Nicholas Hancox

PRACTICE NOTES

Academy and free school land (England): Academies Act 2010, SSFA 1998 and funding agreement controls on transfers and disposals

FORTHCOMING CHANGE: The Charities Act 2022 (CA 2022) obtained Royal Assent on 24 February 2022. As explained in the Charities Act 2022: implementation plan, its provisions are intended to be commenced in three defined groups across three stages—on 31 October 2022, on 14 June 2023, and in ‘early 2024’. For an outline of what has been brought into effect so far, see Charities Act 2022: information about the changes being introduced. The CA 2022 enacts the bulk of the recommendations from the Law Commission’s 2017 report, ‘Technical Issues in Charity Law’. For a synopsis (as at 9 April 2021) of the proposals that have been accepted, refer to News Analysis: Government response to Law Commission report ‘Technical Issues in Charity Law’. In practice, while the same legislation applies to both, academies and free schools can differ considerably in respect of their land holdings. Note: there are no academies in Wales. Although the Academies Act 2010 (AcA 2010) does apply in Wales, the provisions concerning the creation of new academies apply only in England...

Local Government

PRACTICE NOTES

Case law on highway authorities’ duties in adverse weather: flooding, drainage and ice under the Highways Act 1980 (England and Wales)

This Practice Note reviews case law on the highway authority’s obligation to maintain highways at the public expense during periods of adverse weather. Those decisions reveal a clear distinction between permanent dangers arising from want of repair and transient hazards attributable to the elements, and confirm that, in practice, an authority is required only to act reasonably and is not expected to achieve daily miracles over the winter months. The duty on every highway authority to maintain any highway maintainable at the public expense becomes more onerous when severe conditions prevail in winter. Ice, snow and flooding all increase the risks on the highway network and each makes the maintenance authority’s task considerably more difficult. The following cases demonstrate the need to balance obligations owed to the public with the sensible use of limited resources: Flooding Burnside v Emerson In Burnside v Emerson, Mr Emerson’s car entered a pool of water, lost control and swung into the path of a vehicle driven by Mr Burnside. The highway authority responsible for the road where the incident occurred was joined as the second defendant in the proceedings...

Local Government

PRACTICE NOTES

Children’s rights in schools: statutory, human rights and common law framework; names, meals, uniforms, photographs and data protection, and work experience

The main rights that a child has in school are: the right to education the right to receive care and protection comparable to that a reasonable parent would provide The former is set out in statute, while the latter stems from common law. The UN Convention on the Rights of the Child 1989 The UK government aims to honour the UNCRC 1989, although individuals cannot enforce it directly. It seeks to afford children various rights, including: the right to have their views respected the right to an adequate standard of living the right to education The Human Rights Act 1998 In education law, the Human Rights Act 1998 most notably protects: the right to freedom of thought, conscience and religion the right to education the right to a fair trial Strictly speaking, the right to education is a guarantee against being denied access to education...

Local Government

PRACTICE NOTES

Definitive Maps and Statements of Public Rights of Way: Statutory Basis, Modification Orders and Procedures (England and Wales)

This Practice Note outlines the legislative foundation, character and role of the definitive map and statement that a highway authority must maintain for the public rights of way within its area, under the Wildlife and Countryside Act 1981 (WCA 1981). It describes the authority’s obligation to keep the map and statement under continual review, to update and amend them when needed, and the events and orders that will necessitate alteration of the map and statement. It also details the procedures for making a modification order, whether commenced by the authority or prompted by an application to the authority from another party. It clarifies what triggers a review and how alterations are implemented. Statutory basis and effect Each highway authority is required to compile, and keep under review, a definitive map and statement (DMS) of the public rights of way in its area. The map identifies the route and status of the highways. The statement specifies the alignment and width of the right of way, together with any limitations that qualify those rights...

