Rittson-Thomas and others v Oxfordshire County Council

Few would have predicted that the School Sites Act 1841 (“the 1841 Act”), the statute at the heart of this appeal, would still have been a source of activity in the courts and in Parliament in the late 20th and early 21st centuries. Yet this appeal is a further instance of that activity. Section 2 of the 1841 Act gave landowners, who were willing to provide land, of up to one acre, for a school for poor children (or for the other educational purposes set out in the 1841 Act), an easy way of doing so by means of a statutory charitable trust. This was coupled with an assurance, by a proviso in section 2, that, if the land ceased to be used for the school (or the other purposes set out in the 1841 Act), it would be returned to the landowner, or his/her heirs, by operation of law, that is by a statutory reverter (which, for reasons explained in para 9 below, we shall refer to as a “section 2 reverter”). Furthermore, by section 14 of the 1841 Act, it was laid down that, should the school need new premises, the trustees would have the power to sell or exchange the land which had been given for the school so as to enable the school to move to a more appropriate site.

This appeal is about a sale of the original site granted for the use of a school under the 1841 Act. It raises the important question of the sequence of events which must occur to take advantage of the power in section 14. It is not in dispute that section 14 can be used if, at the time of the sale, the school is still operating on the original site (ie if it has not fully and permanently closed on that site). But can the trustees sell the land with vacant possession, and apply the proceeds of sale to pay off the costs of acquiring or improving a new site, after the school has moved to the new site? Or is the position, in that scenario, that the section 2 reverter will have been activated so that the trustees will no longer be able to sell and apply the proceeds of sale for meeting those costs?

There has been little case law or commentary on the interaction between a change of site under section 14 and the section 2 reverter. However, the decision of the House of Lords in Fraser v Canterbury Diocesan Board of Finance (No 2)[2005] UKHL 65; [2006] 1 AC 377 (“Fraser (No 2)”) is of central importance to what we have to decide because it laid down the correct approach to the interpretation of section 2 of the 1841 Act.

This appeal concerns Nettlebed School in Oxfordshire. In 1914 and 1928, under the 1841 Act, the late Robert Fleming (“Mr Fleming”) conveyed land in Nettlebed to Oxfordshire County Council (the defendant and appellant, who we shall refer to as “the defendant” or “the County Council”) as a site for an elementary school. Although such a school had existed prior to 1914, the benefactions from Mr Fleming enabled a new school building to be erected. The school operated on the site donated by Mr Fleming (we shall refer to this as the “Fleming site”) until 2006. In the 1990s the County Council decided to relocate the school to a new building with improved facilities on land already owned by the County Council which was adjacent to the Fleming site; and the pupils moved across to the new school building in or about February 2006. The documented plan of the County Council was to sell the Fleming site to help pay off the costs of the new school building. In line with that plan, almost all of the Fleming site was subsequently sold to a property developer in September 2007 for £1,243,819.50.

The dispute is whether the County Council is legally permitted to use that money, as planned, to pay off the costs of the new school building; or whether, by reason of the 1841 Act, the statutory charitable trust of the land came to an end in February 2006 when the school started to operate from the new site so that the sum of £1,243,819.50 is held for the benefit of, and must be transferred to, the heirs of Mr Fleming. Four of those heirs are the claimants and respondents.

Richard Spearman QC, sitting as a Deputy Judge of the Chancery Division, decided that section 14 of the 1841 Act did not require the site to be sold before the school was moved. This was because, in his view, prior to its sale, the Fleming site had not ceased to be used for the purposes in the 1841 Act. But his decision was reversed by the Court of Appeal. Patten LJ gave the leading judgment, with which Hamblen and Nicola Davies LJJ agreed. Patten LJ held that, on the true interpretation of the 1841 Act, the land had ceased to be used for the purposes in the 1841 Act prior to its sale; and that the trustees could not keep the Fleming site vacant pending sale and then seek to apply section 14. The County Council now appeals to this court against that decision.

