Land – Charitable trust – Appointment of trustees – Statutory award allotting land to churchwardens and overseers for benefit of parish – Two separate charitable trusts being established – Land being transferred to claimant parish council – Legal interest being vested in claimant subject to all trusts – Preliminary issue arising as to identity of trustees of charities – Whether claimant being sole trustee – Whether claimant having power to appoint new trustees – Preliminary issue determined accordingly
By an award made under the Inclosure Act 1845 two plots of land were allotted for the benefit of the local inhabitants of a parish in Essex, creating two separate charitable trusts. By the first charity, the land was allotted to the churchwardens and overseers to be held by them and their successors in trust as a place for exercise and recreation for the inhabitants of the parish and neighbourhood. The second charity was established under the award by the allotment to the churchwardens and overseers of the poor of a second parcel of land to be held for the labouring poor of the parish.
The legal title to the land was subsequently transferred to the claimant parish council under the Local Government Act 1894, section 5(2)(c) of which provided that the legal interest in all property vested either in the overseers or in the churchwardens, was to be vested in the relevant parish council, subject to all trusts. By section 6(1)(c)(iii), the powers and duties of the churchwardens and overseers of the poor in respect of the charities were transferred to the claimant.
The claimant contended that, following the transfer, it was appointed sole trustee of the charities by virtue of the 1894 Act and (notwithstanding the purported appointment of various councillors as trustees) remained the sole trustee. The defendants were, or were at one time, members of the claimant. They argued that they (or some of them) had been appointed trustees of the charities in place of the claimant, and that the power to appoint further trustees vested in them.
The claimant sought a declaration that it was the sole trustee. It contended that, although there was a power to appoint trustees of parochial charities in rural parishes under section 300(3) and (4) of the Charities Act 2011 (previously section 14(2) of the 1894 Act) that was inconsistent with sections 5(2)(c) and 6(1)(c)(iii) of the 1894 Act and so did not apply to a parochial charity in respect of allotments awarded under the Inclosure Acts.
The court directed the trial of a preliminary issue as to the identity of the current trustees of the charities.
Held: The preliminary issue was determined accordingly.
(1) There was an apparent conflict between section 5(2)(c) and 6(1)(c)(iii) of the 1894 Act, on the one hand, and section 300(4) of the Charities Act 2011 on the other. While the former appeared to have the effect of constituting the claimant the sole trustee of the charities, the latter appeared to have the effect of constituting those persons appointed by the claimant as trustees of the charities.
The preferable reading of sections 5 and 6, together with section 14(2), was that the former were once-in-time provisions that dealt with the position immediately upon coming into force of the 1894 Act (or the coming into office of a parish council if later), transferring all property held by overseers and churchwardens (including that subject to a trust) to the parish council and all powers, duties and liabilities of the overseers and churchwardens in respect of all such property, and village greens and allotments, to the parish council. That necessarily had the effect of appointing the parish council trustee.
Section 14(2), on the other hand, was intended to deal with the position from time to time thereafter (specifically each subsequent four-year period), conferring a power on the parish council to appoint a person or persons other than itself to be trustees of parochial charities. There was always a trustee of the charities because in the absence of the appointment of anyone else, the fact that legal title to the relevant property was vested in the parish council subject to all trusts affecting it meant that the council was necessarily a trustee: Densham v Charity Commissioners for England and Wales [2018] UKUT 402 (TCC) followed.
Therefore, section 14(2) was to be construed as having conferred on the claimant the power to appoint other trustees in its place. There was no reason to construe section 300 of the 2011 Act any differently.
(2) Under section 302(1) of the 2011 Act, any appointment of a charity trustee or trustee for a charity which was made by virtue of sections 299 to 301 had to be for a term of four years, and a retiring trustee was eligible for reappointment.
The only power to appoint trustees under section 14 of the 1894 Act vested in the claimant. The power to appoint trustees for four years could not possibly be construed as a power to be exercised only once. Thus, on the expiry of a four-year term, it was the claimant alone that had the power to appoint for a further four years. The position under the 2011 Act was the same. Under each of sections 299 to 301 it was the claimant that had the power to appoint the relevant trustees. It followed that the power to make an appointment to fill a casual vacancy, under section 302(3), was also a power exercisable only by the claimant.
Accordingly, the claimant had the power, pursuant to section 300(3) and (4) of the 2011 Act, to appoint others to be trustees of the charities, but any such appointment was limited to a period of four years and it was the claimant alone that had the power to appoint further trustees, whether at the end of the relevant four-year term or to fill any vacancies in the interim.
Joshua Winfield (instructed by Tees Law) appeared for the claimant; The first defendant appeared in person; The remaining defendants did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Rettendon Parish Council v Hart and others
