Given the Olympic pledge to inspire a generation of young people to take part in physical activity, the government now finds itself in the position of having to defend changes that were made on the eve of the Olympics, which could potentially reduce the amount of outdoor space available to school pupils. These changes, which are contained in School Premises (England) Regulations 2012, were the subject of a consultation in November 2011.
So what has exactly changed?
Under the previous regulations, the minimum area for team game playing fields ranged between 5,000 square metres to 54,000 square metres depending on the number of pupils at the school. In contrast, Regulation 10 of the 2012 Regulations simply states that suitable outdoor space must be provided in order to enable:
- Physical education to be provided to pupils in accordance with the school curriculum.
- Pupils to play outside.
According to the DfE guidance on the standards for school premises, there are two types of outdoor space; the space which is needed for physical education (such as sports pitches and hard surfaced games courts) and space for informal play and socialising (usually both hard and soft surfaced).
In the face of criticism that the changes mean that it will be easier to sell of school land, the government has pointed out that the playing fields:
- Of maintained schools are protected under section 77 of the School Standards and Framework Act 1998.
- At Academies are protected where the land is owned by, and leased from, the local authority, and have been used as a playing field in the last 10 years.
What are the safeguards?
There are various controls over the disposal of land and premises of maintained schools; some are intended to protect the amenity of school playing fields while others protect the value of investment from the public purse in such premises. Section 77 of the School Standards and Framework Act 1998, as amended, governs the disposal of school playing fields which are held by local authorities, governing bodies, foundation bodies and trustees. Guidance on their disposal is contained in DfE guidance dated July 20007. However, that guidance does not yet reflect the changes to the treatment of school land, including changes to section 77, that have been made by the Education Act 2011 (although it is the DfE’s intention to issue updated guidance shortly). In particular, it should be noted that:
- Paragraphs 31-32 of the guidance, which deal with changes of use that are not covered by section 77, do not reflect the repeal of section 77(4). The consent of the Secretary of State is required for change of use of playing fields even where this is for education or recreational facilities.
- In relation to Academy land transfer schemes, the repeal of Schedule 35A to the Education Act 1996 and its replacement by the new Schedule 1 to the Academies Act 2010, is not reflected. For more information, see Practice note, Academies Act 2010: property issues.
The expressed wish of the Secretary of State is that school playing fields continue to be protected. As the application form for consent to dispose or change the use of school playing fields makes clear, the Secretary of State has a presumption against the need to change the current pattern of playing provision at schools. Give the pre-condition that sale of the land should be a last resort, all applicants have to provide details of the alternative sources of funding that were considered before a decision was taken to sell the land. All applications are assessed against the following criteria which are that:
- Any sale proceeds are re-invested and used to improved sports or education facilities. Any new sports facilities must be sustainable for at least ten years.
- Community use of a school’s playing fields is taken into account.
- Playing field provision and curriculum requirements at the school making the disposal, and at other neighbouring schools, continue to be met.
Furthermore, applications are also assessed by the independent School Playing Fields Advisory Panel which will provide the Secretary of State with independent advice on the extent to which it considers the application meets the published criteria. However, despite such assurances, there is widespread concern within local government circles that the government appears to be disregarding the panel’s advice given that, despite its opposition to the selling of such facilities five times in the past 15 months, the sales still went through. Having stated that it approved the disposal of 21 school playing fields since 2010, the government subsequently apologised for publishing the wrong figures when it transpired from newspaper reports that in fact 35 applications were received by the advisory panel between May and July this year. Of these, 30 applications were approved by ministers, two were rejected and one was withdrawn. Two applications remain outstanding.
The Local Government Association has also expressed concern that such sales are likely to increase as more schools pursue Academy status and become exempt from the guidance that applies to other types of schools, and local authorities may be forced to consider selling open spaces to provide funds to make up shortfalls in funding for repair and maintenance of schools buildings.
PLC Public Sector will be publishing a note on the disposal of school land in England.