Will the Free Schools take off?

Last week's Spectator cover story was about the effectiveness of the teacher's unions and assorted left wing activists in opposing schools changing their status to Academy status or new schools starting up. Astonishingly there are examples of Legal Aid meaning taxpayers money being used for spurious challenges the opening on new schools. The Spectator suggested this could being used against Free Schools. However as Justice Secretary Ken Clarke is due to be trimming the £2.2 billion budget for Legal Aid perhaps this will be tightened up.

When it comes to converting to Academies the news that only 32 extra schools will have done so by the first day of term lends credence to the concerns in The Spectator about the Left's efforts to cause obstruction and delay.

What of the Free Schools? I spoke to Rachel Wolf yesterday for the New Schools Network for a piece I did for the Daily Mail.

She thinks the real problem will not be the politically juicy matters raised by The Spectator but the mundane issue of getting a site for the school. This means the Education Secretary Michael Gove and his colleagues must turn their minds to the tedious but crucial details of planning rules and Building Control regulations. The Government needs to get a move on with their promised changes if they want the School Choice Revolution to be delivered.

The details are provided in this paper for the New Schools Network and Policy Exchange published just before the election but, I'm afraid, still all too current.

It says:

In England, land is categorised according to its use. Residential, commercial, shopping - all have different classifcations. Schools are classified as D1 land, as are other ‘non-residential institutions’ such as libraries, museums, church halls and medical buildings. If you want to set up a school it makes sense to use D1 buildings where possible.

In the absence of permitted development rights (changes allowed without planning permission), changing the use of a building from one use to another requires express planning permission from the local planning authority,  which is time consuming, potentially expensive and does not offer guaranteed success. Second, having land which remains in the D1 category artificially lowers its price because it is not useable by commercial and residential developers (unless they can get permission to change it out of D1) – making it more likely that a school provider could afford the site.

Unfortunately local authorities have gained planning permission to sell off a lot of D1 land in the last decade. This is probably made easier by the fact that the local authority is the freeholder, but also the body which grants planning permission.

Where schools, particularly rural and special schools, have been closed and the buildings have become available, they have often been sold to developers for conversion to residential use. This is partly because local authorities have a statutory duty to obtain best “consideration” (usually meaning value) for the assets they hold. That generally means selling to the highest bidder, which in turn means changing the classi!cation of land to allow for residential and commercial development, removing the price deflation that D1 classification creates.

However, local authorities do also have a general power of ‘wellbeing’ for their area, which could include taking a decision that a school would enhance the lives of residents. This could be used to override the best consideration requirement and permit the sale of land for a school. In order to do so though, except in a few special cases, the Local Authority must both decide it wishes a school to be set up, and apply to the Secretary of State for Communities and Local Government for consent. So even if a local authority is convinced of the need for a new school, consent is not automatic.

The report notes that:

In both Sweden and America, new schools have sprung up in unconventional surroundings. Commercial space, residential space, under-used school space – all have been used by providers with limited funds, often in densely populated urban areas with minimal amounts of land.

The present rules would make it difficult to see that experience replicated here. The report's section on Planning Permission shows how challenging the existing arrangements are:

Traffic
Schools can, and usually do, create more traffic from staff and parents. This can mean local opposition from residents, and is also a consideration for local authorities when reviewing an application for planning permission.

Any planning application includes a requirement for information on whether vehicle access, pedestrian access, or roads will be changed or affected. For schools the answer is generally yes, and you must then submit a ‘traffic assessment’. Part of that assessment is a traffic plan, which all school providers must produce and which costs several thousand pounds. In the case of one independent provider we talked to, they were asked to create more than one traffic plan - the second by people appointed by the local authority at a considerably higher cost than the first.

In the traffic plan local authorities require schools to be located in such a way that they maximise accessibility by walking, cycling and public transport. All traffic plans, including those of schools, must increase sustainable transport, and reduce car usage and unnecessary travel time.

Section 106
Planning obligations created under section 106 of the Town and Country Planning Act 1990 are known as ‘Section 106 obligations’. They are used by councils to secure contributions to infrastructure, services, amenities and other ‘in kind services’.

This usually occurs as a negotiation between the local authority and developer before you even submit a planning application. In the case of schools the requirements are often related to traffic: local authorities can ask for payments for pedestrian crossings, barriers and other off site works. These are extremely expensive - a pedestrian crossing can cost £300,000.

Local protest
Any member of the public can comment on a specific planning application – from design and layout, external appearance, access for the disabled, loss of daylight and privacy, noise, traffic and parking, and loss of use of land - either online or by letter to the council. This is taken into account by the planning officer in determining a planning application. Planning controls to regulate development proposals can be imposed both by planning conditions and by a section 106 planning obligation.

Even after a school is opened the public can protest against ‘breaches’ of “planning control”. For example, they may challenge the fact that too many parents are dropping their children off in front of the building despite a planning agreement or condition stating that they cannot do that. Complaints are all recorded and investigated and if the school is found to be in breach of planning control they can be instructed by the authority to do whatever is deemed necessary to be within the original agreement.

