Rettendon Parish Council v Hart & Ors

Where parish property held on charitable trust by churchwardens and overseers transferred to a parish council under the Local Government Act 1894, the council initially becomes trustee. The statutory power subsequently conferred on the council to appoint other trustees is effective notwithstanding that transfer. Appointments under the statutory scheme last for four years, and the power to make further, replacement or vacancy appointments remains with the parish council. Individual trustees cannot rely on the general power in the Trustee Act 1925 to extend their tenure or appoint successors where the later statutory scheme specifically governs appointments.

The claimant parish council sought declarations concerning the trusteeship of two charitable allotments created by an 1861 inclosure award. The defendants, several present or former councillors, contended that they had been validly appointed trustees and that they could appoint further trustees.

The issue was whether the council alone was trustee under sections 5 and 6 of the Local Government Act 1894, or whether section 14(2) of that Act, now re-enacted in section 300(4) of the Charities Act 2011, enabled it to appoint individual trustees in its place. A further issue concerned the interaction between that statutory scheme and section 36 of the Trustee Act 1925.

1. Statutory scheme. Sections 5 and 6 of the Local Government Act 1894 were once-in-time provisions. They transferred property held by churchwardens and overseers, subject to existing trusts, and transferred their powers, duties and liabilities to the parish council. The council therefore necessarily became trustee of the charities.
2. Power to appoint other trustees. Section 14(2) of the 1894 Act operated thereafter and empowered the parish council to appoint one or more persons in place of the former overseer and churchwarden trustees. The provision was not displaced by sections 5 and 6. The same construction applies to section 300(3) and (4) of the Charities Act 2011. The court rejected the proposed application of the specific-over-general canon in Pretty v Solly (1859) 26 Beavan 606 (Ch).
3. Duration and replacement. Under section 302 of the 2011 Act, appointments last four years. The expiry of a fixed term is not one of the circumstances triggering section 36 of the Trustee Act 1925. In any event, the statutory provisions specifically vest appointment powers in the parish council. The council alone may reappoint trustees, appoint replacements and fill casual vacancies.
4. Application. The appointments made in May 2013 expired on 19 May 2017. The 2014 resolution could not extend those appointments beyond the existing term. The July 2017 resolution validly appointed or affirmed the named councillors, including Mr Hart by implicit acquiescence, as trustees for a further four-year term.
5. The preliminary issue was determined in accordance with those conclusions. Wider allegations concerning misconduct and future management of the charitable land were outside the issue tried.