Dore & Ors v Leicestershire County Council & Anor

This is an action brought by individuals who act on behalf of the Committee of the Breedon-on-the-Hill Community Association (“BOTHCA”), a charitable unincorporated association established in circumstances which I describe below. The action is brought primarily against Leicestershire County Council (“LCC”). The governors (“the Governors”) of St Hardulph’s Church of England Primary School (“the School”) are joined in the proceedings so as to be bound by the outcome and any rulings which may be made.

BOTHCA seeks relief against LCC under both private law (involving claims based on contract, proprietary estoppel or constructive trust or a combination of them) and public law in relation to the management of premises at Breedon-on-the-Hill (“Breedon”) comprising a school and community centre (“the Premises”). The action gives rise to issues regarding the interaction between private law and public law obligations to which LCC and the Governors were and are subject.

The main part of the Premises was built in 1962. The Premises house the School and rooms used by the local community including, in particular, by BOTHCA. The background to the dispute is a serious worsening in relations between the Governors and BOTHCA in relation to their shared use of the Premises from about 2004 onwards, which has taken place in the context of a diminution over time in funding provided by LCC out of public monies for community activities at the Premises.

The Premises were constructed by LCC on land which had previously been acquired by it, but with the benefit of an arrangement that a sum of £3,000 - which had been raised by fund-raising in Breedon in the 1940s and the 1950s for a village hall - would be contributed by the local community to the cost. BOTHCA maintains that various rights in private law flowed for its benefit from this arrangement which now limit what LCC can do with the Premises. BOTHCA maintains that these rights have the effect of:

LCC accepts that it received the £3,000 as monies impressed with a charitable trust, which charitable trust obligation has been carried through to affect LCC’s ownership of the Premises; but it denies that this trust gives rise to any rights specifically for BOTHCA (as distinct from other members of the community or community groups generally in Breedon) or prevents it from charging BOTHCA and other community groups on a non-profit basis for use of the Premises (so as to cover the expense of making facilities at the Premises available for them, in terms of matters such as lighting, heating and caretaking costs arising from their use of those facilities) or from taking measures limiting BOTHCA’s use of the Premises in the interests of what LCC and Governors regard as the effective and efficient operation of the School, in the interests of the children who attend the School.

On 18 December 2007 LCC gave a year’s notice to terminate the existing arrangements regarding BOTHCA’s use of the Premises, essentially on grounds that the relationship between BOTHCA and the Governors had broken down in a way that undermined the proper running of the School. BOTHCA brought judicial review proceedings to challenge that decision on public law and private law grounds.

BOTHCA was granted permission to bring judicial review by an order by Irwin J dated 18 June 2008, who suggested that the claim might best be tried by a Chancery Judge sitting in the Administrative Court. There was a further procedural hearing before Collins J on 19 December 2008 at which he gave permission to the Claimants to amend their claim and ordered the Defendants to state with particularity their defence to the Claimants’ claim on private law issues. He also dealt with an application by the Claimants for disclosure of documents covering legal advice given to LCC, dismissing the application but requiring a witness statement from the external solicitor advising LCC in December 2007 (Mr Alan Radford of Browne Jacobson - “Mr Radford”) stating whether the summary of his advice set out in a report for LCC, prepared by the County Solicitor (Mrs Elizabeth McCalla – “Mrs McCalla”) and the Director of Children and Young People’s Services (Mr Gareth Williams – “Mr Williams”) for a meeting of the Cabinet of LCC on 18 December 2007, was a fair summary. Mr Radford did in due course make such a witness statement, the significance of which I consider below.

Since by this stage private law issues between the parties were assuming greater prominence, Collins J ordered that the proceedings be transferred to the Chancery Division to be heard by a judge with public law experience. In due course, a trial was fixed to commence on 1 May 2009. I am told that at the hearing before Collins J he made some comments critical of LCC’s case under public law (I have not seen a transcript of these nor been told what exactly he said). This was a factor which contributed to LCC deciding to reconsider the decision taken on 18 December 2007. In early 2009 LCC withdrew the notice to BOTHCA and engaged in a consultation exercise in the local area to obtain comments on four alternative courses of action which it had under consideration in relation to trying to manage the use of the Premises, with a view to taking a new decision.

BOTHCA was not happy with the range of options proposed and so sought people’s views on a fifth option of its own devising (“Option 5”) which was more favourable to its claims as to how the use of the Premises should be managed and would require a greater financial subsidy from LCC for community use of the Premises. A large majority of those who responded to the consultation exercise expressed a preference for Option 5. LCC considered the results of the consultation exercise. Its new decision, taken on 24 April 2009, shortly before trial, was to reject Option 5 and if agreement could not be reached with BOTHCA in accordance with the resolution set out in full at para. [243] below, again to give notice to BOTHCA to terminate the existing user arrangements in respect of the Premises. That decision was confirmed by a further decision on 22 May 2009.

The effect of all this was to render academic the Claimants’ public law challenge to LCC’s decision in December 2007 to give notice, save on the question of costs (although the Claimants maintain a complaint under private law in relation to that decision). That remained the position before me, so that it is common ground that it is not necessary for me to consider the previous public law challenge to LCC’s December 2007 decision in any detail at this stage. The parties agreed that arguments as to the costs in relation to the public law challenge to that decision should be postponed to a separate occasion.

A hearing took place on 1 May 2009 before Sir Gavin Lightman (a Chancery judge with public law experience) sitting in the Chancery Division. Since the pleaded public law challenge had become academic and the private law issues had assumed increasing importance by that stage, the court used the hearing to give directions, including requiring the Claimants to set out new Particulars of Claim including their case under private law and any public law challenge to the new decision of LCC taken on 24 April 2009, with the case to be listed for a seven-day trial later in the year. Thereafter, the Claimants pleaded a public law challenge to LCC’s decisions of 24 April 2009 and 22 May 2009 which was live at the hearing before me.

At a further hearing before Sir Gavin Lightman on 23 July 2009 he gave further directions, including directions regarding the manner in which claims by the Defendants to withhold documents from inspection on grounds of legal professional privilege should be asserted and could be challenged by the Claimants. The directions envisaged that any application to contest the Defendants’ claims of privilege should be heard by Sir Gavin in October 2009. The categories of documents to which these directions applied included documents evidencing legal advice given by Browne Jacobson to LCC in the period leading up to the decision of 18 December 2007. The Defendants issued an application to maintain privilege over these documents, among others.

On 22 October 2009 Sir Gavin adjourned the application and gave directions for the adjourned hearing to come on as a matter of urgency before the trial. The application was heard by Mann J on 16-18 December 2009. He ruled that the Defendants were entitled to maintain privilege in relation to these documents.

Part way through the trial before me, after evidence had been given by some of the Defendants’ witnesses, Mr Lawrence QC for the Claimants made a short application renewing the claim by the Claimants to inspect documents evidencing the advice given by Browne Jacobson to LCC in the period leading up to the decision of 18 December 2007. I refused that application without finding it necessary to call upon counsel for the Defendants, on the ground that there had been no waiver of legal professional privilege by LCC in respect of that advice. There was no material change of circumstances from the situation which presented itself to Mann J and on which he had already ruled. In order not to hold up the proceedings (in particular to avoid a delay before commencing the evidence of the next witness) and with the agreement of counsel, I gave only a summary account of the reasons for my decision in this judgment, offering to expand upon them in this judgment as appropriate. Mr Lawrence indicated that no further substantial explanation of my reasons was required by his clients.

Even before the trial commenced very considerable costs had been incurred on both sides. These far exceeded the monetary amounts at issue between the parties. The estimate for the length of the trial had also lengthened, and the costs position would get substantially worse after the costs of an extended hearing over more than two weeks were added on. Therefore, at the outset of the hearing I asked counsel to confirm that every effort had been made by the parties to resolve the dispute, including by mediation. They confirmed that this had been tried but the parties could not come to an agreement. It is very regrettable that this was so. However, points of principle of importance for each side are at stake and at the end of the day, if no compromise agreement can be reached, it is for the court to decide the matter according to law. Each side having stood upon their rights, it falls to me to determine what those rights are.

Breedon is a small and relatively isolated village. It is grouped in a parish with two other villages nearby (Tonge and Wilson). The parish church is in Breedon. In the early part of the twentieth century, alongside agriculture, the main industry in the area was a local quarry.

A Church of England primary school was set up in Breedon in the early part of that century on land leased from the quarry company. By the 1940s and 1950s it was recognised that the school was unsatisfactory: it was small and cramped and the lease was due to expire. Therefore LCC began to make plans to build new premises in Breedon to accommodate the school. In 1953 it acquired a plot of land for the new school in the middle of the village. This plot was adjacent to another area of land in the form of a large field. LCC began to consider making money available to build new school premises on the plot.

Meanwhile, steps were being taken in the locality to raise money to build a village or parish hall. There is evidence that a Nissen hut had been obtained and was used in the years after World War II as a hall or community centre, but it was unsatisfactory for various reasons and a better solution in the form of a village or parish hall, or community centre, was sought.

There was some evidence about this from some elderly villagers. A good account of what was done was contained in a pamphlet written for the official opening of the Breedon Parish Community Centre (i.e. the Premises) on 12 May 1962 (“the Official Opening Pamphlet”), as follows:

“This project was started at the Annual Parish Council meeting held on the 3^rd April, 1944. From that meeting it was decided a public meeting be held on April 17^th, 1944, and at this meeting the first Committee was formed under the Chairmanship of Mr. R. H. Walker.

It was arranged that two representatives be appointed from each organisation in the Parishes of Breedon, Tonge and Wilson to serve on the Committee, and this principle has been carried on through the years.

On Wednesday, May 31^st, 1944, the first full Committee Meeting of the Parish Hall Fund was held. After that meeting and until 1946 the sum of £500 was raised by various efforts such as Holidays at Home on the Berry Field, by kind permission of Breedon and Cloud Hill Lime Works Ltd., in which the Army helped in no small measure with Whist Drives, Dances, Raffles, etc.

From 1946 until 1950 very little money was raised, but in 1949 a new Committee was formed under the same Chairman, and the first £500 was deposited in a Post Office Savings Account on September 21^st, 1950.

No meetings were held between 1952 and 1954.

On two occasions the Director of Education came down to speak to the Committee and discuss the possibility of building a Community Wing in conjunction with the new school.

On the 28^th June, 1954, the Director of Education, together with Mr. Vesty, Chairman of the Leicestershire Rural Community Council, came to discuss with the Committee ways and means of building a Parish Hall, or a Community Wing attached to the new School. It was then left to the meeting to think over.

At a further meeting held on the 26^th July, 1954, at which meeting the Revd. R. Leader was appointed Secretary, it was decided we should carry out a house-to-house collection, asking each family to give 1/- per week for one year. This was done, the collection started in October, 1954, and brought in the sum of £273.

A barometer was erected near the Lime Works Offices at Breedon to show the progress of the fund, with a target of £3,000.

The first major prize draw was held on December 26^th, 1954, for a television set, bicycle, etc., and brought in the sum of £287 16s 0d. net profit, 7,661 tickets being sold at 1/- each.

On the 3^rd May, 1955, the Directors of Breedon and Cloud Hill Lime Works Ltd. donated the magnificent sum of £1,000 towards the cost of the Hall.

At a meeting on June 9^th, 1955, it was decided to build the Community Wing in conjunction with the New School, and in September, 1956, revised plans were submitted by the Education Committee, and approved by the Parish Hall Committee.

We were asked by the Leicestershire County Council to join this scheme and pay the sum of £3,000 towards the cost. At that time the sum of £2,400 had been raised.

On November 10^th, 1956, we invested £10 in Premium Bonds, in the hope of adding to our funds.

During early 1957 Mr. Mason (Director of Education) was asked for a more specific date as to when the building would begin. Mr. Mason said he hoped to see it commenced in the Autumn of that year. Later on he informed us that owing to cuts in Government Grants for Schools there was no chance of commencing before 1959.

Owing to the suspension of the Education Building Programme, we thought again about building our own hall, but on consultation with Mr. Anthony Stuart of the Leicestershire Rural Community Council, we decided to carry on with the Educational Scheme, and to build in conjunction with the school. …

The Revd. R. Leader became Secretary on the 26^th July, 1954, and held this post until he left on the 19^th February, 1959, and during his term of office approximately £2,500 was raised.

During a Fete held on the 1^st August, 1960, we heard of the sudden tragic death of our Chairman – Mr. R. H. Walker. Mr. Walker had been Chairman of the Committee since the commencement, during which time over £3,250 was raised. It was his great ambition to have a Village Hall for Breedon, and his tireless efforts helped in no small measure to raise this sum. His loss was felt by all, and our regret is that he did not live to see his ambitions fulfilled.

At a meeting held on the 29^th September, 1959, Mr. R. Frain was appointed Chairman.

Representatives of the Education Committee presented new plans for the Community Wing, and at 11 a.m. on the 14^th April, 1960, the first bricks arrived.

The Assembly Hall and Community Room were to be laid in Thermoplastic tiles, but the Committee decided to have them laid in hardwood blocks for an additional sum of £203. This is being borne by the Committee in addition to the £3,000, making a total of £3,203. The Leicester County Council Education Committee have given £500 towards the furnishing of the stage and Community Wing.

It would be impossible for us to mention the names of all who have helped in bringing this Community Wing into being, as they are so numerous, but we do sincerely thank all who have helped in any way, however small.

The Community Wing is for the use of the Parish for all recreational and social activities, and it is hoped that all within the Parish will use it to the full.

This consists of a Common Room, fully equipped kitchen, stage, etc., and may be used by organisations and private individuals within the Parish on application to the Warden.”

The Official Opening Pamphlet set out standing orders as follows:

“STANDING ORDERS

1.

The Association will be controlled in accordance with the Scheme of Management for Breedon-on-the-Hill Community Association, a copy of which is available to each affiliated body, and is on view in the Community Centre.

2.

Eligibility for Membership.

All residents of the Parish of Breedon-on-the-Hill are eligible for membership.

3.

Membership Subscription.

The Annual Subscription: Over 21, 2/6d.; 18-21, 1/6d.; under 18, 1/-.

4.

Hiring of Community Centre.

(a)

Affiliated Bodies for community purposes – Free.

(b)

Affiliated Bodies for money raising or purely social events, ten shillings, inclusive of use of all equipment.

(c)

Private lettings to Members for social purposes only (weddings, etc.) including facilities, two guineas.

(d)

Private lettings to members for raising funds for charity, ten shillings

(e)

Applications from non-members of the Community Centre will be considered by the Council of Management.”

Before me BOTHCA placed emphasis upon the references in the pamphlet to the meetings with LCC’s Director of Education in the early 1950s. Its case was that a specific and binding undertaking or assurance had been given by LCC in those meetings or in the period up to the building of the School’s new premises in 1962 that the Premises would be maintained by LCC, that BOTHCA would be entitled to use them free of charge and that BOTHCA would be entitled to unrestricted use of and access to certain rooms comprising the community wing of the Premises and to unrestricted use of the school hall outside school hours. In further support of its case that some such undertaking or assurance had been given by LCC, BOTHCA also relied on documentary evidence (taken in particular from LCC records from the relevant time) and evidence from elderly residents of the village and former employees of LCC.

Before turning to review this evidence, it is relevant first to set out a summary of the developing parallel proposals for construction of a new school and for the construction of a village or parish hall (I will refer to it as a “parish hall”, the term used in the Official Opening Pamphlet), which then came together to take the form of the construction of the Premises.

The Parish Hall Committee (“the Committee”) originally set out to raise funds for a stand-alone parish hall. As is clear from the account in the Official Opening Pamphlet, the fund-raising was a slow process. Even when the parish hall fund had grown to a sizable sum approaching £3,000, it is likely that inflation in relation to the costs of acquiring land and building on it was a constant difficulty, meaning that the Committee was chasing a target which constantly receded. LCC, for its part, knew that a new school building was required, but in the austerity years after World War II faced difficulties in funding it. Although the Parish Hall Committee considered that there might be scope for it to apply for a central government grant to supplement its funds, there was clearly an appreciation on the part of LCC and the Committee that if they pooled their resources in some way, they could end up with better overall facilities which could be shared for both school use and use by the local community.

I examine in more detail below the nature of the arrangement which was arrived at to achieve this. At this stage, it suffices to say that in general terms the Committee agreed to make a contribution of £3,000 from the parish hall fund in order to encourage the Council to commit public monies to construct school premises on a more generous scale than might otherwise have been achieved. There was some delay in constructing the new premises (which the Committee found frustrating) because of funding constraints on the Council in the 1950s, but eventually the Council did find the money to proceed with construction.

The proposal for a combined school and community centre building was a development from the Committee’s original idea that a parish hall should be built. In the contemporaneous documents one sees a gradual shift from references to building a parish hall to references to constructing a community wing, or a community room attached to the new school.

I had available to me an architect’s plan of the Premises dated April 1962. It is likely that some such plans had been drawn up in the 1950s. It is very likely that these plans were available to the Committee as well as LCC and I find that the April 1962 plan provides good evidence of the common intention at that stage. It shows two classrooms (numbered 3 and 4) to the right; an entry into the building in the centre into a corridor running the length of the building; a large hall on the far side of the corridor (which I will call “the hall”) marked “classroom 2” on the right and “classroom 1” on the left, with a folding partition between them; a raised area to the left of “classroom 1” marked “stage and dining area”; a storeroom to one side of the stage; a large kitchen (clearly for use in conjunction with the School) across the corridor from the stage and dining area; a distinct area to the left of the stage and kitchen, entered via the corridor and separated by a wall from the stage and dining area (referred to at various points in the evidence as “the community wing”, though not marked as such on the plan – in this judgment I will use the phrase “community wing” as a useful descriptive term for this area without thereby pre-empting consideration of the rights of user in respect of it), which comprised a sizeable room described as “committee and common room” with a small adjacent kitchen and toilets and storeroom on one side of the corridor (I refer to this room as “the community room”) and a small room marked as “Head and staffroom” opposite it across the corridor (I refer to this as “the office”).

At some stage in the development of the plan for the Premises an earlier proposal that the stage should be constructed facing the community room was changed so that it was constructed to face the hall instead. This was probably done because the community room and stage would have been a rather cramped space and tends to show that there was a general understanding that there should be scope for mixed community and school use of the hall and stage. That impression is also supported by the fact that, as described in the Official Opening Pamphlet, the Committee paid about £203 for woodblock flooring to be installed in the hall and community room. This was done because such flooring would be better quality for community events if, for example, dances were held in the hall. Similarly, the fact that the office, labelled as for the use of the head and staff of the School, was located in the community wing indicated that the community wing was not intended to be an area separated off from school use.

A report of LCC’s School Organisation and Staffing Committee dated 20 September 1956 contained the following at paragraph 5:

“Your Committee has to report that the Breedon-on-the-Hill Village Hall Committee has requested that they be permitted to enter into an agreement whereby a Village Hall is erected as part of the first instalment of the Breedon-on-the-Hill Proposed Primary School. The cost of the building forming part of the Village Hall is estimated to cost £3,000. The scheme will be carried out under the direction of the County Architect and the Village Hall Committee will pay to the County Council the sum of £3,000.

Your Committee recommends therefore that financial authority be given to the erection of the first instalment of the Breedon-on-the-Hill Proposed Primary School and Village Hall at an estimated cost of £13,520, including quantity surveyors fees, subject to a contribution of £3,000 from the Breedon-on-the Hill Village Hall Committee.

Your Committee also recommends that in the event of increases in the cost of labour and materials after the commencement of the work, liability for increases on that part of the building forming part of the Community Centre should be borne by the Committee.”

Mr Lawrence placed particular emphasis upon the reference to “an agreement” in this paragraph. I consider the significance of this below. It should be noted here that the paragraph was looking to some arrangement being made in the future and is inconsistent with the suggestion that any kind of binding promise or assurance was understood (either by LCC or the Parish Hall Committee) to have been made by the Director of Education when he visited Breedon earlier in the 1950s, as referred to in the Official Opening Pamphlet. The terms in which the pamphlet recounts those visits as occasions to “discuss the possibility of building a Community Wing in conjunction with the New School” are also difficult to square with the idea that anyone thought that binding promises or assurances regarding use of the Premises or the precise rights in respect of them had been given at that time. Accordingly, I find that no such promise or assurance was given on those occasions.

A report of LCC’s Finance and General Purposes Committee dated 21 September 1956 included the following in an appendix setting out estimates of new expenditure for the Education Committee:

“Breedon-on-the-Hill C. E. (Controlled) School

School and Village Hall - £

Erection (First instalment) … … … 13,000

Quantity Surveyor’s fees and printing ... 520 A contribution

13,520 of £3,000 to the cost will be made by the Village Hall Committee.

This school is a primary school of three classes. The premises are old and cramped and none of the rooms is of adequate size. The building is leased from the local Quarry Company who have for a long time been trying to secure possession of it, and by reason of its inadequate size, its cramped and unsuitable site, and its general condition, the building should be vacated as early as possible. The local community has already expressed its willingness to contribute to the cost of putting up a hall which could be attached to and used in conjunction with the new school, and it would be possible with this contribution to make a start on the new school and provide the hall with two much-needed class spaces.

The cost of the furniture is estimated to amount to £850.

The additional annual maintenance costs are expected to amount to £1,420, made up as follows:

Upkeep of building … … … 80

Maintenance of furniture … … 50

Loan charges … … … … … 1,040

Fuel, light and cleaning … … 250”

It was clear from the outset that the Council would be providing the major part of the funding for the construction of the Premises, including by borrowing money to construct them. LCC appeared to contemplate at this stage that it would bear the costs of upkeep of the building and the expenses for its fuel, light and cleaning.

At a meeting of LCC’s Education Committee on 10 October 1956 the Education Committee approved this estimate for new expenditure and adopted a report which included the following at paragraph 4:

“4.- Your Committee reports that the Breedon-on-the-Hill Village Hall Committee has put forward a proposal for a Village Hall to be erected as part of the first instalment of the Breedon-on-the Hill Proposed Primary School. The cost of that part of the building which would form the Village Hall is estimated to be £3,000 and the Village Hall Committee would pay this amount to the County Council.

