Sitting in a bed of nettles? Schools, historic trusts and the reverter of sites

In this article, we consider the recent case of Rittson-Thomas and others v Oxfordshire County Council, and its implications for schools whose land is subject to historic trusts.

The School Sites Act 1841 (SSA) is a relatively obscure piece of legislation, yet its application has increasing relevance in today’s world, as the judgment handed down by the Supreme Court on 23 April 2021 testifies.

Background

Throughout the late 19^th and early 20^th centuries, it was common for wealthy philanthropic benefactors to make substantial gifts of land to educational and religious authorities, specifying in the relevant conveyances that the land was to be used for a particular purpose such as a school, or vicarage.

Gifts made under the SSA are now subject to the Reverter of Sites Act 1987, whereby, in the eventuality of the land ceasing to be used for the specified purpose, a trust in favour of the heirs at law of the original donor arises in respect of the proceeds of any sale of that land.

Facts of the case

In the case of Rittson-Thomas and others v Oxfordshire County Council [2021] UKSC 13, the Supreme Court considered the application of the SSA and whether reverter was triggered based on the timing of events and evidence of intention as to use of proceeds.

In this instance, Oxfordshire County Council was the Trustee of land gifted under the SSA, on which was built a voluntary school, Nettlebed. As the school outgrew its premises, the council built a new school on adjacent land, transferring the students before then selling the original site for approximately £1.2m.

The heirs of the original donor argued that they were entitled to the proceeds from the date on which the school ceased to operate from the gifted land, relying on the interpretation of the SSA set out by the Law Commission in their 1981 report, and the understanding of many practitioners as to the operation of these provisions to date.

The judgment

The Supreme Court held, taking a “broad and practical” and “purposive approach to statutory interpretation”, that the council had demonstrated a clear intention throughout to use the proceeds of sale to cover the costs of the new site and buildings and their ongoing improvement. Providing evidence of this in writing proved to be key in determining that reverter had not, in this case, been triggered.

Commentary

Site trustees will need to be wary of assuming that sale after the cessation of use will always be treated as not capable of triggering reverter. The judgment in this case is of limited scope, and applies specifically to a scenario where the school had moved – rather than closed – further to decisions having been taken by the trustees and the local authority (or Secretary of State), with a clear written intention to meet those funding costs through the sale of the existing or former premises.

The judgment does not address what might have been the case had the school in fact closed, or whether reverter might have applied on part of the site or whether retention of the vacant former premises with the intention of further development for use as a school would have triggered the reverter. It also does not examine the interplay between the SSA and the Education Acts.

That said, the judgment in this case has provided some welcome clarity on the current thinking towards cases such as these, even though further rulings will, as here, turn on the specific facts of the case. Against a backdrop in which many schools are being relocated to new purpose-built premises to meet modern teaching requirements, this case is likely to influence the thinking of local authorities and others, such as religious authorities, which hold their school sites on historic trusts.

If you have any questions about anything covered in this article and how it might affect your school, please get in touch with a member of the Education Team.