Updated guidance on the protection of playing fields

The Department for Education (DfE) has recently issued updated guidance Advice on the protection of school playing fields and public land, which explains when consent of the Secretary of State for Education is required to dispose of, or change the use of, playing fields used by schools and how the Secretary of State will consider such applications.

Section 77(1) of the School Standards and Framework Act 1998 ("the Act") provides that consent is required from the Secretary of State prior to the disposal of a playing field which is currently used by a maintained school for the purposes of the school, or which has been used within 10 years of the date of disposal. It applies to disposals made by local authorities, governing bodies of maintained schools, foundation bodies, and trustees of foundation, voluntary or foundation special schools.

Section 77(3) of the Act further provides that consent is required from the Secretary of State prior to the taking of any action which is intended or is likely to result in the change of use of a playing field, which is currently used by a maintained school for the purposes of the school, or which has been used within 10 years of the date of the change of use. The guidance gives examples of a change of use, which include building a new classroom or changing the use to a local authority residential home.

Where a local authority makes playing field land available for an academy by way of a lease, the Act will continue to apply for 10 years from the date the land was last used by the maintained school which is usually the date the school converted to academy status. Once 10 years has passed the Act will no longer apply and the academy will be governed by Schedule 1 of the Academies Act 2010.

For ease of reference the rest of this article refers to a disposal or change of use of a school field as a "Change". The general presumption of the Secretary of State is that there is no need for a Change to take place, especially if the school is to remain open. The presumption protects school playing fields and avoids applicants renting or disposing of playing fields as an easy way to raise income or capital. The guidance advises that applicants must have no expectations that their application will be approved and further warns that no works should be commenced before consent is obtained.

Applicants must show they have exhausted all other options before considering a Change, and where an application is made by a governing body, trustee or foundation body the applicant must prove that the local authority does not object to the Change.

An application for a Change must be made using the correct form and submitted to the Schools Assets Team. Upon receipt of the application, the School Assets Team will check that the application includes all of the relevant information before referring the application to the School Playing Fields Advisory Panel, who will provide the Secretary of State with an independent recommendation as to whether to give consent. The recommendation is purely advisory and not binding. The Secretary of State will then grant or refuse consent, in light of the following criteria:

• School's needs - there is a legal requirement that outdoor space must be provided for physical education together with non-statutory recommendations as to the size of a playing field. The applicant must show that the outdoor space and sports needs of the school can continue to be met;
• Other school's needs - where a local school does not have the recommended outdoor space, the applicant must prove it has offered that school the option to use the area subject to the application;
• The curriculum - the applicant must provide an assessment of the impact of the Change on the curriculum and prove that the curriculum can continue to be met following the Change;
• Community use - any formal community use of the playing field will be taken into account in addition of any after school activities. The applicant must assess the affect of the Change on these activities and investigate whether the activities can be relocated;
• Finance - the applicant must assess the financial consequences of the Change and explain what the proposed funds will be used for. The Secretary of State will require that the funds are used to improve sports and educational facilities;
• Equal opportunities - the needs of pupils with disabilities should be assessed;
• Consultation - applicants must consult on their proposals prior to making an application for at least 6 weeks, 4 weeks of which must be in term time; and
• Other information - such as the future use of the playing field if the application is rejected.

The DfE's guidance expressly states that their advice does not influence or affect the procedures for applying for planning permission, which is a matter for the Local Planning Authority. The applicant will therefore also need to apply to their Local Planning Authority for planning permission, if required for any development or change of use. Sports England will be consulted during the planning process and is likely to impose restrictive conditions in any successful grant of planning permission.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.