“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.” (ii) A provision for the divestment of an estate must be clear and identifiable and that was inconsistent with reverter turning on the continuing intention of the education authority. As Patten LJ expressed it at para 21: “[It is an accepted] principle of trust law that a provision for the divestment of an estate should be clearly and distinctly identifiable and, consistently with that, it is difficult to see how the possibility of a reverter under section 2 can depend upon the continuing intention of the education authority as to the ultimate use of the proceeds of sale even if that is sufficiently documented.” (iii) The view of the Law Commission, at para 114 of its Report Rights of Reverter, was consistent with Dennis v Malcolm[1934] Ch 244 and was correct in assuming that, for the purposes of section 14 of the 1841 Act, there must be a sale of the existing site prior to the closure of the school. (iv) Patten LJ concluded as follows at para 23: “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 section 14. But that power is only exercisable up to the moment when the land ceases to be used for those statutory purposes … I am 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.”
“45. … Neither section 2 of the 1841 Act nor the trust deed admits of very close linguistic analysis … But some general principles are clear. It is clear that both the statute and the trust deed were intended to set up arrangements capable of lasting for a very long time-potentially for ever. Both were intended to operate through the medium of a charitable trust. Charity law has for centuries required that a general charitable purpose (or intention) should be recognised and given effect to, even though some particular directions given by the charity’s founder are (or become) impracticable: see for instance the explanation given by Buckley J in In re Lysaght, decd[1966] Ch 191 , 201-202. It is also a well-established principle of trust law that any provision determining or divesting an estate ‘must be such that the court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine’ (Lord Cranworth in Clavering v Ellison (1859) 7 HLCas 707, 725, cited in Sifton v Sifton[1938] AC 656 , 670, and in Clayton v Ramsden[1943] AC 320 , 326). As Mr Nugee put it in his written submissions, reverter is an event, not a process (and if it occurs, it is automatic and irrevocable.) 46. All these considerations suggest that the court should take a broad and practical approach to the question whether a school has (in the words of the third proviso) ceased ‘to be used for the purposes in this Act mentioned’ (and that it is not simply a coincidence that all the reported cases are concerned with schools which had closed permanently). …”
“The question is one of certainty of concept and not ease of application, so that a sufficiently certain condition is not invalidated merely by possible difficulties in ascertaining whether events have occurred which give rise to a forfeiture.”
“… there has been a shift away from literalist to purposive methods of construction … the modern emphasis is on a contextual approach designed to identify the purpose of a statute and to give effect to it.”
“The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”
“One can see that the provision with regard to reverter would have been and no doubt was considered by the legislature to be a very useful encouragement to charitably minded persons, particularly if they were the owners of an estate or life tenants of a settled estate, to make grants for purposes such as these, because such persons might very well be satisfied to have the village school built upon the family estate, but would strongly object to the site on which such a school had been built being diverted later on to other purposes; therefore, as I have said, that proviso as to reverter must have been a very valuable encouragement, because landowners by reason of it were thus enabled to ensure that the site should be used in perpetuity for school purposes or, if it ceased to be used for school purposes, that they would get it back. The common sense of that is obvious.” (Emphasis added)
“[Shadwell] may be regarded as having glossed the statutory language. But it has stood without criticism for nearly a century and I would not cast any doubt upon it. … It does not say that the ‘purposes in the Act mentioned’ means the purposes in the deed mentioned. It says that if the grantor has chosen one of the three statutory purposes and the land ceases to be used for that statutory purpose, a reverter is not avoided because it can still be used for one of the other two statutory purposes.”
“Section 2 of the Schools Sites Act 1841 does not in my opinion permit persons to dedicate plots of land for educational purposes in the sense that the rental value of such land is to be applied to educational purposes, and what cannot be done directly cannot be done indirectly through the failure of the original trusts. … [T]he land is to be used as a site for schools (whether for religious or secular education) or their appurtenances, and not as a means of revenue for educational purposes.”
“It is said that directly the bomb fell and the school became unusable there was a reverter, because the school had ceased to be used for these purposes. So it had in a sense ceased to be used for these purposes; but the words cannot mean, in my judgment, a mere stopping of the user. Supposing, for instance, there was a fire and it were burned down in peacetime, it could not, in my judgment, be argued that the right of reverter arose because it took two years or whatever it was to rebuild the school. Here, as it appears, the intention had been to rebuild, because the cost of works was, so to speak, in the offing, and would have been effected at any cost. … In my judgment, there is no evidence at all of any permanent intention to abandon this site as a place for a Church of England school, at any rate before the order made in December 1946, for the compulsory acquisition of the land. Whether it was made then or whether it was made rather later, … in 1947, does not matter; the reverter had not occurred, in my view, until the Managers’ project for using the site for school purposes must necessarily be taken to have been abandoned, and I think probably … August 1947 is as good a date to take as another, and, on that event happening, the site had ceased to be used for the purposes aforesaid … and, therefore, the rights of the family revive ...”
“Section 14 recognises not only that the site originally granted (which was by the statute limited in extent) might become too small, but also that there might not be available any adjacent land on which it could expand. The limited power of sale contained in section 14 was an almost essential feature of the 1841 Act if the general policy of the Act was not to be frustrated. By the same token, we believe that grantors would not have regarded the grant of the original site as an end in itself, but only as a means to an end, namely the establishment of a school; and, consistently with that approach, they would not have wished to recall their benefaction simply because their school was a success and had to move to larger premises. Of course, it would be quite different if the site ceased to be used for school purposes because their school ceased to exist. The grantor’s right of reverter cannot be overridden by a sale under section 14 if education is thereafter provided not in the same school elsewhere but in a substitute school. Many grantors defined the school which they were helping to establish by reference to a locality and the fact that the new premises are a long way away from the old ones may well make the new school a different school for present purposes, if only because it is likely to have a fundamentally different catchment area.” (Emphasis added)
“When … it shall be deemed advisable to sell … the [land] … it shall be lawful for the trustees … by the direction or with the consent of the managers and directors of the said school, if any such there be, to sell … the said land … and to apply the money arising from such sale … in the purchase of another site, or in the improvement of other premises used or to be used for the purposes of such trust …”