Office of Public Sector Information
SCHEDULE 4 continued PART 1 continued
(2) This sub-paragraph applies to any disposal by the trustees of a foundation or foundation special school in England of—
(a) any land acquired by the trustees from the governing body of the school or of another foundation or foundation special school which was land—
(i) acquired by the governing body under a transfer under section 201(1)(a) of the Education Act 1996,
(ii) acquired by the governing body under any of the provisions mentioned in sub-paragraph (1)(b) or under paragraph 8A of this Schedule, or
(iii) acquired by the governing body, or enhanced in value, wholly or partly with the proceeds of disposal of land acquired as mentioned in sub-paragraph (i) or (ii), or
(b) any land acquired, or enhanced in value, wholly or partly with the proceeds of disposal of any land acquired as mentioned in sub-paragraph (1)(b).
(3) This sub-paragraph applies to any disposal by the trustees of a voluntary school in England of—
(a) any land acquired by the trustees from the governing body of the school which was land acquired by the governing body—
(i) under a transfer under section 201(1)(a) of the Education Act 1996, or
(ii) wholly or partly with the proceeds of disposal of any land so acquired,
and transferred by the governing body to be held on trust by the trustees, or
(b) in the case of a school to which sub-paragraph (4) applies, any land acquired, or enhanced in value, wholly or partly by means of expenditure incurred under section 63 or 64 of the Education Act 1996.
(4) This sub-paragraph applies to a voluntary aided school which was, immediately before the appointed day, a controlled school within the meaning of the Education Act 1996.
(5) Sub-paragraph (1)(e) does not apply in the case of any expenditure unless the authority—
(a) prepared an appropriate statement in relation to the expenditure, and
(b) sent a copy of the statement to the trustees either before, or no later than 12 months after, the expenditure was incurred.
(6) An “appropriate statement” in relation to expenditure is a statement in writing which—
(a) contains details of the amount of the expenditure, the acquisition or works funded (or to be funded) by such expenditure, and the total cost (or estimated total cost) of that acquisition or those works, and
(b) indicates that the expenditure was being treated by the authority as expenditure of a capital nature.
(7) Where the trustees of a foundation, voluntary or foundation special school wish, in the case of any land held by them for the purposes of the school, to use the land for purposes not connected with the provision of education in maintained schools the preceding provisions of this paragraph and paragraphs A14 to A16 apply (subject to the modifications specified in paragraphs A14(18), A15(5) and A16(9)) as if any such change of use of the land were a disposal of the land.
(1) This paragraph applies to a disposal of land to which sub-paragraph (1), (2) or (3) of paragraph A13 applies.
(2) But this paragraph only applies to a disposal if, or to the extent that, it comprises a disposal of non-playing field land which does not fall within sub-paragraph (5).
(3) “Non-playing field land” means land which does not include playing fields within the meaning of section 77.
(4) Accordingly, in this paragraph, paragraphs A15 to A17 and paragraph A19—
(a) references to the disposal are to the disposal by the trustees of the non-playing field land, and
(b) references to the land are to that non-playing field land.
(5) A disposal of non-playing field land falls within this sub-paragraph if it is a disposal of—
(a) land acquired under section 60 or 61 of the Education Act 1996, or
(b) land acquired under paragraph 2 or 4 of Schedule 3 to this Act,
by the trustees of an institution which is, or has at any time been, within the further education sector (as defined by section 4(3) of the Education Act 1996).
(6) The trustees must give the local education authority notice of their intention to dispose of the land.
(7) That notification must specify—
(a) the relevant capital expenditure upon which it is proposed the publicly funded proceeds of disposal are to be used, and
(b) the estimated amount of the proceeds of disposal.
(8) For the purposes of this paragraph and paragraphs A15 and A16, the “publicly funded proceeds of disposal” means the proceeds of disposal which are attributable to the land having been acquired or enhanced in value, or both, as the case may be, as mentioned in the relevant paragraph or paragraphs of sub-paragraph (1), (2) or (3) of paragraph A13.