This is usually done through a formal “notice” but could also include court proceedings. For schools procured through BSF or the Partnerships for Schools National Framework, the planning applicant is the local authority, so sponsors have little ability to negotiate reasonable planning conditions and s106 obligations.

School Premises Regulations
The only legislation which prescribes standards in schools is the ‘School Premises Regulations’ which specifes minimum standards for all maintained schools. The regulations are in four key areas: school facilities, accommodation provisions, structural requirements and playing fields. Many of these are sensible.

There should not be snow coming through the roof, and the buildings should not collapse under their own weight. With others, it is unclear why they should be required if we moved to a system where parents have real choice on the kind of school they send their child to. For instance, it seems unnecessary to stipulate in law that there must be a head’s office and a staff room.

The only area of school property which is fully protected is playing fields. The Secretary of State for Children, Schools and Families must give permission to sell or develop playing fields that have been used in the last ten years. At the same time Sport England is a ‘statutory consultee’ on all planning applications that affect sports fields.

As a matter of course they will oppose any planning application which “would lead to the loss of, or would prejudice the use of, all or any part of a playing field, or land last used as a playing field.” This includes playing surfaces such as a playground with a netball hoop – not just a typical green playing field.

Building regulations
Schools in England are subject to ‘building bulletins’ and ‘building regulations’. Some of these – such as those on acoustics and ventilation – are statutory. Others are merely ‘guidelines’, yet sponsors are pushed hard to follow them and have to make a strong case to break away from such things as standard classroom sizes. All add expense to those wishing to build new schools or refurbish existing buildings and make it difficult for sponsors to innovate or develop a building that matches their educational vision.

Building Bulletins 98 and 99 (known commonly as BB98 and BB99) set out nonstatutory guidelines for buildings and grounds in secondary schools and primary schools respectively. Suggestions include how to design a brief for a building project, the key design criteria, and the minimum building and site area requirements for each of the categories of space (there are six for buildings) in a school. While BB98 and BB99 are technically non statutory, in reality new schools must adhere to them. The BSF programme (and its primary school counterpart the Primary Capital Programme (PCP)) will not award money for new projects unless they abide by those regulations. As one sponsor explained: “We had to comply with Building Bulletin 98 and justify areas where we didn’t comply. They are guidelines, but are implemented as hard and fast rules.” This is expensive, particularly for those trying to use existing premises. While buildings are adaptable, being too prescriptive in what they need to be changed into makes it more difficult to keep down costs.

There are a range of other guidelines on space which schools are recommended to follow. They include BB80 and BB88 on science in schools, BB81 on Design and Technology, and BB92 on Modern Foreign Languages.57 There are also publications on kitchens and dining spaces, and sports facilities. Again, while none of these are statutory, in effect they must be complied with before funding for buildings is forthcoming.

What needs to change? One option would be to exempt new schools from "all local planning controls". But the authors concede that would be controversial.

As an alternative they propose the following changes:

1. Schools which are additional alternatives should be free from the building regulations and bulletins which currently apply to schools. Many of the building requirements which apply to schools are an unnecessary block on innovation and should be lifted from all schools. However, there is a key difference between the expectations of schools which children have to attend and the expectations of schools where parents make an active choice. In the former case, some basic minimum standards need to be mandated because parents cannot alter what is happening in any other way. In the latter case, if parents are happy with the conditions of a building (beyond basic health and safety) then that should be sufficient. Therefore while building regulations should be relaxed in all cases, they should be removed altogether in the case of new schools.
2. Schools which replace existing supply should be free from space and design regulations, but should still meet minimum requirements on acoustics, ventilation and lighting.Schools replacing existing schools need higher standards on buildings. However there is still a case for "exibility. Buildings under BSF have been up to ten times as expensive as equivalent schools in Sweden, partly because of the rigidity of the design.
3. BSF should be more "exible about BREEAM ratings in order to take into account the impact on the area, not just the building. It is clearly both wasteful of space, and bad for the environment, if new buildings are built with a large carbon footprint because environmental assessments weigh against refurbishment.
4. There must be a presumption to keep D1 land. Rather than an assumption of best consideration, there should be a presumption that D1 land is kept for school and offered to new providers - unless with the explicit consent of the Secretary of State for Children, Schools and Families.
5. Schools should not be restricted to D1 land. If there are to be a significant number of new schools, they must be able to use more buildings. Schools should be able to use commercial, residential and even industrial property which meets minimal standards.
6. New schools should be encouraged to lease, not buy. Current capital funding comes in one up-front payment, usually through BSF or the PCP programme. If instead there was some additional funding for facilities according to the number of pupils in a school, then providers could choose whether to lease or to borrow against future income to buy. This would also have the advantage of reducing risk to the Treasury – if schools don’t succeed in attracting pupils, they won’t receive any capital funding – and spreading the cost of capital funding over many years.