Your Committee recommends that authority be given for the erection of the first instalment of the Breedon-on-the Hill Proposed Primary School incorporating a Village Hall at an estimated cost of £13,520, including Quantity Surveyor’s fees, subject to suitable arrangements for securing a contribution of £3,000 from the Breedon-on-the Hill Village Hall Committee.”

The reference to “suitable arrangements for securing a contribution of £3,000” from the Parish Hall Committee was vague and unspecific and in my view reflected the general and unspecific nature of the discussions which had taken place between the Director of Education and the Parish Hall Committee up to then. I find that these had given rise to a general idea that LCC and the Committee should pool their resources in order to get bigger and better premises than either of them could manage acting alone, which premises would then be shared between school use and community use in some way, but without any detailed discussion about what legal regime might govern such joint use or what precise rights each side might have in relation to such joint use.

At a meeting of LCC on 14 November 1956 the Education Committee’s recommendation was approved and adopted. It seems that officials in LCC’s Education Department then proceeded to take steps to implement this decision. After about a year, a draft document dated 10 January 1958 entitled “Scheme of Management for Breedon-on-the Hill Community Association” (“the 1958 Scheme”) was drawn up. It is very likely that it was provided to the Parish Hall Committee for their consideration.

To assess the significance of this document it is necessary to set out provisions of the Education Act 1944 (“the 1944 Act”) which formed the legislative background for it. In the terminology of the 1944 Act, the school in Breedon to be transferred to the Premises was a maintained voluntary primary school (meaning it was funded by LCC although it had not been established by it: section 9) and was classified as a “controlled school” (section 15). Under the 1944 Act the “managers” of the school (as the governors of primary schools were then described) were not responsible for any of the expenses of maintaining the school (section 15(3)). Where a voluntary school was transferred to a new site, as was proposed at Breedon, the transfer did not constitute a discontinuance of the school (section 16(1)). Each voluntary primary school was to have an “instrument of management” providing for the constitution of a body of managers (governors) (section 17(1) and section 18). Section 17(3) included the following:

“(3)

Subject to the provisions of this Act and of any trust deed relating to the school:-

(a)

every county primary school and every voluntary primary school shall be conducted in accordance with rules of management made by an order of the local education authority: …”

Although there was no trust deed in respect of the school which was to be moved to the new premises, this provision is of some interest as indicating that the local education authority was not intended to have the power to override trust obligations in respect of a school - a typical example of such obligations would be where a school had been established prior to 1944 under a trust deed specifying that land and its endowment was to be held on certain charitable trusts for the purposes of education and then under the 1944 Act became a voluntary controlled school.

Section 22 dealt with the powers of the local education authority as to use and care of the premises of voluntary schools. It provided in relevant part as follows:

“22.

– (1) The managers or governors of a controlled school shall be entitled to determine the use to which the school premises or any part thereof shall be put on Saturdays, except when required to be used on Saturdays for the purposes of the school or for any purpose connected with education or with the welfare of the young for which the local education authority desire to provide accommodation on the premises or on that part thereof, and the foundation managers or foundation governors shall be entitled to determine the use to which the school premises or any part thereof shall be put on Sundays, but save as aforesaid the local education authority may give such directions as to the occupation and use of the school premises of a controlled school as they think fit. …

(3)

Subject to any directions given by a local education authority under the foregoing provisions of this section and to the requirements of any enactment other than this Act or the regulations made thereunder, the occupation and use of the school premises of any voluntary school shall be under the control of the managers or governors thereof. …

(5)

In relation to any school with respect to which the trust deed provides for any person other than the managers or governors of the school being entitled to control the occupation and use of the school premises, this section shall have effect as if for the references to the managers or governors there were substituted references to that person.”

The 1958 Scheme was drawn up to be executed under the power of direction in the local education authority (here LCC) under section 22(1) in combination with sections 41 and 42 (set out below). The “foundation managers” referred to were the governors appointed to represent the Church of England interests in relation to the school, which was a Church of England foundation. Section 22(5) again indicated a degree of priority for the provisions of any trust deed in relation to a school.

Sections 41 and 42 provided in relevant part as follows:

“41.

Subject as hereinafter provided, it shall be the duty of every local education authority to secure the provision for their area of adequate facilities for further education, that is to say: -…

(b)

leisure-time occupation, in such organized cultural training and recreative activities as are suited to their requirements, for any persons over compulsory school age who are able and willing to profit by the facilities provided for that purpose:

Provided that the provisions of this section shall not empower or require local education authorities to secure the provision of facilities for further education otherwise than in accordance with schemes of further education or at county colleges.

42.

(1) Every local education authority shall, at such times and in such form as the Minister may direct, prepare and submit to the Minister schemes of further education for their area, giving particulars of the provision which the authority propose to make for fulfilling such of their duties with respect to further education, other than duties with respect to county colleges, as may be specified in the direction.

(2)

Where a scheme of further education has been submitted to the Minister by a local education authority, the Minister may, after making in the scheme such modifications if any as after consultation with the authority he thinks expedient, approve the scheme, and thereupon it shall be the duty of the local education authority to take such measures as the Minister may from time to time, after consultation with the authority, direct for the purpose of giving effect to the scheme. …”

Section 111 included the following:

“111.

Any order made or directions given by the Minister, the Minister of Health, or a local education authority under the provisions of this Act may be varied or revoked by a further order or further directions made or given by the Minister, the Minister of Health, or that authority, as the case may be. …”

Under modern drafting conventions such a power of modification would be regarded as implied in the order-making or direction-making power itself, and so later statutes in the education area did not replicate this provision. It is of some significance in the present case, however, as being part of the objective background available to both LCC and the Parish Hall Committee enabling them to understand the significance of the 1958 Scheme. It was clear that the 1958 Scheme, as made under the 1944 Act, was not something written in stone but would be capable of modification as expressly stated in section 111.

The 1958 Scheme included the following provisions:

“1.

Subject to the general supervision of the Managers of the Breedon-on-the Hill Primary School and Community Centre and the direction of the Local Education Authority, the policy and general management of the affairs of the Community Association shall be directed by a Council.

2.

The Council shall consist of two representatives to be appointed annually from each of the affiliated bodies; one representative elected from the individual membership for each twenty-five members; the honorary officers of the Community Association; the Head Teacher of the Primary School; and two representatives appointed by the Managers. The Council may co-opt in such numbers and under such conditions as it may determine from time to time. All members of the Council shall retire annually at the Annual General Meeting but shall be eligible for reappointment.

3.

The Council shall appoint a Committee of Management which shall include among its members the Head Teacher and shall delegate to it the management of the Association subject to the general policy of the Council and to the supervision of the Managers, together with such other duties as the Council may from time to time determine. …

4.

Minutes shall be kept of the proceedings at all General Meetings and meetings of the Council and its Committees. The minutes of all General meetings and meetings of the Council and the Committee of Management shall be reported to the Managers at their meeting next following.

5.

The Council shall have power to make rules and regulations for the management of the Association subject to any direction of the Local Education Authority, and subject to review by the Managers acting on behalf of the Local Education Authority. …

7.

The Council, or, if the Council so delegates, the Committee of Management, shall fix the rates of subscription for the various classes of membership and shall receive all monies raised by or on behalf of the Association. Unless specifically authorised by the Education Authority, the Council shall have no power and shall not purport to authorise any expenditure from public funds or to represent the Council as acting on behalf of the Local Education Authority in any matter. …

11.

The Local Education Authority may, at its discretion, appoint and pay a part-time Warden whose duty shall be to foster the community activities and interests of the village. In such an event unless the Annual General Meeting for good reasons determine otherwise, the Warden shall act as Secretary of the Community Association. The Warden, if he considers any decision taken at a general meeting or meeting of the Council or a Committee to be detrimental to the best interests of the Association or contrary to regulations or intentions of the Local Education Authority, may suspend any such decision and refer the matter for consideration by the Managers at their next meeting. In the event of any such suspension, the Warden shall send a full account with the reason for his action to the Director of Education. …

13.

All decisions taken, whether at a general meeting or meeting of the Council or a Committee, shall be determined by a majority of those present and voting and the decision shall be binding and conclusive, subject to any direction of the Local Education Authority and subject to review by the Managers acting on behalf of the Local Education Authority. …

15.

The Council (or the Committee of Management acting on its behalf) shall decide priorities for the use of the Community Rooms and shall decide priorities for the use of the Hall out of school hours except that its use by the Local Education Authority for School or Evening Institute purposes shall take precedence over all other use.

16.

The Council (or the Committee of Management acting on its behalf) shall decide the annual programme of the Association and shall inform the Managers of the requirements of the Association for the use of the school premises proper. The Managers shall arrange for the accommodation required by the Association to be made available provided that it does not in their view or that of the Local Education Authority conflict with the interests of the School or Evening Institute and shall make such adjustments in the arrangements for the use of the school premises proper out of school hours as may become necessary as a result of changes in the programme of the Association. In accordance with the Rules of Management of the School, the Managers shall determine the use to which the school premises proper, or any part thereof, shall be put out of school hours when not required by the Association.

17.

All activities sponsored by the Association shall cease each evening not later than such time as may be specified by the Local Education Authority except that the Council (or the Committee of Management acting on its behalf) shall have power subject to the approval of the Managers, to extend the closing time for particular functions.

18.

Alcohol shall not be consumed on the school premises proper but the Council (or the Committee of Management acting on its behalf) shall have power, with the concurrence of the Managers, to permit the consumption of alcohol in the community rooms on a limited number of specified occasions provided that the limits of decorum are observed.

19.

The school premises proper, including the school hall, shall be used solely for community and school purposes and not for private profit or pleasure, but the Council may with the concurrence of the Managers let the community room for a sum not less than that specified from time to time by the Local Education Authority for private purposes which may be considered to be in the nature of a local community event.

20.

The Council and the Committee of Management acting on its behalf shall be responsible to the Managers for the conduct of the Association and the care of the premises when in use for Association purposes.

21.

The Local Education Authority may require a contribution from the Association not exceeding half the cost of heating and lighting the community premises and in respect of the full cost of extra caretaking and cleaning incurred as a result of purely social events.

22.

For the purpose of securing reasonable uniformity of administrative practice the Managers, the Council, and the Committee of Management, in the exercise of the functions delegated to them, shall comply with any regulations that may be made by the Local Education Authority. In the event of any disagreement between the Managers and the Council of the Community Association connected with this Scheme of Management, the matter shall be referred to the Local Education Authority.”

In reading this document one has to be careful to bear in mind that references to “the Council” are to the body which has decision-making power in relation to the Association to be set up as BOTHCA, not to LCC (which in the context of the 1958 Scheme is referred to as “the Local Education Authority”). It is clear from paragraph 19 that the phrase “the school premises proper”, as used in the 1958 Scheme, included the hall. At this stage it seems that the plan of the rooms at the Premises was already known. The reference to “the common community rooms” or “community premises” (paragraphs 15, 18, 19 and 21) was therefore to what I have called the community room and the kitchen, storeroom and toilets immediately adjacent to it.

Under the 1958 Scheme (as appeared, in particular from paragraph 19) the office, which was to be for the use of the head teacher and staff of the School, was part of “the school premises proper”. Paragraph 11 of the 1958 Scheme is relevant in this regard: LCC was to have a discretion whether to appoint a part-time warden to foster community activities. Although for many years LCC appointed the head teacher at the School as warden (and paid them an additional element of salary in respect of their duties as such) and the head teacher naturally used the office in relation to their duties as warden as well as in relation to their duties as head teacher, paragraph 11 of the Scheme indicated that there was no necessary connection between the office and use for community purposes.

The basic regime for the practical management of use of the school premises set out in the 1958 Scheme was that BOTHCA was to be subject to the general supervision of the Governors (referred to in the Scheme as “the Managers”, using the terminology of the 1944 Act) and to the direction of the Local Education Authority (paragraphs 1, 3, 4, 5, 11, 13 and 22). BOTHCA was to be able to decide priorities for use of the community rooms (paragraph 15), but that was subject to powers of control and regulation by LCC (paragraphs 1, 13 and 22) and could, in any event, be varied if the Scheme were amended pursuant to section 111 of the 1944 Act.

As regards use of the hall, BOTHCA was to decide priorities for its use outside school hours (paragraph 15), but this was subject to the proviso in paragraph 15 that its use by LCC for school purposes should take precedence over all other use and BOTHCA’s power to require use of the hall was further restricted by the limit set out in paragraph 16 on the obligation of the Managers (Governors) to make the hall available to meet the requirements of BOTHCA to situations where such use “does not in their view or that of the Local Education Authority conflict with the interests of the school…”. Again, such rights as BOTHCA was to enjoy in relation to use of the hall under paragraphs 15 and 16 was subject to powers of control and regulation by LCC under paragraphs 1, 13 and 22 and to a power of modification by LCC under the general law set out in section 111 of the 1944 Act.

As to charges which might be levied for use of the premises, paragraph 21 of the 1958 Scheme set out a power for LCC to require BOTHCA to pay charges subject to the limits there set out. Once more, section 111 of the 1944 Act made express provision that such a regime could be amended.

In my view, on a reasonable and objective reading of the 1958 Scheme:

There is no evidence that anyone from the Parish Hall Committee protested or objected in any way when the draft terms of the 1958 Scheme were put forward. On the contrary, it appears that they took steps to have themselves appointed to BOTHCA according to the terms of that draft scheme and then accepted and operated those terms when they were formally promulgated under LCC’s seal as the “Scheme of Management for Breedon-on-the Hill Community Association” dated 21 November 1962 (“the 1962 Scheme”). Therefore, I find that the terms of the 1958 Scheme provide good evidence of the general understanding between LCC and the Committee when the Premises were being constructed and the arrangement for payment of the £3000 contribution by the Committee was being discussed. (A distinct argument for the Claimants that the use of LCC’s seal on the 1962 Scheme meant that it was executed as a deed was correctly withdrawn by Mr Lawrence in the course of the hearing; the use of LCC’s seal was simply to record that the scheme had been formally promulgated by LCC, and did not constitute the scheme as a deed containing obligations binding in private law).

In addition, I consider it very likely that LCC and the Parish Hall Committee both had a general awareness in the late 1950s and early 1960s that the 1958 Scheme and the 1962 Scheme were to be promulgated under LCC’s powers derived from the 1944 Act (since, for example, both instruments purported to be unilateral instruments issued under the auspices of the Education Committee of LCC) and were therefore on notice that their terms could be subject to variation and change in accordance with the provisions of that Act.

These features of the situation during that period are significant since, if there had been any intention on the part of the Parish Hall Committee or BOTHCA or on the part of LCC to enter into a contract or that LCC should be legally bound by terms of an arrangement preventing it from deciding, for example, that school use of the hall should generally take priority over use by BOTHCA or that charges could be levied for use of the hall or the community rooms, one would have expected to see protests by the Parish Hall Committee and (later) BOTHCA regarding the terms of the 1958 and the 1962 Schemes. If that had been the intention, one would also have expected to see care being taken to spell out the terms of such an agreement or assurance as between the parties so as to remove from LCC what was, on the face of the applicable legislation, a power to vary and amend the terms of the Schemes, which were clearly intended to set out the relevant detailed regime and code for management of the shared use of the Premises. There was no other document which came into existence in this period which purported to do that. In my view, therefore, it is highly likely that all those involved at the time (on behalf of LCC, the Committee and BOTHCA) appreciated that the 1958 Scheme (which was then formally promulgated as the 1962 Scheme), issued in the context of the legislative framework in the 1944 Act, was intended to set out and constitute the relevant regime governing use of the Premises and to manage the sharing of that use.

Later in 1958 Mr Stuart, the Organising Secretary of the Parish Hall Committee, was in correspondence with LCC’s Director of Education. Delays had occurred because of funding difficulties for LCC and what was referred to as “the need for national economy”, and the Committee was exploring the possibility of proceeding to seek a grant from central government to assist in erecting their own hall and was writing to protest at the delays in construction of the joint school and community centre premises. In a letter dated 22 April 1958 Mr Stuart said that he had stressed to the Committee:

“… that the Local Education Authority were particularly keen that the Community Hall Scheme as already envisaged and towards which so much detailed preparation had been achieved, should remain the accepted method of providing a good hall for general village use at Breedon within the terms and conditions agreed. The whole significance of the “Breedon pattern” was fully discussed, and I am now able to inform you as Breedon’s instructions, that they will continue with the negotiations for a Community Hall in line with the plan no. E/134/3 Folio E/15/36, dated July 1956.”

The reference to “the terms and conditions agreed” suggests that some form of agreement had been reached, but it appears that it was of a general and non-binding kind since later in the passage reference is made to continuing with “negotiations” and further on in the letter Mr Stuart referred to the possibility that the Parish Hall Committee might explore the idea of “going it alone” to seek a central government grant for a smaller stand-alone community scheme.

LCC’s Director of Education (Mr Mason) responded by letter dated 4 July 1958 to acknowledge the disappointment at the delay and to reassure the Committee that at a meeting of LCC’s School Organisation and Staffing Committee on 30 June 1958 it had been decided to give the School a very high priority in the provisional building programme for 1959/1960. Again, it is difficult to square this letter with the idea that any binding agreement for construction of the School and community premises had been reached between LCC and the Parish Hall Committee, still less with the idea that a binding agreement had been reached regarding the future running costs of the Premises and as to how joint use of them would be managed.

Moreover, the significant financial constraints which both sides were aware LCC was subject to at the time make it highly implausible that anyone could reasonably have thought that - whatever LCC officials may have said about supporting community use of the Premises in future - LCC was promising in any manner intended to be legally binding that the Parish Hall Committee, or any community group, should be entitled to free use of the Premises or any part of them for the whole period when the Premises remained in place (BOTHCA’s primary case before me), or for the whole period until the School ceased to operate at the Premises (BOTHCA’s alternative case before me). Such a period would be likely to last decades, during which circumstances and the financial position of LCC might obviously change radically. I find that it could not reasonably have been thought that LCC was committing itself as a matter of private law to subsidise community use of the Premises in this way, no matter what changes in circumstances might occur over that time and no matter what financial constraints or other pressures on its budgets LCC might experience over such a period.

This conclusion is further underlined by the fact that LCC itself as a council (the body with ultimate power over and responsibility for its budget and management of its financial resources) never purported to offer or vote to provide any such binding assurances. I do not consider that anyone dealing with LCC officers at the time could reasonably have thought that they had authority from LCC to commit it to tie up its scarce financial resources indefinitely under any such assurance, in the absence of formal agreement (properly documented) by LCC itself. It is also highly unlikely that LCC officers would have purported to give any such assurances knowing that they had no authority to do so, or that if they did purport to give any such assurances they would have failed to write them down clearly so that LCC itself and other LCC officers in the years to come would have a proper record of what had been agreed. Moreover, if anyone had intended to give binding assurances, it is likely that they would have sought to spell out the content of such assurances with some care (e.g. as to how long any contractually binding promise of providing financial subsidy should last). This was not done. The inference to be drawn is that no such assurances were given, and there was no understanding that any such assurances had been given.

These points, arising from the particular factual context in which LCC officers and the Parish Hall Committee were discussing the construction of the Premises, are also reinforced by a relevant part of the common law legal framework at this time, which required that to be enforceable any contract made by a local authority had to be in writing, bearing the seal of the authority: see A.R. Wright v Romford Borough Council [1957] 1 QB 431 (the rule was only removed by legislative amendment in 1960). Accordingly, the Committee would have been on notice from this, as well as from the factual context, that if they wished LCC to be subject to a commitment which was legally binding under private law to allow free use of the Premises and governing the management of the joint use of the Premises, they would need to have specific terms to that effect agreed by LCC, formally recorded in writing and bearing LCC’s seal. None of these conditions was satisfied. No such document was drawn up as between the Committee and LCC.

Another factor which makes it unlikely that anyone considered that any contract binding LCC in this way was negotiated or agreed is that the general arrangement under discussion was, in broad terms, to be reciprocal. LCC would provide substantial funds to build a school and community centre while the Parish Hall Committee would make a contribution of £3,000. It is unlikely that the individual members of the Committee would have wished to subject themselves to a contractual obligation to pay £3,000 to LCC, even though the Committee had such funds in the bank at the time, and there is no good evidence that they did assume any such obligation. Had it been intended to create such a reciprocal contractual arrangement, one would have expected to see negotiation of protection for Committee members from any possible personal liability, but there is nothing of that kind which emerges from the contemporary documentation.

The absence of any relevant commitment on the part of LCC binding in private law is further supported by the practice of the parties after the Premises were built in 1962 and began to be used for school and community purposes, which I address in more detail below. Charges were levied by LCC from time to time for use of the Premises by BOTHCA and community groups without any protest by BOTHCA or suggestion that this contravened some agreement which bound LCC.

In assessing the factual position it should also be borne in mind that the Parish Hall Committee (and later BOTHCA) could take considerable comfort from the fact that once the Premises were built with a community room according to the plan, LCC would in fact allow use of the Premises as a community centre for the foreseeable future. In that regard, as in effect an earnest of good faith, LCC furnished and equipped the community wing in 1962 at a cost of £500. Extraction of a binding promise from LCC did not appear to be a pressing need. The 1958 and 1962 Schemes set out a regime to achieve that effect and in practice notice would have to be given for any changes to that regime, which would allow the local community to protest to LCC and seek to apply political and moral pressure to dissuade LCC from making any changes to the arrangements set out in those Schemes. Also – although this does not seem to have been thought about in any detail at the time – once the Parish Hall Committee’s £3,000 was given as a contribution for the building of the Premises, there would be the further protection that LCC was bound by charitable trust obligations to make the Premises available for community use in some way.