Christopher McCall QC for the County Council submits that, on these facts, the Fleming site did not cease to be used for the purposes in the 1841 Act because the sale proceeds from the site were to be used to pay off expenses for the new Nettlebed school building. The sale was part of a pre-conceived plan to relocate the school and section 14 of the 1841 Act permitted the use of those sale proceeds in that way. Simon Taube QC for the claimants submits that the Fleming site did cease to be used for the purposes in the 1841 Act as soon as the Fleming site was no longer being used as a site for the school which occurred in or about February 2006. There was a section 2 reverter in favour of the claimants at that point and section 14 did not here apply.

In our judgment, for the reasons given below, sections 2 and 14 of the 1841 Act must be read as a coherent whole and interpreted so as to further the purposes of the Act. Applied to the facts, the correct interpretation of the statute permitted the sale of the Fleming site and use of the proceeds without triggering the section 2 reverter. We would therefore allow the appeal.

It should be explained at the outset that, subsequent to reforms made by the Reverter of Sites Act 1987 (“the 1987 Act”) (which implemented some of the recommendations of a Working Party of the Law Commission in its 1981 Report, Property Law: Rights of Reverter (Law Com No 111, Cmnd 8410)), it is strictly speaking inaccurate to talk of a statutory reverter under the 1841 Act. That is because, by section 1 of the 1987 Act, that statutory reverter (and the analogous reverter of sites in other statutes) was replaced by a statutory trust for the benefit of those who, prior to the 1987 Act, would have been entitled to the reverter; and this is deemed always to have been the position. However, it would be cumbersome to have to refer throughout this judgment to the statutory trust that has replaced statutory reverter. For shorthand purposes, therefore, we use the term “section 2 reverter” to refer to the reverter in section 2 of the 1841 Act that has been replaced by the statutory trust arising under section 1 of the 1987 Act.

The facts in this case are straightforward and there is no dispute about them. Mr Fleming made two gifts of land expressed to be made under the School Sites Act 1841. By the first conveyance dated 29 September 1914, he freely and voluntarily conveyed without any valuable consideration to the defendant certain land already “forming a portion of the playground of the school at Nettlebed” to the defendant “for the purposes of the [1841 Act] and to be applied as a part of the playground of the said School and for no other purpose whatever.” This first site comprised about 0.13 acres of land. By a second conveyance dated 5 April 1928, Mr Fleming freely and voluntarily conveyed without any valuable consideration to the defendant further land “for the purposes of the [1841 Act] and to be applied as a site for a public elementary school for children of and in the Parish of Nettlebed and adjacent Parishes and for the residence of the School Master (or School Mistress) of the said School or for other purposes of the said School and for no other purposes whatsoever.” These purposes reflect two of the three statutory purposes set out in section 2 of the 1841 Act (see para 18 below). This second site comprised about 0.79 acres of land. Together the two sites comprise what we are referring to as the “Fleming site”.

The school was in existence prior to 1914. The 1928 conveyance enabled a new school building to be erected on the Fleming site while the pre-1928 school site continued in use as the school’s kitchen and dining room. Although permitted by the grant, none of the Fleming site was used for accommodation for the teaching staff. Mr Fleming died on 31 July 1933.

The defendant decided to relocate the school to its present site in the 1990s. A letter dated 18 April 2000 from the defendant’s then Joint Head of Legal Services to Currey & Co, solicitors for the trustees of the will of the late NPV Fleming (another member of the Fleming family who had in the 1980s sold land to the defendant which was used by it as part of the site for the new school), refers to the defendant’s “proposals for the school which will include the sale of the area edged red on the attached plan in order to raise the capital required to build a new primary school on the area edged blue thereon”.

The scheme for the “Nettlebed Replacement School” was also an agenda item for the meeting of the defendant’s Executive Committee on 22 July 2003. The defendant’s revised detailed project appraisal at that time envisaged that total expenditure of £2,035,000 would be incurred in 2004/5, which would be funded as to £1,702,000 by borrowing, as to £193,000 by contributions from third parties, and as to £140,000 by grants; and that this would be defrayed in part by anticipated capital receipts of £1,300,000 in 2005/6, representing the proceeds of sale of land on which the school had operated prior to its relocation to the new site.

