In certain circumstances a local authority will be placed under a statutory duty to transfer land it has provided for a school to either the school trustees, governing bodies or foundation trust body depending on the type of school.
The Legislation
The statutory duty to transfer the land is contained in the School Standards and Framework Act 1998 (the “SSFA 1998”) and to some extent the Education and Inspections Act 2006.
A statutory transfer can arise in several situations.
Some examples are as follows:
- any buildings on the site which form part of the school premises and have been built on local authority owned land; or
- any hand standing areas or other recreation areas within the local authority’s ownership for example car parks, tarmac play areas which serve the school (this is separate from playing field land); or
- where a maintained school changes status to become a foundation school.
The transfer is at nil consideration with a general understanding that no onerous restrictive covenants or restrictions be placed on the school’s ability to deal with the land within the land transfer deed.
Maintained Schools and Academies
The statutory duty to transfer land applies to maintained schools, mainly voluntary controlled, voluntary aided and foundation schools (with or without a foundation).
After a school becomes an academy there is no statutory duty which requires the local authorities to transfer any school buildings or land and the right to a statutory transfer is essentially lost. This gap in the legislation was addressed in the draft Schools Bill published in May 2022 following the Schools White Paper (Opportunity for All). Whilst the Schools Bill has been scrapped due to widespread opposition, there are still plans to enact legislation to allow trustees to call for academy land used for the purposes of a school.
There are some instances in which a local authority can be persuaded to deal with any outstanding statutory transfers which may have been missed pre-conversion after conversion or transfer any new school buildings which are constructed on local authority playing field to the school trustees to keep with the spirit of the SSFA 1998. However, this depends on each local authority on a case-by-case basis.
It is therefore important that before a school converts to an academy any outstanding statutory transfers are resolved and completed.
The need for a statutory transfer may become more obvious when schools convert to become academies, but statutory transfers can and should be dealt with whether or not the school’s status is changing.
Playing Fields
There is no obligation on the local authority to transfer playing field land under a statutory transfer.
Some disagreement has arisen with local authorities as to what constitutes a playing field for the purposes of a statutory transfer as there is no statutory definition of playing fields in the SSFA 1998.
In these circumstances the Department for Education has maintained that the phrase must be given its ordinary natural meaning. In other words, it must be taken to mean clearly defined playing fields as the expression is commonly understood.
For example, this means grassed areas and multi- use games areas i.e. MUGAs but does not include asphalt play areas around a school.
The Department for Education has also stated that the wide definition of playing field under section 77 of the SSFA 1998 and paragraph 17 of Schedule 1 to the Academies Act 2010 is not to be used here and does not relate to statutory transfers of school land for foundation and voluntary schools under the SSFA 1998 and the Education and Inspections Act 2006.
Foundation Schools
A change in a school’s status to becoming a foundation school without a foundation or a foundation school with a foundation will also trigger the requirement for a statutory transfer.
A change to become a foundation school is a prescribed alteration and the process to make such a change is governed by the Education & Inspections Act 2006 and the School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2007 (as amended). There are several stages to this, involving consultation and decision making. If the proposal is decided in favour of the change then on the implementation date the school becomes a foundation school and a new governing body is formed.
At the same time, there is a statutory transfer of the beneficial ownership of the land used by the school to the governing body or the foundation.
As the beneficial ownership transfers by virtue of the operation of the statutory provisions, the local authority is then under a duty to transfer the legal title of the land by way of entering into and completing the land transfer deed.
All land used primarily by the school for the purposes of the school will transfer. Any shared use or where there are co-located schools will need to be addressed and the extent of the land transferring agreed with the local authority. Any disputes as to the extent of land to be transferred or any refusal by the local authority to transfer land can be referred to the Schools Adjudicator.
Legal Fees
The SSFA 1998 also places a statutory duty on the local authority to pay the reasonable legal fees of the persons to whom the transfer is made.
This position has now been accepted by most local authorities and agreement to this should be sought before completing the statutory transfer to ensure the costs will be paid upon completion.
How we can help
Our specialist property team in our Education Department have experience with consulting on and negotiating statutory transfers and transfers of school sites as a result of a change to foundation status.
The team are familiar with the complexities that may arise and can advise on the implications of these.
They can assist with the entire process, by identifying and verifying the land to be transferred, investigating the title and any other interests or rights affecting the property to be transferred, negotiating, and agreeing the statutory transfer and transfer deed with the local authority including identifying and agreeing the wording for any rights which may need to be granted or reserved.
Further Information
For further information on statutory transfers of maintained schools, transfers of school sites as a result of a change to foundation status and how we can support you, please contact Andrea Squires, Head of Department and Partner, on 0207 593 5039 or asquires@wslaw.co.uk.