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(3) Conditions may be prescribed under sub-paragraph (2)(d) by reference to the opinion of the Secretary of State as to any prescribed matter.

(4) An order under this paragraph is an order directing that any land falling within paragraph A13(1)(b) or (2) held by the body corporate on trust for one or more foundation or foundation special schools to which section 23A applies is to be transferred to, and by virtue of the order vest in—

(a) the governing body of the school, or

(b) where the land is held on trust for two or more schools, such of the governing bodies of the schools as the Secretary of State thinks proper.

(5) In a case where—

(a) proposals to establish a new foundation or foundation special school fall to be implemented under Schedule 2 to the Education and Inspections Act 2006, and

(b) the local education authority have before the school opening date transferred land to be held on trust for the school,

references in this paragraph to a foundation or foundation special school include references to a proposed such school, references to a governing body include references to a proposed governing body and for the purpose of sub-paragraph (1) section 23A is to be taken to apply to the proposed school if it would apply to the school when it is established.

(6) In this paragraph—

• “charity” has the same meaning as in the Charities Act 1993;

• “foundation” means a foundation established otherwise than under this Act.”

14 In paragraph 9(1)—

(a) after “paragraph” insert “A5, A11, A17, A23,”, and

(b) for “or 8(2)(b)” substitute “, 8(2)(b) or 8A”.

15 (1) Paragraph 10 is amended as follows.

(2) In sub-paragraph (1) after paragraph (d) insert—

“(e) “the appropriate authority” means—

(i) in relation to a school in England, the Secretary of State, and

(ii) in relation to a school in Wales, the Assembly.”

(3) In sub-paragraph (3) after “paragraphs” insert “A1(1), A13(1), (2) or (3)(a), A24 to A26,”.

(4) In sub-paragraph (4) after “paragraphs” insert “A1(1), A13(1),”.

(5) In sub-paragraph (5) for “paragraph 1(1)” substitute “paragraphs A1(1) and 1(1)”.

16 (1) Paragraph 11 is amended as follows.

(2) For paragraph (a) of sub-paragraph (1) substitute—

“(a) subject to sub-paragraph (7), “capital expenditure” means expenditure of the governing body in question which falls to be capitalised in accordance with proper accounting practices;”.

(3) In paragraph (b) of that sub-paragraph for “that Order” substitute “the Regulatory Reform (Voluntary Aided Schools Liabilities and Funding) (England) Order 2002”.

(4) In sub-paragraph (4) for the words from “, either by agreement” to the end substitute “—

(a) by agreement between the authority and the relevant body, or

(b) by the adjudicator where—

(i) the authority or the relevant body 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 authority and the relevant body.”

(5) After sub-paragraph (4) insert—

“(4A) In determining whether to make a reference to the adjudicator under sub-paragraph (4)(b), the authority or, as the case may be, the relevant body, must have regard, in particular, to any guidance given from time to time by the Secretary of State.

(4B) Before making a reference to the adjudicator under sub-paragraph (4)(b), the authority or, as the case may be, the relevant body, must give the other notice of their intention to make the reference.”

(6) In sub-paragraph (5)—

(a) for “Secretary of State” substitute “adjudicator”, and

(b) after “particular” insert “to any guidance given from time to time by the Secretary of State and”.

(7) After sub-paragraph (5) insert—

“(5A) A determination made by the adjudicator on a reference made to him under sub-paragraph (4)(b) may be varied or revoked by a further determination made by him if—

(a) the matter is referred to him by the local education authority or the relevant body, and

(b) before making the further determination, the adjudicator consults such persons as he considers appropriate.

(5B) In determining whether to make a reference to the adjudicator under sub-paragraph (5A)(a), the local education authority or the relevant body must have regard, in particular, to any guidance given from time to time by the Secretary of State.

(5C) Sub-paragraph (5) applies in relation to the further determination of any matter by the adjudicator, by virtue of sub-paragraph (5A), as it applies in relation to the original determination of the matter.”

(8) After sub-paragraph (6) insert—

“(7) The Secretary of State may—

(a) by regulations prescribe classes or descriptions of expenditure which are to be treated for the purposes of this paragraph as being, or as not being, capital expenditure of any governing body or of any prescribed class or description of governing body;

(b) by direction provide that expenditure of a particular governing body which is expenditure of a particular class or description is to be treated for the purposes of this paragraph as being, or as not being, capital expenditure of that body.

(8) Directions under sub-paragraph (7)(b) may be expressed to have effect in specified circumstances or subject to specified conditions.”

17 After paragraph 11 insert—

“12 (1) For the purposes of paragraph 11(1)(a), “proper accounting practices”, in relation to a governing body, 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 the governing body, 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 local education authority.

(2) 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.”

Part 2 Amendments to section 77 of SSFA 1998

18 (1) Section 77 of SSFA 1998 (control of disposals or changes of use of school playing fields in relation to England) is amended as follows.

(2) In subsection (1)—

(a) for “Except” substitute “Subject to subsections (2A) and (2B), except”, and

(b) after “a body” insert “or trustees”.

(3) For subsection (2) substitute—

“(2) Subsection (1) applies to—

(a) a local authority;

(b) the governing body of a maintained school;

(c) a foundation body;

(d) the trustees of a foundation, voluntary or foundation special school.”

(4) After subsection (2) insert—

“(2A) Subsection (1) applies in the case of a disposal by the trustees of a foundation, voluntary or foundation special school, only if the disposal is of land falling within paragraph A13(1), (2) or (3) of Schedule 22.

(2B) Subsection (1) does not apply—

(a) to a disposal in pursuance of a transfer order under paragraph A23 of that Schedule, or

(b) to a disposal to which paragraph 5 or 6 of Schedule 22 (disposals on discontinuance) applies.”

(5) In subsection (3)—

(a) for “Except” substitute “Subject to subsections (4) and (4A), except”,

(b) for “a local authority” substitute “a body or trustees to whom subsection (1) applies”, and

(c) for “falling within subsection (1)” substitute “which falls within subsection (1) or is excluded from that subsection by subsection (2B)(a) or (b)”.

(6) In subsection (4) omit “by a local authority”.

(7) After subsection (4) insert—

“(4A) Subsection (3) applies in relation to the trustees of a foundation, voluntary or foundation special school only if the playing fields in question are land falling within paragraph A13(1), (2) or (3) of Schedule 22.”

(8) In subsection (7), at the appropriate place, insert—

““maintained school” includes a maintained nursery school;”.

Part 3 Consequential amendments

19 In section 75(2) of SSFA 1998 (transfer of land by governing body to trustees) after “Paragraph” insert “A1 or”.

20 In section 79(1)(b) of SSFA 1998 (stamp duty exemption for certain transfers) after “paragraph” insert “A23,”.

21 In section 138 of SSFA 1998 (orders and regulations), in subsection (2)(b) (orders not made by statutory instrument), for “or 7(3)(c)” substitute “, 7(3)(c) or 8A”.

22 In Schedule 3 to SSFA 1998 (funding of foundation, voluntary and foundation special schools), in paragraph 2, in sub-paragraph (10), after “paragraphs” insert “A1 to A16 or”.

23 In Schedule 32 to SSFA 1998 (transitional provisions and savings), in paragraph 4(4)—

(a) in paragraph (a) for “paragraph 1(1)(d)” substitute “paragraphs A1(1)(f) and 1(1)(d)”,

(b) in paragraph (b) for “paragraph 2(1)(d)” substitute “paragraphs A7(1)(e) and 2(1)(d)”, and

(c) in paragraph (c) for “paragraph 3(1)(e)” substitute “paragraphs A13(1)(g) and 3(1)(e)”.