(9) The authority may, within the requisite period, give the trustees any or all of the following—
(a) notice of their objection to the disposal, giving reasons for their objection;
(b) notice of their objection to the proposed use of the publicly funded proceeds of disposal, giving reasons for their objection;
(c) notice of their claim to the whole or a part of the publicly funded proceeds of disposal.
(10) The “requisite period” means the period of 6 weeks beginning with the date upon which the trustees gave notification of the disposal to the authority under sub-paragraph (6).
(11) A notice given under sub-paragraph (9) may be withdrawn at any time by the authority giving the trustees notice to that effect.
(12) The trustees may not make the disposal within the requisite period unless within that period—
(a) the authority give the trustees notice that they relinquish any right to give notice under sub-paragraph (9)(a) in relation to the disposal, or
(b) in a case where the authority give notice of their objection to the disposal in accordance with sub-paragraph (9)(a), the relevant requirements in relation to such a notice are met.
(13) If the authority give notice of their objection to the disposal in accordance with sub-paragraph (9)(a), the trustees may not make the disposal on or after the expiry of the requisite period until the relevant requirements in relation to such a notice are met.
(14) The “relevant requirements” in relation to a notice given under sub-paragraph (9)(a) are met if—
(a) the adjudicator has approved the disposal on a reference made under paragraph A15(1), or
(b) the authority have withdrawn notice of their objection to the disposal in accordance with sub-paragraph (11).
(15) If the authority give either or both of the following notices in relation to the disposal in accordance with sub-paragraph (9)—
(a) notice of their objection to the proposed use of the publicly funded proceeds of disposal under sub-paragraph (9)(b);
(b) notice of their claim to the whole or a part of the publicly funded proceeds of disposal under sub-paragraph (9)(c),
the trustees may not use the publicly funded proceeds of disposal until the relevant requirements in relation to each notice so given are met.
(16) The “relevant requirements” in relation to a notice given under sub-paragraph (9)(b) are met if—
(a) the relevant capital expenditure upon which the publicly funded proceeds of disposal are to be used has been determined in accordance with paragraph A15(2), or
(b) the authority have withdrawn notice of their objection to the proposed use of the publicly funded proceeds of disposal in accordance with sub-paragraph (11).
(17) The “relevant requirements” in relation to a notice given under sub-paragraph (9)(c) are met if—
(a) the “appropriate amount” has been determined in accordance with paragraph A15(3), or
(b) the authority have withdrawn notice of their claim in accordance with sub-paragraph (11).
(18) In its application in the case of a disposal of land to which sub-paragraph (1), (2) or (3) of paragraph A13 applies by virtue of sub-paragraph (7) of that paragraph, this paragraph is modified as follows—
(a) in sub-paragraph (7) for paragraphs (a) and (b) substitute “the purposes for which it is proposed the land is to be used”,
(b) in sub-paragraph (9)—
(i) omit paragraphs (a) and (c), and
(ii) in paragraph (b), for “proposed use of the publicly funded proceeds of disposal” substitute “proposed purposes for which the land is to be used”,
(c) in sub-paragraph (15)—
(i) for “proposed use of the publicly funded proceeds of disposal” substitute “proposed purposes for which the land is to be used”, and
(ii) for “use the publicly funded proceeds of disposal” substitute “use the land for purposes not connected with the provision of education in maintained schools”, and
(d) in sub-paragraph (16)—
(i) for “relevant capital expenditure upon which the publicly funded proceeds of disposal are to be used has” substitute “purposes for which the land is to be used have”, and
(ii) for “proposed use of the publicly funded proceeds of disposal” substitute “proposed purposes for which the land is to be used”.
(1) Where the authority give the trustees notice of their objection to the disposal in accordance with paragraph A14(9)(a), the trustees or the authority may refer the matter to the adjudicator for a determination by him as to whether he approves the disposal.