The defendant implemented these plans, by (a) building new (and improved) school facilities on land which it already owned, adjacent to the existing premises, (b) in or about February 2006, transferring the children who attended the school to the new premises, and (c) marketing and selling the old premises.

On 28 September 2007, the defendant sold 0.844 acres of land to a property developer, Bluespace Property Nineteen Ltd, for the sum of £1,355,000 pursuant to an agreement for sale dated 1 August 2007. That land comprised almost all of the Fleming site. The claimants’ surveyor has calculated that 93.17% of the land sold to the property developer had been given to the defendant by Mr Fleming under the 1914 and 1928 conveyances. Based on that calculation, the claimants contend that, since September 2007, 93.17% of £1,335,000 (ie £1,243,819.50) has been held on trust for them (and for Mr Fleming’s other heirs, who have been given notice of these proceedings but have chosen not to take part in them). The defendant accepts that calculation but disputes that there was any section 2 reverter.

The defendant explained the basis upon which it had proceeded in a letter from its solicitor dated 18 August 2010 to the claimants’ solicitors. This included the statements that: “It was at all relevant times the Council’s firm and settled intention to apply the proceeds of sale of the former school site towards the construction of buildings for the school on an alternative site” and “In practical terms, the pupils of the old site need somewhere to receive their education and therefore they need the new buildings to move into before the old site [is] sold”.

In a further letter dated 24 September 2010 passing between the same parties the defendant stated (among other things) that “the closure, sale and use of proceeds is an event or series of events which does not cause a reverter to arise under the 1841 and 1987 Acts. The holding of a school site pending a planned section 14 sale is, in the Council’s position, entirely in accordance with the statutory purposes set out in section 2 of the 1841 Act and set out in the relevant conveyances.”

There were several School Sites Acts in the 19th century (in 1841, 1844, 1849, 1851 and 1852) but we are concerned only with the 1841 Act. The section of the 1841 Act that we first need to look at is section 2. This enables the grantor to transfer the site, specifies the three purposes for which the land may be provided and, in a proviso, sets out the section 2 reverter.

Section 14 goes on to provide a power for the trustees to sell or exchange the site. It was this power which was invoked in the present case.

As we shall see, it is clear that the ambit of this power must be consistent with the section 2 reverter. Sale or exchange under section 14 can only occur if there has not already been a section 2 reverter. The issue in this case is whether, reading those two sections together, the permanent closure of the school on the Fleming site in preparation for sale ended the statutory charitable trust with the effect that the trustees cannot apply the sale proceeds in the improvement (by buildings or otherwise) of the adjacent new school premises.

The law on reverter of title under the 1841 Act (and some analogous statutes) was reformed by the 1987 Act. Although some of the provisions of that Act are not easy to interpret, we are satisfied that, as far as the essential questions that we have to decide in this case are concerned, nothing turns on the reforms made by the 1987 Act. Nevertheless, the 1987 Act is important and relevant in understanding the effect today of the 1841 Act. The relevant provisions of the 1987 Act are as follows.

It is sufficient to make the following points about those provisions of the 1987 Act:

It should be added for completeness that, since the coming into effect of the Trusts of Land and Appointment of Trustees Act 1996, the relevant statutory trust, that replaces the section 2 reverter by reason of section 1 of the 1987 Act, is a trust of land with power to sell rather than a trust for sale.