It is possible, therefore, to understand and explain the actions of the Committee (and then BOTHCA) in the 1950s and 1960s on the basis that they regarded LCC as morally bound - and bound to some degree under public law and under the law of charities - to make the Premises available for community use. Therefore, no contract can be found by implication from the circumstances, since it is “fatal to the implication of a contract if the parties would or might have acted exactly as they did in the absence of a contract”: Whittle Movers Limited v Hollywood Express Limited [2009] EWCA Civ 1189 at [17] citing TheAramis [1989] 1 Lloyd’s Rep. 213, CA, at 224 per Bingham LJ; also see Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 1 WLR 1195, 1202F (Bingham LJ). An understanding regarding how things will be done does not constitute a binding contractual obligation: J. H. Milner & Son v Percy Bilton Ltd [1966] 1 WLR 1582.

For all these reasons - subject to what I say about charitable trusts in paragraph [110] below - no-one dealing with the plans to develop the Premises in the 1950s and early 1960s did think or could reasonably have thought that LCC intended to assume or did assume any binding legal obligations going beyond the obligations under what in current usage is called public law, as set out in the 1958 and 1962 Schemes as read subject to the 1944 Act.

Steps were taken in 1959 to appropriate LCC funds for the building works. A new estimate and budget for the works was approved by LCC in July 1959 as follows:

“Breedon-on-the Hill C.E. Controlled School £ Erection, including Community Wing 15,840 Quantity Surveyor’s Fees & Printing 655

16,495

Less authorised November 1956 13,520

It will be noted that the original authorisation was given in November, 1956 almost three years ago. To provide the accommodation required at present costs, it is estimated that an additional sum of £2,975 is required. The Committee has received notice to terminate its tenancy of the existing school building which is held on lease.”

It was also noted that “a contribution of £3,000 was forthcoming from local sources”. Most of the funds for the project (£13,495) came from borrowing by LCC.

In a report of LCC’s Education Committee dated 14 October 1959, the Committee recommended that the development plan should be amended to show the School as a four classroom school to cope with higher expected pupil numbers. The report also included the following:

“2.

The County Council at its meeting in July, 1959, authorised the sums of £16,995 for the erection of the first instalment of the new primary School at Breedon-on-the Hill, including the Community Wing, and £3,435 for the erection of the kitchen, which formed part of the School Meals Major Building Programme. The Ministry of Education has now stated that the whole cost of the “double scheme” must come out of the Minor Building Programme for 1959.60 and that the proportion to be charged to the School Meals Service should be calculated on an area basis. In view of this the cost to be charged to School Meals out of the total sum of £19,930 is estimated at £1,700.

Your Committee therefore recommends that the total sum of £19,930 already approved by the County Council be re-allocated as follows: -

Erection of first instalment of schoolbuilding £ £ including Community Wing … … … 17,440

Quantity Surveyor’s Fees and Printing … … 790

______ 18,230

School Meals proportion – Kitchen 1,700”

While the Premises were under construction and before formal promulgation of the 1962 Scheme, steps were taken to arrange for the appointment of active members of the local community, several of whom were also on the Parish Hall Committee, as members of the Management Committee of the local association which was to be established. This indicates that the 1958 Scheme had been circulated to the Parish Hall Committee. For example, on 3 October 1961, at a meeting of the Governors of the School, two members of the governing body (Mr Wakefield and Mr W. E. Smith) were chosen as members “of the Management Committee of the Community Wing”. The making of arrangements to appoint members to the new body, BOTHCA, indicates that there was a general appreciation in the village at the time that this was to be a new body distinct from the Parish Hall Committee. Its purpose was to play the role envisaged for it under the 1958 Scheme (later promulgated as the 1962 Scheme).

The Premises were constructed by LCC in advance of payment of the £3,000 contribution by the Parish Hall Committee. At some point – it is unclear when or how this was achieved – the money held by the Parish Hall Committee was treated as transferred to be held by BOTHCA.

The Premises were opened at a ceremony on 12 May 1962. In 1963 BOTHCA paid the £3,000 contribution to LCC (in effect, partly reimbursing LCC for its expenditure on the project).

On 7 November 1962 a meeting of the Governors (including Mr Frain, who was Chairman of the Parish Hall Committee and became Chairman of BOTHCA at about this time, and others who became members of the Management Committee for BOTHCA at about this time) took place at which applications by the Darby and Joan Club and British Legion for use of “the school hall” were approved and there was a long discussion about the charges for the hire of “the school hall”, leading to a resolution to contact LCC for guidance.

There was further contemporaneous documentary evidence that it was recognised by BOTHCA that the management of the Premises was governed by the 1962 Scheme and that charges could be levied by LCC for lettings at the Premises. At a BOTHCA Council meeting on 3 March 1969 Mr Frain, Chairman of BOTHCA, commented on a discussion he had been having with the County Solicitor for LCC regarding increases in the letting fees, according to which events organised by or under the auspices of BOTHCA for charitable purposes would involve payment of letting fees to the warden as agent for LCC at a reduced rate, which proposal was agreed to unanimously by the Council of BOTHCA (it should also be noted that this was in line with the statement in the Official Opening Pamphlet that applications for use of the premises should be made to the warden: see para. [19] above). The minutes of the meeting also recorded that “the warden stated that a notice regarding the prohibition of drinking on the school premises proper would be provided”, which was clearly a reference to paragraph 18 of the 1962 Scheme.

There was further discussion about the rate of charges by LCC for lettings of both the community room and the hall to bodies affiliated to BOTHCA at a BOTHCA meeting held on 27 September 1972 (again chaired by Mr Frain). Again, it is clear that BOTHCA (including members, such as Mr Frain, who had been involved since the 1950s) recognised that there was no prohibition on LCC charging for use of the community room and the hall.

Against this, Mr Lawrence pointed to an article in the Leicester Advertiser of 9 October 1970 reporting an interview with Mr Hallam. Mr Hallam was the head teacher at the School from 1947 to 1972. Mr Hallam gave a brief account of how the Premises came to be built, as opposed to a stand-alone parish hall. The article continued as follows:

““The advantages are marvellous,” said Mr. Hallam. “Particularly money-wise; no heating bills, no caretaking problem, no cleaning bills, no rates to pay, no repairs to be done.

In fact, none of the financial problems that rule the thoughts and dealings of village hall committees everywhere.

“But it is still completely our room. We paid our share and we use it to the full,” said Mr Hallam, who is also warden of the community centre.”

It appears from this that at this period LCC was in practice subsidising community use of the Premises. But Mr Hallam’s observations do not distinctly contradict the other evidence that LCC would sometimes levy charges at set rates when use was made of the community room or hall, and was not regarded as prohibited from doing so. Clearly the general arrangement was (as Mr Hallam pointed out) much simpler and more advantageous for BOTHCA and the community than would have been the case had they built and then had to maintain and run their own parish hall. Mr Hallam’s observations do not, in my view, come close to showing that LCC was legally prevented from levying charges for lettings of the community room and hall.

In about May 1972 Mr Fairbairn (LCC’s Deputy Director of Education from 1961 to 1971 and Director of Education between 1971 and 1979) prepared a memorandum for consideration by LCC’s Further Education Committee. This referred to an acceptance by LCC’s Education Committee in 1971 that LCC should improve its rate of contribution to the capital cost of community centres attached to primary schools in Leicestershire. The memorandum argued in favour of the idea of combined schools and community centres and for increased financial support for them. It included the following:

“3.

The idea of the “education based” community centre at a Primary School derived from two forms of inspiration. First the efforts of the village of Breedon-on-the Hill to raise money towards building a village hall had been going on for some time without much immediate prospect of coming to fruition when the opportunity occurred to replace Breedon School by a new one. The village decided to throw in its lot with us and its money towards community facilities attached to the school. The committee agreed to assist with the capital cost and on completion maintain the buildings. Second, the developing example of the Community College, the first of which had been established in 1954 at Ashby de la Zouch.

4.

The principles underlying the centres have been (i) to afford to their communities educational, cultural and recreational focal points complementary to whatever other social and recreational provision and facilities might exist locally; (ii) to enable the local people in membership to decide the centre’s programme of classes, courses, affiliations and other events through the model scheme of management; (iii) to offer professional guidance and direction to the centre and Management Committee via the Warden (who is often also Head of the School); (iv) to offer to local clubs and societies a meeting place on payment of a membership fee; (v) to use for the benefit of the community, all premises and facilities when not in use for day school purposes. …

7.

The Primary School Community Centre offers a golden opportunity to those Heads who discern in the concept the means of developing what is becoming popularly known in the county at large as the Community School. The phrase Community School has never been defined so far as I am aware (which is a good thing) but I would guess that it epitomises a growing movement of public and professional opinion which wishes to see the school more closely in touch with the aspirations and needs of the community it serves. This closer liaison can be achieved by an aggregation of good intentions, goodwill, actual means like Parent-Teacher Associations, Parents’ Associations, informed Managing bodies and so on. But I suspect that much of this will be ephemeral and from time to time abrasive unless the whole community can have access to their school via centre membership, modest independent premises attached to it for meeting purposes and finally a real say in the determination of the adult programme – this I believe is possible in the young Primary school based community centre movement in Leicestershire. …

9.

What of the future? It would be wrong to forecast hard and fast lines for development. Leicestershire’s achievements in the field of community education have been arrived at empirically in response to local needs, as a result of the organically flexible scheme of management and by the evolution of a real partnership between the professional Warden/Head and his lay Management Committee.

Nevertheless if the work already achieved by the existing centres and hoped for by the new ones about to emerge from the chrysalis is not to be jeopardised, the Committee ought to consider taking certain steps at the appropriate time to:- … [increase resources]”

Mr Fairbairn’s reference in paragraph 3 (repeated in the same terms in a booklet entitled “The Leicestershire Community Colleges and Centres”, published by Mr Fairbairn in 1979 on which Mr Lawrence particularly sought to rely) to the Education Committee having agreed to assist with the capital cost and then maintaining the buildings does not, in my view, establish BOTHCA’s case that LCC undertook that the Premises should be provided free of charge to community bodies irrespective of the additional costs of lighting, heating, cleaning and so on of the rooms being used. These are matters distinct from maintaining the Premises in a good state of repair.

The other paragraphs quoted above show Mr Fairbairn’s understanding that combined use for school and community purposes depended in practice on goodwill and good intentions, under flexible schemes of management, and on the provision of significant financial support by LCC. These are all points indicating that there was no understanding on the part of Mr Fairbairn that there were legal commitments binding upon LCC governing the joint use of the Premises and preventing LCC charging for lettings at the Premises. Mr Fairbairn’s observations were also acute, since the breakdown in effective arrangements for such combined use of the Premises which eventually occurred in this case flowed in part from an erosion of available funding from LCC which was accompanied by an erosion in previous relations of goodwill between the School authorities and BOTHCA.

That Mr Fairbairn did not understand there to be any impediment against LCC levying charges for use of rooms at the Premises was further demonstrated by the fact that, in about 1974, he sent a letter to all head teachers in the Leicestershire area, including at the School, endorsing new scales of charges for school lettings (set out in a document called “Administrative Memorandum 17”). The charges were aimed at recovering the basic costs associated with use of school rooms (without any profit element), such as heating, lighting and caretaking costs. Although it seems that the charges in Administrative Memorandum 17 were not in fact applied in relation to the Premises until 1991 and thereafter, there is evidence that some level of charges were paid to LCC by BOTHCA, organisations affiliated with BOTHCA and other community users of the rooms for many years without any or any significant protest.

The lack of protest at the imposition of charges cannot be ascribed to a supine attitude on the part of BOTHCA, since - by contrast - in about November 1974 BOTHCA did object to erosion of community use of the community room, when a school reception class was located there. It is therefore to be inferred that the lack of protest in relation to LCC charging for use of the Premises reflected the common understanding that in fact LCC was entitled so to charge. To address the community room issue in 1974, requests were made for LCC to build a new classroom, but these were turned down since pupil numbers at the School did not justify the investment. Instead, at about this time a new staffroom and school receptionist office were constructed by the entrance to the School, which relieved the pressure on the office. The office was then used for a long period as the office for the head teacher/warden.

In Mr Fairbairn’s 1979 booklet he referred to “the Leicestershire scheme for further education and plan for county colleges” submitted by LCC to the Ministry of Education in accordance with sections 41-43 of the 1944 Act, and to a commentary on the concept of community colleges by Mr Mason (LCC’s Director of Education at the time) of March 1949. Mr Mason’s commentary included the following:

“Village facilities

It has been made apparent that a successful community college needs to be backed by a vigorous sense of community living in the contributory villages – and to foster this is in fact one of the main aims of the community college. It is therefore necessary that within the village the necessary facilities should exist. Above all, there should be a meeting place suited to the size of the village and the activities which are within its resources. How can these facilities be provided?

Village halls – capital cost and maintenance

Before the war, there was a growing movement to provide every village with its own independent village hall. Grants-in-aid were made available by the Carnegie United Kingdom Trust through the National Council of Social Service: as a result of this financial assistance, supplemented often by the generosity of some wealthy and public-spirited person living in the locality, a number of village halls were erected up and down the country. Experience has shown, however, that the completion of the village hall was by no means the end of the problem. Maintenance soon rears its ugly head, and the plain fact is that there are many villages with halls which may be used for large social functions but which, on account of high hiring charges, are prohibitive for many small groups, and in particular for youth groups.

Recently, the Ministry has taken over from the Carnegie Trust the responsibility for grant-aiding the building of village halls, while the National Council of Social Service still acts as a broker. The grants are awarded under the Physical Training and Recreation Act and normally amount to 50 and 60 per cent of the total cost. The Ministry, however, only make grants in aid of capital expenditure, and maintenance with the high cost of wages and materials is even more of a bugbear than before the war.

Provision of school halls

The new conception of school standards that has accompanied the 1944 Education Act means that, as soon as the material position allows, every village that has a school of two classes or more will have a school hall. The Building Regulations prescribe a hall of 1000 sq. ft. for a two-class school rising to a hall of 1800 sq. ft. for a five-class school. Even a one-class school is to have in addition to its classroom an activity room of 400 sq. ft and these two rooms could easily be designed so as to form one hall of 1000 sq. ft. when required. In every village with a school, therefore, the local education authority under its statutory obligations must provide a hall which has to be warmed by day – and since central heating is the recognised method, which must also be warmed in varying degrees by night – and which is to be cleaned each day and maintained in a good state of repair. It is also the case that, under the new conception of its duties in the field of further education, a local education authority would let this hall free of charge to any group pursuing an activity of recognised educational or cultural value. It seems evident that under these conditions few villages are likely to possess an independent hall of comparable standards, and further that the costs of upkeep owing to reduced user will be quite disproportionate to the services rendered.

School halls and additional community accommodation – joint schemes for use by authority and community

It would be indeed strange if a change of outlook on the part of the local education authority in regard to its duties towards the people was not accompanied by a change of outlook on the part of the people towards the local education authority. For, after all, the local education authority is the instrument chosen by the people and composed of them. The result is that, as the local education authorities’ notions of further education have broadened from ‘evening classes’ to ‘community centres’, so the people have come to throw off that mistrust of the local education authority, which was only too understandable when it walked in such a tight waistcoat and such a high collar. So it comes about that I am frequently receiving enquiries from village hall committees and parish councils regarding the possibilities of joint schemes with local education authority. As I have said, “the successors of village hall or community centre schemes are coming to realise that the best interests of their community will be served through a co-operative partnership with the local education authority, by which the local resources can be invested in additions to the school hall, such as changing rooms and club rooms, rather than in a rival and almost certainly inferior hall. Thus the school grows an adult wing and by means of a dual-purpose building community amenities can be provided which would otherwise have been impossible”.

Basis of contribution by local education authority

There has been an understanding that, where a community is desirous of co-operating in this way with this local education authority, the authority will contribute an amount equal to that raised as a result of the local effort. Thus, if a village or memorial hall committee collected £2000, the Committee would contribute another £2000 so that a sum of £4000 would be available to provide the additions to the school for adult and youth purposes. There is, however, no declaration of policy on this matter and it is necessary that one should be made. As I have said, enquiries are increasingly being addressed to the Education Office as to what assistance might be given by the Committee towards schemes, and I have been under the impression that I have been correctly interpreting the Committee’s policy by advising that, if a joint scheme with the local education authority is envisaged, the Committee would contribute to the capital cost on a fifty-fifty basis. This means the size and nature of the community additions to the school will depend to a large extent on the local effort. This is important. There are many reasons for advocating a principle directed to the stimulation of self-help, but from the viewpoint of the authority responsible for the proper expenditure of public money, some sound expectation that the premises will be used, and used to advantage, is essential. No better guarantee could be exacted in advance of the erection of a building than the demonstrated determination of the local population to help themselves.”

It is likely that the philosophy set out in this commentary informed Mr Mason’s approach to the situation at Breedon in the 1950s and 1960s. I consider that it reinforces the impression given by the evidence generally that there was no binding commitment under private law, such as is alleged by BOTHCA, tying the hands of LCC as to use of the Premises and preventing it from levying charges for lettings of the Premises. In this commentary, the focus was on LCC taking action, using public monies to spare village communities part of the capital costs and maintenance costs in respect of provision of an independent village hall, so as to help foster a vigorous sense of community living. If this were done, “high hiring charges” “prohibitive for many small groups” could be avoided: there was no suggestion that there should be no hiring charges at all. Where a school hall was to be let free of charge “to any groups doing an activity of recognised educational or cultural value”, that was expected to be the result of a new conception of a local education authority’s public law duties (not a private law contract). What was to be aimed at was a “co-operative partnership” between local community and LCC, which does not suggest some clear-cut statement of rights and obligations under a binding private law contract. Moreover, according to the commentary, the significance of contributions by the Parish Hall Committee was for the local community to demonstrate their determination to help themselves so as to encourage LCC to make a contribution as a matter of policy, not on the basis of securing a binding private law undertaking from LCC.

BOTHCA deployed a number of witness statements from elderly residents in the village and former LCC employees to support its case that LCC could not charge for use of the Premises by community groups, including BOTHCA, and that BOTHCA and community groups should have specific rights of use of the community room at all times and of the hall outside school hours. As a general comment on this body of evidence, I consider that it carries much less weight than the evidence yielded by contemporaneous documentation relating to the 1950s and 1960s and regarding practice in relation to charging thereafter, as reviewed above. With no disrespect to the individuals who gave this evidence, it is not plausible to suppose that they had such good recollection of things said and done forty or fifty years ago that it would be safe to prefer their recollection over documents from the time which deal with relevant matters.

That comment applies with especial force in the circumstances of this case, where what is in issue is whether there was some underlying binding agreement on particular matters as distinct from a set of practices which were adopted over time. It is possible to explain the operation of arrangements on the ground at Breedon over long periods by reference to the strong spirit of goodwill which existed between School, LCC, BOTHCA and other community groups rather than by reference to any precise delineation of the respective rights of the parties. It is likely that individuals simply remember in broad terms the type of arrangements which were followed so long ago. Accordingly, I did not find the evidence from these witnesses very helpful in trying to establish what the underlying legal position might have been. Moreover, at various points in their evidence the descriptions of what was done in practice were (not surprisingly) vague and difficult to reconcile with the documentary material from the time. In addition, it was noticeable that the witnesses put forward by BOTHCA were hostile to the stance adopted by LCC in these proceedings and I consider that this was a factor which tended to colour their evidence, which again led me to approach it with circumspection.

Further to those general points, the following comments may be made:

In addition to witness evidence of this kind in respect of the arrangements in Breedon, BOTHCA also sought to rely on evidence from witnesses (Donald Moss, David Owen and Derek Paul) regarding the arrangements made at another school and community centre in Leicestershire at the village of Croft in about 1968/1969. This evidence was at a further remove from what had happened in Breedon in the 1950s and early 1960s and primarily related to a distinct and different arrangement at Croft. I did not consider that any of this evidence outweighed the evidence about what happened at Breedon which emerged from the contemporaneous documents to which I have referred.

I should comment on one document taken from the files of the Croft Community Association, namely the minutes of the Extraordinary General Meeting of the Association on 23 January 1968, at which Mr Stone (the Assistant Deputy Director of Education for LCC) answered questions. At the end of the minutes the following was noted:

“Members of community centres are expected generally to pay an annual subscription perhaps 2/6 and affiliated bodies a sub. of (say) £2-2-0. These figures are decided upon by the C.C. management committee and are retained by them to be used for the benefit of members. No part of this money has to be paid to the Education Authorities. In fact, once the centre is built, the E. Auth. will maintain it free of charge ad infinitum. This includes repairs, heating, lighting, decorating etc. etc. Furthermore, the centre will be furnished and equipped to a certain extent by the Education Authority. This includes pottery, cutlery etc. for general use. Special equipment required by specific organisations will probably be financed from C.C. funds.”

Mr Lawrence and Mrs Dore in her evidence particularly emphasised the words “ad infinitum” in this note in support of BOTHCA’s submission that LCC had agreed in relation to the Premises at Breedon that they should be maintained free of charge to the community, either until the building ceased to be viable, or until LCC ceased to maintain a school at the Premises. In my view, however, there are a number of difficulties in drawing such an inference from this note. In particular, there is no evidence that this note was ever sent to Mr Stone or LCC for them to confirm that this was an accurate record of what had been said and it should be noted that the Croft Association had an interest to put the most favourable gloss possible to them (in terms of statements regarding provision of resources by LCC for the benefit of Croft) on anything which had been said; it is difficult to believe that anyone could reasonably have thought that LCC really was committing itself literally “ad infinitum” (even on BOTHCA’s submission there was to be an end to the commitment at some point) and this feature of the note suggests rather that what was being talked about was the then policy intention of LCC rather than an intended contractual undertaking; and most importantly, the contemporaneous documents in relation to Breedon show that charges were made to the local community in respect of their use of rooms at the Premises.

As a result of legislative changes in the mid 1980s onwards, LCC and other local education authorities moved to a system of local management of schools which involved delegating the budget for schools to the governors for them to control. The relevant rules governing this transfer of budgetary control to the Governors meant that the School budget could only lawfully be spent by the Governors for School purposes. This was in contrast to what had gone before, where LCC assigned monies for school and community purposes from its general funds without having to differentiate sharply between the two. The position regarding funding of community services at schools was summarised in the following paragraph in Circular 7/88 issued by the Department of Education:

“182.

