Fraser and & Anor v Canterbury Diocesan Board of Finance & Anor

Under section 2 of the School Sites Act 1841, whether land has ceased to be used for the purpose authorised by the grant is a question of fact. No institutional change or closure is required. A school established for a defined class ceases to pursue that authorised purpose where it adopts the single wider purpose of admitting all pupils, even though some qualifying pupils continue to attend. That differs from incidental acts outside the authorised purpose, or breaches of trust, which do not necessarily cause cesser. Reverter is automatic and irrevocable. Before the protection introduced by the Reverter of Sites Act 1987, adverse possession could extinguish the grantor’s rights.

Land was conveyed in 1866 on trust for a school for children and adults of labouring, manufacturing and other poorer classes in an ecclesiastical district. The school later admitted children outside those classes and district, while continuing to educate qualifying pupils.

Lewison J held that this constituted a breach of trust but did not end use for the authorised purpose, and declared that no reverter had occurred before 17 August 1975. The appeal concerned whether the admissions practice had replaced the authorised purpose with a single wider purpose, thereby triggering the proviso to section 2 of the School Sites Act 1841.

1. Appeal allowed. Arden LJ gave the leading judgment, with Wilson J and Potter LJ agreeing. The trustees had acquired the land free of the respondents’ right of reverter and were entitled to the sale proceeds as trustees of the 1866 trust.
2. Under section 2 of the School Sites Act 1841, cesser of the authorised purpose is a question of fact. The court rejected the submission that an institutional change was essential. The fact that earlier cases involved closure did not prevent other facts from establishing cesser. The examples relied on in Attorney-General v Shadwell [1910] 1 Ch.92 and Habermehl v Attorney-General [1996] EGCS 148 did not impose a universal requirement of closure or institutional change.
3. The judge’s factual finding was that the school had been operated for the wider purpose of admitting all comers. That was a single purpose, not two purposes consisting of an authorised purpose and an unauthorised purpose. Continued education of qualifying pupils did not prevent the original purpose from having ceased. It was therefore wrong to avoid the statutory proviso by splitting the wider purpose into separate purposes.
4. The court distinguished a single authorised purpose carried out with incidental acts outside that purpose. Such acts, and breaches of trust, do not necessarily cause the authorised purpose to cease. The trust deed had to be read as a whole; the words ‘and for no other purpose’ could not be confined to the word school.
5. The reverter was automatic and irrevocable. It occurred long before 17 August 1975, so the respondents’ rights could be lost through adverse possession at common law, consistently with Re Ingleton Charity [1956] Ch.585. The respondents’ lack of knowledge did not alter the result, and the trustees’ reliance on their own alleged breaches did not prevent their adverse possession.
6. Arden LJ left open whether adoption of any new unauthorised purpose alone triggers the proviso. She doubted that cesser necessarily follows merely because the authorised purpose ceases to be the sole purpose, since a significant additional purpose might instead constitute a breach remediable without reverter. She accepted, however, that section 2 does not extend to a trust originally established for an additional purpose not mentioned in the section.

• Court of Appeal (Civil Division): In [2004] EWCA Civ 15, the appeal was allowed. The reverter had occurred before 17 August 1975 and the trustees had acquired the land free of the respondents’ rights.
• High Court of Justice, Chancery Division: Lewison J held that the school’s continued education of qualifying pupils prevented cesser of the authorised purpose and declared that no reverter had occurred before 17 August 1975.