Richard Spearman QC held that the defendant was entitled to use the proceeds of sale of the Fleming site to pay off the expenses of the new school building and that the claim therefore failed: [2018] EWHC 455 (Ch). His essential reasoning, in what we consider to have been an excellent judgment, was as follows:

That judgment was overturned by the Court of Appeal: [2019] EWCA Civ 200; [2019] Ch 435. Patten LJ’s essential reasoning was as follows:

The most important past case that we need to examine is Fraser (No 2). This concerned a claim by the assignees of heirs to the grantor of the original school site. This site was conveyed under the 1841 Act to be used as a school “for the education of children and adults of the labouring manufacturing and other poorer classes” in the relevant district. The school was closed down and the site sold in 1995. The question was whether the site had ceased to be used for the purposes laid down by the grantor, so that there had been a section 2 reverter, prior to 17 August 1975. That was the critical date because, before the coming into force of the 1987 Act (on 17 August 1987), the trustees could acquire title by adverse possession of 12 years. Therefore, if the reverter had occurred prior to 17 August 1975, the trustees would have acquired title by adverse possession. It was held that there had been no section 2 reverter prior to 17 August 1975. The fact that by then the intake of the school was not confined to poor pupils did not mean that the site was no longer being used for the first statutory purpose (“as a site for a school for the education of poor persons”) specified in section 2 of the 1841 Act.

In understanding the full context of the decision of the House of Lords, it should be explained that there was an earlier decision, in relation to a different donation of land and a different school, by the Court of Appeal (Peter Gibson, Mummery and Latham LJJ) in Fraser v Canterbury Diocesan Board of Finance [2001] Ch 669 (“Fraser (No 1)”). It was decided in that case that where the grantor, by the terms of the grant, had limited the statutory purpose specified (as he had done in that case by requiring that the school be run in accordance with the Anglican principles of the National Society), it was the terms of the deed, not the statutory purposes, that were determinative in determining whether the land had ceased to be used “for the purposes in this Act” under section 2 of the 1841 Act. In Fraser (No 2) the lower courts, Lewison J at first instance and the Court of Appeal (Potter and Arden LJJ and Wilson J), proceeded on the basis that Fraser (No 1) was correct. But the House of Lords in Fraser (No 2) unanimously held that both prior decisions of the Court of Appeal had been wrong. Lord Walker gave the leading speech and Lord Hoffmann also gave a reasoned speech agreeing with Lord Walker; Lord Nicholls, Lord Hope and Lord Brown agreed with them both. There were two particular points of importance decided by the House of Lords.

First, for the section 2 reverter to arise, the site had to cease to be used for the relevant purpose or purposes set out in the 1841 Act, not for any narrower purposes set out in the original deed of grant (see Lord Hoffmann at para 18 and Lord Walker at para 57). The relevant purpose of the Act meant one or more of the three purposes set out in the Act depending on which of those three purposes the grantor had specified. Any narrower purposes in the deed of grant were irrelevant in determining whether there had been a section 2 reverter. Fraser (No 1) had been wrong to hold otherwise.

Secondly, and of central importance to the present case, Lord Walker dealt with the interpretation of section 2 of the 1841 Act more generally. He accepted that section 2 did not admit of “very close linguistic analysis” (para 45). But the section operated “through the medium of a charitable trust” (para 45) and should be interpreted in line with the recognition that charity law gives effect to a “general charitable purpose (or intention)” (para 45) in a situation where particular directions given by the charity’s founder are (or become) impracticable. In addition, under the general law of trusts a provision providing for the determination of trust by a reverter should be a clear event and not a process. It followed from all these considerations that it was appropriate to adopt “a broad and practical approach” to whether, under section 2, a site had ceased to be used for the purposes in the 1841 Act. It is helpful to set out Lord Walker’s precise words at paras 45-46:

To complete the story of the Fraser litigation, there was a further round of litigation dealing with when exactly the section 2 reverter did occur on the facts of Fraser (No 2) (accepting that, as the House of Lords had decided, it was not prior to 17 August 1975). Blackburne J held that the date of the section 2 reverter was when the school was closed in 1995: Fraser v Canterbury Diocesan Board of Finance (No 3)[2007] EWHC 1590 (Ch).

