Land consent for schools – a summary

Whether consent is required or not will be dependent primarily on your title, category of school and type of transaction.

The first point to consider is whether your title is freehold or leasehold. Generally, you have more freedom when you own the land freehold as it is yours outright. With a leasehold title there will be a lease and this will generally contain restrictions as to use. For example, there will likely be restrictions on selling or underletting, alterations and use. You will need to review your lease to ascertain this.

The second point, is to consider whether there are any restrictions on the title. This could be by way of a charge to a lender or third party or a restrictive covenant restricting what the land can be used for.

After the title has been reviewed the next step is to consider the category of school. Maintained schools will be owned by the local authority so there is usually little the school can do with the land without the local authority consent. There are church schools where the diocese owns the land and again use is restricted.

Academies, foundation schools and independent schools will usually own the land by way of the freehold or by way of a lease and therefore have greater possibilities for usage of the land.

Academies and foundations will generally need consent of the Department For Education (DfE) via the Education and Skills Funding Agency (ESFA) for land transactions whereas independent schools will sometimes be owned by a charitable body (and therefore may be required to go through the process of charity consent) otherwise they may be subject to ownership by a trust or simply by an operating company.

ESFA consent is obtained via Submit a school land transaction proposal – GOV.UK and dependant on the transaction there are different forms to be completed. Other points to consider with a sale (of whole or part) include, that different rules can apply to land designated as playing field land. Furthermore, the proceeds of the sale can be claimed by the DfE so it is wise to ensure an agreement is in place with them prior to proceeding with any sale transaction.

The following transactions need consent:

1. Disposal of land
2. Granting of an easement
3. Granting a solar lease
4. Granting a telecoms lease
5. Joint use agreement
6. Change of use (playing field or for non-educational purposes)
7. Acquisition
8. Disposal for a school-based nursery

Some transactions are authorised under general consent orders, details of which are available in the guidance section of the DfE website linked above.

DfE consent is required for any material change. A material change is:

• change of proprietor
• change of address
• change to the age-range of pupils
• change to the maximum number of pupils (registered capacity)
• change to whether the institution is for male or female pupils or both
• starting or ceasing to provide accommodation to pupils (boarding)
• starting to or ceasing to admit pupils with special educational needs (SEN)

In terms of other transactions for independent schools this will be dictated by the title. Where the independent school is a charity then certain disposals will require a Charity report. More information can be found here: Selling, leasing or otherwise disposing of charity land in England and Wales – GOV.UK