Schools Bulletin Independent Education Law News Spring 2012 CONTENTS 1-3 Playing Fields and Public Access 3-4 Permanent Endowment Changes 4-5 Employment Update 5 Gift Aid Update s School playing fields often have the unhappy habit of being viewed as the next best thing to public parks. Even where clearly locked off, it will not be unknown to a number of schools to find youngsters at play. The greater difficulty though is where open land has not (or cannot) be fenced off. Dog walkers, blackberry pickers, or neighbours can all be found crossing school land. There are natural safeguarding and public liability consequences (and insurance is a key issue to consider), but the focus of this article is on the possible unintended property consequences, often with significant value and/or development restriction consequences. We add some thoughts as to protective steps available. What are the main potential problems? A. Implied creation of public footpaths B. Implied creation of private rights of way C. Town and Village Green claims (with a footnote on Common land) A. Public footpaths How can this arise? Once on the Local Highways Authority’s (LHA) definitive plan the footpath is established and so it is worth being clear what they record. It is not an exhaustive list though. A public footpath can also be claimed where there has been use by the public, of a route over private land, as of right as if a public footpath, without interruption, for at least 20 years. The general rule is that once a footpath always a footpath and so termination or diversion becomes a serious problem and access needs to be permitted. What can be done? ◆ ◆ Physical avoidance: ensure that any use is interrupted by blocking the route or indeed securing the whole site. ◆ ◆ Clear maintained signage as evidence to negate the implication that use is as of right. ◆ ◆ Agreement with the LHA that the paths are “permissive paths” i.e. not used as of right. A helpful but not widely known process is a power under the Highways Act 1980 which allows a landowner to deposit a map and statement with the LHA, showing admitted public paths (if any) and declaring that there is no intention to allow creation of others. This needs renewing every 10 years but during the live period is generally effective against a claim which involves use during that period. Playing Fields and Public Access
Transcript
SchoolsBulletin
Independent
Education Law News Spring 2012
CONTENTS
1-3 Playing Fields and Public Access
3-4 Permanent Endowment Changes
4-5 Employment Update
5 Gift Aid Update
s
School playing fields often have the unhappy habit of being
viewed as the next best thing to public parks. Even where clearly
locked off, it will not be unknown to a number of schools to find
youngsters at play. The greater difficulty though is where open
land has not (or cannot) be fenced off. Dog walkers, blackberry
pickers, or neighbours can all be found crossing school land.
There are natural safeguarding and public liability consequences
(and insurance is a key issue to consider), but the focus of this article
is on the possible unintended property consequences, often with
significant value and/or development restriction consequences.
We add some thoughts as to protective steps available.
What are the main potential problems? A. Implied creation of public footpaths
B. Implied creation of private rights of way
C. Town and Village Green claims (with a footnote on Common land)
A. Public footpaths
How can this arise? Once on the Local Highways Authority’s (LHA) definitive plan the
footpath is established and so it is worth being clear what they
record. It is not an exhaustive list though.
A public footpath can also be claimed where there has been use
by the public, of a route over private land, as of right as if a public
footpath, without interruption, for at least 20 years.
The general rule is that once a footpath always a footpath and so
termination or diversion becomes a serious problem and access
needs to be permitted.
What can be done? ◆◆ Physical avoidance: ensure that any use is interrupted by
blocking the route or indeed securing the whole site.
◆◆ Clear maintained signage as evidence to negate the implication
that use is as of right.
◆◆ Agreement with the LHA that the paths are “permissive paths”
i.e. not used as of right.
A helpful but not widely known process is a power under the
Highways Act 1980 which allows a landowner to deposit a map
and statement with the LHA, showing admitted public paths (if
any) and declaring that there is no intention to allow creation of
others. This needs renewing every 10 years but during the live
period is generally effective against a claim which involves use
during that period.
Playing Fields and Public Access
s B. Private rights of way
How can this arise? If there is continuous, long use (20 years plus), as of right, of a
route over private land by the owners of other property, for the
benefit of that other property, openly, without force, without
needing permission, then an implied private right of way may
arise. This is independent of any public rights.
Common school experience is for neighbours to open gates in the
boundary with playing fields/open land, to allow for short cuts etc.
