Will free schools be free from planning control?

The creation of free schools is one of the government's flagship policies. Anna Eastgate looks at the planning background to this significant initiative.

The government recognised in its Open Source Planning 2007 Policy Green Paper No.14 that there were barriers in the current planning and building control systems which would make the setting up of free schools problematic. They set out the basis for a radical schools policy to encourage the creation of new schools, supported by the Conservative underlying principles of:

• an open source planning system to encourage sustainable development
• restoration of democratic and local control to the planning process, and
• a simpler, quicker, cheaper and less bureaucratic planning system.

In order to address this issue, the government proposes to make significant changes to positively encourage the creation of new community schooling.

These issues were further explored in a joint paper by two organisations closely affiliated to the government, Policy Exchange and New Schools Network, called Blocking the best – obstacles to new, independent state schools, which Browne Jacobson was involved in. The main issues identified are:

Land use

All land uses in the UK are classified with the intention being that users within the same class can use land without the express need for planning permission. Educational establishments are class D1 and in recent years the amount of land available in class D1 has reduced due to local authorities selling off surplus land. The government green paper has therefore proposed changes to ensure that the current stock of land available for new schools is preserved. This will be achieved by requiring that all existing D1 land will be preserved unless the Secretary of State for Children, Schools and Families grants consent.

Planning permission

Obtaining planning permission for educational use can be difficult. Issues such as infrastructure requirements to regulate traffic and the ability for local residents to object to schools being established in a locality through the planning process have been identified. The government proposes to legislate to give permitted development rights to change the use of any existing building to educational use.

Further, they propose a new schools consent regime for new-build programmes which would be assessed against the government’s new national planning framework and would involve a scaled down planning process similar to the infrastructure planning system, involving focussed planning inquiries with the ultimate decision resting with the Secretary of State for Children, Schools and Families.

Environmental and building controls

Those involved with Building Schools for the Future will have first hand experience of the issues with building control and the stringent requirements for educational buildings.

Recognising these issues, Eric Pickles, made a ministerial statement on 26 July 2010 setting out the government’s commitment to localism and the ‘Big Society’ and the need to empower local people to set up schools to respond to local needs. He also recognised that there was a need to simplify the planning process for these projects. He has set out a framework that local planning authorities must now give significant weight to in the decision making process. Local planning authorities are required to:

• attach very significant weight to the desirability of establishing new schools and to enabling local people to do so
• adopt a positive and constructive approach towards applications to create new schools, and seek to mitigate any negative impacts of development through the use of planning conditions or planning obligations, as appropriate, and
• only refuse planning permission for a new school if the adverse planning impacts on the local area outweigh the desirability of establishing a school in that area.

Eric Pickles’ ministerial statement does not go as far as some proposals that had been suggested, such as removing free schools from local planning authority control altogether, but it is a significant step and one that local planning authorities will have to give effect to given its status as a material planning consideration in any applications for free schools which come forward. He did not make any statement in respect of building control so it remains to be seen what changes will be made in this regard when further legislation is proposed during the autumn.

Anna Eastgate is an expert in planning law at Browne Jacobson LLP. She can be contacted on 0115 908 4127 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..