(2) Where the authority give the trustees notice of their objection to the proposed use of the publicly funded proceeds of disposal in accordance with paragraph A14(9)(b), the relevant capital expenditure upon which those proceeds are to be used is to be determined—
(a) by agreement between the trustees and the authority, or
(b) by the adjudicator where—
(i) the trustees or the authority refer the matter to him for determination, and
(ii) by the time of his determination the matter has not been determined by agreement between the trustees and the authority.
(3) Where the authority give the trustees notice of their claim to the whole or a part of the publicly funded proceeds of disposal in accordance with paragraph A14(9)(c), the amount of those proceeds which it is appropriate for the trustees or their successors to pay to the authority (the “appropriate amount”) is to be determined—
(a) by agreement between the trustees and the authority, or
(b) by the adjudicator where—
(i) the trustees or the authority refer the matter to him for determination, and
(ii) by the time of his determination the matter has not been determined by agreement between the trustees and the authority.
(4) Before making a reference to the adjudicator under sub-paragraph (1), (2)(b) or (3)(b), the trustees or, as the case may be, the authority, must give the other notice of their intention to make the reference.
(5) On a reference under sub-paragraph (1), (2)(b) or (3)(b), the adjudicator may determine the proportion (if any) of the proceeds of disposal that are or will be the publicly funded proceeds of disposal.
(6) In the application of this paragraph in the case of a disposal of land to which sub-paragraph (1), (2) or (3) of paragraph A13 applies by virtue of sub-paragraph (7) of that paragraph, sub-paragraph (2) is modified as follows—
(a) for “proposed use of the publicly funded proceeds of disposal” substitute “proposed purposes for which the land is to be used”, and
(b) for “relevant capital expenditure upon which those proceeds are to be used is” substitute “purposes for which the land is to be used are”.
(1) This paragraph applies where the disposal is made.
(2) The trustees must notify the authority that the disposal has been made and of the amount of the proceeds of disposal.
(3) Where—
(a) the authority gave notice of their claim to the whole or a part of the publicly funded proceeds of disposal in accordance with paragraph A14(9)(c), and
(b) the “appropriate amount” has been determined in accordance with paragraph A15(3) to be an amount greater than zero,
the trustees or their successors must pay the “appropriate amount” to the authority.
(4) The trustees and their successors must ensure that the remaining publicly funded proceeds of disposal are used on the agreed relevant capital expenditure.
(5) If the amount of the remaining publicly funded proceeds of disposal exceeds the amount of the agreed relevant capital expenditure, then the trustees and their successors must ensure that the surplus amount is used on relevant capital expenditure.
(6) The “agreed relevant capital expenditure” means—
(a) in a case where—
(i) no notice of objection to the proposed use of the publicly funded proceeds of disposal was given by the authority in accordance with paragraph A14(9)(b), or
(ii) such a notice was so given and was then withdrawn in accordance with paragraph A14(11),
the relevant capital expenditure specified in the notification of the disposal given to the authority under paragraph A14(6), and
(b) in a case where such notice of objection was so given and was not withdrawn, the relevant capital expenditure upon which the publicly funded proceeds of disposal are to be used as determined in accordance with paragraph A15(2).
(7) The “remaining publicly funded proceeds of disposal” means the amount of the publicly funded proceeds of disposal which remains after deducting the “appropriate amount” (if any) determined in accordance with paragraph A15(3).
(8) Sub-paragraphs (3), (4) and (5) are subject to paragraph A14(15) (restriction on use of publicly funded proceeds of disposal where notices given under paragraph A14(9)(b) or (c)).
(9) In its application in the case of a disposal of land to which sub-paragraph (1), (2) or (3) of paragraph A13 applies by virtue of sub-paragraph (7) of that paragraph, this paragraph is modified as follows—
(a) in sub-paragraph (2) omit the words from “and of the amount” to the end,
(b) in sub-paragraph (4) for “remaining publicly funded proceeds of disposal are used on the agreed relevant capital expenditure” substitute “land is used for the agreed purposes”,
(c) omit sub-paragraph (5), and
(d) in sub-paragraph (6)—
(i) for “agreed relevant capital expenditure” substitute “agreed purposes”,
(ii) for “proposed use of the publicly funded proceeds of disposal” substitute “proposed purposes for which the land is to be used”,
(iii) for “relevant capital expenditure” substitute “proposed purposes”, and
(iv) for “relevant capital expenditure upon which the publicly funded proceeds of disposal are to be used” substitute “purposes for which the land is to be used”.