Local Government

PRACTICE NOTES

England and Wales: Legal Framework for Home‑to‑School Transport, Post‑16 Travel and Out‑of‑School Trips—Duties, Charging, Case Law and Risk Management

Home-to-school transport (early years) in England Local authorities in England can offer home-to-setting transport for children in early years provision outside schools and may lawfully make a charge for providing it. Home-to-school transport (compulsory school age) in England Travel arrangements for eligible children Unless, and until, an approved school travel scheme is in force—something that will not now occur; see below—a local authority in England must put in place whatever travel it considers necessary to ensure every eligible child of compulsory school age can reach their relevant educational establishment and return home. This does not have to be a door-to-door service, as confirmed in R (M&W) v Hounslow. For an eligible child, the travel provided must be free of charge and must not require participants to incur extra costs. The DfE has issued guidance, including a model appeal process recommended for use by LAs to help resolve disagreements about pupils’ eligibility for home-to-school transport. LAs are reminded to adhere to their published policy or risk censure from the Local Government and Social Care Ombudsman...

Local Government

PRACTICE NOTES

England: Land transfer and leasing on conversion of community, voluntary aided/controlled and foundation schools to academies—125-year leases, trustees’ interests and public funding protections

FORTHCOMING CHANGE: The Charities Act 2022 (CA 2022) obtained Royal Assent on 24 February 2022, and, as outlined in Charities Act 2022: implementation plan document, its measures are scheduled to commence in three specified and defined tranches across three phases, on 31 October 2022, on 14 June 2023 and in early 2024, respectively. For an overview of the CA 2022 provisions already brought into effect to date, see Charities Act 2022: information about the changes being introduced. The CA 2022 delivers the majority of the proposals from the Law Commission’s 2017 report, ‘Technical Issues in Charity Law’. For a synopsis (as at 9 April 2021) of the recommendations that have been accepted, see News Analysis: Government response to Law Commission report ‘Technical Issues in Charity Law’. This Practice Note is relevant solely to England, as such; there are no academies in Wales at all. Academy schools are established under the Academies Act 2010 (AcA 2010) legislation. An academy school is owned and operated by a corporate entity—typically a company limited by guarantee—known as an academy trust or a multi-academy trust (MAT), i.e. a trust that manages more than one academy...

Local Government

PRACTICE NOTES

Ferry franchises as incorporeal hereditaments: creation, exclusivity, and operators’ duties to carry and rights to curtail service

At common law, highway ferries fall into two types, identified by the routes they take. One type operates between towns or to a specified island, while the more usual type links two named highways, each situated on opposite sides of a body of water. The Highways Act 1980 (HiA 1980) deliberately leaves ferries outside the statutory definition of a highway, yet the common law regards them as comparable to highways, carrying particular rights and obligations. What sets a ferry apart from other forms of highway is: a ferry is a franchise vested in an individual or a corporation the power to operate a ferry carries both privileges and duties the ability to use a ferry is qualified and limited A ferry as a franchise The general principle is that anyone with a boat may transport a passenger across a navigable river; however, that principle yields where such use of a boat amounts to running a ferry. The ferry owner enjoys a monopoly, and the courts will protect that exclusivity against competition...

Local Government

PRACTICE NOTES

Highway Bridges and Tunnels in England and Wales: Public Rights, Maintenance Responsibilities and Key Statutes, Including Tolls, Bridge Orders over Navigable Waters, Boundary Arrangements and Footbridges

This Practice Note sets out the principal highways law matters relating to bridges and tunnels—namely the public’s entitlement to pass and re‑pass across bridges or through tunnels, and who carries responsibility for their maintenance. It outlines the four categories of highway bridge and explains, for each, where the maintenance duty falls, with particular reference to the Highways Act 1980 (HiA 1980) and the Transport Act 1968 (TrA 1968). It also summarises relevant legislation that is specific to toll bridges and tolled tunnels, new bridges across navigable water, bridges across boundaries, and footbridges. The main highways law issues concerning bridges and tunnels are as to the: rights of the public to pass and re‑pass across bridges or through tunnels maintenance liability for them The HiA 1980 definitions of a bridge and a tunnel provide little practical assistance...