In some LEAs, the provision to the community of various services, such as adult education, the youth service, sports facilities and services provided by voluntary organisations, takes place alongside school activity under the same overall management. If LEAs choose to do so, they may delegate the management of all staff in such schools to the governing body of the school under section 47 …. In other schools, community services will be provided on the same premises as schools but under separate management. In both cases, the school may incur additional costs (such as for staffing, heating and light) relating to activities not covered by the LEA’s general schools budget. In such cases the LEA will need to make arrangements to ensure that the school budget is compensated from LEA funds outside the general schools budget. In making such funds available, whether directly or through agreements with the other users of the premises, LEAs may wish to specify conditions or give guidance to the governing body of the school using the powers of direction described above, for instance on charging and letting policies. This might provide, for example, for current levels of subsidised lettings to voluntary and youth organisations to be maintained.”

LCC created a Delegated Community Budget (“DCB”) for the Governors to operate alongside the Delegated School Budget, in order to subsidise community use of the Premises. The Governors continued to charge BOTHCA and other community groups and members of the community for use of the community room and hall in accordance with the charges in Administrative Memorandum 17 as updated from time to time.

BOTHCA also considered at this time the principles which it should promote in relation to charges to community groups for using the Premises. It considered “A Draft Policy Statement on Community Centre Charges” dated 26 May 1989 written by Mr Bexon. In the introduction to the document he wrote:

“Clearly in the spirit of true altruism it would be desirable if all community groups could use community resources without being charged at source. However, this is not pragmatic in the present climate and we must devise a policy that works within the parameters that are imposed externally. The 1988 Education Reform Act will have and is having a profound effect on schools. One particular aspect of the Act, LMS, the Local Management of Schools, is most pertinent to us in fulfilling our function as a council representing community groups. There are two important principles that should possibly be considered. Firstly, the community use of resources should not be reduced to the level of school fund raising; just as importantly the use of these resources should not be a drain on the school budget and have a detrimental effect on the education of one particular group in the community, the children of the village. …”

The principles discussed indicated an appreciation that the community did not expect to and was not entitled to have use of the Premises without charges being levied. The document recognised that charging might be required to protect the school budget to ensure that items paid for out of the School budget (such as electricity, heating of the premises etc.) were reimbursed to the School when the Premises were used for non-school purposes. There was no evidence of any significant dissent from these principles at the time. This indicates that, contrary to the evidence of some of the witnesses for BOTHCA, even in 1989 there was no understanding in the local community that use of the Premises was to be free to the community.

The process of disentangling funding for the School from funding for community services, required as a consequence of local management of schools, also led LCC to review the 1962 Scheme and schemes of management in place at other schools and community centres which did not reflect the new system for school management. The 1962 Scheme was considered to be very out of date. LCC embarked upon a consultation exercise regarding a new form of scheme of management for community centres and community colleges to be adopted by LCC in respect of all school and community centres.

There is evidence that a draft of this scheme was circulated to wardens and local community associations, and it is likely that BOTHCA was well aware of the proposals. The proposed revised scheme of management involved a shift of responsibility for collecting charges for use of the premises from BOTHCA and the warden to the Governors, reflecting the principles that (a) the Governors were to ensure that the Delegated School Budget was only to be used for school purposes (and where it had been used to subsidise community use of the premises in terms of paying for electricity, heating etc. when rooms were used by the community, the Governors were to recoup such subsidy from other sources, in particular from persons and groups using the Premises) and (b) that those persons or groups who could be expected to be able to pay charges for such use should do so (a principle also reflected in BOTHCA’s consultation document of 26 May 1989).

Although the changes were unpopular, the consultation on the draft scheme and in relation to these principles did not lead to any assertion by BOTHCA that there was a binding agreement with LCC according to which no charges could be levied in respect of use of the Premises by the community, or that LCC had to provide the Governors with a DCB which would allow the community to use the Premises free of charge. This again indicates that at this time there was no understanding in the local community that use of the Premises by the community was to be free of charge.

By resolution of the Education Resources and Planning Committee of LCC dated 20 May 1991, LCC promulgated the “Scheme of management for community centres and community colleges” (“the 1991 Scheme”) which was to be applied at all schools with community centres, including at Breedon. The 1991 Scheme appears to have been promulgated by LCC under the same statutory powers as the 1962 Scheme and in substitution for that scheme.

Particular features of the 1991 Scheme were that the primary responsibility regarding provision of services to the community at the Premises and for “the disposition” of relevant resources (para. 1.4) was to be for the Governors, with BOTHCA re-established in an advisory role (paras. 1.1 to 1.9, and 3.2 to 3.4); the Governors were to be responsible for setting charges for use of the Premises (para. 1.9; and reference was made to Administrative Memorandum 17: para 2.2); the head teacher/warden would have responsibility for day-to-day organisation of community services (para. 4.2); and the Governors could delegate to him power to make necessary adjustments in the arrangements for use of the Premises (para. 4.3); if there was a dispute between the Governors and BOTHCA, it was to be referred to LCC for decision (para. 6.1).

The effect of the 1991 Scheme was summarised by Mr Bexon for BOTHCA in a note in June 1991. He noted that responsibility for resource allocation lay with the governing body and that it was the responsibility of the Governors to set charges and fees. BOTHCA did not protest to LCC that these points were in breach of any arrangement with it.

LCC submitted that if (contrary to LCC’s primary case) there had been some arrangement from the 1950s or 1960s binding under private law as alleged by BOTHCA, it was varied by BOTHCA’s acceptance of the new arrangements under the 1991 Scheme. I would not accept that submission. The contemporary documentation indicates that the 1991 Scheme was imposed on BOTHCA and the local community as a matter of unilateral action by LCC under the relevant statutory powers (as in public law terms it was entitled to do). LCC did not seek BOTHCA’s agreement to the changes in the Scheme and BOTHCA accepted the changes only because it understood that LCC was entitled to impose them. In those circumstances, had the outcome of the case depended (as in the event it does not) on a finding whether BOTHCA agreed to variation of private law obligations of LCC, I would have concluded that BOTHCA did not freely agree to accept these changes in any way such as to modify obligations on LCC under private law.

Pursuant to the 1991 Scheme, steps were taken to introduce a new constitution for BOTHCA. A draft was produced and approved by BOTHCA for Mr Arkle to send to LCC for approval (“the Draft Constitution”). After some delay, LCC suggested some textual changes and it appears that these were incorporated in a new version which was kept on file by BOTHCA with a manuscript annotation by Mr Arkle saying “modified 17/11/92”. There was no minuted adoption of this constitution by BOTHCA at a general meeting, but BOTHCA’s minute books are not complete for this period.

In late 1997, however, Mr Arkle sent Mr Poole of LCC the Draft Constitution, describing it as “the constitution as it exists at the moment”. Unsurprisingly after all these years, Mr Arkle could not remember the detail of what was done in relation to this. It is therefore unclear whether a new constitution was in fact adopted by BOTHCA. On balance I find that a new constitution was adopted in the form bearing Mr Arkle’s manuscript annotation, since in 1992 there was clearly an appreciation by Mr Arkle and BOTHCA that BOTHCA needed to adopt a new constitution, steps were taken to do just that, and it is likely that they were carried through to their proper conclusion. However, I should note that I do not think anything of significance to the analysis in this judgment turns on this.

Mr Arkle gave evidence about the arrangements at the Premises. He arrived in Breedon as headmaster and warden in 1991 and retired in August 2003. During his time as head teacher he was very accommodating in clearing “classroom 2” (the classroom behind the partition in the hall) in the evenings for use by BOTHCA and community groups. He did not find this an undue burden on him nor an excessive distraction for the children who took time at the end of the day to help him clear the area. He was paid as warden to encourage him to promote community activities (as later head teachers were not), was clearly personally enthusiastic and committed to joint use of the Premises in this way and was well placed to make the judgment about what was feasible in terms of clearing the room and appropriate to expect the children to do in the circumstances applying when he was at the School.

However, the fact that he considered that the hall could be cleared so regularly in this way without detracting from the educational mission of the School does not mean that later head teachers (Mrs Preston and Mrs Wenham) could not reasonably take a different view, as subsequently they did (with the support of the Governors and the relevant officials in LCC). These are very much matters for the judgment of the school authorities in the light of circumstances on the ground (a point reinforced by paragraphs 15 and 16 of the 1958 and 1962 Schemes), and a court will be slow to interfere to substitute its own view. In my judgment, the different view of these matters later taken by Mrs Preston and Mrs Wenham cannot be said to be unreasonable or inappropriate in light of the circumstances applying when they ran the School.

Things seem to have run smoothly in terms of joint use of the Premises for many years. This reflected a considerable degree of goodwill as between the School authorities (head teacher and Governors) and BOTHCA and other community groups using the Premises, reinforced by the willingness of LCC to fund community activities at the Premises (including by subsidising BOTHCA’s use of the Premises and paying for the head teacher to foster community activities as part-time warden) and by considerable overlap between membership of the School’s governing body and BOTHCA over many years (e.g. Mr Frain was a member of both bodies for many years, as was Mrs Dore later on).

I was also struck in considering the evidence that there was great belief on the part of those involved in running the Premises for both school and community purposes in this period in the whole idea of joint school and community use, which led to a willingness to take considerable trouble to ensure that things ran smoothly. For example, it was clear from the evidence of Mr Arkle that he went out of his way to accommodate community use of the hall alongside school use: see para. [99] above.

However, according to Mr Arkle’s evidence, by the time he retired in 2003 he could see what he described as “storm clouds gathering”, in the form of increasingly tight constraints upon LCC’s budget for community purposes. Mr Arkle could see that this was going to put pressure upon the community use of the Premises. This did indeed prove to be the case, as I describe below.

The primary submission for BOTHCA was that by the contribution it eventually made in 1963 in respect of the previous construction of the Premises, a constructive trust arose with it holding a beneficial interest of a share in the property in proportion to the contribution it made compared to the cost to LCC of acquiring the land and building the Premises. The trust arose constructively, so BOTHCA submitted, since LCC acquired the Premises on the basis of an arrangement with the Parish Hall Committee and it would be inequitable for LCC to deny a beneficial interest in favour of BOTHCA, which succeeded to the Committee’s interest in the arrangement with LCC and actually paid the contribution monies in 1963. As a constructive trust, no written record of the trust was required: section 53(2) of the Law of Property Act 1925.

Alternatively, BOTHCA submitted that a proprietary estoppel arose in favour of BOTHCA because of the contribution it made to LCC in reliance on the arrangement with LCC, with the same result that LCC is to be taken to hold a proportionate share of the beneficial interest in the property for BOTHCA.

BOTHCA submitted that, in turn, it held its beneficial interest in the property on charitable trust for the benefit of the local community.

I do not consider that either of these analyses is correct. In my judgment, the position is more straightforward than this. When the Parish Hall Committee raised money for a parish hall in the 1940s and 1950s, they did so for the charitable purposes of raising funds to be spent to create or contribute to premises which could be used for the benefit of the community (the charitable nature of these purposes was confirmed in 1958 by section 1(1) of the Recreational Charities Act 1958). The monies so raised were held on trust for those charitable purposes by whomever kept them (the evidence did not reveal how the monies were kept at this time – it is likely that they were kept in a designated bank account in the name of one or other of the Committee members). The Committee and its members had no beneficial interest of their own in those monies.

BOTHCA was formed as a new unincorporated association in about 1959 pursuant to the arrangements set out in the 1958 Scheme, which were confirmed when the 1962 Scheme was promulgated: see para. [49] above. Although there was considerable overlap between the individuals who had formed the Parish Hall Committee and those who were elected or appointed to serve on the council of BOTHCA, BOTHCA was in law a new organisation established pursuant to distinct procedures and for distinct purposes, namely to fulfil the role for it set out in the 1958 and 1962 Schemes. Only in a very loose and non-technical sense was it a successor to the Parish Hall Committee. The main way in which it did succeed to the Committee was that the charitable fund which was held pursuant to the fund-raising efforts of the Committee was transferred to BOTHCA. The fund remained impressed with the same charitable trusts when it was in BOTHCA’s control. BOTHCA and its members had no beneficial interest of their own in that fund.

The arrangement between the Parish Hall Committee and LCC constituted an arrangement for the Committee to give effect to the charitable purposes for which it held the fund by making a contribution to LCC to assist it to develop the Premises as a combined school and community centre. The Committee did not bargain for nor expect to receive any beneficial interest of its own in the property, nor did BOTHCA when later it simply paid the £3,000 contribution to LCC. The monies raised by the Committee had been drawn from the whole community for the benefit of the whole community (as the Official Opening Pamphlet, in particular, made clear). Moreover, the arrangement with LCC derived from a time before BOTHCA existed, and it is not plausible to construe it as an arrangement designed to confer a distinct beneficial interest on BOTHCA.

The significance of the agreement by LCC to develop premises, which would include a community centre and school hall which could be used part of the time for the benefit of the community, was that when LCC received the contribution it would thereafter have been inequitable for it to have treated that contribution as a simple accretion to the general funds of the Council. Instead, in my view, LCC became bound to hold the property comprising the Premises as property impressed with a trust to be used in part for the charitable purpose of providing premises which could be used for the benefit of the community and the parish. It was common ground between the parties that if this analysis were adopted, the relevant trust would again be a constructive trust, arising from the way in which LCC’s conscience as land-owner would be affected by the circumstances in which it accepted the contribution, so that no written record of the trust would be required: see section 53(2) of the Law of Property Act 1925.

Mr Dumont (who dealt with this part of the case for LCC) submitted that LCC held the legal title to the Premises on trust partly for the same charitable purposes as had attached to the fund held by the Committee and BOTHCA and also partly on trust either (a) for itself to use the Premises for public purposes (i.e. as a local authority holds all its property for the benefit of the public, pursuant to obligations arising under public law - in practice here, after the substantial investment by LCC in building the Premises, it was obvious that the Premises would be used as a school for many years) or (b) for charitable educational purposes. In my view, for reasons which I give at paras. [115]ff below, the better analysis is that at (b).

In my judgment, in working out the extent of the equitable obligations to which LCC was subject to make the Premises available for use for community purposes, as weighed against other public or charitable purposes to make them available for use by the School, a relevant consideration is the extent of the relative financial contributions made by LCC and BOTHCA to the acquisition, building and fitting out of the Premises. That seems to me to accord with the simple justice and equity of the position, and to be supported by analogy with other areas of trust law where conflicting interests or trust purposes may have to be accommodated (e.g. the law of resulting trusts, where, absent distinct agreement to the contrary, the extent of beneficial interests generally follows the amount of contributions made in acquiring property and section 11(1)(b) of the Trusts of Land and Appointment of Trustees Act 1996 regarding the exercise of the functions of trustees of land). In broad terms, the contribution by BOTHCA to the costs of construction of the Premises (including paying for the wood block floor) was somewhat less than one sixth of the overall costs of construction. The cost of acquiring the land and the remainder of the costs of building the Premises were borne by LCC out of its educational budget.

However, I would add that, for the purposes of evaluating BOTHCA’s present claim, I do not think it would make any difference if the analysis were that at (a) in para. [111] above. In expressing this opinion I reject the submission by Mr Lawrence that I should hold that LCC held one sixth of the beneficial interest on trust for BOTHCA on the ground that it would be legally impossible or implausible that LCC should hold that one sixth on charitable trusts while at the same time holding the remaining five sixths of the beneficial interest in the property as part of its ordinary aggregation of property holdings. In my view, there is no legal impediment even to a private landowner declaring a trust for charity of part of the beneficial interest in a property owned by him; still less would there be a legal impediment to a local authority holding part of the beneficial interest in a property owned by it on trust for charitable purposes and the remaining part for the benefit of the public according to its obligations under public law. Of course, in such a situation difficult questions might arise as to how the competing interests in relation to use of an undivided item of property might be reconciled (in the one case, the landowner’s own private interests with the charitable purposes; in the other, the local authority’s general public law functions with the charitable purposes). But the law of trusts has the resources to work out what the obligations of the landowner would be in each case arising from the existence of a trust for charitable purposes in relation to part of the beneficial interest, or a trust for charitable purposes in relation to an undivided interest in land which is also held for public purposes pursuant to obligations arising under public law.

It may be noted that the problem of having to reconcile different competing interests or requirements would in essence be the same if, in accordance with the analysis proposed by Mr Lawrence, LCC held the beneficial interest in the property as to one sixth on trust for BOTHCA (as opposed to holding it for charitable purposes) and as to five sixths on trust for itself to be used for its public functions. I do not consider that the general law of property or trusts drives one to adopt the analysis proposed by Mr Lawrence.

This is by way of an aside since, in my judgment, the true position is that from 1963 LCC held the beneficial interest in the property on charitable trusts, to provide premises for the use by and benefit of the community in the parish and also for educational charitable trust purposes to provide a Church of England primary school in the parish.

The reason why this is the better view is as follows. The School was established as a Church of England primary school - in the language of the 1944 Act, it was a voluntary school. Section 3(1) of the Education Act 1946 provided that, “in relation to the maintenance of voluntary schools, the duties of local education authorities and of the managers and governors of such schools shall be performed in accordance with the provisions of” the First Schedule to that Act.

Paragraph 1 of Schedule 1 to the 1946 Act provided that the duty of the local education authority to maintain a voluntary controlled school under the 1944 Act should include the duty of providing any site provided in replacement of an existing site and any buildings which are to form part of the school premises.

Paragraph 6 of the Schedule provides:

“6.

Where a local education authority provide a site for a school in accordance with the preceding provisions of this Schedule, it shall be the duty of the authority to convey their interest in the site and in any buildings on the site which are to form part of the school premises to the trustees of the school to be held on trust for the purposes of the school.”

This provision has in substance been continued and re-enacted in paragraph 2(3) of Schedule 3 to the School Standards and Framework Act 1998.

According to these provisions, LCC’s interest in the Premises should long ago have been transferred by LCC to the relevant Church of England trustees of the School to be held on trust by them for the purposes of the School (i.e. on a charitable trust for educational purposes). By an oversight that was not done. As a result of careful consideration of its position in light of these proceedings, LCC has now realised that this should have occurred and has been in discussion with the relevant authorities of the Church of England regarding what steps should now be taken to rectify the position. They have agreed to await clarification by the court in this judgment regarding what the property rights in respect of the Premises are before proceeding to give effect to these provisions.

The significance of that statutory duty in the present circumstances is this. LCC has since acquiring the site for the School and constructing the Premises throughout been under a duty to convey its interest to the trustees of the School, i.e. the relevant authorities of the Church of England. When so conveyed, the interest in the Premises conveyed by LCC will be held by the trustees on a charitable educational trust. If it were necessary to do so, the trustees could seek (and in the past could have sought) a mandatory order from the court to require LCC to convey its interest in the Premises, equivalent to an order of specific performance had the obligation to convey arisen as a result of a contract. In a situation such as this, I consider that equity sees as done that which ought to be done and therefore treats LCC as holding its interest in the Premises on the same charitable educational trusts pending transfer to the School trustees. It would not be equitable for LCC to fail to recognise the equitable obligations associated with holding its interest on such trusts pending the transfer which would give effect to those same charitable trust obligations in relation the trustees of the School. However, LCC’s interest in the site and buildings was also limited from the time when BOTHCA made the £3,000 contribution by the equitable obligation constructively imposed upon it to hold the Premises partly for the charitable purposes of providing for recreational use by the community. The Church of England authorities are also on notice of the circumstances in which that equitable obligation upon LCC arose, and when they take the legal title to the Premises from LCC will do so subject to that same equitable obligation. LCC therefore holds the Premises for the charitable purposes of providing for such community use and of providing premises for the School, as will the Church of England authorities after the transfer of the property to them.

Accordingly, since the whole of the beneficial interest in the property is impressed with charitable trusts, the supposed difficulty postulated by Mr Lawrence referred to above does not arise. Since the Premises are for practical purposes and have been treated by the parties as a composite whole (without clearly differentiated areas dedicated on the one hand solely to community purposes and on the other solely to educational purposes), the way in which equity gives effect to the charitable trusts is by treating the whole property as subject to them leaving it to the trustee (currently LCC) to balance those interests in the management of the Premises, subject to the usual rules regulating exercise of discretion by a trustee and having regard to the relative financial contributions made for community purposes and for educational purposes (para. [112] above).

LCC’s discretion in that regard is also subject to the statutory regime for management of controlled voluntary schools imposed in addition to and, to the extent required, overriding those private law property rules. The statutory regime gives important powers of management to the Governors of the School and in some respects to the head teacher. In my view, in exercising their powers when on notice of the non-educational charitable trust for community purposes to which (alongside the trust for educational purposes) the Premises are subject, the Governors and the head teacher are (like LCC) required to have regard to those community benefit charitable purposes as well as to educational charitable purposes in deciding how, in practice, the Premises may be used.

According to ordinary trust principles, a trustee who holds property on trust for more than one purpose has a discretion as to what weight to accord those distinct purposes when deciding how the trust property should be used. The discretion must be exercised rationally for proper purposes, giving due consideration to relevant matters and excluding irrelevant matters: Edge v Pensions Ombudsman [2000] Ch 602, CA, 627C-F. These are similar to the obligations arising under public law in relation to the exercise of a discretionary power conferred in the public law field.

In my judgment, by application of the ordinary trust and public law principles referred to above, in taking decisions how the Premises should be used and whether charges for use should be levied, each of LCC and the Governors and head teachers was entitled to treat the interests of the School (and of the children who attended the School) as having substantial weight. In cases of significant conflict between educational purposes and community purposes as regards use of the Premises, they were entitled to prefer the educational purposes over the community purposes, while at the same time being required to try to find reasonable ways in which to accommodate the community purposes without undue detriment to the educational purposes. This conclusion is reinforced by the priority given to the interests of the School in the 1958 and 1962 Schemes (in particular in paragraphs 15 and 16), which were already in place as the regime governing management of use of the Premises by the time BOTHCA made its contribution (and which therefore should be taken to qualify and inform the equitable obligations upon LCC arising from the making of that contribution) and by the balance of the financial contributions made to acquire the land and construct the Premises (see para. [112] above).

