All Fun and Games… Unless You Try to Sell Your Playing Fields
On 20 January 2016, the Local Area Referendum (Disposal of School Playing Fields) Bill 2015-16 was published.
This Private Members Bill had originally been introduced to Parliament on 29 June 2015, and its second reading will take place on 22 April 2016. If passed, the Bill would add to the existing restrictions on academies disposing of property.
Disposals and the Secretary of State - Current Position
There is a very strong presumption against the disposal of school playing field land, which is driven by the policy that all academies must provide suitable outdoor space for pupils' physical education, and the allied policy of preventing such land (and any public investment in that land) from being lost to public use.
At present, the Secretary of State's consent is required where an academy proposes to dispose of, or change the use of its playing field land. The academy must first consult adequately on the proposals, before notifying the Education Funding Agency (EFA) of any proposed disposal, using prescribed forms before any agreement to dispose of the land is entered into.
When considering any application, the Secretary of State aims to balance the benefit to the school, other local schools and the wider community, against the impact on the pupils of the loss of the land and, crucially, whether the disposal will mean that the academy is left with insufficient playing field land. In doing so, the Secretary of State will itself consult with its panel of consultees, which includes Sport England.
As well as controlling whether or not the disposal can take place, the Secretary of State also has the discretion to direct how any proceeds of sale are used. First priority is usually given to reinvestment in sports facilities at the school, but it is also possible that the academy can be directed so that all disposal proceeds are paid to the Secretary of State.
Furthermore, under the terms of the Funding Agreement, the Secretary of the State has the power to require an academy to share occupation of its site with another academy, if it considers that the academy has surplus land for its requirements.
Potential Changes
The Bill would prevent academies in England from selling land, except in accordance with the scheme set out by the Bill, and will require bodies proposing to sell school playing field land to undertake a public consultation on the proposed sale.
The biggest difference from the current position is that if a petition of objection to the sale, signed by eligible persons, is received in answer to the consultation, a local area referendum must be held on the sale. The local area referendum should be organised by the local authority (in which the playing field is located), but further details of the procedure and timeframe for the referendum are not yet available.
The Bill further states that where a local area referendum finds reasons against a proposal to sell school playing field land, then that land cannot be offered for sale for a further ten years (except in certain circumstances).
Next Steps
Academies should take note of the consent requirements when considering disposing or the changing of use for playing field land, as well as the ability of the Secretary of State to influence the terms of the disposal, combined with the powers of the Secretary of State contained in the Funding Agreement. Academies should watch this space to see if these requirements are enhanced by the passing of this Bill.
We have a team of property lawyers who specialise in advising our academy clients on a variety of property transactions and guidance on which consents are required to authorise those transactions.