Local Government

PRACTICE NOTES

Highway diversions, deviation rights and closure through natural causes: common law principles and maintenance duties (England and Wales)

This Practice Note discusses the common law on highway diversions It sets out that the essential feature is movement from A to B, rather than the specific parcel of land over which the right of way is believed to lie, and it also covers highway closure brought about by natural forces. It further explains that where a highway on or close to the coast is destroyed by incursions from the sea, the courts will not require the authority charged with its maintenance to reinstate it to a serviceable condition. While the common law acknowledges the force of the maxim ‘once a highway, always a highway’, there are, inevitably, some exceptions. In R v Secretary of State for the Environment, ex p Burrows; R v Secretary of State for the Environment, ex p Simms, Purchas LJ observed: ‘At common law the rule was and remains “once a highway, always a highway”’...

Local Government

PRACTICE NOTES

Highway land in England and Wales: statutory vesting versus full ownership, extent of the authority's interest ('top two spits'), and acquisition powers, with case law and Highways Act 1980

This Practice Note outlines the distinction between highway land that is only vested in the highway authority and highway land that is owned outright by the authority. It highlights leading cases and statutes, notably the Highways Act 1980 (HiA 1980) and the Local Government Act 1929 (LGA 1929), and clarifies that, where land is merely vested, the authority’s proprietary interest extends physically to the upper two spade-depths of the relevant land, or to such depth as is required for the construction and maintenance of the highway, including associated drains. Whilst that form of vested ownership will usually suffice, highway authorities may purchase freehold estates in land under the HiA 1980 for the creation of new or improved highways. Some highway land is only vested in the highway authority, whereas other highway land belongs entirely to the authority... Vested land The key to understanding the ownership of highway land is rooted in its historical development...

Local Government

PRACTICE NOTES

Highway maintenance: duty to repair, inspection systems, extraordinary traffic and section 58 defence under the Highways Act 1980 (England and Wales)

This Practice Note This Practice Note sets out that the standard of highway maintenance required is determined by the level of expected ordinary traffic on the route concerned. It further explains that a person injured by a danger on a highway may sue the highway authority in negligence, and that the authority has a statutory defence under the Highways Act 1980 (HiA 1980) if it can show it exercised reasonable care. It also notes that, at common law, the obligation is to keep the highway in a reasonable condition rather than to improve it. The authority must carry out routine inspections of the highway surface and run a system for incoming reports of damage; however, the duty to keep the highway in repair does not extend to damage caused by extraordinary traffic. A highway authority is under a duty to ‘maintain the highway’...

Local Government

PRACTICE NOTES

Highway Nuisance in England and Wales: Common Law and Highways Act 1980 on Builders’ Works, Scaffolding/Skips, Traffic (racing, stopping), Bridges, and Nuisances from Adjoining Land (Animals, Pigeons, Smoke, Trees)

This Practice Note outlines highway nuisance law, and records that section 333 of the Highways Act 1980 (HiA 1980) expressly preserves common law. It considers when activities on or over the road may constitute a nuisance, with reference to statute and the common law, including: builders’ works, scaffolding and skips; racing and unsuitable traffic; stationary traffic; and bridges and beams spanning the highway. It also surveys likely nuisances arising from neighbouring land, such as: domestic or farm animals; pigeons; smoke and fumes; and trees. Common law and statute law Regarding highways, nuisance at common law substantially overlaps with statutory provisions (principally within the HiA 1980), yet HiA 1980, s 333 specifically preserves the common law. Pratt and Mackenzie’s Law of Highways (21st edition, 1967) describes a highway nuisance as any wrongful act or omission on or near a highway that prevents the public from proceeding freely, safely and conveniently along it...