A further aspect of the situation should also be noted. It was common ground that a trustee of property does not have an obligation, simply by virtue of being a trustee of that property, to spend his own money or resources to maintain the trust property or make it available for use where there are expenses associated with doing so. In a simple case, where a building is held on charitable trusts and will require monies to be spent on maintaining and running it over time, the trustee will have power to utilise the property (e.g. by renting out rooms in it) in order to raise the funds necessary to run and maintain it. If that were not done, then the building would sooner or later not be safe or would fall into disrepair and no longer be suitable for use for the intended charitable purposes and so have to be sold. (The resulting fund in the trustee’s hands would then have to be applied for the same charitable purposes or, if that is not possible, applied cy-près pursuant to section 13 of the Charities Act 1993 or pursuant to a scheme of arrangement made under section 16 of the 1993 Act). Similarly, if there are expenses associated with making the property available for trust purposes (such as heating, lighting and caretaking costs, as in the present case), ordinarily the trustee will be entitled to charge those wishing to use the property to cover such expenses, so long as the charges do not include any profit element.

In the present case, to meet this difficulty, Mr Lawrence submitted that LCC agreed to provide funds out of its own general resources to run and maintain the Premises and make rooms available for community use without any charges being made to the local community and that LCC continues to be bound to do that. Contrary to this submission, for reasons given above, I find that no such agreement binding in private law was entered into by LCC. Nor can any alternative constructive trust, proprietary estoppel or benefit and burden argument such as was advanced by Mr Lawrence make good the flaw in BOTHCA’s case arising from the absence of any such binding agreement.

Therefore, in my view, such obligation as LCC had to continue funding the Premises was governed by usual public law principles and not by any private law obligation. Under public law, in deciding how to use the limited public funds available to it, LCC had a wide discretion. It was entitled to decide to withdraw funding support for community activities over time, in order to meet other claims upon its funds which it judged had become more pressing. As it lawfully reduced the amount of funding for community purposes, LCC was entitled to impose charges without any profit element in relation to community groups wishing to use rooms at the Premises, in order to cover the additional expense in terms of lighting, heating, caretaking and so forth associated with making the rooms so available.

The financial constraints on LCC and the reduction in its spending for community purposes at Breedon, anticipated by Mr Arkle, began to take effect from about 2004. LCC’s Youth and Community Education Service was also reorganised in response to central government initiatives at about this time. The budgets for adult learning and youth service were deducted from the DCB, leaving a smaller budget for community purposes known as “Community Plus”. The funding for the post of warden at Breedon was, from 2006, a casualty of these changes. A LCC fund for grants, known as shire grants, to help youth groups and socially disadvantaged community groups across the county meet the cost of hire charges for use of community facilities at community centres was also established (in fact, no groups using the Premises at Breedon made applications to this fund).

In June 2004, a newsletter called “Breedon Community Link” was circulated which was critical of the proposed reduction in the Community Plus budget. The relevant article was written by Mrs Dore. It contained an assertion that when the school and community centre was established there had been “a clear understanding the facilities provided would be free of charge (i.e. caretaking, heating, lighting etc.) …”. As set out above, I find that there was no “clear understanding” to this effect. However, the newsletter also acknowledged:

“This has never happened, however it is agreed that the subsequent advantages have been beneficial to the community. The LEA has invested thousands in the maintenance and running costs of the centre but so have members of the community in terms of fund-raising and voluntary hours of work”.

The fact that the facilities had never been provided free of charge reflects the true understanding in the 1950s and 1960s. The description of how both the local education authority (LCC) and the community benefited from the arrangement was basically correct. Both sides got a better overall facility by acting together, but there was no binding legal obligation on either side to do so.

The newsletter was critical of Mrs Jackie Strong, who was LCC’s Director of Education at the time, with responsibility for implementing the budgetary changes. This drew a response from Mrs Strong in the form of a letter to Mrs Dore dated 15 June 2004 in which Mrs Strong defended LCC’s position. Mr Lawrence submitted that this letter was unduly hostile, but I do not think it was. In any event, this exchange and the correspondence between Mrs Dore and Mrs Strong which followed did not have any significant relevant impact on later events.

On 20 October 2004 Mrs Strong attended a meeting at the Premises with representatives from BOTHCA including Mrs Dore, the new headmistress (Sarah Preston – “Mrs Preston”) and others. Mrs Strong explained the new funding arrangements, including that the cost for vulnerable groups of using the facilities would be subsidised. Mrs Strong was challenged about what was said (inaccurately) to have been an original £12,000 investment in the Premises by local interests and how LCC could ignore this “without offering compensation”. Mrs Strong responded, not unreasonably, that she had not been around in 1962, that on her understanding when the contribution was made it became assets of LCC (she was not right about this, but it was a pardonable comment by a non-lawyer trying to address a factually and legally obscure set of circumstances), that it had not been ignored but paid back in kind and that it continued to work for the community since LCC did not want to close the Premises.

Mr Lawrence submitted that this response showed that LCC took an improper view of the rights of BOTHCA in relation to the Premises and that, by putting it this way, LCC gave a misleading impression of the position to Mrs Preston which then had a lasting impact by causing her, in taking decisions as headmistress, also to disregard the true rights of BOTHCA and the local community. This was compounded, he said, by a similar message given later at a further meeting on 22 March 2006 attended by Lesley Hagger (“Mrs Hagger”), LCC’s Assistant Director of Children and Young People’s Services, who became involved in the implementation of the funding and organisational changes from late 2004.

On that occasion the minutes of the meeting prepared by a governor record Mrs Hagger as advising the Governors and Mrs Preston as follows:

“- [Mrs Preston] under no obligation to attend the community association AGM

-

Community assoc. cannot require the head to do anything

-

Community assoc. can do what it wishes with its funds

-

The community assoc. constitution should have dissolution arrangements, they will have to change their constitution to wind down

-

The actual constitution has not been signed off and would have little or no legal basis

-

The governing body sets charges for groups using premises

-

The community association is just another user

-

The “community room” is now the school’s space and the governors’ responsibility

-

The school should be used by the local community in a way that supports the community and not be at the expense of the children or the head’s time

-

The [local authority] should have changed the scheme of management a long time ago

-

The [local authority] will write that the scheme of management is no longer valid”

Mrs Hagger was particularly pressed in cross-examination about her reference to BOTHCA being “just another user”. I accept her evidence about the meeting, and her explanation that she simply made the point that under the arrangements then in place the Governors could and should treat BOTHCA the same as everyone else who wished to use the Premises, so far as charges were concerned. This was a fair and reasonable point to make. She did not display any hostility to BOTHCA or to the idea that BOTHCA could use the Premises. In fact, at the meeting, Mrs Hagger also emphasised that LCC encouraged the use of the Premises for community purposes.

I do not accept Mr Lawrence’s submission that LCC led the Governors to adopt a hostile attitude to BOTHCA, and to act without according proper weight to such rights as BOTHCA and the local community had in relation to the use of the Premises. Although at this stage in the chronology LCC officials did not appreciate that LCC held the Premises on trust for community purposes (amongst other purposes), as analysed above, that was not in my view surprising given the lapse in time since the relevant arrangement was entered into, the absence of any documentary records setting out the nature of the arrangement or declaring any trust, the difficulty of obtaining good and clear evidence about what had in fact happened so long ago and the relative complexity of legal analysis to which the circumstances of the case gave rise. It has taken a trial over many days to get to the bottom of all this.

LCC officials dealing with the matter – Mrs Strong, Mrs Hagger, Mrs McCalla and Mr Williams (who took over from Mrs Strong as LCC’s Director of Children and Young People’s Services in April 2005) – did their level best against this background of considerable uncertainty, for which they were not responsible, to respond to exaggerated claims by Mrs Dore and BOTHCA regarding LCC’s obligations in a measured and fair way. As the advice regarding the legal position developed over time, they responded appropriately to the new circumstances. Further, throughout their involvement, whatever the legal advice and understanding of the legal position might be, they did, in fact, have full regard to the desirability of community groups being able to make use of the Premises along with the School and actively sought to encourage such use.

As relations between Mrs Dore for BOTHCA, Mrs Sandra Linkison-Cole (“Mrs Linkison-Cole” – the Chairperson of the School Governors) and Mrs Preston (and then her successor as head teacher, Mrs Caroline Wenham – “Mrs Wenham”) deteriorated, the consistent advice given to Mrs Linkison-Cole, Mrs Preston and Mrs Wenham by the LCC officials was that the Governors and head teacher should strive to accommodate the requests of BOTHCA and use of the Premises by community groups as fully as possible consistently with the proper and efficient management of the Premises to run the School. Mr Williams, for example, told Mrs Linkison-Cole and Mrs Wenham at a meeting in about June 2007 that they should bend over backwards to accommodate community use of the Premises alongside school use.

Mrs McCalla, Mrs Hagger and Mr Williams gave oral evidence for LCC. I found each of them to be an impressive witness, being clear, fair and accurate in giving their evidence. I accept the evidence of each of them substantially in full. I also found their response to the difficult circumstances with which they were confronted to be impressive, as relations between BOTHCA (and Mrs Dore in particular) and the School (represented by the Governors, in particular by Mrs Linkison-Cole, and by Mrs Preston and Mrs Wenham) deteriorated. Each of Mrs McCalla, Mrs Hagger and Mr Williams did their utmost to find a way through what became an impasse between BOTHCA and the School which was fair to both sides and took proper account of the interests of both the School and community groups in using the facilities. LCC’s obligations as trustee of the Premises on the trust analysis set out above required no more than this and I find that LCC did not breach its obligations as trustee in any way (even though it took some time, in view of the uncertainty which confronted it, to appreciate that it did have obligations as a trustee).

Mrs Linkison-Cole, Mrs Preston and Mrs Wenham also gave oral evidence. I found each of them to be a good witness too. At one stage in his cross-examination, Mr Lawrence put to Mrs Linkison-Cole in substance that she had lied to LCC about the situation, based on an e-mail from Mrs Hagger to Mrs McCalla, but he did not in the event persist in the submission that she had lied. He was right not to do so. In my view, Mrs Linkison-Cole was clearly an honest, careful and accurate witness. She had, I think, been sorely tried in her relations with Mrs Dore who took an increasingly confrontational line with the School authorities as time went by; however, I found that Mrs Linkison-Cole strove to be fair in her evidence, which I accept in all its essentials.

The same comments apply in relation to Mrs Preston and Mrs Wenham. Mr Lawrence put to Mrs Preston that she had been spiteful and surreptitious in her handling of a liquor licence application (see para. [168] below) and was motivated by personal hostility to BOTHCA and Mrs Dore. He persisted with that accusation in his closing submissions. I dismiss this accusation. Having heard Mrs Preston give evidence, I consider that the accusation was badly misplaced. She is a distinguished and effective primary school teacher and displayed no signs whatever of spite towards BOTHCA and Mrs Dore. Indeed, she impressed me as a person not given to spite at all. Again, I accept her evidence. She had a number of run-ins with Mrs Dore which undoubtedly damaged their relationship. In my judgment, in so far as it is relevant to ascribe responsibility for the deterioration in their relationship, the main responsibility lies with Mrs Dore.

In that regard it is worth referring to two incidents. Shortly after Mrs Preston took up her duties as head teacher in succession to Mr Arkle, she became aware that the nursery group which used the community centre was struggling and someone suggested to her that perhaps part of the playing field adjoining the Premises might be sold off for residential development and in part for development as a nursery, which would at the same time raise money for the School. She raised this with the then Chairman of the Governors (a Mr Marsh) who agreed to make some enquiries whether this might be viable. These led to the conclusion, reported back to Mrs Preston in January 2004, that this would not be possible due to legislation prohibiting sale of school playing fields. The matter therefore was not taken forward. Mrs Preston had acted properly and with good intentions.

However, on 16 September 2004 Mrs Preston attended a BOTHCA meeting as usual and was challenged by Mrs Dore, without warning, in front of a large number of local residents to confirm whether the story about her and Mr Marsh investigating the possibility of sale of part of the playing fields for re-development was true. This put Mrs Preston in an invidious position. She answered that it was true and asked if they could discuss the matter outside the meeting, in the same way that they discussed other matters privately. Mrs Dore refused to agree to this and persisted in an accusatory fashion. Mrs Preston’s view was that Mrs Dore wished to humiliate her in front of a substantial audience of local people. Mrs Mandy Pearce, who gave evidence for BOTHCA and attended the meeting, agreed that it had been a humiliating experience for Mrs Preston. In my judgment, Mrs Dore sprang this matter on Mrs Preston without warning at this meeting to teach her a lesson not to ignore BOTHCA and to do so in a way which caused maximum embarrassment and humiliation to Mrs Preston in front of the local community.

Secondly, in mid-2005 Mrs Dore with others signed a letter of complaint to Mr Williams about Mrs Preston’s performance as head teacher at the School. Amongst other things, the letter described her as “manipulative” and stated “there is every likelihood that dissembling is part of her style…”. The allegations were investigated and the charges against Mrs Preston were determined to be unfounded. The conclusion to the investigation report included the following:

“The people who have made the allegations are, without doubt, acting in what they view as the best interests of children. However, their understanding of the educational and management issues involved does not reflect current expectations or good practice. The persistent complaints are not helpful to the school or pupils. Indeed, the effect is to divert resources and attention from raising standards and quality and destabilises parent confidence.”

The incident obviously damaged relations between Mrs Dore and Mrs Preston.

Mrs Dore was the principal witness for BOTHCA in relation to matters in this period. Ms Lang QC for LCC suggested in her closing submissions that Mrs Dore had been prepared to lie in briefing Mr Gold of LCC’s legal department, who carried out an investigation to try to establish the true legal position in 2006. I reject this suggestion. In my view, Mrs Dore was not deliberately untruthful in her evidence or in representations made to LCC or others. However, I found her to be a less satisfactory witness than the witnesses for LCC and the School authorities referred to above. At various stages she made inaccurate, exaggerated claims about the nature of the arrangements between BOTHCA and LCC and the School authorities and she appeared unwilling to accept that she might be mistaken or that BOTHCA’s rights might be less than she asserted them to be. She had a marked tendency immediately to put the worst possible interpretation upon the motives and actions of those who disagreed with her and to make strong but unfounded allegations against them. I am sure that Breedon has benefited greatly in many ways from her obvious energy and commitment in promoting local community interests but, in my view, there has also been a tendency for her to assume that she is the only person who is right or is able properly to assess where the interests of the community lie. This tendency has led her into conflict with others who are also part of the local community (such as Mrs Linkison-Cole, Mrs Preston and Mrs Wenham) and to seek to assert her dominance over them. In my assessment, this attitude coloured her evidence and I found her less reliable as a witness than the School witnesses and the LCC witnesses.

The evidence of Mrs Linkison-Cole, Mrs Preston and Mrs Wenham shows that the School authorities continued to accommodate use of the Premises for community purposes alongside the School, as they were encouraged to do by LCC. However, particular tensions arose because of different views taken by Mrs Preston and Mrs Wenham (supported by Mrs Linkison-Cole for the Governors and then - as the LCC officers became sucked into the disputes between BOTHCA, led by Mrs Dore, and the School authorities - by the LCC officers), as compared with Mr Arkle in earlier times, regarding what was reasonable to expect by way of accommodating and reconciling community use and school use of the Premises. Many of the points of contention were very trivial. As the LCC witnesses observed, this in itself came to be a major cause of concern, as it became increasingly clear that BOTHCA and the School authorities could simply not resolve between them even very minor points of dispute.

In my judgment, it was clear by late 2007 that there had been a complete breakdown in relations between BOTHCA and the School authorities. I return to the significance of this below. At this point, however, I make clear my overall assessment that the various decisions by Mrs Preston and Mrs Wenham and the School Governors regarding the use of the Premises were taken with proper regard to the interests of BOTHCA and community groups but also properly giving particular weight to the interests of conducting the business of a primary school on the Premises. A range of decisions in that regard did not meet the approval of Mrs Dore and BOTHCA, but disagreement regarding the merits of those decisions does not show that they were taken in bad faith, unlawfully or without appropriate regard to the interest of the local community in all its aspects. On the contrary, I find that the decisions taken, which proved to be contentious and gave rise to disputes, were taken for proper motives, with due regard to all relevant interests and appropriately giving weight to the interests of the children attending the School and to the proper and effective functioning of the School. These were decisions which all lay well within the area of discretion reserved to the School authorities by the 1962 and 1991 Schemes and the general law (see para. [125] above). The complaints in relation to them in these proceedings are not well founded.

I now turn to give an outline of the main events in this period in so far as they seem to me to have significance for the resolution of the claim. I have already referred to the meeting of BOTHCA on 16 September 2004, at which Mrs Dore sought to teach Mrs Preston a lesson by humiliating her (para. [143] above).

In 2005 the governing body of the School was reconstituted. There was a complaint by BOTHCA that representation by its members on the governing body ceased at about this time and that Mrs Linkison-Cole was co-opted as community governor even though she was not a member of BOTHCA or its council. In my judgment, there was nothing untoward in the changes to the governing body or in Mrs Linkison-Cole taking that position on the governing body. She was herself a member of the local community with children at the School and there was no requirement that the person taking that position should be associated with BOTHCA.

The main effect of the changes to the governing body at this stage, in my view, was to fuel a sense of suspicion on the part of BOTHCA and, in particular, Mrs Dore that the governing body was not properly responsive to the interests of the local community as they took them to be. Mrs Dore had herself previously been on the governing body of the School for many years and held strong views about how its affairs were conducted. These also drew her into conflict with Mrs Preston, of whom she did not approve, and with Mrs Linkison-Cole, who supported Mrs Preston.

Mrs Linkison-Cole objected strongly to the way in which complaints by Mrs Dore and others about Mrs Preston and the running of the School had been taken to LCC without first trying to resolve them properly in discussion with the Governors. Relations between Mrs Linkison-Cole and Mrs Dore became strained. There were ill-tempered exchanges between them at a meeting of BOTHCA on 8 September 2005 with an angry exchange of correspondence following on.

In 2006 the Department for Education and Skills issued a guidance document entitled, “Planning and funding extended schools: a guide for schools, local authorities and their partner organisations”, which included the statement:

“Schools should charge the communities for using their facilities, and will need to ensure that their charges include adequate cover for additional and ‘hidden’ costs such as site management, heating and cleaning.

However, schools will also wish to ensure that access is affordable for particular individuals and groups. Many schools operate a separate ‘tariff’ for such groups, charging them at cost, rather than at a profit, to help support their work.”

This informed the approach of LCC and the School authorities in seeking to charge for use of the Premises by community groups.

In due course, in October 2006, a new version of Administrative Memorandum 17 was issued setting out new charging rates (again, with no profit element included). The Governors made charges for use of the Premises according to this.

On 22 March 2006 Mrs Hagger attended the meeting described in para. [134] above. That was followed up, in April 2006, with a LCC Community Education Newsletter containing a briefing for community groups and associations, which described the funding changes associated with the introduction of “Community Plus”. The newsletter explained that funding was being reduced but reaffirmed that LCC was committed to supporting community activity and wished to encourage community groups and schools to continue to work closely together. It also referred to funding being available to groups in financial hardship to cover the cost of using school facilities.

These funding changes drew a further protest from Mrs Dore to LCC by letter dated 22 June 2006, referring to the historic contribution by the villagers at Breedon to the community centre and complaining that, with the loss of the DCB, “the long-term villagers feel that ‘their’ community facility has been ‘stolen’ from them”. The letter stated that “members of our community are extremely unhappy with the cavalier way [LCC] have behaved”, referred to having taken legal advice from a solicitor, Mr Nick Makin (“Mr Makin”), and requested information relating to the establishment of the school and community centre under the Freedom of Information Act.

LCC arranged for a member of its legal department, Mr Patrick Gold (“Mr Gold”), to attend a meeting on 26 July 2006 with Mrs Dore and other representatives of BOTHCA to discuss this request. Mrs Dore gave Mr Gold a briefing about the historical background as she understood it to be. She also described the breakdown in communication between the governing body and BOTHCA, complaining that Mrs Linkison-Cole was not a member of the community and complaining again about the running of the School. She complained that hire charges for the community centre had been increased and that funding cuts from LCC had had a detrimental impact on BOTHCA. A range of other complaints were also set out.

Mr Gold proceeded to research the historic position with the benefit of information provided by BOTHCA. He confirmed from LCC minutes that a contribution of some £3,000 had been made against an overall figure of some £18,230 for acquiring and building the Premises.

Meanwhile, from about June 2006 building works were carried out at the School to create a new school office and improve security in relation to the main doors by fitting electronic key pads for those doors while at the same time preventing access to the Premises through the doors into the community wing. BOTHCA had previously had a key for the doors but was not given the key pad code. It remained possible for BOTHCA to obtain access to the community wing, but only by going to the main door to be admitted or by arrangement with a member of staff. This became another area of dispute, with BOTHCA complaining that it had been locked out of the Premises.

In my view, this overstates matters since, in practice, BOTHCA and community groups could still gain access to the Premises for their meetings. In light of the importance attaching to security of school premises, I do not think that the Governors or Mrs Preston erred in arranging for new security measures of this kind. Mrs Preston had responsibility for the safety of children at the School, regarded the School as being too open to access for adults and – particularly in light of the general increased emphasis upon protection of children in this period – was entitled to press for these security measures to be put in place. I am satisfied that the measures were in no way aimed at BOTHCA. A set of keys to the community wing was returned to Ida Wright for BOTHCA on 12 July 2007 when BOTHCA took occupation of the community wing in circumstances described below, by which stage secure locks had been installed between the community wing and the other areas of the Premises used for the School to address the relevant security concerns.

By 19 September 2006 Mr Gold had been persuaded that LCC had “done a serious wrong to the community of Breedon” and was recommending to his superior in the legal department, David Morgan, that LCC make an early interim payment of between £5,000 and £10,000 in repayment of charges for use of the Premises. I do not think this view of the legal position was correct, but it was clearly reached in good faith by Mr Gold.