This can often also be associated with “boundary creep”, where
neighbours try to enclose parts of the playing field.
What can be done? ◆◆ Here the user usually needs to be confronted, so as to break
the chain of use as of right. This need not be aggressive unless
the user takes an aggressive stance: usually an approach
which by implication assumes “inadvertent oversight” by the
neighbour, and plays up the Trustee duties to safeguard pupils
and preserve school assets is all that is needed.
◆◆ If the fact of use is not a problem for the landowner, a personal,
terminable licence can be agreed, but each user needs
addressing, on a case by case basis.
◆◆ In default, the access point can be blocked so as to prevent the
use (including adding internal fencing to any boundary gates
created by neighbours).
C. Town and Village Greens
What does it mean? A town and village green is generally an area of open space that
inhabitants of a town, village or parish claim has been used
historically for the purposes of recreation and playing lawful
games. They are defined by the inclusion of a number of key
features, as follows:
◆◆ Use by a significant number of inhabitants.
◆◆ Use by inhabitants of locality or neighbourhood.
◆◆ Use as of right.
◆◆ Use for lawful sports and pastimes.
◆◆ Use for at least 20 years.
What is the issue? The public spirited legislation that created this has led to some
unexpected results. Beneficent private landowners who have
turned a blind eye to public use of their land as a good neighbour
(such as schools with extensive grounds), have found this law has
been used by those looking to inhibit development of the land
affected. Where land is registered as a town or village green, it is
protected by longstanding legislation that means the land cannot,
in effect, be developed and is to be open to a permanent level of
public use (akin to common land type protection: see footnote).
Practical Examples that triggered the right: why it matters? There is a recent case where local objectors succeeded in preventing
development of a golf course. The objectors were members of the
public walking dogs on the golf course and their claim succeeded
even though they had always given priority to the golfers in their
use of the land.
Plans for the development of a £92 million pound stadium by
Bristol City FC are being much delayed by an application by locals
for the land to be designated as town and village green. The case
has not yet been decided but demonstrates the difficulty that can
arise – and the hindrance that such an application can cause to a
land owner - where such an application is made by local land users.
What can be done? There is no simple way to make the land immune. Strong
indications that any use is by permission only may assist, but
in effect appropriate notices, plus monitoring and challenge/
expulsion will assist, if acceptable on grounds of policy. Recent
case law has focussed on the need for appropriate wording and
good positioning of signage.
Playing Fields and Public Access (continued)
Permanent Endowment ChangesSignificant changes are afoot for permanently endowed charities.
The Trusts (Capital and Income) Bill recently introduced in
the House of Lords will, for the first time, give trustees with
permanent endowment who wish to invest on a total return
basis, a statutory power to operate without the usual restrictions
on capital expenditure. Trustees can adopt the provisions by
resolution, subject to compliance with regulations to be made
by the Charity Commission.
At present, trustees of charities with permanent endowment can
only operate a total return approach to investment and distribution
of returns if they have a Charity Commission total return order.
The Commission’s orders are somewhat complex in operation
and have not proved to be a universal solution to the problems of
total return investment. The Law Commission therefore proposed
a new statutory total return regime for permanently endowed
charities and it is these proposals that are now reflected in the
Bill. Whilst much will depend on what is in the Commission’s
regulations, the proposals in the Bill certainly appear to offer a
more flexible framework.
In summary, the key features of the Bill are:
◆◆ trustees must adopt the new statutory total return provisions
by resolution, subject to their being satisfied that it is in the
interests of the charity to do so;
◆◆ no Charity Commission Order or consent is required;
◆◆ the permanent endowment funds will be freed from the
restrictions otherwise applying to them on expenditure of
capital but the trustees are bound instead by regulations that
are to be made by the Charity Commission;
◆◆ the statutory provisions must be adopted for the whole
endowment fund concerned but charities can adopt the new
provisions in relation to some, but not all, of their separate
endowment funds if they think this appropriate – separate
consideration and separate resolutions will be needed for each
fund;
◆◆ the statutory provisions include a power of accumulation
without limit in time, to allow any unexpended income in a
year to be added to the capital of the fund;
◆◆ existing Charity Commission total return orders will cease to
have effect;
The Charity Commission is given power to make regulations in
particular covering:
◆◆ the resolutions the trustees must make (including steps to
be taken before passing a resolution), possible termination or
Additionally, keeping any access to approved defined routes (such
as permissive paths: see above) can make a claim much less likely.
