Oxfordshire Director of Legal

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Supreme Court to hear dispute over land gifted to school and whether £1m+ sale funds should go to estate of donor

The Supreme Court has given a county council permission to appeal in a dispute over whether the ownership of land, which was gifted to a school under the School Sites Act 1841, reverted to the donor’s estate when the school ceased to operate from the gifted land.

In the case of Rittson-Thomas and others (Respondents) v Oxfordshire County Council (Appellant) UKSC 2019/0062 the respondents are heirs of the late Robert Fleming, who conveyed land to Oxfordshire County Council in 1914 and 1928 under the School Sites Act 1841.

The council erected a new school building on the gifted land and continued to use its existing land for the school’s kitchen and dining room.

In the late 1990s, Oxfordshire decided to relocate the school. It proceeded to build a new school on adjacent land, transferring the students to the new premises in February 2006.

The old premises ceased to be used as a school and the site was sold on 28 September 2007 for the sum of £1,355,000.

The respondents claimed that 93.17% of site represented land gifted by Mr Fleming and that, because that land had ceased to be used by the school before the sale, it had “reverted” to Mr Fleming’s estate.

The result, they claimed, was that 93.17% of the net sale proceeds was held on trust for them as Mr Fleming’s heirs.

Oxfordshire denied this, claiming that its actions were part of a project to replace the old school with the new school and therefore did not trigger a reverter under the 1841 Act.

The High Court dismissed the respondents’ claim but the Court of Appeal overturned this decision on appeal.

Lord Justice Patten, with whom Lord Justice Hamblen and Lady Justice Nicola Davies agreed, said: “The 1841 Act was intended….to encourage the conveyance of land for a specified and limited purpose or purposes and on terms that title to the land should revert to the grantor as previously described in the event that the use of the land no longer complied with one or more of those specified purposes.

“Since the sale of the old site post-dated the removal of the school to the new site by more than a year it is unrealistic to say, as a matter of ordinary language, even on a broad and practical approach to that issue, that the land continued to be used as a site for a school or otherwise for the purposes of education.”

Lord Justice Patten added: “It is, I think, important to bear in mind that the statutory purposes set out in s.2 of the 1841 Act are charitable educational purposes. They require, in terms, that the land should be used as a site for a school, a school house or otherwise for educational purposes. In each case they limit the use of the land to an identifiable function or purpose.”

He noted that Judge Spearman’s approach [in the High Court] to this question of cesser of use was to say that the old site was being sold to raise money to pay for part of the cost of the new buildings and the old site was therefore being used "for the purposes of that public elementary school".

“But that is not the statutory question,” Lord Justice Patten said. “The issue is whether the land continued to be used as the site for a school or for educational purposes: not whether it provided a means of re-imbursing the county council for its expenditure on the new school.

“Expenditure on the improvement of other premises used for the purposes of the trust is a permissible use of the proceeds from the sale of the existing school site under s.14. But that power is only exercisable up to the moment when the land ceases to be used for those statutory purposes.”

The Court of Appeal judge said he was unable to accept that, by keeping the old site vacant pending a sale, the county council continued either to use the land as a site for a school or to use it for educational purposes.

“Both require the active use of the land for the education of children. I would accept that this could include ancillary activities such as the use of the site as a playground or for meals. But, in this case, the old site remained vacant with no further possible use for educational purposes,” he said, allowing the appeal.

Oxfordshire appealed to the Supreme Court to restore the High Court’s decision. It was granted permission in December 2019 by a panel comprising Lady Hale, Lady Black and Lord Briggs.

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