Academy playing fields are subject to a number of statutory restrictions relating to disposals and change of use. Playing fields are protected because of the legal requirement that suitable outdoor space is provided for physical activities in accordance with the school curriculum.
Relevant legal provisions are contained in the School Standards and Framework Act 1998 (“SSFA”) and Schedule 1 to the Academies Act 2010 (“AA”). Whilst the SSFA does not apply explicitly to academies, the main section relating to the disposal of playing fields (section 77) will continue to apply for 10 years following use of the land by a maintained school (normally 10 years from the date of conversion). During and after that 10 year period, the protections on disposal of public land included in Schedule 1 to the Academies Act 2010 will impose similar restrictions.
The legislation is extensive and covers:
- the disposal of playing fields used by a maintained school or academy for the purposes of the school; and
- the change of use of the playing fields so that they will not be used by the school or academy as playing fields (apart from where the land will be used by a local authority for the provision of educational or recreational facilities).
The words ‘disposal’ and ‘playing fields’ are to be interpreted widely in the context of the SSFA and AA, and the recent Department for Education guidance “Disposal or Change of Use of Playing Field and School Land” confirmed that playing fields can include land such as hard surface games courts, informal and social areas, hard play areas, habitat areas and local authority parkland even if the land is not currently used for sport or recreation purposes.
Where a change of use or disposal falls within the constraints of the SSFA or the AA, and one of the General Consent Orders does not apply, the Education Funding Agency (“EFA”) must be notified of the proposed disposal or change of use and the written consent of the Secretary of State must be obtained.
There are three General Consent Orders in place. Where a disposal falls under these blank consents, the EFA will have to be notified but the Secretary of State’s consent will not be required. The consents cover a range of situations including where the disposal or change of use is temporary and where the disposal is of a piece of land under 50m² to enable the provision of gas, water or electricity.
Obtaining the Secretary of State’s consent to disposals/changes of use
Applications for consent are made by completing a form available from the DfE’s School Assets Team and applications may be referred to the School Playing Fields Advisory Panel. The Secretary of State will consider the overall balance of the benefit of a disposal against the expected gains to pupils and existing community users. Whilst not an exhaustive list, factors considered by the Secretary for State when undertaking this balancing exercise include:
- suitability of the land for use by an existing or potential academy;
- the effect of the disposal/change of use on the sports curriculum;
- whether the academy has explored alternative options;
- whether the land is used by the community including for after school/out of hours clubs;
- affordability/value for money and whether funds raised are being re-invested into sports facilities;
- the needs of other local schools; and
- whether there are students with disabilities who are going to be adversely affected.
Applications for consent can cause huge delays to commercial deals involving playing fields, it is therefore important to consider the implications of the SSFA and AA from the outset.
A recent example
Eversheds recently advised a client in relation to the disposal of playing fields and the effect of the SSFA. The academy client occupied a site under an occupational licence from the Council and then let a part of the academy to an independent body (“IB”) under a tenancy at will. The academy and IB agreed to extend the area being let to the IB but there were concerns as to whether part of the additional area constituted a playing field under the SSFA, whether the extended letting would constitute a disposal and whether the IB’s intention to undertake construction works to change the use of the area to a playground would come within the SSFA provisions.
We provided advice in relation to the definition of disposal, playing fields and change of use under the SSFA and concluded that the wide scope of the SSFA meant that the provisions did apply to the additional space which was to be let, despite it being some distance from the main playing field area and an inappropriate size or shape to be used for sport. As a result of the above, Secretary of State approval was required before proceeding even though the parties had assumed that it was not necessary.