Mr Gold was tendered for cross-examination by BOTHCA to allow LCC to challenge his work, but I indicated that I was not prepared to allow the trial to be diverted into examination of irrelevant matters. Final analysis of the legal position in relation to the Premises is a matter for the court, to be determined on the basis of all the evidence available before it (not all of which was available to Mr Gold) and does not turn upon the opinion of Mr Gold. The reaction of LCC to advice given by Mr Gold is a relevant matter, but my assessment of that does not turn on examination of what steps Mr Gold took to arrive at his opinion but rather on what he said in his advice. It was not appropriate for time to be taken up at trial with detailed cross-examination of Mr Gold regarding any criticisms which might be made of his workings to arrive at his opinion. I indicated this to the parties and to Mr Gold. I also made it clear to Mr Gold that, particularly since he was not to be cross-examined about his work, it would not be fair to him for the court to make any criticism of the steps he took to research the matter and I make none. So far as I can see, Mr Gold approached his task in an open-minded and conscientious way. Obviously, the court is not bound to accept his conclusions and legal analysis, and I do not. However, it is fair to say that the true legal and factual position was obscure and it is perhaps not surprising that a range of different lawyers, looking at the matter at different times and with different factual material available to them, have come to different conclusions about the true legal position.

It seems that BOTHCA found that Mr Gold was a sympathetic audience and new complaints came to be channelled to LCC’s education department through him, including a concern that Mrs Preston might be arranging to throw out from the Premises property (whist tables) which belonged to BOTHCA (this concern was based on a misunderstanding) and a complaint that Mrs Preston had pinned on the door of the office a picture of her executed by a child at the School with a child’s handwritten note “Mrs Preston’s Office”. BOTHCA suggested that this was a deliberately hostile action by Mrs Preston, since at this stage BOTHCA was seeking to maintain that it had the sole right to use the office as part of the community wing. I reject that suggestion. The office was being used by Mrs Preston at the time in a perfectly appropriate way (it had in fact been shown on the original plans from 1962 as the head teacher’s office and had been used as such without any complaint or objection from BOTHCA for most of the time since then) and it was entirely natural for the head teacher of a primary school to wish to encourage a child by using their picture in this way. The treatment by BOTHCA of this trivial matter as a serious offensive act by Mrs Preston illustrates a worrying propensity on their part to blow matters up out of all proportion to their real significance. BOTHCA’s action in seeking to refer such a matter immediately to LCC, bypassing discussion with Mrs Preston and the Governors, illustrates the tendency of BOTHCA to take inappropriately hostile and heavy-handed action likely to undermine local relationships rather than engage in reasonable discussion to try to find sensible compromises.

In late October 2006 Mr Gold provided a copy of his draft report on the legal position in relation to the Premises to Mrs Dore for her to comment on it. After receiving and amending the draft to take account of her comments, he issued the report on 24 November 2006 (“Mr Gold’s report”). Mr Gold’s report recited the facts as he understood them to be, in an account strongly influenced by BOTHCA’s views (this was unsurprising since BOTHCA had been the main source of information for him). Mr Gold concluded that LCC held the Premises on trust for BOTHCA (i.e. he favoured a view of the legal position in line with Mr Lawrence’s primary submission to this court), that the office should be for BOTHCA’s use not the head teacher’s, that charges levied by the Governors for use of the Premises by community groups since 1991 should have gone to BOTHCA rather than the Governors and that charges levied from BOTHCA for use of rooms at the Premises from 2006 were illegitimate:

“The result is that in the unique situation at Breedon, the Governors are receiving income from, and levying charges on, the Community, all derived from the resource that the Village Hall/Community Centre represents, i.e. the Community are being charged for letting and using their own building. … ”

As a remedy, he proposed that the trust he had identified should be formally recognised, BOTHCA should not be charged “for letting and using its own property”, the monies representing letting receipts from 1991 and charges to BOTHCA from 2006 should be paid to BOTHCA, the office should be returned to BOTHCA and an apology should be offered by LCC.

As is clear from this judgment, and with respect to Mr Gold, I disagree with his analysis and conclusion. Mr Gold’s report was music to BOTHCA’s ears. BOTHCA’s attitude towards the School authorities and LCC hardened still further in light of it.

Meanwhile, two other matters arose which were added to BOTHCA’s list of complaints. First, extensive works were planned at the Premises for 2007 to upgrade the school kitchen so that hot food for the children could be prepared on the Premises. This would involve disruption, putting the stage in the hall out of action for a period.

On about 2 November 2006, Mrs Preston sent a letter to BOTHCA and other interested groups on behalf of herself and the Governors as follows:

“Due to construction activities within the building, which are due to start in February, we are unable to offer the stage facilities for this coming year. We appreciate that this will cause some difficulties for certain organisations but sincerely hope that we will be able to offer these facilities when the work has been completed.”

This led to a row with BOTHCA, again referred by it to Mr Gold. BOTHCA responded with a letter asserting that “the stage belongs to the community and is ours to use as and when we wish”. The dislocation meant that the local drama group would not be able to put on its annual pantomime in the February half term as it usually did. The suggestion was made that the sending of the letter of 2 November 2006 was again a deliberately provocative act by Mrs Preston. I reject this. In my view, Mrs Preston was doing no more than giving sensible early warning of the disruption precisely because she did not want groups such as the drama group to commit themselves to time and effort for a production which would not be capable of being put on on the stage at the usual time. Much was made in Mr Lawrence’s submissions of the reference to the stage being out of action “for this coming year”, which was said to be an unnecessarily prolonged period; but in my view the second sentence of the letter made it clear that when the works were finished the stage would be available again. In the event, Mrs Preston and the Governors (with the encouragement of LCC) made a reasonable offer for use of the stage for the pantomime to be put on during the Easter holiday, but that was not acceptable so no pantomime took place.

The second matter related to the liquor licence for the Premises. A licence was in place to allow alcoholic drinks to be served in the community wing when events were held. In September 2006 Mrs Preston received a letter from the local licensing authority requesting payment of the annual fee of £180 for this licence. Mrs Preston checked the position with the authority, which explained that if the licence were surrendered to save the fee, temporary events notices could be used to license service of alcohol at particular events. Mrs Preston discussed this with a member of the governing body and the School’s bursar and they agreed that the School should not spend its funds on paying the fee. Accordingly, on 14 November 2006 Mrs Preston signed a form to surrender the licence. It is unfortunate that she did not discuss the matter with BOTHCA, since this decision had an impact on BOTHCA and it might well have been willing to pay for the licence itself. In her evidence Mrs Preston accepted that she should have done so. Mr Lawrence put to her that the surrender of the licence was a spiteful and surreptitious act on her part. She denied this. I have no hesitation in accepting her evidence on this. It could, perhaps, be regarded as rather thoughtless of her not to think of speaking to Mrs Dore about it, but by this stage Mrs Dore had launched a number of hostile attacks against Mrs Preston and these did not encourage Mrs Preston to think of turning to her for discussion or advice. Mrs Preston did not set out to hide her action, but discussed it with a member of the Governors and the bursar.

BOTHCA found out about the surrender of the licence in January 2007. It decided, apparently on a tit-for-tat basis, to reapply for a licence for the Premises but without informing the Governors or the new head teacher, Mrs Wenham. The first they knew of the application was seeing notices about the application put up at the Premises in June 2007, requiring comment by 2 July. This action by BOTHCA was decidedly unhelpful and demonstrated once again an absence of any willingness to be co-operative with the School authorities. In the event, having checked on the position with LCC, the Governors did not oppose BOTHCA’s application. There was a suggestion that LCC and the Governors tried looking for grounds for objection, but I do not consider that they did.

Despite running the School with great success, Mrs Preston eventually found the stress of dealing with Mrs Dore and BOTHCA too great and tendered her resignation to the Governors on 17 October 2006, to take effect in early 2007. Mrs Wenham took up her appointment as head teacher in February 2007.

On 1 January 2007, guidance issued by the Department for Education and Skills entitled “Safeguarding children and safer recruitment in education” came into force. This placed new emphasis on Criminal Records Bureau (“CRB”) checks for those coming into contact with children. This is relevant because it informed the attitude of the School authorities and LCC in handling the way in which community use and school use of the Premises were to be reconciled. At paragraph 4.23 the following guidance was given:

“Is a CRB Disclosure necessary for everyone that visits or works in a school or FE college?

4.23

It is not necessary to obtain a CRB Disclosure for visitors who will only have contact with children on an ad hoc or irregular basis for short periods of time, or secondary pupils undertaking voluntary work or work experience in other schools. However, it is good practice to ensure that visitors sign in and out, and are escorted whilst on the premises by a member of staff or appropriately vetted volunteer.

Examples of people who do not need to apply for a CRB Disclosure include: …

-

people who are on site before or after school or college hours and when children are not present, e.g. local groups who hire premises for community or leisure activities, contract cleaners who only come in after children have gone home, or before they arrive.”

On 11 January 2007 Mrs Hagger e-mailed Mrs Preston to say that Mr Williams strongly disagreed with Mr Gold’s report and that an independent barrister was to be instructed to look at the case. Mr Williams has a long and distinguished record in the field of education of children. He wanted a second opinion on the legal position because he did not understand from Mr Gold’s report the basis for the recommendations Mr Gold made. In my view, this was a reasonable position for Mr Williams to adopt in relation to Mr Gold’s report and his instincts that the report could not be taken as the last word on the subject were correct.

Mr Gold instructed counsel, Elisabeth Laing, to advise. The main basis for his instructions to her was his report with its recitation of the history as informed, in particular, by representations made by BOTHCA. Ms Laing prepared a written advice dated 7 February 2007 (“the Laing advice”). On the main question, Ms Laing concluded as follows at paragraph 37 of her advice, regarding the minutes of LCC’s Education Committee of 10 October 1956 (para. [32] above):

“37.

My conclusion is that, on balance, the minute is evidence of an express trust for local charitable purposes. The result is that the Council hold the legal estate subject to an equitable obligation. It could be argued, in the alternative, that there is an express trust for the benefit of an unincorporated association, the community association. I consider that this is a less plausible interpretation, since the intention seems to have been to create a hall for the entire community, not just for the use of one organisation.”

Before me it was common ground that the better analysis is that the relevant trust is to be regarded as a constructive trust rather than an express trust. Subject to that qualification, I agree with both parts of Ms Laing’s conclusion as regards the Premises. LCC holds the land subject to charitable trust obligations that it be used for the benefit of the entire local community (as well as for other purposes), not on trust for BOTHCA. Ms Laing recommended that LCC contact the Charity Commissioners to register the community facilities as a charity, or at least for their guidance as to that.

Ms Laing also considered, but much more summarily in a single paragraph of the advice, the legal position in relation to charges made for use of the facilities. Her view was that LCC acted in breach of trust in receiving and keeping payments which were derived from the community facilities and, “if that is right”, LCC would be liable to pay equitable compensation. She recommended that LCC should take steps to ensure that the Governors did not wrongly exclude BOTHCA from the community facilities or charge them for their use.

For the reasons given in this judgment, I do not agree with this part of Ms Laing’s advice. It did not reflect what I have found to be the factual history in relation to charging for the use of the Premises. It is also relevant to consideration of LCC’s reaction to this part of her advice that her conclusion was somewhat tentatively expressed and was arrived at without extensive discussion.

The Laing advice was again supportive of BOTHCA’s position (albeit not as favourable to BOTHCA as Mr Gold’s report, in that it rejected the idea that LCC held the Premises on trust for BOTHCA). The combination of the advice and the report created considerable pressure on LCC to accept BOTHCA’s demands, but Mr Williams remained (rightly) unpersuaded and turned to Mrs McCalla, the head of LCC’s legal department, for guidance. LCC did not approach the Charity Commissioners at this stage.

On 27 February 2007 Mr Gold sent his report and the Laing advice to the Governors for them to consider. Not unnaturally, they looked to LCC for guidance as to what to do.

On 16 April 2007 Mrs Hagger attended a meeting at the Premises with representatives of BOTHCA, the School Governors and Mr Makin as solicitor for BOTHCA, to discuss the way forward. It was a difficult meeting. Mrs Hagger stated that LCC had not formally accepted the Laing advice and explained that she could not resolve questions of ownership of the property at the meeting. However, she discussed practical ways forward which would involve (at Mrs Hagger’s suggestion) allowing BOTHCA full control over the whole of the community wing, including the office (the head teacher was to be relegated to an office in a port-a-cabin in the car park next to the Premises) with new locked doors between that wing and the rest of the Premises; a joint group from the governing body and BOTHCA would be set up for consultation on using other rooms, including the hall (“the liaison group”) pending consideration of replacement of the classroom in the hall, “if this is possible”, and there was to be flexibility adopted by both parties in the interim; and there was to be a meeting between the legal representatives (Mr Makin and Mr Gold) regarding other issues of dispute raised at the meeting (in the event, this did not take place, but there was later a meeting between Mrs McCalla and Mr Makin on 20 August 2007, the original proposed meeting having been overtaken by events). A further meeting was to be arranged in June 2007 (again, in the event, that did not take place). The question of fees for room hire or charges for use of the community wing was not discussed but remained outstanding as an area of dispute.

In my view, Mrs Hagger adopted a sensible and pragmatic approach at this meeting, looking for workable solutions to accommodate both community use and school use in difficult circumstances. Due to problems arising from difficulties in co-ordinating work by LCC’s works department, the works to separate off the community wing from the rest of the Premises took rather longer than the four weeks Mrs Hagger had indicated.

On 14 May 2007 there was a reasonably amicable meeting of the liaison group to discuss practical arrangements in relation to use of the hall. Such meetings followed from time to time thereafter.

On 4 June 2007 BOTHCA sent Mr Gold an agenda for the meeting between legal representatives which set out BOTHCA’s extensive compensation claims in excess of £60,000 in relation to fees and charges and included a demand that LCC meet the cost of BOTHCA’s legal adviser, Mr Makin.

On 6 June 2007 Mr Makin sent Mr Gold a letter before action referring to the claims set out in the agenda, stating that he would offer to act for BOTHCA pursuant to a contingency fee agreement, accusing LCC of having “stalled all the way” and threatening that he would ask for responsible officials and members to be surcharged with costs. In an e-mail exchange Mr Gold acknowledged that the slippage in arranging a meeting was down to him and pressed Mr Makin for further dates, but no further meeting was arranged.

On 7 June 2007 there was an e-mail from Mr Dutton in LCC’s works department for Mrs Hagger’s attention, saying that Mr Williams had instructed him “to move very slowly” on the works to separate off the community wing. In his evidence, which I accept, Mr Williams explained that this instruction was given because Mr Dutton was considering bricking up the door between the community wing and the rest of the Premises as a more cost-effective measure than installing a new locking system and Mr Williams sensibly wished to avoid possibly inflaming the situation by such a move and to speak with those who were better informed than him about the position on the ground before authorising Mr Dutton to proceed.

On 15 June 2007 Mr Makin pressed Mr Gold for a response to the letter before claim. At about this time, Mrs McCalla took over the handling of the case from Mr Gold. In my view, this was appropriate having regard to the sensitivity of the situation and the difficulties for LCC of working out the best way forward in the midst of substantial legal claims being asserted against it and threats of action to surcharge officials and members of the Council. Mrs McCalla reviewed the papers Mr Gold had assembled in relation to Breedon and papers relating to other school and community centres established by LCC over the years and prepared a briefing note dated 14 June 2007 entitled “Provision for community education” for LCC’s Cabinet Strategy and Co-ordination Group. The paper aimed to assist LCC tackle problems arising in relation to school and community centres in a consistent way. The paper referred to situations in which LCC may deliberately or inadvertently have created a trust where money had been contributed by the community to building community facilities and suggested the following approach:

“- where appropriate and necessary, re-negotiate use to complement school use/requirements (care is needed to ensure the proper operation of the school is not prejudiced and the provision of education impaired by inappropriate compromise on community use while recognising the beneficial rights vested in the community;

- stop ongoing revenue support for the premises from mainstream budgets;

- where re-negotiation cannot be achieved, ensure a reasonable offer is left on the table which has the effect of protecting/recognising the money put in by the community, and then enforce changes which meet the needs of local educational provision.”

Mrs McCalla’s recommendations were accepted by LCC. The reference to stopping revenue support “from mainstream budgets” was to stop support being taken inappropriately from the Delegated Schools Budget (i.e. use of money intended for school purposes to subsidise community use).

Mr Lawrence focused, in particular, on the last bullet point in the recommendations to suggest that LCC decided from this point to adopt a strategy of attempting an illegitimate form of compulsory purchase to buy out the community interest in relation to the Premises. I do not accept this. Mrs McCalla’s recommendations were directed primarily to negotiation of a reasonable accommodation of community use alongside school use of premises. The recommendation in the last bullet point only applied where such a process of negotiation was unsuccessful in resolving disputes, so that an impasse resulted. In such circumstances, Mrs McCalla’s recommendation was that LCC should move to resolve the impasse by taking steps to ensure that the proper functioning of a school was protected and by meeting such equities as arose in favour of community use by some alternative means. In my view, this was a legitimate and sensible overall strategy to adopt in relation to the sorts of difficulties being encountered at Breedon. It respected the interests of the local community and sought fairly to satisfy obligations which LCC might owe in equity. If an impasse had been reached trying to arrive at an accommodation between school and community purposes, and the proper functioning of the school was being detrimentally affected, it would be proper to try to find a way to break out of that situation by a solution along these lines. Such a solution would not necessarily mean that there should not be any community use of school premises, but such use would be controlled and limited by the needs of the school. If money was paid to a community association, that association could hold the fund on charitable trusts to apply for the benefit of the community (e.g. to generate income to meet hire charges for use of rooms at the school or elsewhere).

By letter of 20 June 2007 Mrs McCalla wrote to Mr Makin to make proposals to settle the dispute with BOTHCA and avoid expensive and unhelpful legal proceedings. She referred to LCC having arranged for BOTHCA to have complete control over the community wing and proposed that it should be responsible for all expenses in relation to running that wing and should be free to generate income for itself through letting the wing. On the other hand, “classroom 2” in the hall was needed for use as a classroom and could only be booked in exceptional circumstances by BOTHCA for use during term time as agreed in advance by the Governors. Charges would be levied for use of the hall in accordance with Administrative Memorandum 17 and such use would have to be agreed by the Governors. Mrs McCalla rejected the financial claims made by BOTHCA and the request that LCC pay Mr Makin’s costs.

Shortly after this, another area of contention emerged. In early July 2007 an application was made to book the hall for the ruby wedding in September 2007 of a couple who were long-standing residents of Breedon. The application was refused by the Governors because it was a private party and only community or fund-raising events would be approved. A further application was made by a member of BOTHCA on the basis that a charitable raffle would be held at the wedding and the Governors accepted this. However, the booking was only accepted for the stage and main hall area, not for “classroom 2”. Notice was given of this in good time before the event.

Mrs Dore was very critical of this decision, which certainly contributed to ill feeling on BOTHCA’s side. However, I do not think that the Governors disregarded the interests of the local community in proceeding as they did. They were entitled to balance those interests against the interests of the School, avoiding disruption to the classroom in “classroom 2” by deciding to limit the wedding party to the stage and the main hall area. The party went ahead in September in those areas.

By letter dated 12 July 2007 Mr Makin replied to Mrs McCalla’s letter of 20 June. In a lengthy letter he complained that her letter was an attempt to bully his clients out of what they were entitled to, again threatened to commence proceedings and referred to the possibility of surcharges, and sought an unequivocal undertaking that his fees would be paid. It was clear that BOTHCA was not prepared to seek some sort of compromise resolution of the situation.

Mrs McCalla replied by letter dated 31 July 2007, which was couched in a reasonable tone and was directed to trying to find a compromise solution to avoid litigation. At the same time, Mrs McCalla politely set out the reasons why LCC did not agree with BOTHCA’s claim. The Laing advice as to the existence of a charitable trust was accepted, but Mrs McCalla explained that LCC did not accept it in relation to BOTHCA’s claim for equitable compensation for lost letting charges and fees. She gave sound and detailed reasons why LCC had adopted that position. Ms Laing had not had the full factual position about the arrangements for payment of charges for use of the Premises before her. In fact, no income had been generated from use of the Premises other than to cover the actual cost of their use. Mrs McCalla contended, with considerable force, as follows:

“The 1962 scheme, which was used by all parties between 1962 and 1991, distinguishes clearly between the “community rooms” and the “school premises proper” which includes the school hall. In paragraph 1 of the scheme, it makes it clear that general management of the Community Association is subject to the general supervision of the managers of the school and community centre and the direction of the local authority. In respect of the use of the hall out of school hours (as opposed to the community rooms) the scheme states that its use by the local education authority for school or evening institute purpose shall take precedence over all other use. I would argue that by handing over total control of the community wing to your clients, they are in a more favourable position than they were in 1962 in respect of those premises, and with goodwill and the application of common sense on both sides, they remain in the same position in respect of the hall. The only difference, which I would suggest is what has exacerbated the situation, is the removal of any subsidy for ongoing revenue costs from public funds.”

Mr Makin responded with a lengthy, belligerent e-mail of 1 August 2007. In that he claimed “it is dishonest to say that the Council have not behaved unlawfully” and accused Mrs McCalla of deliberately closing her eyes to the facts. These assertions were unwarranted.

Meanwhile, Mrs Dore sought to pursue the governing body regarding the refusal to agree the use of the hall for private parties. She wrote to Mrs Linkison-Cole on 4 August 2007 demanding information about the decision and informing her “that we are contemplating taking proceedings for breach of trust and abuse of public office”. This letter, like Mr Makin’s e-mail of 1 August, showed that BOTHCA was framing its position in harsh and uncompromising terms vis-à-vis both the School authorities and LCC.

On 9 August 2007 Mrs Linkison-Cole wrote to Mrs Dore to give a careful explanation why the governing body did not agree to use of “classroom 2” for the ruby wedding because of the disruption to the School involved in dismantling the classroom there (including taking down wall displays on the partition, removing all the resources laid out for teaching on the next school day etc.). In my view, this was a reasonable letter and the reasons given for the decision were proper and appropriate ones.

By letter of 16 August 2007 Mrs Linkison-Cole replied to Mrs Dore’s letter of 4 August, providing her with information about the decision. Mrs Dore was not satisfied with this and wrote further letters.

