Nigel Thomas (instructed by Oxfordshire County Council for the Respondent

Hearing date: 7 February 2019

Approved Judgment

Lord Justice Patten
1

The School Sites Act 1841 (“the 1841 Act”) was passed in order to encourage and facilitate the provision of up to one acre of land for use 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”. In the majority of cases it was used to provide land for local Church of England elementary (or what we now call primary) schools. The purposes set out in the 1841 Act are charitable educational purposes all of which specify a particular use of the land conveyed. The grantor is entitled to select between the statutory purposes as the terms of the trust on which the land is conveyed and may even supplement or modify the statutory purposes with provisions of his own choosing. But, as I shall explain later in this judgment, it is the statutory purposes specified in s.2 of the 1841 Act which determine the duration of the grant. If the land ceases to be used for the statutory purposes selected in the conveyance then title to it reverts to the estate of the grantor.

2

The material provisions are contained in s.2 of the 1841 Act 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.”

3

But this statutory right of reverter is avoided in the circumstances provided for by s.14 of the 1841 Act. So far as material s.14 provides:

“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 exchange the said land or building, or part thereof, for other land or building suitable to the purposes of their trust, and to receive on any exchange any sum of money by way of effecting an equality of exchange, and to apply the money arising from such sale or given on such exchange in the purchase of another site, or in the improvement of other premises used or to be used for the purposes of such trust.”

4

The effect of a conveyance under s.2 was to vest in the trustees of the school a fee which was determinable on the site ceasing to be used for the statutory purposes specified in the grant. In that event the title of the grantees terminated and the grantor or his estate resumed ownership of the land free from the trusts of the original conveyance. As explained by Nourse J in Re Rowhook Mission Hall, Horsham [1985] Ch 62, determinable fees ceased to exist as legal estates under the 1925 real property legislation but an exception was made by s.7(1) of the Law of Property Act 1925 for determinable fees created by a conveyance under s.2 of the 1841 Act.

5

The effect of a reverter under s.2 was therefore to re-vest the legal estate in fee simple automatically in the grantor or his successors in title and to make the original grantees trespassers in the event that they continued to occupy the land. But, in order to prevent the possibility of their acquiring a title by adverse possession against the grantor, s.2 of the 1841 Act was amended by the Reverter of Sites Act 1987 (“the 1987 Act”) as follows:

“1.(1) Where any relevant enactment provides for land to revert to the ownership of any person at any time, being a time when the land ceases, or has ceased for a specified period, to be used for particular purposes, that enactment shall have effect, and (subject to subsection (4) below) shall be deemed always to have had effect, as if it provided (instead of for the reverter) for the land to be vested after that time, on the trust arising under this section, in the persons in whom it was vested immediately before that time.

(2) Subject to the following provisions of this Act, the trust arising under this section in relation to any land is a trust for the persons who (but for this Act) would from time to time be entitled to the ownership of the land by virtue of its reverter with a power, without consulting them, to sell the land and to stand possessed of the net proceeds of sale (after payment of costs and expenses) and of the net rents and profits until sale (after payment of rates, taxes, costs of insurance, repairs and other outgoings) in trust for those persons; but they shall not be entitled by reason of their interest to occupy the land.”

….

6(2) It is hereby declared –

(a) that the power conferred by section 14 of the School Sites Act 1841 (power of sale etc) is exercisable at any time in relation to land in relation to which (but for the exercise of the power) a trust might subsequently arise under section 1 above; and

(b) that the exercise of that power in respect of any land prevents any trust from arising under section 1 above in relation to that land or any land representing the proceeds of sale of that land.”

6

On an event occasioning a reverter under s.2 of the 1841 Act (after 17 August 1987) the land therefore continues to be vested in the original grantees but on a trust for sale in favour of those entitled on the reverter. From the coming into effect of the Trusts of Land and Appointment of Trustees Act 1996 this is now a trust of land with power to sell. Since the original grantees continue to hold the legal estate but on trust for the successors of the original grantor this therefore prevents any acquisition by the grantees of a title by adverse possession but leaves intact the operation of ss.2 and 14 of the 1841 Act in terms of when a reverter will occur.

7

In the present case we are concerned with two grants of land under s.2 of the 1841 Act which were made in order to provide the site of Nettlebed 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 the Defendant in 1914 and 1928 under the 1841 Act for use as part of Nettlebed School (“the School”).

3. 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.

4. 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.

5. 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.

6. 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...

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1 cases
  • Rittson-Thomas and Others v Oxfordshire County Council
    • United Kingdom
    • Supreme Court
    • 1 January 2021
    ...when that occurred, because it may have rested on a party’s intentions (post, paras 32, 50).Decision of the Court of Appeal [2019] EWCA Civ 200; [2019] Ch 435; [2019] 2 WLR 1397 reversed.The following cases are referred to in the judgment of Lady Arden and Lord Burrows JJSC:Attorney General......
1 firm's commentaries
  • Legacy Loop: Summer Edition 2021
    • United Kingdom
    • Mondaq UK
    • 30 June 2021
    ...position to take in defending the claim. A full copy of the judgment can be found here. Rittson-Thomas v Oxfordshire County Council, 2019 EWCA Civ 200 An interesting case where the court considered a donor's intentions regarding a gift made for a specific purpose and how a change in circums......

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