The central importance of Fraser (No 2) for this case is in laying down, with explanatory reasoning, the “broad and practical” approach required in interpreting section 2 of the 1841 Act and we would add, for the same reasons, in interpreting section 14. Furthermore, consistently with what was said in Fraser (No 2), we think it important to highlight, in the next two sections, two additional general factors that should guide our approach. The first is the recognition that the courts should adopt a purposive interpretation where possible; and the second is the balance struck in the 1841 Act between the grantor’s interest and the public interest.

But before moving on from Fraser (No 2) there is one additional point about what Lord Walker said in para 45 (set out above) that should not be overlooked. He made reference to it being a general principle of trusts law (or one might say, more generally, of property law) that the section 2 reverter must be an event, that is clear, and not a process. In our view, what this means is that, provided the event is conceptually clear (eg the permanent closure of a school), it does not matter that, evidentially, it may be difficult to find out when that event occurred (eg when permanent closure occurred). As is stated in Megarry & Wade, The Law of Real Property, 9th ed (2019) (eds Bridge, Cooke and Dixon) at para 3-034, citing In re Gape, decd[1952] Ch 743 (in the context of a forfeiture of property):

We have seen that Fraser (No 2) made clear that in determining whether there was a section 2 reverter the focus should be on the purposes of the 1841 Act (rather than any narrower purposes in the deed of gift). Mr McCall submitted, and we agree, that this emphasis on the purposes of the Act is in line with the now well-settled view that the courts should adopt a purposive approach to statutory interpretation where possible. In Inland Revenue Comrs v McGuckian[1997] 1 WLR 991, 999,Lord Steyn said of the approach to statutory interpretation in English law:

Moreover, as the quotation from Lord Bingham makes clear, the courts should avoid interpreting statutory provisions in isolation from other relevant provisions. The context includes the statute taken as a whole. Reading an Act as a whole may reveal that a proposition in one part of the Act sheds light on the meaning of provisions elsewhere in the Act. Hence in this case, we must seek to interpret sections 2 and 14 as forming part of a coherent legislative scheme.

There is another general aspect of statutory interpretation which supports taking a broad approach to the interpretation of the words in the 1841 Act. This is because the Act was drafted in the less rigorous style which was normal before the creation of the Office of the Parliamentary Counsel in 1869 and the adoption of more precise forms of drafting which followed: see R (Andrews) v Secretary of State for Environment, Food and Rural Affairs[2015] EWCA Civ 669; [2016] PTSR 112, para 30; TW Logistics Ltd v Essex County Council[2021] UKSC 4; [2021] 2 WLR 383, para 80.

It is worth adding here that as an illustration of what, in his oral submissions, Mr McCall referred to as the 1841 Act “betray[ing] a lack of careful thought” was the potential windfall that might accrue as a consequence of the section 2 reverter. This is because section 2 provides for reverter without any compensation being paid to the trustees for any improvements that have been made to the land; and/or, if the land was originally sold by the grantor (as contemplated by sections 2 and 10 of the 1841 Act and as occurred in In re Cawston’s Conveyance and the School Sites Act 1841[1940] Ch 27) without any return of the contract price.

The focus on the purpose of the 1841 Act requires an appreciation of the balance that the Act struck between the potentially conflicting interests of the grantor and of the public. At one time it appears to have been thought that the protection of the grantor’s interests should prevail so that the primary focus was on protecting the section 2 reverter. This may be regarded as implicit in the following passage from Sir Wilfrid Greene MR in In re Cawston’s Conveyance and the School Sites Act 1841[1940] Ch 27, 33-34:

There are two further aspects of the reasoning in Fraser (No 2), referred to earlier, which indicate that the 1841 Act envisaged that the grantor’s interest might be outweighed by the public interest in the provision of education. The first is that the section 2 reverter only operates if the site has ceased to be used for the relevant statutory purpose. That statutory purpose is not to be read as being subject to any restrictions imposed by the grantor. Any restrictions the grantor imposed might in principle be enforceable (by an action for breach of trust) but non-compliance would not result in there being a section 2 reverter if the relevant statutory purpose were still being pursued. So, for example, the grantor’s imposition of limitations on the type of education that pupils were to be given (eg in accordance with Anglican principles) would not prevail over the general purpose of education.

