Fraser v Canterbury Diocesan Board of Finance

Under section 2 of the School Sites Acts 1841-1844, the relevant purposes are those to which the grantor devoted the land, provided they fall within the statutory purposes. A material change from a denominational school to a non-denominational provided school may therefore trigger the reverter, even though the land continues to be used for education.

A sale under section 14 cannot extinguish the reverter unless the sale is made for the purposes for which the original site was held. An order widening the permitted application of sale proceeds does not widen the purposes for which the site itself may be used. The reverter under section 2 re-joins the grantor’s estate in its legal and tenurial sense, rather than neighbouring land.

The claimants appealed from a decision of Deputy Judge Leaver QC on four preliminary issues concerning entitlement to the proceeds of sale of a former village school site at Chartham.

The site had been conveyed in 1872 under the School Sites Acts 1841-1844 for a Church of England school. In 1874 it was transferred to a school board and became a non-denominational provided school. The respondent later sold the site in 1992. The preliminary issues concerned succession to the original grantor, the proper destination of the reverter, whether the 1874 change triggered the reverter, and whether the 1992 sale extinguished it.

The central question was whether the claim was statute barred because the reverter occurred in 1874.

The appeal was dismissed because the claim was statute barred. The court nevertheless differed from the deputy judge on the other three preliminary issues.

1. Limitation Issue. The 1874 arrangement triggered the reverter. Section 2 of the School Sites Acts 1841-1844 permits a grant for one or more statutory purposes, but allows the grantor to select the precise charitable purpose within that scope. The relevant inquiry is whether the land ceased to be used for the purpose chosen in the conveyance. Here, the grant was for a school conducted according to the principles of the Church of England. Its transfer to the school board and conversion into a non-denominational provided school was a material change. The reasoning in A-G v Shadwell and Habermehl v A-G was correctly applicable.
2. Section 14 Issue. If the claim had not been statute barred, the 1992 sale would not have extinguished the reverter under section 14 of the 1841 Act. The sale was not made for the original purpose, namely a school in Chartham. The 1975 Order widened the purposes for which sale proceeds could be applied, but did not widen the purposes for which the site itself could be used or authorise extinction of the reverter. Extinction could occur under section 2(3) of the Education Act 1973 only if the person entitled could not be found after due inquiry or consented to relinquish the right. Neither condition was met.
3. Marchant v Onslow Issue. The court held that “estate” in section 2 refers to the grantor’s temporal and tenurial legal estate, not the physical land from which the site was carved. The reverter was therefore to the original grantor or those claiming under him. Marchant v Onslow was wrongly decided.
4. Personal Representative Issue. If a trust for sale had arisen under section 1 of the Reverter of Sites Act 1987, the personal representatives would have held the proceeds on a bare trust for the persons beneficially entitled. The claimants could therefore have been entitled to sue, despite deriving their interest through beneficiaries rather than directly through the original personal representatives.

The order was varied to reflect the court’s disagreement on those three issues. The respondent was awarded half the costs of the appeal.

• Court of Appeal: Appeal dismissed. The court disagreed with the deputy High Court judge on three of the four preliminary issues and awarded the respondent half the costs of the appeal.
• High Court, Chancery Division: Deputy Judge Leaver QC decided all four preliminary issues in favour of the respondent and dismissed the originating summons with costs.