Local Government

PRACTICE NOTES

Highway Widths and Boundaries: Common Law Tests, Statutory Minima/Maxima, Physical Features, Widening Powers and Vertical Limits (Highways Act 1980, England and Wales)

This Practice Note This Practice Note sets out that determining a highway’s breadth is essentially a matter of fact. Under the common law, there must be evidence amounting to proof of the least width needed to accommodate the traffic entitled to use it. If such proof is absent, the Highways Act 1980 (HiA 1980) specifies minimum and maximum widths as defaults. The Note also outlines the various kinds of boundaries, explaining that there is frequently physical indication of a highway’s lateral limits, yet each instance turns on its own facts. It further notes that, under the HiA 1980, highway authorities may widen a highway, or build fresh bridges or footbridges. Historically, the breadth of a highway seldom gave rise to dispute. The highway right was (and remains) a right to pass and re-pass; a right to travel from A to B...

Local Government

PRACTICE NOTES

Highways in England and Wales: public rights, classifications by traffic and maintenance, and definitions of key types

This Practice Note This Practice Note concerns the public’s legal entitlement to use vehicles, to ride a horse, or to drive animals along most highways. It outlines that the commonest ways of categorising highways are by the traffic allowed (for example, a footpath or bridleway) and by the maintaining authority (for example, a classified road or GLA road). It also provides an alphabetical list with descriptions of the principal highway types in England and Wales. The essential public right over a highway is for any person to pass and re‑pass along its length. On the majority of highways—though not every one—there is, in addition, a lawful right to use vehicular transport and/or to ride a horse and/or to drive animals from one place to another. The most usual classifications of highways into types are by permitted traffic and by maintenance authority. The classification of a highway by its permitted traffic has two sources: at common law, the dedication (or deemed dedication) of a new highway can be limited to rights for specified traffic, ie as a footpath, as a bridleway or as a carriageway ...

Local Government

PRACTICE NOTES

Legal Framework for Maintained Schools: Curriculum, Collective Worship, RE, RSE, Political Impartiality, National Curriculum and Qualifications (England and Wales)

The Basic Curriculum in England In England, the Basic Curriculum consists of three components: religious education sex education the National Curriculum Collective worship Each school day—though not always at the outset—pupils in maintained schools, including special schools, should take part in collective worship, either as a whole or in groups by age or school, and this is to happen on the school premises. On special occasions, the governing body, following consultation with the headteacher, may arrange for it to be held elsewhere...

Local Government

PRACTICE NOTES

Ofsted inspections and interventions: legal framework, schools causing concern, special measures, academy conversion, and complaints and judicial review in England

This Practice Note outlines the statutory bases for Ofsted’s administrative framework and fields of activity, the cadence and character of school inspections in particular, the distinct categories of inadequate schools in England, and the actions that a local authority may need to take under the Education and Inspections Act 2006 (EIA 2006) if one of its schools is deemed inadequate. Ofsted Ofsted is a non-departmental public body funded by government, working in England and led by His Majesty’s Chief Inspector of Education, Children’s Services and Skills (HMCI). The bulk of Ofsted’s powers and responsibilities sit in Part 1 of the Education Act 2005 (EA 2005), while the overarching functions and duties of His Majesty’s Chief Inspector are specified in EIA 2006, ss 116–119. In line with EIA 2006, Sch 12, these functions can be delegated lawfully. Ofsted inspectors (HMIs) are accountable to a senior HMI. This Practice Note focuses on arrangements in England specifically and not elsewhere. The inspectorate for education and training in Wales is Estyn. For more detail about Estyn in Wales, see Practice Note: Regulation and inspection of maintained schools (primary, secondary, all-age and special schools) and pupil referral units and local government education services by Estyn...