(1) This paragraph applies where—
(a) the authority gave notice of their objection to the disposal in accordance with paragraph A14(9)(a), and
(b) the adjudicator has determined that he does not approve the disposal.
(2) The trustees may apply to the adjudicator for an order to be made by him requiring the land or any part of the land to be transferred to such local authority as he may specify subject to the payment by that authority of such sum by way of consideration (if any) as he determines to be appropriate.
(3) Before making an application under sub-paragraph (2), the trustees must give the local education authority notice of their intention to make the application.
(1) For the purposes of paragraphs A14 to A16, “relevant capital expenditure”, in relation to a disposal of land by the trustees of a foundation, voluntary or foundation special school, means capital expenditure in relation to the premises of—
(a) the school,
(b) any existing foundation, voluntary or foundation special school, city technology college, city college for the technology of the arts, or Academy, or
(c) any proposed foundation, voluntary or foundation special school, or Academy.
(2) For the purposes of sub-paragraph (1)(c) it is irrelevant whether proposals have yet been published under any enactment in respect of the proposed school or Academy in question.
(1) A local education authority, a governing body, a foundation body and trustees must have regard, in particular, to any guidance given from time to time by the Secretary of State—
(a) in determining whether to give a notice, or make a reference or application to the adjudicator, under any of paragraphs A2 to A17, or
(b) in determining the publicly funded proceeds of disposal or the “appropriate amount” for the purposes of any of those paragraphs.
(2) In determining any matter for the purposes of any of the provisions mentioned in sub-paragraph (1), the adjudicator must have regard, in particular, to any guidance given from time to time by the Secretary of State.
(3) In addition to having regard to guidance as required under sub-paragraph (1)(b) or (2), a local education authority, a governing body, a foundation body, trustees and the adjudicator, must also have regard, in particular, to the factors mentioned in sub-paragraph (4) in determining any of the following for the purposes of any of paragraphs A2 to A17—
(a) the publicly funded proceeds of disposal;
(b) the “appropriate amount”;
(c) the amount of the consideration (if any) to be paid under paragraph A5, A11 or A17.
(4) The factors referred to in sub-paragraph (3) are—
(a) in the case of any disposal, the value of the land as at the date of the determination,
(b) in the case of any disposal, any enhancement in value of the land attributable to expenditure on the land by the local education authority or a relevant person,
(c) in the case of any disposal, any expenditure on the land by a relevant person,
(d) in the case of any disposal, any relevant payments made by a relevant person to the local education authority or the Secretary of State,
(e) in the case of any disposal, to the extent that they do not fall within paragraph (c) or (d), any payments in respect of the acquisition of the land, and
(f) in the case of a disposal falling within paragraph A1(1)(i), paragraph A7(1)(h) or paragraph A13(1)(h) or (k), (2)(a)(iii) or (b), or (3)(a)(ii), the extent to which the proceeds of disposal mentioned in the provision in question were publicly funded proceeds of disposal as defined for the purposes of paragraph A2, A8 or A14, as the case may be.
(5) A “relevant person” means—
(a) in the case of a disposal to which paragraph A2 or A14 applies, the governing body or the trustees of the school in question, and
(b) in the case of a disposal to which paragraph A8 applies, the foundation body in question.
(6) A “relevant payment” means—
(a) in the case of any disposal, a payment in respect of the current school site or sites to which the land relates,
(b) in the case of any disposal, a payment under any of the following provisions—
paragraph 2(6) of Schedule 3;
paragraph 16(5) of Schedule 6 (including that provision as applied by any enactment);
section 60(4) of the Education Act 1996;
paragraph 28(5) of Schedule 2 to the Education and Inspections Act 2006 (including that provision as applied by any enactment), and
(c) in the case of a disposal of land falling within any of the following provisions—
paragraph A1(1)(f) or (g);
paragraph A7(1)(e) or (f);
paragraph A13(1)(g), (i) or (j),
a payment in respect of the grant mentioned in the provision in question.
