Blog: 10 March 2023 - Trowers & Hamlins, Corporate Partner

Disposal of school land held by a local authority

For most lawyers in local government, anything to do with school land (especially playing fields) would sound a loud siren because of the additional hoops that need to be jumped through in order to ensure a compliant disposal. 

As schools nowadays operate from a much wider range of sites, it can be harder to recognise when the rules on disposals will apply. This will be even more so when the property has perhaps not always historically been used as a school, but for example, has been let on a relatively short-term lease for educational use whilst the authority's asset management strategy has been finalised. In those circumstances, a local authority may inadvertently bring their property into the definition of school land and the additional restrictions on disposal contained in Paragraph 4, Part 1 of Schedule 1 of the Academies Act 2010. 

This legislation provides that consent of the Secretary of State for Education is required when:

• the freehold or leasehold is owned by a local authority;
• the local authority intends to dispose of that land; and
• that land has been used as a school within the last 8 years.

The definition of a school is found within Section 4 of the Education Act 1996, and is quite simply, 'an institution providing primary education, or secondary education or both'. 

A disposal is defined in paragraph 22 (4) of Schedule 1 of the Academies Act 2010 as, 'the transfer or disposal of a freehold or leasehold interest in the land or the grant of a lease in respect of the land.' The exercise of a break right, a surrender, or the granting of an option all come within the definition of a disposal for the purposes of this legislation.

Interestingly, the legislation provides that a disposal will not be invalidated if the local authority does not obtain the consent of the Secretary of State, and that a person acquiring the land 'is not to be concerned as to whether the consent required by sub-paragraph (2) has been given.'

This doesn't absolve the local authority (or the buyer!) of any risk though. If the local authority makes a disposal in contravention of these provisions, the Secretary of State has statutory powers to either repudiate the contract or buy back the land using compulsory purchase powers. The cost of all of this can then be recovered from the local authority. 

If you need assistance with any of the issues raised in this article, please do get in touch.

Lucie Allen

Senior Associate

Real Estate

Trowers & Hamlins LLP

lallen@trowers.com

m +44 (0)7918 692977