The Supreme Court held that land granted under the School Sites Act 1841 for Nettlebed School did not cease to be used for the Act’s purposes, and therefore did not revert, when the school moved to new premises before the old site was sold, because the County Council intended throughout to apply the proceeds under section 14 to the new school. The 2007 sale proceeds could therefore be used to meet the costs of the relocated school. The appeal was allowed.
The statutory scheme
Section 2 of the School Sites Act 1841 allowed a landowner to grant up to one acre for a school for poor persons, or related educational purposes, by a statutory charitable trust. A proviso provided that if the land ceased to be used for the purposes mentioned in the Act, it would immediately revert. Section 14 empowered the trustees, where it was deemed advisable, to sell or exchange the land for a more convenient site and to apply the money in purchasing another site or improving other premises used or to be used for the trust. The Reverter of Sites Act 1987 replaced the reverter with a statutory trust for those previously entitled, but the Court held that this did not affect the questions to be decided and used “section 2 reverter” as shorthand.
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The facts
By conveyances in 1914 and 1928, Robert Fleming gave land at Nettlebed to Oxfordshire County Council for an elementary school. The school operated on that site until 2006. In the 1990s the Council decided to relocate it to improved facilities on adjacent land it already owned. Pupils moved in or about February 2006. Contemporary documents showed a settled intention to sell the original site and use the proceeds towards the new building. In September 2007 almost all of the Fleming site was sold; the relevant share of the proceeds was £1,243,819.50.
Four heirs of Mr Fleming claimed that the land ceased to be used for the statutory purposes when the school moved, so that a section 2 reverter occurred and the proceeds were held for the heirs. The Council said section 14 permitted the sale with vacant possession and the application of the proceeds.
The courts below
Richard Spearman QC held that sections 2 and 14, read together on a broad and practical approach, did not require the site to be sold before the school moved. The site remained held for the purposes of the Act because it was to be sold to fund the new buildings, so the claim failed. The Court of Appeal reversed that decision. Patten LJ held that, more than a year after the move, the vacant site could not realistically be said still to be used as a school site or for educational purposes. The section 14 power existed only until the land ceased to be used for the statutory purposes, and continued use required active educational use rather than an intention as to the eventual proceeds.
The Supreme Court’s decision
Lady Arden and Lord Burrows, with whom Lord Lloyd-Jones, Lord Sales and Lord Stephens agreed, held that sections 2 and 14 must be read as a coherent whole and given a purposive interpretation that furthers the Act. Following Fraser v Canterbury Diocesan Board of Finance (No 2), a broad and practical approach is required. Because the Act works through a charitable trust, the court should lean towards continuation of its purposes rather than be astute to find failure and a reverter. The Act balances the grantor’s interest against the public interest in education: grantors would not have wished to recall a benefaction merely because a successful school needed larger premises.
Nothing in section 14 excludes the usual sale with vacant possession. Its reference to premises “used or to be used” supports a sale after the school has moved. The contrary reading would frustrate the Act’s policy and encourage artificial arrangements that might be educationally or financially disadvantageous. A site does not cease to be used for the Act’s purposes where, at all material times, it is considered advisable to sell it and, with any required consent, to apply the proceeds to another site or to the improvement of other premises used or to be used for the school. The relevant intention must exist before or when the school permanently moves and when the site is sold. Permanent closure remains a conceptually certain event even though evidence of intention may be needed to identify it.
On these facts the Council’s documented intention throughout was to apply the proceeds to the new Nettlebed school premises. The Fleming site therefore had not ceased to be used for the purposes of the Act when the school moved, section 14 authorised the sale, and no section 2 reverter arose.
Verdict: The Supreme Court unanimously allowed Oxfordshire County Council’s appeal. The former school site could be sold with vacant possession because the council had intended at all material times to use the proceeds towards the replacement premises. The heirs had no entitlement to the sale proceeds.
Source: Rittson-Thomas and others v Oxfordshire County Council [2021] UKSC 13
