In the case of Rettendon Parish Council v The Charity Commission for England and Wales , Mr Justice Zacaroli had to decide on two issues relating to two charitable trusts that had been created in 1861 over two parcels of land allotted for the benefit of the local inhabitants of Rettendon:
- Who had the power to appoint Trustees under the Charities?
- Who were the current Trustees of the Charities?
Rettendon Parish Council v The Charity Commission for England and Wales
The gist of the Defendants’ (who claimed to be Trustees of the Charities) argument was that they believed that they were appointed as Trustees of the Charities during General Meetings that took place between 2013 and 2017. The primary job of the presiding Judge was to reconcile the conflict between Sections 5 and 6 of the Local Government Act 1894, the Charities Act 2011 (which re-enacted section 14 of the Local Government Act 1894), and the Trustees Act 1925.
In respect of the first of the two issues, Mr Justice Zacarli confirmed:
“63. In my judgment, the preferable reading of sections 5 and 6 together with s.14(2) is as follows. 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. This necessarily had the effect of appointing the parish council trustee.
64. Section 14(2), on the other hand, is 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. As the FTT in Denshamrecognised, there is 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 is vested in the parish council subject to all trusts affecting it means that the council is necessarily a trustee.
65. Accordingly, I conclude that s.14(2) is to be construed as having conferred on the Council the power to appoint other trustees in its place…The expiry of a trustee’s term is not expressly identified within s.36 [of the Trustee Act] and I do not think that it can be equated with the death, absence from the United Kingdom or desire to be discharged from duties as a trustee…
66. The only power to appoint trustees under s.14 of the 1894 Act vested in the Council. 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 is the Council and the Council alone that has the power to appoint for a further four years.”
Having determined who had the power to appoint Trustees, the Judge was then able to distill from the evidence who the current Trustees were at the relevant times. He stated:
“76. On the basis of the legal conclusion I have reached above, the following appointments have taken place according to the minutes of the Council’s meetings referred to above.
77. First, on 20 May 2013, Councillors Copsey, Davies, fallows, Havard and Prebble were appointed trustees to both Charities. Those appointments were necessarily for a four-year term, by reason of s.302(1) of the 2011 Act. The appointments therefore expired on 19 May 2017.
78. The conclusion that their appointment expired on 19 May 2017 remains notwithstanding the purported appointments of all Councillors as trustees of both Charities on 19 May 2014. So far as the Councillors appointed in May 2013 are concerned, I do not think that the purported appointment in May 2014 was of any effect. Insofar as any additional or replacement trustees were appointed in May 2014, then such appointment could not be for longer than the remainder of the existing four-year term, pursuant to s.302(3) of the 2011 Act.
79. By July 2017, therefore, there were formally no remaining trustees. It was thus open to the Council to appoint trustees for a further four-year term. That, in my judgment, was the effect of the resolution passed at the extraordinary general meeting of 25 July 2017 which “affirmed in their appointment as trustees” Councillors Ride, D Fleming, M Fleming, Jones and Copsey. Those Councillors therefore remain (subject to any retirement in the meantime) the trustees of both Charities.”
This judgment is likely to provide welcome clarity for many long-established trusts operated by Parish Councils.
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