If you're a multi-academy trust (MAT), you'll know that most land transactions need consent from the Department for Education (DfE). The DfE's practical guidance document, last updated in September 2021, has now been refreshed. 

Here’s what you need to know about the key changes.

1. Disposals and consent classifications

Requirements around disposal of school land by foundation, voluntary or foundation special schools are clarified. Where such disposal is of non-playing field land at an open school, the disposal must be notified to the Secretary of State (SoS). 

Where such disposal includes playing field land at an open school, consent may also be required. However, such bodies or trustees must apply for consent to the disposal of any school land where the school is closed or is closing permanently.

A useful table is provided on page 9 of the guidance, showing which types of transactions are classified as ‘disposals’ by the School Standards and Framework Act 1998, and which by Schedule 1 to the Academies Act 2010. 

This highlights the differences between treatments of disposals by academies and disposals by foundation and voluntary schools. For example, "disposal" in the Academies Act is not construed to include the grant of a legal charge or the grant of an easement, although consent to these transactions may be required by an academy’s funding agreement.

2. Consent applications and disclosure

There's a pertinent reminder that information provided to the DfE in making a land transaction consent application may be subject to disclosure under a freedom of information request. Given the increased use of such requests by members of school communities, this should be remembered when potentially sensitive information is provided with a consent application.

Applicants are also reminded that SoS consent is entirely different to planning consent - the success of one doesn't guarantee the success of the other.

3. Clarifications for schools and academies

Foundation and voluntary schools are advised that, before making a disposal, they must await the SoS’s decision on whether they will use their power to direct a transfer of the land.

There's a welcome point of clarification that where an academy’s funding agreement requires consent to the grant of a licence, this refers to an occupational licence only, and not to hire agreements or licences for works.

4. The nil value principle

Throughout the guidance there's an emphasis on the "nil value" principle, i.e. the SoS’s expectation that a disposal of publicly funded school land to another public body for educational use or purpose will be at nil value save for costs. 

The policy position is that the public purse shouldn't be required to pay twice for a land asset, and so there should be no profit from that land’s return or continued use by the public sector.

There's simplification of, and clarification on, consultation requirements for the disposal of playing field land. Examples are given of acceptable evidence of the means of consultation, details are expanded as to the stakeholders required to be consulted, and the nil value principle is again highlighted.

5. Solar and telecommunications leases

Expanded guidance is given on the grant of solar leases. A preference is stated for apparatus to be installed on rooftops rather than at ground level, and for solar arrangements to allow for relocation and termination so that site development isn't unnecessarily constrained. 

Applicants wishing to make a Form E application to grant a solar lease now also need to submit Form A or B (the general disposal forms).

On telecommunications leases, the guidance requires relocation flexibility and that no rights be granted beyond those to which operators are entitled by the Electronic Communications Code. It's strongly recommended that applicants seek legal and specialist surveyors’ advice before application. 

As with solar leases, applicants wishing to make a Form F application to grant a telecommunications lease now also need to submit Form A or B (the general disposal forms).

Other notable updates

• If buying land at auction (perhaps not common for schools, but not unheard of), consent should be sought before the auction date.
• On a procedural point, it's explained that the School Playing Field Advisory Panel doesn't consider cases where the disposal would have met the requirements of certain general consent orders, where those general consent orders would have applied to academy trusts in the same way that they apply to local authorities.
• The new guidance also references Form N, a much-welcomed shortened application form for disposals for school-based nurseries.

Our main advice to academy trusts on this topic is to remain mindful of the DfE’s consent requirements whenever they deal with their land. If in doubt, contact our dedicated education real estate team for help.