Secondly, Lord Walker tied section 2 of the 1841 Act into the general framework of charitable trust law. One aspect of this is that, in general terms, the courts will seek, in the general public interest, to uphold a charitable gift and prevent it failing, if necessary by applying it cy-près (and note that in cases of initial, as opposed to subsequent, failure, general charitable intention must be shown: see Tudor on Charities, 10th ed (2015), paras 9-001 - 9-035, 10-048, 10-070 - 10-074). See, generally, the recent discussion in Children’s Investment Fund Foundation (UK) v Attorney General (judgment delivered in this Court sub nom Lehtimäki v Cooper) [2020] UKSC 33; [2020] 3 WLR 461, paras 53 to 55. In line with this, the courts should lean towards the continuation of the purposes set out in section 2 of the 1841 Act rather than being astute to find that those purposes have failed thereby triggering a section 2 reverter.

In addition to Fraser (No 2), which both counsel relied on, and the other two cases in the Fraser litigation, we were referred to four cases on the 1841 Act. These were Attorney General v Shadwell[1910] 1 Ch 92; Attorney General v Price[1912] 1 Ch 667; Dennis v Malcolm[1934] Ch 244; and In re Chavasse, an unreported decision of Harman J dated 14 April 1954. We shall now look briefly at these four cases. Although they provide useful background, none of the four deals directly with the issue that we are deciding in this case.

In Attorney General v Shadwell a site had been donated for a school under the 1841 Act. After operating for some years, the school had permanently closed down, another school having been opened by the local authority nearby. But the building continued to be used once a week, as it had been before the school closed down, as a Sunday School. The question was whether there was a section 2 reverter. It was held by Warrington J that there was such a reverter because to use the building just as a Sunday School was outside the purposes of the 1841 Act. Of the three statutory purposes, the grantor had chosen the first (for a school for the education of the poor) and not the third (otherwise for the education of the poor in religious and useful knowledge). Once the specified statutory purpose failed, the section 2 reverter was triggered. This decision was approved by the House of Lords in Fraser (No 2). Stressing that Shadwell was not dealing with the question as to the relationship between the statutory purposes and the purposes set out by the grantor in the deed, Lord Hoffmann said the following, at para 18:

In Attorney General v Price land had been donated under the 1841 Act as a school for poor children in the district of Caerphilly. The grantor had specified in the deed that the school should be conducted in accordance with the principles of the National Society for Promoting the Education of the Poor in the Principles of the Established Church. It became impractical to run the school on those religious lines. The Court of Appeal accepted that a (cy-près) scheme was appropriate under which the school could be run on a secular basis by the local authority. It rejected the argument that the school could instead be let out for a rent which could be applied for the purposes of the local church. More generally, Fletcher Moulton LJ said the following about letting out the site, at p 684:

Mr Taube placed direct reliance on those words. He submitted that the bar on using the site “as a means of revenue for educational purposes” meant that the County Council in the instant case could not sell off the Fleming site, after the school had been moved, so as to finance the new school building. But it is plain that Fletcher Moulton LJ was not dealing with the situation which we face in this case. He was making the obvious point that section 2 does not permit a site to be rented out even for educational purposes. Rather the site must be directly used for one of the three purposes set out in section 2 although, at p 684, Fletcher Moulton LJ went on to confirm that renting out would be possible where it did not interfere with the primary use of the site for those purposes. His reasoning says nothing about section 14 and nothing about the issue we face in this case.

