Simon Fraser v Canterbury Diocesan Board of Finance (2004)


The trustees of an 1866 trust deed were entitled to the proceeds of sale of part of the site of a school since the land had reverted to the successors in title of the grantor under s.2 School Sites Act 1841, because there had been a cessation of the purpose stipulated in the trusts on which the land was donated for use as a school.


Appeal by trustees against the decision of Lewison J that the ownership of the site of a school did not revert to the successors in title of the grantor, pursuant to s.2 School Sites Act 1841, at any time prior to August 17, 1975. The claimants were the successors in title of the donor of one of the parcels of land which became the site of the school. The land in question was donated by an 1866 trust deed on for use as a school for the education of children and adults in the ecclesiastical district. It was common ground that well before 1975, education ceased to be provided by the school solely for children and adults of the requisite classes in the ecclesiastical district. The school educated children from outside the classes and outside the district. The judge held that although it was a breach of trust for the school to have educated children who were not qualifying persons, the school continued to educate qualifying persons and accordingly did not cease to be used for the purposes for which it had been established until it closed in 1995. Therefore there was no reverter pursuant to s.2 of the 1841 Act before the coming into force of the Reverter of Sites Act 1987 . The trustees of the 1866 trust appealed, arguing that the judge's conclusion was inconsistent with his implicit finding that the beneficiary class had changed and the original purpose had been disregarded.


(Appeal allowed) To take advantage of s.2 of the 1841 Act the trusts had to be for one or more of the purposes specified in the Act. The subsequent adoption of a purpose not specified in the trust deed constituted a breach of trust and caused a cesser of the authorised purposes under the proviso to s.2. The judge had clearly found as a fact that the school had ceased to be used solely for the purpose set out in the trust deed and had been entitled to reach that conclusion. There was a new and wider purpose of the provision of a school for all comers and not just qualifying persons. Having made that finding, it had not been open to the judge to avoid applying the proviso to s.2 on the basis that there were two purposes: a continuing purpose of admitting qualifying persons and a new purpose of admitting non-qualifying persons. He had had to conclude that the original purpose set out in the trust deed had ceased long before August 17, 1975. A reverter occurred automatically and irrevocably long before that date. The authorised purpose would not cease if acts were done which were merely incidental to carrying out the authorised purpose but that was not this case.