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CONTENTS 1-3 Playing Fields and Public Access 3-4 Permanent Endowment Changes 4-5 Employment Update 5 Gift Aid Update



Education Law News Spring 2012

Playing Fields and Public Access School playing fields often have the unhappy habit of being

What can be done?

viewed as the next best thing to public parks. Even where clearly

◆◆ Physical avoidance: ensure that any use is interrupted by

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.

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

What are the main potential problems?

others. This needs renewing every 10 years but during the live

A. Implied creation of public footpaths

period is generally effective against a claim which involves use

B. Implied creation of private rights of way

during that period.

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 s

needs to be permitted.

Playing Fields and Public Access (continued)


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.

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.

This can often also be associated with “boundary creep”, where

What is the issue?

neighbours try to enclose parts of the playing field.

The public spirited legislation that created this has led to some

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).

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

C. Town and Village Greens

use of the land.

What does it mean?

Plans for the development of a £92 million pound stadium by

A town and village green is generally an area of open space that

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.

“...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.”

Additionally, keeping any access to approved defined routes (such

What can be done?

as permissive paths: see above) can make a claim much less likely.

If land is Common Land then basically it will have to be accepted.

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

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.

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

Hugh Pearce

local authority.


Permanent Endowment Changes Significant 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.

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

In summary, the key features of the Bill are:

particular covering:

◆◆ trustees must adopt the new statutory total return provisions

◆◆ the resolutions the trustees must make (including steps to

by resolution, subject to their being satisfied that it is in the

be taken before passing a resolution), possible termination or

variation of resolutions and requirements for notification of

become law. Even when it does, the Charity Commission will be

resolutions to the Commission;

required to follow the usual three month consultation on its

◆◆ the investment and expenditure of the fund, including

guidance. It is likely therefore that the new provisions will not

requirements to maintain the long-term value of the funds

be available for several months.

concerned, and requirements to obtain advice and in relation

However, it appears, that once introduced, the proposed new

to the operation of the power of accumulation. In some cases,

statutory provisions will at last offer a flexible solution to the

expenditure will still require the Commission’s consent. This

dilemma of total return investment for permanently endowed

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

If you have any questions regarding anything raised in this article, please contact a member of the charity team.

Ann Phillips Partner

Employment Update There have been a number of interesting developments in

a dispute about the terms of a contract, the court will look at the

employment law over the last year, and this article rounds up

true agreement between the parties, and not rely wholly on the

some of the most relevant.

written agreement. In most cases, employment contracts will

Agency Worker Regulations

have been drafted carefully to ensure that they reflect the actual situation, but over time, roles and responsibilities can change,

These regulations came into force on 1st October 2011, and

so it is worth undertaking a review of contracts with those who

supplement the existing rights of agency workers.

work for your school on a fairly regular basis.

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.

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

If you use agency staff – particularly for supply work – you will

that you will need to show that you have undertaken a meaningful

need to work with the agencies who supply your staff to ensure

consultation first. You will also need to demonstrate the reason

that these regulations are met both for the Agency and the School.

for the pay cut being necessary, and whilst that reason does not

Written Contracts v Reality A recent Supreme Court decision confirmed that where there is

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

Employment Update (continued)

you are considering introducing the possibility of a pay cut, then

Unfair Dismissal

we would recommend seeking specialist advice.

Following the changes to unfair dismissal legislation, which came

References As employers, you will no doubt be well aware of your duty of care towards both the employee seeking the reference, and the future employer, but two recent cases have looked at the extent of this duty. The first case dealt with an ex-employee of a college, who, after a period of time and other employment, obtained a job in the course of which he would be visiting the college as part of his new duties. The college refused to have him on the premises, and gave

into force on 6th April 2012, it has been confirmed that the extension to the minimum period of continuous employment necessary to claim unfair dismissal to 2 years is effective for employees who commenced employment after 6th April 2012. The 1 year period therefore still applies to staff employed before that date.

Successive Fixed Term Contracts A recent case from Germany looked at the justification for keeping an employee on fixed term contracts for more than 4 years, and therefore preventing the employee being deemed to

reasons regarding safeguarding to the current employer, who then

be permanently employed.

dismissed the individual. The individual succeeded in a claim for

The European Court accepted that an objective reason for using

negligent mis-statement, on the grounds that the duty of care

consecutive fixed-term contracts could be where an employer

extended to that ex-employee, despite the time and other periods

needs cover for employees who are temporarily absent due to

of employment in between the college and the new employer.

maternity or parental leave. The ECJ stated that the assessment

On the other hand, the Court of Appeal considered a case in which

of whether the renewal of successive fixed-term contracts is

allegations that came to light after an employee had left, which

intended to cover on a temporary basis is for the national courts

had not been fully investigated, but had been communicated

to decide having regard to all the circumstances.

to a potential employer. This was found to be reasonable in the

If you have any questions regarding any of the above issues, or

circumstances, given the duty of care owed to the future employer,

indeed any other employment concerns, please get in touch with

and there was no requirement for a full, detailed investigation

our employment team.

after the employee had left. The extent to which this applies to statements will depend very much upon the circumstances of

Nick Watson

each case, and if in any doubt, seek legal advice.


Gift Aid Update HMRC have updated their guidance on Gift Aid. The new guidance gives details of the minimum requirements that a Gift Aid declaration must contain before it will be held to be valid by HMRC, and amends a mistake in previous guidance. Charities have until the 31 December 2012 to amend Gift Aid declaration forms to comply with the new guidance, or start using the standard form provided by HMRC. To avoid old declarations still being in circulation after the deadline, we would recommend making the change as early as possible. Previous guidance stated that charities only need to keep records of gift aid declarations for 4 years after the tax year in which the Gift Aid claim as made on that donation. This has been corrected in the new guidance to 6 years. Charities that have acted on the old guidance will not be penalised, but all records should now be kept for 6 years. If you would like any further information on this topic, please contact Vicki Bowles on

Events Stone King has a full programme of seminars/workshops for 2012 which will include Charity Law and Employment Law Updates. We are also involved in joint events with other sector professionals from time to time. Please check our website for the latest information.

Your Contacts Education: Roger Inman Partner Michael King Partner Graham Burns Partner Richard Gold Consultant Michael Brotherton Senior Associate Sarah Clune Solicitor Kate Grimley-Evans Solicitor Nicola Berry Solicitor Lydia Brookes Solicitor Charity: Michael King Partner Robert Meakin Partner Ann Phillips Partner Jonathan Burchfield Partner Stephen Ravenscroft Partner Alexandra Whittaker Associate Vicki Bowles Barrister

Sarah Clune Solicitor Hannah Kubie Solicitor Reema Mathur Solicitor Tom Murdoch Solicitor Darren Hooker Solicitor Commercial Property: Hugh Pearce Partner Stephanie Howarth Partner Corporate and Commercial: Roy Butler Partner Caroline Leviss Associate Employment: Nick Watson Partner Peter Woodhouse Partner Jean Boyle Associate Tamsin Wilkinson Solicitor Victoria Blake HR Consultant Health & Safety: Andrew Banks Senior Associate David Milton Associate

Stone King LLP 13 Queen Square Bath BA1 2HJ Tel. 01225 337599 Fax. 01225 335437 16 St John’s Lane London EC1M 4BS Tel. 020 7796 1007 Fax. 020 7796 1017 Wellington House East Road Cambridge CB1 1BH Tel. 01223 451070 Fax. 01223 451100 New Hall Market Place Melksham Wiltshire SN12 6EX Tel. 01225 337599 Fax. 01225 335437 email:

Š Stone King LLP 04/2012

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