In Dennis v Malcolm, a site had been donated for a school under the 1841 Act but, after operating for some years, the school had permanently closed down. The question facing Clauson J was whether the trustees of the school could be registered as having legal title and hence whether they could pass on good title by selling the land. It was held not. Once the school had been closed down, there was a section 2 reverter to the heirs of the grantor. We have seen, at para 25(iii) above, that Patten LJ in the Court of Appeal in the instant case thought that Dennis v Malcolm was consistent with the view of the Working Party of the Law Commission that the school had to remain in operation on the site being sold at the time of the sale in order to avoid a section 2 reverter. But that may not be the only possible interpretation of the relevant passage in Clauson J’s judgment and, in any event, what Clauson J said on this issue was obiter dicta.

Finally, in In re Chavasse, an unreported decision of Harman J, dated 14 April 1954, the primary question was whether the trustees of a school in Birmingham, set up in 1855 under the 1841 Act, had acquired title by adverse possession (prior to selling the land in 1953) or whether, instead, there had been a section 2 reverter to the heirs of the grantor. The school had been destroyed by bombing in 1940 during the Second World War. But it was held that the site had not ceased to be used for the school at that time because there was an intention to rebuild. That cesser of use only occurred several years later in 1947 when, following a compulsory purchase order, the plan was to abandon the site and use the funds for a new school five miles out of the parish. It was only at that later date that one could say that the school had permanently closed and it followed that there had not been 12 years’ adverse possession so that the sale proceeds were held for the benefit of those entitled under the section 2 reverter.

Harman J did briefly consider section 14 but regarded it as being “of no help at all” because “[i]t could not possibly justify … selling the site in order to convert the money to something five miles outside the parish”. But his judgment is particularly helpful in illustrating that, while the permanent closing down of a school is the relevant conceptually certain event, there may be evidential difficulties in determining when this has happened not least because it turns on the intentions of those involved. In the words of Harman J:

Mr Taube submitted that for section 14 to apply, the correct sequence of events must be observed. That correct sequence of events did not include moving the school to a different site and then selling the original site with vacant possession. But there were other ways in which the sale of the Fleming site to the developer could have been completed without any risk of triggering the section 2 reverter. These included, Mr Taube submitted, staggering the move from one site to the other, deferring completion of the contract to sell the land until the new site was ready to use, or selling the land on condition that the purchaser granted a licence for the continued use of the site for the school until the new school was ready for the pupils to move into. The first of these is similar to Patten LJ’s suggestion, at para 23 in the Court of Appeal (see para 25(iv) above), that there would be no section 2 reverter if the site continued to be used for ancillary activities such as a playground or for meals.

Apart from the fact that the need for such courses of action is likely to catch out those without the benefit of expert advice, Mr McCall submitted that these devices have potentially undesirable effects of two types. First, the idea of staggering the move or retaining the site for ancillary activities may be contrary to what is educationally desirable for the pupils. Secondly, the suggestions made as to deals that might be struck with the purchaser would be likely to deflate the sale price thereby depriving the school of funds. We agree with these submissions of Mr McCall so that, unless the words preclude us from doing so, it would be preferable to interpret sections 2 and 14 in a way that would render such courses of action unnecessary.

We are now in a position to pull the threads together. It is our view that, applying the correct interpretation of sections 2 and 14 of the 1841 Act to the facts of this case, the Fleming site was not “ceasing to be used” for the purposes of Nettlebed school, and hence for the purposes of the Act, when the school moved to the new adjacent site in or about February 2006. It was not ceasing to be used for the purposes of Nettlebed school because there was an intention throughout by the County Council, as made clear by relevant documentation, to apply the proceeds of sale of the land in the improvement (by buildings or otherwise) of the adjacent new school premises. Section 14 here permitted the Fleming site to be sold with vacant possession and the proceeds to be used to pay off the costs of developing the new site. No section 2 reverter was triggered.

Our essential reasons for why that is the correct interpretation of sections 2 and 14 of the 1841 Act can be set out as follows:

We conclude that, having regard to the purposes of the 1841 Act, Richard Spearman QC, at first instance, was correct to hold that, when section 14 is invoked, it is not necessary for the site to be sold before the school is moved to another site and closed on the site given by the grantor. Accordingly, we would allow this appeal.