Local Government

PRACTICE NOTES

Procedure for modifying the Definitive Map: applications, evidence and order confirmation (England and Wales)

This Practice Note This Practice Note outlines the statutory obligation on the relevant authority, under the Wildlife and Countryside Act 1981 (WCA 1981), to maintain the Definitive Map in continual review. It sets out the circumstances that may justify a modification, and indicates who will commonly seek a modification order. It also describes how to make a Definitive Map Modification Order (DMMO), highlighting the proper form, the supporting material required, and the decision-making steps taken by the Definitive Map authority. The subsequent formal steps after a DMMO are also covered, identifying which authority must carry out each task. The purpose of the Definitive Map and Statement (‘Definitive Map’) of public rights of way, and allied matters, is that it is conclusive. Yet, despite its definitive status, it is not immutable. The local highway authority (the County Council or a Unitary District Council) has an ongoing duty to keep the Definitive Map under constant review. Reasons to alter the Definitive Map include: that a public right of way has arisen, that a route has been lawfully changed or closed, or that an entry ought never to have appeared at all on the Map...

Local Government

PRACTICE NOTES

School Attendance Law in England: Compulsory Age, Education Otherwise than at School, Registers, Offences, Enforcement, and Truancy Sweeps under the Education Act 1996 and 2024 Pupil Registration Regulations

‘Working together to improve school attendance’ is statutory guidance from the government that explains the considerations to which all schools, trusts, governing bodies and local authorities must have regard when striving to secure consistently high attendance across England. It clarifies that this guidance should be read alongside other documents, notably the statutory ‘Keeping children safe in education’... Compulsory school age Children who are of compulsory school age must receive an education, which does not have to take place in a school setting. When judging whether a child’s attendance is adequate, the first question is whether the child has reached compulsory school age. when they reach five years old, if that birthday falls on a prescribed day; and otherwise, from the beginning of the next prescribed day after their fifth birthday The prescribed days for the commencement of compulsory school age are 31 August, 31 December and 31 March each year...

Local Government

PRACTICE NOTES

Street works and statutory undertakers: NRSWA 1991 duties, permits, notices, lane rental, permit schemes and common law liability (England and Wales)

This Practice Note outlines the procedure for statutory undertakers and holders of street works licences to use the highway for utility works and apparatus under the statutory framework in the New Roads and Street Works Act 1991 (NRSWA 1991) and other enabling legislation. It explains who qualifies as statutory undertakers and sets out the duty of care owed, both under statute and at common law, to other highway users. Street works at common law At common law, interfering with the surface of a highway amounts to a nuisance. In the nineteenth century, utility companies seeking to route underground pipes and cables along highways—though these were the most obvious corridors—were, in the absence of statutory powers, restrained by the courts from placing their apparatus. The Sheffield Gas and Cambridge Gas cases illustrate this principle. Street works—liability in negligence Even where legislation authorises interference with, or use of, the highway for utility works and apparatus, statutory undertakers and those holding street works licences continue to owe a duty of care to other highway users...

Local Government

PRACTICE NOTES

The statutory right to roam: access land, excepted land, public rights, mapping reviews, management and landowner liability under the Countryside and Rights of Way Act 2000 (England and Wales)

The right to roam over open land shares traits with the ability to move from A to B that defines a public highway, yet it exists solely by statute. It is chiefly contained in the Countryside and Rights of Way Act 2000 (CRWA 2000). Unlike highway rights, roaming requires no fixed origin or destination in either use or definition. CRWA 2000 was brought in to clarify and broaden the public’s right to walk across open countryside. The legislation’s assorted regulations and restrictions make plain that walking is allowed, while walkers must respect the rights of other countryside users. CRWA 2000 was brought in to clarify and broaden the public’s right to walk across open countryside. The legislation’s assorted regulations and restrictions make plain that walking is allowed, while walkers must respect the rights of other countryside users. Access land CRWA 2000 provides and defines access solely on access land. Many exceptions and restrictions apply to the right to roam on access land...

Local Government

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