For certain land transactions involving school land, including granting leases to third parties, you may be required to obtain consent from or notify the Secretary of State (SoS). New freedoms have also been introduced in the September 2024 Academy Trust Handbook relating to finance leases.
The Legislation and the Rules
The rules around land transactions and the requirement for obtaining consent are found in Schedule 1 of the Academies Act 2010, Section 77 and Schedule 22 of the School Standards and Framework Act 1998 (SSFA 1998).
Different rules apply depending on:
- Who holds the school land
- What land transaction is taking place
- What type of land is involved i.e. non-playing field land or playing field land
Playing field land is land in the open air which is provided for the purposes of physical education or recreation. It does not need to be exclusively used for curriculum purposes. Non-playing field land is school land which is not playing field land, such as circulation or amenity space, hinterland (often used for forest schools) and car parking.
More than one set of rules may apply to a land transaction. More than one entity can have a legal interest in the land at the same time. For example, a local authority might hold the freehold interest in the school site and an academy trust holds a leasehold interest in the same school site. If there is a land transaction at the school, both the local authority and the academy trust may need to apply and obtain consent.
What is a disposal and when is consent required?
A disposal is defined in the SSFA 1998 as being the disposal of ‘any interest’ in land, whether it be granting a new interest or disposing of an existing interest in land, including entering into a contract to grant or dispose of any interest or the granting an option to purchase an interest in land.
‘Any interest’ in land is a broad definition which includes leases, charges, rights and and easements.
This will include the sale of land, the grant of a new lease, the surrender of a lease and the grant of an easement, such as a right of way.
‘Disposal’ in Schedule 1 to the Academies Act 2010 means the transfer or disposal of a freehold or leasehold interest in the land or the grant of a lease. This is not as wide as ‘any interest’ in land.
This will include selling land, grant of a new lease, surrender of a lease etc.
Governing bodies, foundation bodies or trustees of foundation, voluntary or foundation special schools are required to notify the SoS to dispose of publicly funded non-playing field. For playing field land, consent must be obtained from the SoS.
For academies and academy trusts, consent may also be required under their funding agreement and the Academy Trust Handbook. For example, consent is required for:
- Acquiring land
- Disposing of land
- Taking a lease for a term of more than 7 years
- Granting a lease or tenancy – including Assured Shorthold Tenancies (ASTs)
- Granting an easement
- Entering a restriction on the title of the land at the Land Registry
- Entering into a joint use/shared use/community use agreement
If the SoS gives consent you may be required to make changes to your funding agreement and you will be notified of this when the consent is issued.
How to apply and obtain consent?
The Education Skills and Funding Agency (ESFA) handle consents/notifications for the SoS.
An application must be made using one of the forms provided. What form is used depends on the land transaction being proposed.
The forms are extensive and require a fair amount of information, for example:
- Up to date title documents
- Plans/photographs/aerial images of the area being disposed of
- A full description of the proposed disposal including any draft documentation. If draft documentation is not yet available, some type of heads of terms will be needed
- The school’s current amount of playing field in m2
- Evidence of adequate consultation if playing field land is being disposed of
- A recent (within the last 3 months) red book valuation report undertaken by an independent registered valuer licensed by the RICS of the estimated open market value of the land or building to confirm either the sale price or the rental value.
Our advice would be to begin collating the information once a land transaction is proposed.
Once the form has been completed it must be signed by the accounting officer. The signed and completed form is to be sent to the ESFA by email or through their portal with any documents/information referred to in the form.
The ESFA will allocate a project lead who will then carry out an initial review and raise further questions and may require further information or evidence.
Once all the enquiries have been answered and considered, the project lead will present the application to a decision maker who will then make a final decision.
If consent is granted, a letter is issued confirming the SoS has consented to the land transaction, summarising the details of the transaction and setting out any conditions to the consent.
You must not enter into the land transaction (or commit to doing so by way of contract) until you have the consent letter. There is no guarantee that consent will be given, therefore, you should not make any disposal of land, commence any works or allow any third party into occupation, until the consent letter has been issued.
You may also need other consents – such as Landlord’s consent. planning permission or significant change, this is outside the scope of this briefing note, but we can advise further if required.
If you do not obtain consent where required, the consequences could be serious. For example, if you are an academy trust you could be in breach of your funding agreement, triggering a financial notice to improve.
We would encourage you to consider any need for consents at the very outset of a transaction and look to submit your application as early as possible. The ESFA do try to respond quickly, but if the land transaction is complex or in some way controversial, obtaining consent can be a lengthy process. We can assist with the entire process and help to submit your application as quickly as possible.
Playing Field Land
As mentioned above the definition of playing field land is land in the open air which is provided for the purposes of physical education or recreation.
There are five types of playing field within the definition. These are:
- Soft outdoor PE area
- Hard outdoor PE area
- Soft informal and social areas
- Hard informal and social areas
- Habitat areas
As part of the application to dispose of playing field land you will be asked to provide details of your school guideline area of playing field in m², the full calculation of your school’s guideline area of playing field and your school’s current amount of playing field land, in m².
There is guidance available on how to calculate these amounts.
After the project lead has carried out their initial review and received replies to any follow up queries it is likely that they will refer the application to the School Playing Fields Advisory Panel.
The purpose of the Panel is to provide the SoS with independent and objective advice on the extent to which each application meets current policy and legislation. Other stakeholders will be consulted such as the local authority and Sport England. The Panel makes a recommendation to the SoS, who will consider the Panel’s independent advice, along with the information provided with the application.
The Panel meets on average about once a month to consider any applications and the process can be time consuming.
Needless to say, there is a strong policy presumption against the disposal of playing field land unless there is like for like re-provision.
A list is available of all playing field land disposals since 2010 where consent has been approved and can be found at the following link: https://www.gov.uk/government/publications/school-land-decisions-about-disposals/decisions-on-the-disposal-of-school-land
Change of Use
Similar considerations apply if a change of use of playing field land is being contemplated, for example if there is to be expansion onto the playing field. This will not include the installing of a multi-use games area (MUGA), the erection of changing rooms or any temporary facility for housing sports or gym equipment.
The 2024 edition of the Academy Trust Handbook now gives academies the power to enter into a finance lease (as opposed to the more usual operating lease giving someone the right to use or occupy land or property exclusively) for very limited purposes without the need for prior consent. This includes:
- leases of gym equipment
- leases of grounds keeping equipment
- leases related to temporary classrooms and equivalent structures.
How we can help
Our specialist schools property team have experience advising on and obtaining SoS consent on a wide range of land transactions.
The team are familiar with the complexities that may arise, including trustee ownership and can advise on the implications of these.
They can assist with the entire process, by advising on the consent requirements, assisting with completion and submission of the application form, dealing with the project lead and providing replies to their enquiries, reviewing and advising on the consent letter including any conditions and carrying out any follow up actions that may be required, for example amending the academy trust’s funding agreement.
For further information, please contact:
Andrea Squires, Head of Department and Partner, on 0207 593 5039 or asquires@wslaw.co.uk.
Zahraa Ilmass, Senior Associate, on 0203 735 1939 or zilmass@wslaw.co.uk
Sonia Din, Associate, on 020 7593 0326 or sdin@wslaw.co.uk