On 20 August 2007 Mrs McCalla met Mr Makin to discuss BOTHCA’s claims. At the meeting she accepted that a trust had arisen when the £3,000 contribution to the construction of the community wing and hall was made in 1963. As an interim approach while the parties debated the issues, it was agreed that the community wing should be used exclusively for BOTHCA and that there should be shared use of the hall and stage with reasonable notice to be given in respect of “classroom 2”. Both sides reserved their position in relation to questions of disposal and capital (i.e. regarding ownership). They also discussed the possibility of instructing further counsel to consider BOTHCA’s claims. No agreement was reached on this. Mr Makin told Mrs McCalla that if his fees were not paid, then all discussions would be off and litigation would proceed. There was an exchange of correspondence debating what had been discussed.

By e-mail of 30 August 2007 Mr Makin accused Mrs McCalla of being biased in favour of Mrs Linkison-Cole and suggested that Mrs McCalla’s position advising on trust obligations was professionally untenable. I do not think that this suggestion was warranted.

On 31 August 2007 Mrs McCalla replied to Mr Makin with LCC’s detailed proposals in light of their meeting. The offer for BOTHCA to have full control of the community wing remained (later this was put as a proposal for BOTHCA to take a lease of the wing at a peppercorn rent); and there was to be reasonable debate and accommodation of interests in relation to the stage and main part of the hall. In relation to “classroom 2”, she asked that BOTHCA recognise that it was not appropriate to have adults who had not been vetted for child protection purposes to have unrestricted access to school classrooms, even outside school hours, and that it was not feasible or practical for the School to share the classroom on an ad hoc basis other than for two or three pre-booked community events per annum, such as the annual pantomime. In my view, this was a considered and reasonable proposal in relation to “classroom 2” which gave legitimate weight to the School’s interests and responsibilities whilst also recognising and giving fair weight to the interests of community use.

Mrs McCalla addressed BOTHCA’s financial claims in some detail, pointing out that all charges had been used to cover the actual costs of providing the Premises during any period of hiring out rooms and no profit income had been generated. Accordingly, she (rightly) did not accept BOTHCA’s claims for compensation in respect of such charges.

Mrs McCalla also proposed that the parties should agree a default arrangement if they could not reach agreement on the terms proposed, or if the School closed, or if BOTHCA or LCC, in consultation with the governing body, gave 12 months’ written notice to terminate the arrangement. She suggested that the default arrangement should be that LCC would repay BOTHCA either the sum contributed towards the construction costs or a sum representing a proportion of the end value of the building equivalent to the proportion which the sum contributed to the construction costs bore to the value of the building at the date of completion, whichever was the greater, and that LCC should recover control of the Premises.

In my view, this was a fair and reasonable proposal to unravel the arrangements between BOTHCA and the School authorities and LCC, if they could not be made to work in a satisfactory way. It should be noted that the proposal did not preclude the Premises being used for community purposes, but would afford the governing body clear control to regulate the use of the Premises for such purposes. In effect, under the proposal, LCC would make a capital payment to BOTHCA to constitute a fund for community purposes which could be used to hire rooms at the School or elsewhere. In my view, the amount proposed for the payment if the arrangements fell to be unravelled was fair, and properly recognised any equities by which the Council was bound in relation to BOTHCA. In terms of the capital value of the Premises, BOTHCA would receive back a proportionate share of the value of the buildings in a manner analogous to a resulting trust where different contributions are made to the acquisition of a property (the proposal, as it developed, was that BOTHCA should be paid one sixth of their value); and there would remain a discretion (and, I think, as explained in para. [125] above, an obligation) for the School authorities to continue to make the Premises available for community use but under an arrangement which would make clear the priority which could be given to the interest of the School if a significant clash of interests arose. Payment of the proposed sum in return for clarification of the right of LCC and the School authorities to manage the Premises would, in my view, be a wholly fair and equitable arrangement which gave ample recognition to the equitable obligations binding LCC.

Mrs McCalla indicated she did not think further instruction of counsel would be helpful in addressing the practicalities of co-existence (although she also indicated she did not have a closed mind on the point), and suggested that mediation would be a better idea. She gave fair warning that if the matter proceeded to litigation, LCC would instruct external solicitors and would seek to recover its costs. She also indicated that if a compromise could be agreed, LCC would meet Mr Makin’s costs assessed on the standard basis (but not as a pre-condition for continuing discussions as Mr Makin had proposed). Finally, she also rejected Mr Makin’s suggestion that she should recuse herself because of a supposed conflict of interest.

Mr Makin spoke to Mrs McCalla on 5 September 2007 to reject LCC’s offer. He said BOTHCA was not prepared to budge from its right to use the hall out of school hours whenever it wanted and was not prepared to be told by the School how it could use “its” building. Since it was clear that the parties could not reach agreement, Mrs McCalla handed over conduct of the correspondence and any proceedings to Mr Radford of Browne Jacobson.

Meanwhile, Mrs Dore pursued her correspondence with Mrs Linkison-Cole. By letter of 6 September 2007, amongst other accusations, Mrs Dore in effect accused Mrs Linkison-Cole of lying and abuse of trust in relation to the liquor licence matter, when she claimed that no objection had been made to BOTHCA’s application (in fact, no objection had been made). By this stage, relations between BOTHCA and the School authorities were extremely poor, due in substantial part to BOTHCA’s intransigence and willingness to make unjustified serious allegations against them.

Mr Radford began to act for LCC and took over the correspondence with Mr Makin. There was no significant change in LCC’s or BOTHCA’s position thereafter. By e-mail dated 23 October 2007 Mr Makin sent Mr Radford a long statement of case for BOTHCA in which he stated, “a form of open warfare has broken out between the School Governors and the local education authority, on the one side, and the Community Association on the other”; asserted (incorrectly) that BOTHCA had the right to use the stage and hall at all times and that the School used them by concession from BOTHCA; and again put forward substantial financial claims on the basis that LCC held the land on trust for BOTHCA.

Mr Radford replied and was met with a response from Mr Makin accusing his clients of dishonesty. I do not think the accusation was justified. Mr Radford continued to press for mediation to find an acceptable day-to-day method of working, while at the same time conducting a lengthy debate with Mr Makin about the proper legal analysis to be applied in the circumstances of considerable uncertainty about the historic factual position. Mr Makin was only prepared to talk about the details if LCC accepted the principles put forward by BOTHCA, which included that BOTHCA should control use of the hall and stage outside school hours. (There was also a wider debate about rights to control use of the school playing fields and pavilion which I do not have to go into, because terms were eventually agreed by the parties in relation to that in the course of the trial).

BOTHCA’s position was that LCC held the land on trust for it (rather than on a charitable purpose trust for the benefit of the community). LCC disputed this. Although Mr Radford had reservations about the proper legal analysis, he was instructed by LCC that it accepted that a charitable purpose trust arose as a result of the £3,000 contribution to the construction costs of the Premises, and so on 12 November 2007 he proposed that the dispute might be referred to the Charity Commission. That was not taken up by Mr Makin.

The parties remained completely at odds and so LCC decided to take steps to bring matters to a head. The view of Mr Williams and Mrs Hagger was that the ongoing dispute, and its escalation with resort to lawyers even in relation to trivial points, was causing an unacceptable level of disruption to the running of the School. In that regard they supported the assessment of the School authorities. In my judgment, given the claims by BOTHCA to control parts of the Premises which formed part of the essential areas used by the School and the “open warfare” which now existed, this was a view to which they were fully entitled to come.

Mrs McCalla conferred with Mrs Linkison-Cole, Mrs Wenham and Mr Williams and put a report dated 27 November 2007 to LCC’s Cabinet Strategy and Coordination Group for its meeting on 3 December 2007, seeking authorisation to make a final offer involving the grant to BOTHCA of a lease of the community wing at a peppercorn rent with BOTHCA obliged to pay all outgoings and maintenance costs in respect of it; priority for BOTHCA for booking the hall (apart from “classroom 2”) outside school hours subject to payment of a letting fee to cover the School’s costs; and that BOTHCA should pay outstanding invoices for use of the community facilities, the cost of which had been paid from the School’s budget. If these terms were not agreed, LCC would give BOTHCA notice to stop using the community facilities with effect from 1 January 2009 (i.e. 12 months’ notice), at which point LCC would pay it £92,197 (one sixth of the estimate of the rebuilding costs of the Premises at current rates plus professional fees minus obsolescence) on its undertaking to set up a charitable scheme for the future use of that money for the benefit of the community. There was no proposal that the Premises should cease to be used by other community groups, but clearly the intention was that such use would be subject to control by the Governors.

LCC’s positive proposals were put to Mr Makin by Mr Radford in an e-mail dated 3 December 2007. Mr Makin responded by e-mail the same day to say:

“There is absolutely no question of my clients being liable to pay anything to yours for the use of their building, the hall, stage and community centre.

Because of your clients’ attitude proceedings are being drafted and will be served on you.”

This response confirmed that there was no prospect of the parties agreeing to compromise the dispute. Meanwhile, the scope for disruption to the School arising from the dispute was confirmed once again by new points of contention flaring up in relation to taking down the stage curtain and placement of a bottle bank which were referred by BOTHCA to Mr Makin to be raised as points of dispute in the inter-solicitor correspondence. The way in which such trivial matters were immediately blown up into points for the lawyers rather than resolved by friendly discussion on the ground demonstrated the practical unworkability of continuing indefinitely without any resolution of the situation. In my judgment, therefore, LCC was entitled to seek to bring matters to a head as it now sought to do.

Mrs McCalla prepared a report for LCC’s Cabinet meeting on 18 December 2007, explaining the factual background and seeking authorisation for her proposals to terminate the relationship between LCC (and the School authorities) and BOTHCA with respect to the use of the Premises. The reason given was that relationships between BOTHCA and the governing body and LCC had broken down, and that an impasse had now been reached which was disruptive to the School. This was a fair summary of the situation. The report referred to the Laing advice but indicated that it was of limited assistance because of the assumptions on which it was based. It then contained a fair summary of advice given to LCC by Browne Jacobson. It included the following statements:

“19.

As can be seen from the above account, the position is very unsatisfactory. There was no trust arrangement set up in 1962 when the money was donated, and the premises were operated under a scheme of management agreed in 1962. However such an arrangement is susceptible to change, and has changed both because of statutory changes in respect of schools delegated budgets and powers given to Governing Bodies and because of policy changes in respect of the funding of community facilities by the County Council. There is one comparable arrangement in Leicestershire at another primary school where the community put a substantial amount of money into the school premises and the Charity Commission agreed a scheme under which the County Council would be obliged to re-pay monies to the Parish Council on behalf of the community in the event of the building ceasing to be used for community purposes. In other words, the charitable scheme was designed to ensure ongoing use of the premises by the community, with protection covering the return of an appropriate capital sum in the event of that use ceasing. Discussions have taken place with the Charity Commission in connection with the situation at Breedon. They have seen some of the correspondence and have indicated verbally that they are satisfied the approach taken by the County Council seems reasonable.

20.

It is of course the case that even if the arrangements with the Community Association are terminated and the monies repaid to them, the school Governing Body will continue to make the community room available for bookings by local groups such as those involved in pre-school activities and lunch clubs for the elderly and the hall will still be available for hire by people from the local community for parties and fundraising activities. However, those lettings will be managed by the school without any involvement by the Community Association. The school grounds will also continue to be available for hire. …”

Attached to the report as background papers were the 1962 Scheme and the 1991 Scheme. Mr Gold’s report and the Laing advice were not attached. Mr Lawrence criticised Mrs McCalla for failing to attach these latter documents for Cabinet members to see. I reject that criticism. In preparing a briefing paper for Council members and senior executive officers, Mrs McCalla, as County Solicitor, was fully entitled to summarise the current and best-informed legal advice available for the Council. It was part of her job to distil a complex set of circumstances into a short report which could be readily assimilated and understood by busy members and officials with many pressing claims on their time. She was entitled to summarise the up-to-date legal position for them as she did. The summary she gave was accurate. It was not incumbent on her to put wider information before them. She was entitled to take the view that the earlier legal advice was arrived at without a full understanding of the factual position and that it would not advance the understanding of her audience (and might well serve as a distraction) to include such technical legal discussions which had been overtaken by events and more up-to-date and better-informed advice.

It should also be emphasised that the proposals were not to the effect that the Premises should cease to be available for community use. On the contrary, they were to continue to be so available in accordance with decisions by the Governors taken without the involvement of BOTHCA (see para. 20 of the briefing paper, set out above). In my judgment – although this was not worked out in detail in the briefing paper – the effect of putting the proposals into effect would not be to bring an end to the obligation of LCC (and in due course the Church of England authorities) to hold the Premises on trust for charitable purposes to include (alongside other purposes) their use for the benefit of the community in the parish. The making of the proposed payment to BOTHCA would not end the obligation to hold the property for those charitable purposes – that could ultimately only be achieved by a scheme of arrangement under the Charity Act or, if the charitable trust failed, by the property being applied cy-près in some appropriate way. Payment to BOTHCA would not be effective to buy out an equitable obligation upon LCC to hold the Premises for the benefit of the community generally. Nonetheless, the payment would, in my view, serve to emphasise that the decision-making process in relation to decisions how the Premises should be used and what steps should be taken to accommodate community purposes where they conflicted with school purposes did not have to include BOTHCA, and to emphasise what was previously implicit – namely that LCC and the School Governors, in making such decisions, were entitled to give especial weight to the interests and requirements of the School (see para. [125] above).

Mr Lawrence was also critical of Mrs McCalla’s summary in the briefing paper of the position adopted by the Charity Commission. He suggested that she had misstated the Commission’s position. I reject that criticism as well.

The position in relation to the Charity Commission (“the Commission”) was as follows. Representatives of BOTHCA had got in touch with the Commission in June 2007 and correspondence ensued in which LCC also became involved. BOTHCA provided a copy of the Laing advice to the Commission. On the basis of that, Mr Stephen Joshua (“Mr Joshua”) of the Commission wrote to Mrs McCalla on 24 August 2007 to say that the Commission agreed with the Laing advice that a charitable trust had arisen and that in its view BOTHCA should be put back in a position where it had full use of the community facilities, should receive all future income from lettings, should not be charged for its own use of the facilities and that lettings income paid to the school governors since 1991 should be returned to BOTHCA. Mr Joshua did not set out any reasoning of his own in support of those conclusions. He did go on to raise the point that LCC should have conveyed the Premises to the Church of England trustees for the School for them to hold on charitable trust (see paras. [115]-[121] above). He did not explain how that situation was to be reconciled with what he said in the earlier part of his letter.

Mr Radford replied on behalf of LCC by letter dated 20 September 2007, pointing out (correctly) that the Governors were entitled to letting income to reimburse them for caretaking and running costs in relation to rooms hired out; stating that in relation to the trust LCC’s view was that it did have an obligation to make the community facilities available to the local community, but on the basis that the running costs were covered; and referring to the possibility of a payment to BOTHCA should either party wish to withdraw from the current arrangement.

Mr Joshua replied by e-mail of 9 October 2007 indicating that the Commission thought that many of the proposals put to Mr Makin were fair and that if the School had paid running and maintenance costs relating to BOTHCA’s use of the community facilities, then it was entitled to be reimbursed for those costs but that there should be proper accounting by the Governors in relation thereto.

Mr Radford responded by letter of 8 November 2007, pointing out that BOTHCA wanted a declaration of trust that a portion of the beneficial ownership of the Premises was vested in it (which did not sit easily with the suggestion that LCC held the Premises on charitable trusts), referring to the proposals which LCC had at that stage put forward to resolve the dispute, and saying that LCC would welcome anything the Commission could do to assist in resolving the impasse. Mr Radford telephoned Mr Joshua the next day to discuss the situation.

As to the charges since 1991, Mr Radford explained that they had only ever covered maintenance and caretaking costs and had not included any profit element. Mr Radford and Mr Joshua spoke again on the telephone on 6 December 2007 and Mr Radford sent a letter the following day providing further information about the current state of the dispute. In their telephone conversation on 6 December Mr Radford explained that LCC had offered to give BOTHCA a renewable annual lease of the community wing at a peppercorn rent which BOTHCA could then let out for itself, but on terms that BOTHCA would reimburse the School for running costs drawn from the School’s budget; that LCC’s view was that control of the School premises proper had to come under the auspices of the head teacher and Governors in the interests of the welfare and education of the children; but that LCC would ensure that, within the constraints of the best interests of the School, those facilities would always be made available for hire to the community in return for payment of a charge (without any profit element) in respect of running costs such as caretaking, heating and lighting.

I accept Mr Radford’s evidence that Mr Joshua told him that, on the basis of what he had seen, the approach of LCC to its obligations as charitable trustee, its offer of a lease and the collection of non-profit charges seemed to him to be a permissible and reasonable response. Mr Radford’s letter of 7 December confirmed the basic position of LCC as explained by Mr Radford on 6 December. Thus, as at 18 December 2007, I consider that Mrs McCalla’s summary of the Commission’s position at paragraph 19 of her briefing paper was fair. Mr Joshua had seen LCC’s explanation of its proposals, including what it proposed to do if the impasse with BOTHCA remained unresolved, had raised no objection and had indicated orally to Mr Radford a general acceptance that LCC was proceeding in what seemed a reasonable way.

LCC accepted the proposal set out in Mrs McCalla’s briefing paper and decided to give 12 months’ notice to BOTHCA to terminate the arrangements regarding BOTHCA’s use of the Premises. By e-mail of 19 December 2007 from Mr Radford to Mr Makin, Mr Radford gave 12 months’ notice on behalf of LCC for BOTHCA to vacate the Premises by 1 January 2009. Until that time, the School (with funding support from LCC) would allow BOTHCA free use of the community wing (i.e. would not require charges to be made and would waive outstanding hire fees due from BOTHCA). The School would allow BOTHCA up to six hires of the hall free of charge over the year, provided six weeks’ notice was given, and additional use would be possible. LCC would repay £92,197 to BOTHCA representing LCC’s calculation of the current value of the £3,000 contribution as a pro rata comparison to the School’s present rebuilding costs and, in the event of dispute, indicated that it would abide by such other figure as might be determined by a jointly-appointed quantity surveyor or as directed by the Commission. Mr Radford also emphasised that the community wing and hall would continue to be available for community use in the same way as they were presently used, provided the costs of hire set by LCC on a non-profit basis were paid. Mr Radford indicated:

“The CC [County Council] considers that in the light of the refusal of the Community Association to accept an obligation to contribute to the costs of user and accept the authority of the school’s Governors and Head Teacher to control and direct use of the school premises proper, the intention of the scheme of shared harmonious use is no longer capable of being fulfilled.

Accordingly:-

1.

I have been instructed to write to the Charity Commissioners to advise that the CC as Trustee of the Breedon Scheme believes that it has no alternative but to wind it up and to seek their directions and guidance, hopefully informally, but formally if necessary as to the application of charitable purpose trust assets cy près. …”

In my judgement, subject to comment on this last point, this e-mail set out a fair and reasonable position on the part of LCC. My comment on Mr Radford’s suggestion that directions be sought from the Commission as to the application of charitable purpose trust assets cy-près is that it does not seem to me that this was correct as a matter of analysis. The Premises remained impressed with charitable trusts including for community use which could still be fulfilled, so I am doubtful that recourse to the cy-près doctrine contained in section 13 of the Charities Act 1993 would have been appropriate (the payment to BOTHCA would constitute an additional fund impressed with a charitable purpose trust, not property which replaced the Premises as the subject of relevant charitable trusts). However, this is a minor point which does not affect my overall assessment that LCC’s position in this notice was lawful and gave proper recognition to the charitable purpose trust in respect of the Premises. In that regard, Mr Radford’s confirmation that the Premises would continue to be available for community use as before, subject to payment of appropriate charges, was important.

Mr Lawrence submitted that LCC acted in breach of trust in giving this notice. In particular, he submitted that LCC gave improper weight to the interests of the School and insufficient weight to community interests in deciding to give the notice. For the reasons given above I reject these submissions.

On 20 December 2007 Mr Radford wrote to Mr Joshua at the Commission to inform him what had been done and to ask the Commission to advise upon or devise a cy-près scheme. Mr Joshua replied by e-mail on 7 January 2008 suggesting that the payment to BOTHCA would effectively constitute a disposal of an interest in charitable land to a charitable organisation (BOTHCA) so that it would not be necessary to make a cy-près scheme. (I doubt that this analysis was correct, since the payment to BOTHCA did not arise in relation to a disposal of an interest in land and the Premises remained impressed with relevant charitable trusts, but nothing in this judgment requires further detailed consideration of the point).

Mr Joshua suggested that LCC should consider whether the proposed payment would be sufficient to enable BOTHCA to find alternative premises and continue to provide facilities for recreation in the village. With respect, this seems confused. As LCC had made clear, the Premises were to remain available for use for community purposes provided charges were paid at an appropriate level to meet running costs and so far as such use did not interfere unduly with use of the Premises for the School. This represented full compliance with LCC’s obligations in equity to make the Premises available for the charitable purposes in question. Strictly, LCC may not have been obliged to make any payment to BOTHCA, but the fact that it was prepared to do so underlined the reasonableness and fairness of how it was proceeding. This point was made in a proper way by Mrs McCalla in her evidence, where she said of her briefing paper for the Cabinet Strategy and Co-ordination Group meeting on 3 December 2007:

“… I sought to balance the fiduciary obligations owed and to recognise the various interests in the property. Ultimately, as the education interest was the majority beneficiary my view was that if there was a breakdown in relationships or an irrevocable conflict between the two interests, the education interest should take precedence. Just because the education interest was ultimately preferred in the decision made in December 2007 does not mean that the community interest was ignored, or that Gareth Williams or I were hostile to the idea of the community having an interest in the property.”

Mr Lawrence was critical of this evidence, and submitted that it showed an improper approach on the part of LCC to weighing the interests of the school and the community. I disagree: see, in particular, paras. [112] and [125] above.