(7) The reference in sub-paragraph (5)(a) to the governing body or the trustees of the school in question includes—
(a) where the school was established in pursuance of proposals published under section 28(2) or 28A(2), the persons who published the proposals,
(b) where the school was established in pursuance of proposals published under section 70 of the Education Act 2002 or section 66 of the Education Act 2005 which were made by persons other than a local education authority, the persons by whom the proposals were made, and
(c) where the school was established in pursuance of proposals published under any of sections 7, 10 and 11 of the Education and Inspections Act 2006, any persons, other than a local education authority, by whom the proposals were treated for the purposes of Schedule 2 to that Act as having been made.
(8) The reference in sub-paragraph (5)(b) to the foundation body in question includes—
(a) where the school or any of the schools to which the land in question relates was established in pursuance of proposals published under section 28(2) or 28A(2), the persons who published the proposals,
(b) where the school or any of the schools to which the land in question relates was established in pursuance of proposals published under section 70 of the Education Act 2002 or section 66 of the Education Act 2005 which were made by persons other than a local education authority, the persons by whom the proposals were made, and
(c) where the school or any of the schools to which the land in question relates was established in pursuance of proposals published under any of sections 7, 10 and 11 of the Education and Inspections Act 2006, any persons, other than a local education authority, by whom the proposals were treated for the purposes of Schedule 2 to that Act as having been made.
(1) A determination made by the adjudicator on a reference made to him under any of paragraphs A3 to A15 may be varied or revoked by a further determination made by him if—
(a) the matter is referred to him by a relevant person in relation to the determination, and
(b) before making the further determination, the adjudicator consults such persons as he considers appropriate.
(2) A “relevant person” in relation to a determination means—
(a) the local education authority, governing body, foundation body or trustees who made the reference to the adjudicator in relation to which the determination was made, or
(b) any other of those persons who could have made that reference.
(3) In determining whether to make a reference to the adjudicator under sub-paragraph (1)(a), a relevant person must have regard, in particular, to any guidance given from time to time by the Secretary of State.
(4) An order made by the adjudicator on an application under paragraph A5, A11 or A17 may be varied or revoked by a further order made by him if—
(a) an application for its variation or revocation is made to him by an appropriate person in relation to the order, and
(b) before making the further order, the adjudicator consults such persons as he considers appropriate.
(5) An “appropriate person” in relation to an order made under paragraph A5, A11 or A17 means—
(a) the governing body, the foundation body or the trustees, as the case may be, who applied for the order,
(b) the local education authority, or
(c) if different from that authority, the local authority to whom land is required to be transferred under the order.
(6) In determining whether to make an application to the adjudicator under sub-paragraph (4)(a), an appropriate person must have regard, in particular, to any guidance given from time to time by the Secretary of State.
(7) Paragraph A19 applies in relation to the further determination by the adjudicator, by virtue of sub-paragraph (1) or (4), of any matter for the purposes of any of paragraphs A2 to A17 as it applies in relation to the original determination of the matter.
(1) This paragraph applies to the references to capital expenditure in the definition of “relevant capital expenditure” in paragraphs A6, A12 and A18.
(2) Subject to sub-paragraphs (3) and (4), such references are references to—
(a) in the case of paragraph A6, expenditure which, if it were to be incurred by the governing body, would fall to be capitalised in accordance with proper accounting practices;
(b) in the case of paragraph A12, expenditure which, if it were to be incurred by the foundation body, would fall to be capitalised in accordance with proper accounting practices;
(c) in the case of paragraph A18, expenditure which, if it were to be incurred by the trustees, would fall to be capitalised in accordance with proper accounting practices.