There has been DEFRA consultation on the introduction of a
“declaration by landowner” which, parallel to the Highways Act
declaration above, can set up a public rebuttal of the land becoming
a town and village green. Consultation on this proposal closed
last autumn, and we await any further developments, however,
any such change would need primary legislation.
Footnote: Common Land
What is the issue? This is related to town and village greens. It is simple to establish
whether it applies to your land, as it will be registered at the
local authority.
What can be done? If land is Common Land then basically it will have to be accepted.
Conclusion Public use of playing fields can lead to unintended consequences
for a land owner. Care is needed to keep a management eye
on use of open land by third parties so as to avoid unnecessary
restrictions being created over the land.
If you have any questions or concerns about anything raised in
this article, please get in contact with our property team.
“...for the first time, give trustees with permanent endowment who wish to invest on a total return basis, a statutory power to operate without the usual restrictions on capital expenditure.”
There have been a number of interesting developments in
employment law over the last year, and this article rounds up
some of the most relevant.
Agency Worker Regulations These regulations came into force on 1st October 2011, and
supplement the existing rights of agency workers.
In particular, from the first day of work, agency workers are to
have the same access to facilities and amenities (such as the staff
canteen, teacher’s lounge, and information on internal vacancies)
as other staff. After a 12 week “qualifying period”, they are to be
given the same “basic working and employment conditions”
relating to pay, duration of working time, night work, rest periods
and annual leave. Pay specifically excludes certain payments that
relate to occupational sick pay, pensions, allowances or gratuities
in connection with retirement or compensation for loss of office,
and payment of maternity, paternity and adoption leave.
If you use agency staff – particularly for supply work – you will
need to work with the agencies who supply your staff to ensure
that these regulations are met both for the Agency and the School.
Written Contracts v Reality A recent Supreme Court decision confirmed that where there is
a dispute about the terms of a contract, the court will look at the
true agreement between the parties, and not rely wholly on the
written agreement. In most cases, employment contracts will
have been drafted carefully to ensure that they reflect the actual
situation, but over time, roles and responsibilities can change,
so it is worth undertaking a review of contracts with those who
work for your school on a fairly regular basis.
Long Term Sickness and Statutory Holiday Pay A recent decision from the Employment Appeals Tribunal confirmed
that when an employee is on long term sick leave, they are entitled
to be paid for statutory holiday only if they actually take it, or give
notice to their employer that they intend to take it.
Introducing a Pay Cut In the current economic climate, many businesses are having to
think about reducing costs, and schools are no exception to this.
If you are considering asking staff to take a pay cut, bear in mind
that you will need to show that you have undertaken a meaningful
consultation first. You will also need to demonstrate the reason
for the pay cut being necessary, and whilst that reason does not
need to be special or extraordinary, and you do not need to show
that survival of the school depends upon the cut, you do need to
be able to show that there is a good sound, business reason. If
variation of resolutions and requirements for notification of
resolutions to the Commission;
◆◆ the investment and expenditure of the fund, including
requirements to maintain the long-term value of the funds
concerned, and requirements to obtain advice and in relation
to the operation of the power of accumulation. In some cases,
expenditure will still require the Commission’s consent. This
will no doubt be required for major expenditure of a “capital”
nature which could not be said to reflect a standard annual
distribution of return and may affect the long-term value of
the fund.
◆◆ accounting/reporting requirements; and
◆◆ steps to be taken if the resolution ceases to have effect.
There is no clear indication as yet when the Bill will progress and
become law. Even when it does, the Charity Commission will be
required to follow the usual three month consultation on its
guidance. It is likely therefore that the new provisions will not
be available for several months.
However, it appears, that once introduced, the proposed new
statutory provisions will at last offer a flexible solution to the
dilemma of total return investment for permanently endowed
charities.
If you have any questions regarding anything raised in this article,
Independent Schools Bulletin deals with some current legal topics. It should not be used as an alternative to specific legal advice on the individual circumstances of a particular problem. Stone King LLP - registered limited liability partnership no OC315280, registered office 13 Queen Square, Bath BA1 2HJ