At the same time Mr Joshua wrote to Mr Makin to advise that BOTHCA should consider carefully whether it would be in its interest to accept LCC’s offer of a lease or the proposed payment and that BOTHCA would probably need the Commission’s authorisation to commence legal proceedings.

Unsurprisingly, LCC’s action giving notice to end the arrangements with BOTHCA provoked a strong reaction from BOTHCA. By letter before claim dated 11 January 2008 Mr Makin gave notice that BOTHCA proposed to launch a judicial review of LCC’s decision. There was a public meeting at Breedon the same day, followed by a newsletter from BOTHCA to local residents in which BOTHCA denounced what it described as the “Council plan to deny public access to the village hall”. This was not a fair description of what LCC was doing.

This newsletter provoked the vicar of Breedon, the Reverend John Dawson, who was on the governing body of the School, to issue his own letter to residents to protest at inaccuracies in it. He correctly observed that BOTHCA did not represent the whole community of the parish but just a section of it. He went on to say:

“There is NO plan to deny access by the community to the school. Lettings can be made, and encouraged, in the normal way, - and the Governors should encourage maximum usage as long as the statutory charges are enforced. The school is the life-blood of the village, and the facilities need to be sensibly maximised.

The Governors do not wish to “evict” the community from facilities at Breedon School. This statement is totally inaccurate. What is needed is an amicable, mutually supportive relationship, benefiting the pupils and community.

The Governors do not want to limit public use of community facilities at the school. …”

The vicar’s plea for calm and co-operative working arrangements between different sides in the dispute fell on deaf ears. Eventually he resigned from the governing body because of the polarisation in the general community at Breedon arising from the dispute. It is worth quoting from his resignation e-mail as follows:

“As Vicar in this village I need to represent the whole community and not be seen as aligned to any group in this dispute. The majority of Breedon persons are not involved in the BOTHCA or the school governors and as such are the losers because both sides quoted above have reached such entrenched positions as to reinforce Mr Radford’s comments in his e-mail dated 15^th April. I quote:- this dispute is divisive, trivial, and one where with good sense and goodwill on both sides (I REPEAT BOTH SIDES) there should never be a dispute at all. His comments are totally accurate. The problem is of personality clashes on both sides, with strong personalities holding forth, and this was first in evidence and propounded with the previous head to Mrs Wenham. I would emphasise I have the highest regard for the current head teacher.

I see little or no evidence of goodwill from either side in this dispute due to this personality dislike, and the whole village, which includes the school, will be the losers, as will county tax payers generally. The amount of co-operation between BOTHCA and the school is in my opinion totally lacking, and this must be increased at the earliest opportunity: (an example:- the intemperate e-mail received about the church booking is totally inaccurate. What was needed was exact instruction as to how to make a booking, and when I took over and did this there was no problem).

I therefore wish to resign and be able to speak freely to and for Breedon people as they wish me to do, and not be seen to “be in the school governors’ camp”, or any other camp. I realise this will leave the church without a Governor representative which is not ideal, …”

Reverend Dawson’s comments give a flavour of the bitter divisiveness of the dispute within the parish.

On 25 January 2008 Mr Radford responded for LCC to the letter before claim. Mr Makin originally sought the consent of the Commission to issue proceedings and a debate ensued between them whether such consent was required. In the end, however, Mr Makin persuaded the Commission that the proceedings were not charity proceedings and that their consent was not required. I do not think that was correct but, again, it is a peripheral matter so far as the dispute before me is concerned and it is unnecessary to examine this point further. In the event, in December 2009, shortly before trial, the Commission did give its consent for BOTHCA proceeding with its action. The Attorney General was also formally joined as a party to the proceedings, but elected not to take part in the hearing.

In early February 2008 Mr Radford was still writing to Mr Makin trying to find a way to avoid litigation and repeating LCC’s earlier offer of a compromise package including leasing the community wing to BOTHCA at a peppercorn rent. BOTHCA again rejected LCC’s proposals. No reconciliation between the parties proved possible. (Mr Radford made further attempts to seek a reconciliation later in 2008, again without success).

On 14 March 2008, BOTHCA issued judicial review proceedings against LCC. Permission was granted on 18 June 2008.

In January 2009, in an effort to put public law issues beyond argument, LCC decided to carry out its public consultation about options for use of the Premises with a view to taking a further decision replacing that of 18 December 2007. (As a result of this step, by agreement between the parties, it is unnecessary to examine in this judgment the merits of the public law claims by BOTHCA in relation to LCC’s decision of 18 December 2007: see para. [10] above).

A consultation paper was issued by LCC setting out four options designed to provide a viable ongoing working arrangement to reconcile school use and community use of the Premises. The options each involved recognition that BOTHCA or community groups using the Premises should make a contribution to the running costs of the Premises. BOTHCA did not agree that the options should be so restricted and so circulated its own option - Option 5 - in these terms:

“1.

The Council recognises their legal obligations.

2.

A Trust agreement be formalised between Breedon Community Association and Leicestershire County Council in order that this problem does not occur in the future. That Trust Deed should deal with the following matters:-

-

The Community Association controls free of charge outside school hours the community facilities and sports ground as it has since 1962 but has exclusive use of the community rooms at all times.

-

Individuals and groups will continue to be able to hire or use the school hall and community facilities from the Community Association during the time it controls those facilities.”

The effect of Option 5 was described as including:

“- Your community will continue to control your local community facilities, free from interference from County Hall.

- Local groups will continue to run and will be able to afford the facilities in Breedon. …

- The Community Association can book events without worrying about access to the hall.”

In substance, Option 5 involved the reassertion of BOTHCA’s claim to control use of the Premises (including the hall) and for BOTHCA and community groups to enjoy use of the Premises free of charge (so that running costs such as caretaking, heating and electricity in respect of their use would have to be borne by LCC as a subsidy to the local community).

Since this represented a bid by Breedon for priority access to LCC’s resources compared to all other claims upon those resources, it is not surprising that an overwhelming majority of persons responding to the consultation voted for Option 5. Equally unsurprisingly, LCC did not feel able to accept BOTHCA’s claims of control over the Premises and for subsidy from LCC resources which Option 5 required. These points were made lawfully and fairly in Mrs McCalla’s and Mr Williams’ report for LCC’s Cabinet meeting on 7 April 2009. In relation to Option 5, the report stated that it was considered not to be workable in practice and not to be acceptable on financial grounds. Their recommendation remained that LCC should serve notice on BOTHCA once again to terminate the arrangement between it and LCC with effect from 14 August 2009. The reasons for the recommendation remained as before. Their report made reference to resource implications for LCC, including the very substantial legal costs already incurred and the further substantial legal costs which LCC might have to bear if the litigation continued.

Mr Lawrence submitted that reference to the costs dimension in this report involved LCC, as trustee, having regard to an illegitimate consideration in breach of trust. I do not accept this. In my view, it was lawful and eminently sensible that LCC should have regard to the costs consequences when deciding how to proceed in the face of intransigence on the part of BOTHCA, when all reasonable attempts by LCC to arrive at a workable compromise solution had been rebuffed by BOTHCA. I consider that any private trustee in such a situation would be entitled to have regard to the costs consequences for himself in deciding how to respond to legal proceedings involving the trust. The fact that proceedings are brought against him as trustee, which inevitably means that he has a personal financial interest in the proceedings because of potential costs consequences, does not disqualify him from acting as trustee nor from considering how to conduct the proceedings taking account of those consequences: compare Edge v Pensions Ombudsman [1998] Ch 512, 538F-541F per Sir Richard Scott VC, and the authorities cited by him, and [2000] Ch 602, CA. A trustee who has not put himself into the position of having a conflict of interest does not become disqualified from acting just because a situation may come to arise in which his personal interests are also engaged.

These points have additional force in relation to LCC. It was the owner of the Premises impressed with the relevant trust and was under no obligation to divest itself of that property; it had an obligation as local education authority to continue to ensure that the School could function effectively at the site; the costs consequences of litigation would potentially have to be met out of public monies, of which LCC was the steward. In my view, LCC was legally bound to have regard to the potential impact of the litigation on the public monies in its care and in no way acted improperly or unlawfully in doing so.

Mr Lawrence suggested that LCC should somehow have farmed out its decision as to how to proceed to some other body which would not have been subject to the same financial pressures in relation to costs, or should first have sought the sanction of the court for what it proposed to do. As to the first suggestion, it is not easy to see how any practical arrangement to achieve that could have been put in place. But still more importantly, I consider that any such arrangement would have involved LCC in improperly shirking responsibility for its stewardship of public funds and as local education authority in relation to the School premises. No other body was in a position to exercise its responsibilities in relation to those matters. At the very least it was lawfully open to LCC to take the decision about how to proceed itself and to have regard to possible costs consequences in the measured and sensible way that it did.

As to the suggestion that LCC should have sought a direction from the court before it acted, I do not consider that its omission to do so involved any breach of trust on its part. For the reasons already given above, LCC acted in compliance with the obligations it was under in equity, and the omission by it to make an application to court does not in any way affect that conclusion. Moreover, it is clear that if LCC had applied to court, in substance the same contested proceedings as have now arisen would have taken place in the context of that application. Little or nothing would have been gained by it seeking to proceed in that way. Considerable delay in implementing its efforts to resolve the position in the interests of allowing the School to function properly would have been likely to arise. It was entitled to try to bring matters to a head promptly in the way that it did.

On 24 April 2009, at a meeting of LCC’s Cabinet, Mrs McCalla gave the councillors a presentation to explain her report and recommendations. The Cabinet resolved as follows:

“(a)

The County Council expresses its support for the following:

(i)

the comments made by many consultees that the ongoing community use of the facilities at St. Hardulph’s school is important to the future of the local community and to foster good links between the school and the community,

(ii)

the efforts made by the school to build good relationships with the community and its commitment to make the facilities at the school available to the community.

Therefore, subject to the outcome of (c) below, the Governing Body be formally directed to continue to make the community rooms available for community use and to make the school hall available for community use subject to any overriding requirements of the school and the payment of a non profit charge designed to cover the costs of use.

(b)

The County Council acknowledges the very substantial numbers of people supporting Option 5 who responded to the consultation exercise on the Option 5 form circulated by the Community Association be acknowledged. That those responses came from the villages of Breedon, Wilson and Tonge and from other communities in Leicestershire and beyond the borders of Leicestershire be noted. That the Director of Children and Young People’s Services advises that the adoption of Option 5 would make the school unviable be further noted. Therefore, given the County Council’s commitment to support the continued operation of St. Hardulph’s school and its statutory duties under Sections 13A and 14 of the Education Act 1996 to promote high standards and to ensure there are enough school places in the area, it agrees that the County Council’s Options should be looked at again in the light of the consultation responses as set out in paragraphs 26 – 38 of the report.

(c)

In order to support the Headteacher and Governors in their central role of managing the school, and given the increased emphasis being placed by the Government on the safeguarding of children and the statutory duty placed on both the County Council and Governing Body by Section 175 of the Education Act 2002 to ensure that the safety and welfare of children attending the school is promoted, and to ensure that individuals not employed at the school and other users of school premises are not placed in an invidious position, while recognising the strength of view expressed by the consultees that the Community Association should have a role in managing the community wing, it is agreed that:

(i)

the Community Association be advised they can remain in the community wing if they agree to enter into a lease at a peppercorn rent requiring them to pay all maintenance costs and all outgoings in connection with their occupation of the community wing and they be free to charge user groups as they see fit, save that the County Council would be willing to be responsible for major items of external maintenance due to its inherent interest in ensuring the proper maintenance of the fabric of the building. And to enable the Governing Body to fulfil their statutory duty as set out above, such occupation to be subject to the provision on a weekly basis of information to the Governing Body on who is using the community wing and when during the school hours of 8 a.m. – 6 p.m., and to the Community Association complying with any request by the school Governing Body or the Headteacher on their behalf for such people to undergo appropriate CRB checks as required by the County Council in respect of people present on school premises, and subject also to the provision on a weekly basis of information on when it is being used out of school hours. And if the Community Association agree to the above, the County Council commits itself that an office for the Headteacher be provided to replace the office previously used by her in the community wing;

(ii)

the Community Association be able to hire the hall and grounds from the Governors subject to the payment to the Governors of a no profit charge and subject to any overriding requirements of the school, the Community Association be free to charge user groups as they see fit for use of the hall and grounds, and they be required to cease using or arranging for others to use the facilities or grounds at the school without the prior agreement of the school Governing Body;

(iii)

the Chief Executive and Director of Children and Young People’s Services be given delegated power to agree minor changes to (i) and (ii) above in order to achieve a resolution of the matter, provided that at all times the County Council’s and Governing Body’s ability to fulfil their statutory duties are not prejudiced;

(iv)

only in the event of agreement not being reached with the Community Association, then subject to (v) below the County Council reserves the right to serve notice on the Breedon on the Hill Community Association to cease occupying the community wing and cease using or arranging for others to use facilities at St. Hardulph’s Council of E primary school with effect from Friday, 14^th August 2009, thus giving the Community Association adequate notice of the need to vacate the community wing, while ensuring new arrangements are in place for the start of the new school year;

(v)

the County Council recognises the money paid by the community to the County Council towards the cost of the premises in 1962 and pays to the Community Association a sum representing a proportion of the current value of the building equivalent to the proportion which the sum contributed bore to the value of the building at the date of its completion. Such sum will not be less than £92,000 and shall be subject to an independent valuation. It will be paid to the Community Association on its undertaking to set up a charitable scheme for the future use of that money for the benefit of the local community.

(d)

The County Council notes that the Archdeacon of Loughborough who is also a school governor at St. Hardulph’s has offered to act as a mediator to carry out work with representatives of the school and key members of the community to bring about a greater understanding of the position of all parties and the constraints under which they operate, and ultimately to seek to restore relationships where possible, and expresses its support for that work.

(e)

The school Governing Body be advised that the County Council will fund costs associated with the use of the community wing by the Community Association until the matter is resolved.

(f)

The Director of Corporate Resources be requested to revise the advice given to schools on charging for use of school premises contained in Admin Memo 17 taking into account the more sophisticated financial systems in existence which allow more accurate costings to be carried out. In the meantime, it is agreed the Director of Children and Young People’s Services will work with St. Hardulph’s to review the charges, make them clearer and look at ways in which the school’s costs can be covered but charges are kept as low as possible.

REASONS FOR DECISION:

1.

A decision on future use of the facilities is required which has regard to the view of the Community Association, parents of children at the school and other stakeholders including local residents and user groups that regularly use the premises.

2.

It is important to ensure the ongoing community use of facilities at the school.

3.

Relationships between the Breedon Community Association, the Governing Body of St. Hardulph’s C of E Primary School and the County Council have broken down. This is affecting the ability of the Governing Body and Headteacher to manage the school and take decisions which are in the best interests of the children attending the school. The current situation also places the health, safety and welfare of the children attending the school at risk, due to the inability of the School Governors to manage the school so as to secure the premises and to control who accesses the school premises. There is therefore a need to bring an end to the current arrangements for community use of the premises.

4.

In view of the consultation responses the Community Association should be offered the opportunity to remain in the community wing subject to certain conditions, the details of which can be the subject of discussion.

5.

Only if agreement cannot be reached with the Community Association should they be required to leave the community wing, and in those circumstances there should be a recognition of the monies contributed to the premises in the 1960s.

6.

Work is needed to restore relationships between the school and the wider community.

7.

Ongoing use of the facilities at the school should be provided at a cost which covers the expense of use so that the costs do not fall on the Governing Body or the Council tax payer.”

It is clear from the terms of the resolution that, once again, LCC acknowledged that there would be ongoing community use of facilities at the School subject to the needs of the School; proposed offering BOTHCA once again the opportunity to remain in the community wing, subject to certain conditions as to bearing a fair share of the running costs; and only proposed to give notice to it to leave the community wing if agreement could not be reached along those lines.

BOTHCA remained unwilling to agree to the proposed terms. It attempted to engage political support for its position on the Council but that came to nothing. There was a further meeting of LCC’s Cabinet on 22 May 2009 at which a further report and recommendation of Mrs McCalla (essentially to the same effect as the previous report and recommendation) were considered and the previous decision of 24 April 2009 was confirmed. LCC continued to offer BOTHCA a lease of the community wing at a peppercorn rent, but also resolved that if no compromise of the dispute could be arrived at in the course of a mediation, which was then proposed, notice would be given to BOTHCA to bring the existing arrangements to an end.

No compromise has been agreed, so the existing arrangements are to be terminated.

It is the decisions of 24 April 2009, confirmed on 22 May 2009, which are now the focus of BOTHCA’s public law challenge and the subject of further allegations of breach of trust by LCC. For reasons already given above, I dismiss the complaint that these decisions by LCC were taken in breach of trust.

I turn then to consider BOTHCA’s public law challenge to the decisions of April and May 2009. Three grounds of challenge are put forward. They were addressed very shortly by Mr Lawrence in his submissions and can be dealt with shortly in turn as follows.

First, the decisions were premised on the advice of Mr Williams that the adoption of Option 5 would make the School unviable and it is said that it was irrational for LCC to accept that advice, which was manifestly wrong. I reject this challenge. There were ample grounds on which Mr Williams could form the view that adoption of Option 5 would make the School unviable. Option 5 involved the assertion by BOTHCA of full rights over the hall, including “classroom 2”, and the long history of the dispute between BOTHCA and the School authorities showed that there would be no viable accommodation of the legitimate interests of the School moving forward if BOTHCA were to be afforded those rights. That was the view of the governing body, the head teacher and experienced officials at LCC (Mrs Hagger and Mr Williams). The reasons were explained fully in the reports before the Council for those decisions. Moreover, an ongoing indefinite subsidy by LCC for BOTHCA’s use of the Premises was not regarded as a viable or acceptable drain on LCC’s resources, having regard to the many other claims upon those resources. The contention that LCC’s approach was flawed on this basis is, in my view, unsustainable.

Second, BOTHCA contends that it has a substantive legitimate expectation that it would continue to be permitted to occupy and use the Premises on terms that the community rooms are for the occupation of BOTHCA, the whole hall is shared so that it is for the occupation of the School during school hours and for the occupation of BOTHCA outside school hours, and LCC is obliged to pay all running and maintenance expenses, including those arising from BOTHCA’s use and occupation of the Premises. I reject this claim. There was never any clear, unambiguous assurance devoid of relevant qualification issued by LCC such as could found a legitimate expectation to this or any effect: see R v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569G per Bingham LJ. The original arrangement arrived at in about the early 1960s was not to this effect. The arrangements made in about April 2007 whereby BOTHCA took sole occupation of the community wing were clearly agreed to be an interim measure to allow time to see whether it might be possible to compromise the dispute. Despite reasonable efforts by LCC, no compromise could be arrived at and in those circumstances LCC was entitled to proceed to bring matters to a head as it did, and to resolve to give notice to BOTHCA to bring the interim arrangement to an end. That did not involve defeating any legitimate expectation which BOTHCA enjoyed. Moreover, the interim arrangement did not include any assurance by LCC that BOTHCA should pay no charges for its use of the Premises. LCC’s position throughout was that BOTHCA should pay such charges. Accordingly, there was no foundation for the legitimate expectation which BOTHCA claims.

Third, BOTHCA claims that the indication that the governing body or head teacher would be entitled to require any person using the community wing during school hours to undergo CRB checks was inconsistent with LCC’s policy in relation to schools generally and that it is to be inferred that the threat of CRB checks being carried out in relation to BOTHCA’s use of the community wing was raised in order to create the impression that BOTHCA’s use and enjoyment of the Premises was more problematic than was in fact the case. I reject this ground of claim as well, for a number of reasons. First, the reference to CRB checks in the briefing paper for the Cabinet meeting on 24 April 2009 was a peripheral matter. It is clear on the evidence that the reason for LCC’s decision to reject Option 5 and, in default of a compromise arrangement which BOTHCA never seriously considered accepting, to terminate the arrangement for BOTHCA to use the Premises was that no viable compromise regarding use of the Premises (in particular regarding use of the hall) in light of the interests of the School could be arrived at, and because BOTHCA insisted that its use of the Premises should be cost free, which was unacceptable to LCC. No matter what the position regarding CRB checks, the decision would have been the same.

In any case, LCC’s concerns regarding CRB checks were genuine and legitimate. They were not in conflict with any established policy of LCC, but rather were in line both with LCC’s published policy (contained in a document entitled “Who needs a CRB?” issued by LCC in March 2009) and with national guidance (para. [171] above), from which LCC’s policy was derived. LCC’s concerns reflected the proper concerns of the School authorities on the ground. Mrs Wenham’s evidence was that she took her responsibility for the day-to-day safety and wellbeing of the pupils at the School seriously. She explained the position clearly in her witness statement as follows:

“91.

It is important that during school hours, at the very least, I know who is on the premises and in the school grounds. Such knowledge will enable me to challenge with confidence those who do not have authority to be present. Although I do have a practice of challenging individuals who access the school grounds during the school day if they do not appear to me to be involved with the Community Association, at the moment, I simply do not know who has authority to be on the premises or in the grounds from the Community Association, and who has no authority to be present. This is not acceptable. I should be able to challenge with confidence those who have no authority to be present on the site.

92.

In relation to the question of whether CRB checks are required of those who use the community facilities, I will follow advice on this matter from the County Council. As I understand it, current advice is that if someone is on the premises regularly (more than once a month) they should be checked, but I am also aware that we need to consider in more detail whether, if the premises remain divided as they currently are, individuals utilising the community room for activities such as Luncheon Club would need to be checked.”

This seems to me to be an entirely reasonable attitude for a head teacher to take. Her evidence was supported by the evidence of Mrs Hagger, who has considerable experience in relation to dealing with such matters. There is no doubt that LCC’s concern with CRB checks was entirely genuine, despite the objections of BOTHCA. It is clear from the evidence of both Mrs Wenham and Mrs Hagger that the precise details of what needed to be done in relation to security at the School and CRB checks could have been the subject of sensible discussion had BOTHCA been willing to contemplate a compromise of the dispute along the lines proposed by LCC. In my view, LCC’s position on this matter was entirely reasonable.

For the reasons given above, BOTHCA’s private law and public law claims are dismissed.