What schools and academies can and can’t do with their premises

Our Education Sector team is  often asked to advise academies on what they can and can’t do with their premises.

In this article, commercial property specialist Bill Butler examines the steps that academies need to take in order to remain legally compliant if they are looking to buy, sell or exchange part of their land or buildings.

Academies’ land and buildings

In some instances, a school may want to share part of its site with a nursery or an after-school club provider or to carry out building works. Sometimes, an academy may want to sell land or swap land.

Although academies are independent, that does not mean they can just do what they like with their estate which is likely to have been publicly-funded. There are lots of legal restrictions which potentially apply to their school land and buildings.

It may also be necessary to get consent to sales, leases or building works, amongst other things. It is crucial to note that compliance is mandatory.

Who needs to comply?

Basically, all academies need to comply. Most academies were previously community schools. They will usually have 125 year leases of their schools and their landlord will usually be the local education authority (such as Kent County Council or Medway Council). Some academies may previously have been other types of school, such as foundation schools, and they may own the freehold of their school.

Church of England academies may partly hold their land from the local education authority and partly from the local diocese. There may be foundations or trusts involved in the land ownership behind the scenes.

Whatever type of school you are or were and whatever the type of land holding arrangement you have, if you are an academy, there are likely to be restrictions and consent requirements when you want to do something significant with your land.

And that means most schools, in fact. At the start of 2021, 37% of primary schools were academies and 78% of secondary schools were academies. The government has just announced an ambition for all state schools to become academies by 2030.

It remains to be seen if schools will be forcibly made to convert this time around; that idea was proposed (and dropped) a few years ago. But it is clear academies are here to stay. In fact, academisation may be set to accelerate.

How do I find out what I need to comply with?

These restrictions and consent requirements come in many forms. They may be in the academy’s lease or title deeds. There are restrictions in the academy funding agreements and the academies financial handbook.

There are statutes and regulations which apply to academies just like everyone else. Schools and academies also need to be aware of special laws which apply only to schools and some which are specific to academies, like the Academies Act 2010. There may be restrictions at HM Land Registry.

All academies need to be familiar with both the regulatory framework and their own school’s compliance obligations.

What is restricted and needs consent?

If you want to proceed with any of the following, then you are very likely to face restrictions or require consents:

• Sell your land
• Sell your playing fields or playgrounds
• Exchange land (land swaps)
• Buy land
• Mortgage land
• Lease land yourself
• Lease land to someone else
• Give up part of your academy lease (surrender)
• Merge with another academy (such as joining a Multi-Academy Trust) and pool your land and buildings in the process
• Give third parties rights over your land (such as rights of way and rights to lay utilities)
• Construct new buildings on your land
• Make structural alterations to your buildings
• Build on school playing fields or playgrounds
• Install major plant and equipment on your land (such as solar panels, renewable energy apparatus or telecoms apparatus)
• Establish a new academy
• Discontinue an academy

You are likely to face restrictions or require consent even where your project may be part of a much larger project. For instance, if a local education authority wishes to sell part of its freehold school land and the academy wants to surrender part of its academy lease, perhaps to a developer, then both are likely to have to get consent.

It may sometimes be necessary to get more than one consent. For example, consent from the Department for Education and planning permission from the local planning authority. It can be more difficult to get consent where playing fields are involved – harder sometimes even than for built-up land.

What consents are needed?

Depending on the type of academy and the type of project, you may need consents from:

• Secretary of State for Education (in practice, through the Education and Skills Funding Agency or the Department for Education)
• Local education authority (LEA)
• The local diocese
• The landlord (usually, but not always, the LEA)
• Foundations or trusts associated with the academy
• Planning authority and building control
• Third parties with legal rights over the school land and buildings, such as former landowners, adjoining landowners and tenants

Getting consent

You should remember that it can take a lot of time, effort and money to follow due process and obtain consent. It will often be necessary to make a formal application to the Secretary of State for Education, usually supported by a business-case.

It can be particularly difficult to get consent when local government or central government is in a ‘pre-election period’ (sometimes known as ‘purdah’) when politically sensitive applications are placed on hold so as not to influence an election.

Unfortunately, this often applies to school projects in the run-up to elections and can lead to very significant delays. It may be necessary to obtain specialist advice, for instance, from a valuer, an architect, a civil engineer or a lawyer. It should not be assumed that getting consent is a ‘rubber-stamping’ exercise. Regulators such as the Department for Education may want to see legal paperwork or do site inspections.

If you are a school within a Multi-Academy Trust (MAT) then you should remember that the legal entity is the MAT not the school. Legal responsibility is likely to fall first and foremost on the MAT trustees rather than the local governing bodies.

The starting point for most academies will be to look at their 125 year lease and their funding agreement. Typically, these will restrict structural alterations and external alterations without landlord’s consent and most types of land disposal/acquisition without the consent of the landlord and The Secretary of State for Education. Academies should always take legal advice on such matters.

Of course, the point of such restrictions and consents is ultimately to protect both the school as a community asset and the public funds used to establish it or enhance it over the years. So, even if they are a headache, they are an essential protection.

Further support

If you require further information or support on the issues covered in this article, please get in touch via the form on the top of this page.

This content is correct at time of publication