(3) The Secretary of State may by regulations prescribe classes or descriptions of expenditure which are to be treated—
(a) for the purposes of paragraph A6 as being, or as not being, capital expenditure of any governing body, or any prescribed class or description of governing body;
(b) for the purposes of paragraph A12 as being, or as not being, capital expenditure of any foundation body, or any prescribed class or description of foundation body;
(c) for the purposes of paragraph A18 as being, or as not being, capital expenditure of any trustees, or any prescribed class or description of trustee.
(4) The Secretary of State may by direction provide that—
(a) expenditure of a particular governing body, which is expenditure of a particular class or description, is to be treated for the purposes of paragraph A6 as being, or as not being, capital expenditure of that body;
(b) expenditure of a particular foundation body, which is expenditure of a particular class or description, is to be treated for the purposes of paragraph A12 as being, or as not being, capital expenditure of that body;
(c) expenditure of particular trustees, which is expenditure of a particular class or description, is to be treated for the purposes of paragraph A18 as being, or as not being, capital expenditure of those persons.
(5) Directions under sub-paragraph (4) may be expressed to have effect in specified circumstances or subject to specified conditions.
(1) For the purposes of paragraph A21, “proper accounting practices”, in relation to a governing or foundation body, or to trustees, means those accounting practices—
(a) which, whether by virtue of any enactment or by reference to any generally recognised published code or otherwise, are regarded as proper accounting practices to be followed in the keeping of accounts by that body, or as the case may be, those persons, or
(b) which, whether by virtue of any enactment or by reference to any generally recognised published code or otherwise, are regarded as proper accounting practices to be followed in the keeping of accounts by the relevant local education authority.
(2) The “relevant local education authority” means the local education authority to whom notice of the disposal in question is required to be given under paragraph A2, A8 or A14.
(3) In the event of conflict between the accounting practices falling within paragraph (a) of sub-paragraph (1) and those falling within paragraph (b) of that sub-paragraph, only those falling within paragraph (a) are to be regarded as proper accounting practices.
(1) A local education authority in England may apply to the adjudicator for a transfer order under this paragraph in relation to publicly funded land which—
(a) is held for the purposes of a foundation, voluntary or foundation special school by the governing body of the school,
(b) is held by a foundation body for the purposes of the group of schools for which it acts, or
(c) is held, or held on trust, for the purposes of a foundation, voluntary or foundation special school by the trustees of the school.
(2) A transfer order is an order requiring the land in relation to which it is made to be transferred by the body or trustees holding it to the authority, subject to the payment by the authority of such sum by way of consideration (if any) as the adjudicator determines to be appropriate.
(3) In determining whether to make an application under sub-paragraph (1) for a transfer order, a local education authority must have regard, in particular, to any guidance given from time to time by the Secretary of State.
(4) Before making an application under sub-paragraph (1) for a transfer order in relation to publicly funded land, the authority must give the body or trustees holding the land notice of the authority’s intention to make the application.
(5) An application under sub-paragraph (1) must state the purpose for which the land to which it relates is required by the authority (“the stated purpose”).
(6) In relation to the content of such an application, a local education authority must have regard, in particular, to any guidance given from time to time by the Secretary of State.
(7) Where an application is made under sub-paragraph (1) for a transfer order in relation to publicly funded land, the adjudicator may make a transfer order if he is satisfied that—
(a) the land is not required for the purposes of the school or, as the case may be, the schools in the group,
(b) the land is required by the authority for the stated purpose,
(c) the stated purpose is a qualifying purpose, and
(d) it is appropriate for the land to be used for that purpose.
(8) For the purposes of sub-paragraph (7)(c) the stated purpose is a qualifying purpose if it falls within one or more of the following descriptions of purpose—
(a) the land is required for the purposes of any school or institution which is, or is to be, maintained by the authority, or which they have power to assist;
(b) the land is otherwise required for the purposes of the exercise of any of the functions of the authority;
(c) the land is required for the provision of children’s services by or on behalf of the local authority who are that authority in the exercise of any of the relevant functions of that local authority.
(9) For the purposes of sub-paragraph (8)(c)—
Education and Inspections Act 2006