Commentary Schedule 4: Disposals and changes of use of land
168.Part 1 of Schedule 4 introduces changes in respect of the procedure for the disposal of non-playing field land which has been provided at public expense in England.
169.Schedule 22 to the 1998 Act outlines the procedure to be followed by the governing body, trustees or foundation body of a foundation, voluntary or foundation special school when disposing of certain land that had been acquired or enhanced using certain public funds. The Schedule currently requires the Secretary of State’s consent to the disposal of any such land by a governing body of a foundation, voluntary or foundation special school, by a foundation body, or (in some cases) by the trustees of a foundation or foundation special school. Paragraph 3 of Schedule 22 also requires the trustees of a foundation, voluntary or foundation special school, in cases not requiring the Secretary of State’s consent, to inform the local education authority that maintains the school in question of the disposal and, depending on the status of the land, to agree a payment to the authority out of the proceeds of disposal or to undertake to use the proceeds of disposal for the purposes of that or another school.
170.The new provisions inserted by Schedule 4 now provide that when the governing body or the trustees of a foundation, voluntary or foundation special school, or a foundation body, intend to dispose of publicly funded non-playing field land they must notify the local education authority of their intention to do so and of the use to which they intend to put the publicly funded proceeds of disposal. The authority may object to such a disposal, or to the intended use of the publicly funded proceeds of disposal. It may also claim some or all of the publicly funded proceeds of disposal. Any objection to the disposal, or to the use of the publicly funded proceeds of disposal, or any claim to some or all of such proceeds by the authority which is not agreed with the school, is to be determined by the adjudicator.
171.It will no longer be necessary for governing bodies, foundation bodies or trustees in England to apply to the Secretary of State for consent to dispose of such non-playing field land.
172.For the first time, Schedule 22 will include land that has been acquired or enhanced by grant made on or after 1st April 2007 by the Secretary of State under paragraph 5 of Schedule 3 to the 1998 Act, where notice has been given that such land is to fall within the disposal provisions. The rights of trustees over land which they have provided are protected.
173.The Secretary of State currently has power under paragraph 4 of Schedule 22 to the 1998 Act to require certain land that had been provided using public funds and that is no longer required for the purposes of a foundation, voluntary or foundation special school to be used for a new school or as the site to which an existing school is to be transferred. This power is extended, in relation to England, by paragraphs A23 to A26 of Schedule 22. The categories of land which may be subject to the power are widened; as are the purposes for which the land is required. A local education authority may apply for land to be transferred to it for the purposes of any school or institution which is (or is to be) maintained by the authority or which they have the power to assist; for the purposes of the exercise of any of the authority’s functions; or for the provision of children’s services by or on behalf of the local authority which is that authority in the exercise of certain of their functions as described in section 135(1)(a), (c), (d) or (e). The power to determine whether or not to agree to such a transfer is transferred from the Secretary of State to the adjudicator.
174.Paragraph 5 of Schedule 22 requires the trustees of a foundation or foundation special school to apply to the Secretary of State on discontinuance for a determination as to what should happen to certain land acquired at public expense. At present, this process does not apply to the trustees of voluntary schools which means that, on discontinuance, the land may not be immediately available for use by another school. Schedule 4 brings voluntary schools within the scope of this provision. It also extends the type of land captured. Such land now includes, for example, land acquired, but not enhanced by, grant made on or after 1st April 2007 by the Secretary of State under paragraph 5 of Schedule 3 to the 1998 Act.
175.Part 2 of Schedule 4 amends section 77 of the 1998 Act.
176.Section 77 of the 1998 Act requires a local authority in England, and in certain circumstances, the governing body of a maintained school or a foundation body, to obtain the Secretary of State’s consent before disposing of school playing fields. Schedule 22 to the 1998 Act currently requires the governing body of a foundation, voluntary or foundation special school, or a foundation body, to obtain the Secretary of State’s consent before disposing of any land, including playing fields.
177.The requirement to obtain the Secretary of State’s consent before disposing of any non-playing field land is being removed by Part 1 of Schedule 4. In order to ensure that protection is afforded to all school playing fields provided at public expense, Part 2 of Schedule 4 amends section 77 to include all disposals of school playing fields by the governing body, foundation body or trustees of a foundation, voluntary or foundation special school. In the case of trustees the land must have been provided at public expense and the rights of trustees over their own land are protected. The restrictions in section 77(3) on changes of use of playing field land are also extended so that, in addition to local authorities, they also apply to governing bodies of maintained schools and foundation bodies and, where the land was provided at public expense, the trustees of foundation, voluntary or foundation special schools.
178.Part 3 of Schedule 4 details a number of consequential amendments to other provisions of the 1998 Act.