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The Heathen Are Come Into Thine Inheritance: Reverter Of School Sites And The House Of Lords' Decision in Fraser v Canterbury Dbf

Published online by Cambridge University Press:  31 July 2008

Nick Richens
Nick Richens
Affiliation:
Solicitor
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Extract

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On 27 October 2005 the House of Lords' decision in Fraser v Canterbury Diocesan Board of Finance (No 2)—referred to in this Comment as Fraser (No 2)—ended an audacious attempt by the Canterbury Diocese to eliminate the issue of reverter in the majority of school sites affected by it. The media, largely unable to comprehend the legal issues, announced that the decision would lose the Church a lot of money: ‘The widespread practice of selling school sites could prove to be a costly mistake’; ‘Defeat over sale of school land to cost Church millions’.

Type
Comment
Information
Ecclesiastical Law Journal , Volume 8 , Issue 39 , July 2006 , pp. 458 - 463
Copyright
Copyright © Ecclesiastical Law Society 2006

References

1 Fraser v Canterbury Diocesan Board of Finance (No 2) [2005] UKHL 65, [2006] 1 All ER 315, [2005] 3 WLR 964, HL.Google Scholar

2 The same parties had previously litigated in respect of a different school site: Fraser and Fraser v Canterbury Diocesan Board of Finance (No 1) [2001] Ch 669, [2001] 2 WLR 1103, (2001) 6 Ecc LJ 163, CA.Google Scholar

3 The Times, 29 October 2005.Google Scholar

4 Daily Telegraph, 29 October 2005.Google Scholar

5 See the remarks of Sir Wilfrid Green MR in Re Cawston's Conveyance and the School Sites Act 1841 [1940] Ch 27 at 33–34, [1939] 4 All ER 140 at 142, 143.Google Scholar

6 ‘The Children are to be instructed in the Holy Scriptures, and in the Liturgy and Catechism of the Established Church’ (item 1 of the Terms of Union in use from 1839).Google Scholar

7 See Marchant v Onslow [1995] 1 Ch 1, [1994] 2 All ER 707, overruled in Fraser and Fraser v Canterbury Diocesan Board of Finance (No 1) [2001] Ch 669Google Scholar: and see Bath and Wells Diocesan Board of Finance v Jenkinson [2002] EWHC 218, [2003] Ch 89, [2002] 4 All Er 245.Google Scholar

8 Re Ingleton Charity [1956] Ch 585, [1956] 2 All ER 881;Google ScholarRe Rowhook Mission Hall, Horsham [1985] Ch 62, [1984] 3 All ER 179 (not following Re Clayton's Deed Poll [1980] Ch 99, [1979] 2 All ER 1133). See also the Limitation Act 1980. s 15.Google Scholar

9 Reverter of Sites Act 1987, s 1(1).Google Scholar

10 Ibid, s 1(4)(a).

11 Attorney General v Shadwell [1910] 1 Ch 92.Google Scholar

12 Ibid at p 99.

13 Habermehl v Attorney General [1996] EGCS 148. The decision was approved by the Court of Appeal in Fraser and Fraser v Canterbury Diocesan Board of Finance (No 1) [2001] Ch 669.Google Scholar

14 [2003] EWHC 1075, 14 May 2003 (Lewison J).Google Scholar

15 [2004] EWCA Civ 15, 28 January 2004 (Potter and Arden LJJ and Wilson J).Google Scholar

16 Fraser v Canterbury Diocesan Board of Finance (No 2) [2005] UKHL 65, [2006] 1 All ER 315, [2005] 3 WLR 964, HL (Lords Nicholls, Hoffman, Hope, Walker and Brown).Google Scholar

17 Fraser (No 2) [2006] 1 All ER 315 at 329, [2005] 3 All ER 964 at 977, 978.Google Scholar

18 Ibid at 321 and at 969.

19 See the School Standards and Framework Act 1998, s 86.Google Scholar

20 Ibid, s 84.