Simon Richard Fraser Nathan George Fraser and Canterbury Diocesan Board of Finance Integrated Services Programme/First Second
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Mr Justice Wilson,Lord Justice Potter |
| Judgment Date | 28 January 2004 |
| Neutral Citation | [2004] EWCA Civ 15 |
| Date | 28 January 2004 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2003/1291 |
[2004] EWCA Civ 15
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF
JUSTICE, CHANCERY DIVISION
(The Honourable Mr Justice Lewison)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Potter
Lady Justice Arden and
Mr Justice Wilson
Case No: A3/2003/1291
Mr Christopher H McCall QC and Mr Vivian Chapman (instructed by Furley Page) for the Appellant
Mr Christopher Nugee QC (instructed by William Blakeney) for the Respondents
This is an appeal with the permission of the judge from the order of Lewison J dated 14 May 2003. The question before the judge was whether in the events which had happened proceeds of sale of part of the site of St Philip's School, Maidstone had become vested in the successors in title of the grantor pursuant to a deed of trust dated 5 April 1866 and section 2 of the School Sites Act 1841, as amended.
Section 2 confers a right of reverter. In material part it 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 … 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, anything herein contained to the contrary notwithstanding."
Although section 2 provides that reverter takes place only if the land ceases to be used for a purpose mentioned in the Act, it has been held by this court that reverter takes place if the land ceases to be used for the purpose mentioned in the conveyance, provided that that purpose is itself within the Act: Fraser v Canterbury Diocesan Board of Finance (No.1) [2001] Ch.669. It is common ground that, if reverter occurs, it is automatic and irrevocable.
If land reverts to the grantor under section 2, but continues to be used by the donee, the grantor may at common law lose his rights under the reverter by virtue of adverse possession ( Re IngletonCharity [1956] Ch.585) . This position was changed by the Reverter of Sites Act 1987. By virtue of this Act, once reverter occurs, the donees hold the land on trust for the donor or successors in title. The 1987 Act accordingly enhanced rights of reverter. It came into force on 17 August 1987. Accordingly, for the right of reverter in this case to have been lost by the donor by virtue of the doctrine of adverse possession, reverter must have occurred before 17 August 1975.
The detailed background is set out in the judge's judgment and I need only summarise it. The donor of one of the parcels of land which became the site of St Philip's School, Maidstone was a Mr Herbert Monckton. The respondents to this appeal, the claimants in the action, are his successors in title. By a deed of trust dated 5 April 1866, Mr Monckton donated the land in question on trust:-
"to permit the said premises … to be … 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 …"
The judge held that under the terms of the trust pupils had to live in the Ecclesiastical District of St. Philip (judgment, paragraph 59) . There is no appeal from this part of the judge's holding. The judge used the term "qualifying persons" to denote pupils who were of the labouring, manufacturing or other poorer classes and resided in the Ecclesiastical District of St. Philip as it existed from time to time. I will use the same expression. The appellant is now the trustee of the trusts of the deed dated 5 April 1866.
It was common ground that well before 1975 education ceased to be provided by the school solely for children and adults of the requisite classes in the Ecclesiastical District of St. Philip for these reasons. First, the school educated children who came from social classes other than "the labouring, manufacturing and other poorer classes". Second, the school educated children from outside the Ecclesiastical District of St. Philip. So far as the education of adults at the school is concerned, there is in fact no evidence that the school provided education for adults, at least after 1903, but nothing turns on this.
The judge found as a fact that between 1931 and 1947, approximately 16% of pupils lived outside the parish. The judge also found that not all the children came from the poorer classes, although the majority did so. The judge could not be precise about the percentage (judgment, paragraph 70) . The judge held that the trust was for the education of adults and/or children (judgment, paragraph 61) . Accordingly, the school was being used for the purpose set out in the 1866 deed of trust, even though there was no provision of education for adults. There is no appeal on this point.
The fact that the trusts provided for the education of qualifying persons did not mean that no other pupil could enter the school:-
"If the aim or object of the school was to educate qualifying persons, the fact that a person ceased to qualify, but continued to be educated at the school, would not in my judgment alter the purpose of the school. It would be merely incidental to the achievement of the purpose" (judgment, paragraph 58) .
Furthermore, in the judge's judgment, the use of the words "and for no other purpose" in the terms of the trust did not alter this conclusion:-
"63. … In my judgment [Mr Chapman] attributes to the phrase 'and for no other purpose' a meaning which it does not bear. It seems to me that the education of qualifying persons is the purpose for which the trust was created. For as long as the school continued to educate qualifying persons, it carried out the purpose of the trust. If the school educated children who were not qualifying persons that might or might not be a breach of trust. It would only be a breach of trust if the education of children who were not qualifying persons was a purpose of the school in the sense I have described." (Emphasis in original judgment, paragraph 63) .
The judge then referred to Re Bathurst (unreported, 18 October 1978) in which HHJ Rubin sitting as a deputy judge of the Chancery Division held that the mere fact that a single child, who was not a qualifying person for the purpose of the trusts of the school site in question, was admitted to the school did not cause the trusts to fail by virtue of the proviso to section 2 of the School Sites Act 1841 set out above. The school continued to be used for the purposes in the trust deed. HHJ Rubin held that the mere fact that the trustees might have committed a breach of trust by admitting a non-qualifying child did not mean that the purposes for which the school site had been given had ceased.
The judge then made certain important factual findings:-
"66. Mr Chapman submits that that [the admission of a single non-qualifying child] is not this case. In the present case there is no evidence that the trustees had an admissions policy that restricted admission to qualifying persons. So far as the evidence goes, the trustees never rejected any pupil either on the ground that he or she lived outside the ecclesiastical district or on the ground that he or she was not a member of the relevant social classes. The school was simply open to any child who wished to attend it. Once the school simply became part of the state education system it ceased to be used for the purpose specified in the conveyance.
67. In my judgment Mr Chapman is correct to submit that the way in which the school was run indicates that its purpose was to educate not merely qualifying persons, but others as well. In my judgment it was a breach of trust for the school to have adopted a policy of educating children who were not resident in the ecclesiastical district of St Philip and who were not from the relevant social classes. Thus I do not accept Mr Nugee's submission that the school was not being used for a purpose other than that set out in the conveyance."
However, in the judge's judgment the purpose for which the school was actually being used did not amount to a different purpose from the education of qualifying persons or a cesser of the use of the land for the purposes set out in the trust deed:-
"If land is conveyed to be held on trust for purpose A and for no other purpose, and the trustees use the land for purpose A and also for purpose B, it seems to me that they are using it for two purposes, one of which is permitted by the trust and the other of which is not. What they have not done is to cease to use the land for purpose A merely because they are also using it for purpose B. … In my judgment, it would be a misuse of language to say that the school ceased to be used for the purpose of educating qualifying persons, in circumstances in which it educated both qualifying persons and others as well." (judgment, paragraphs 69 and 72)
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