3.—(1) The following provisions of this regulation apply to—
(a)proposals which were published before 25th May 2007 and which remain undetermined by that date, and
(b)the notice and proposals made under section 66 (7) of EA 2005 pursuant to the notice or proposals published under section 66 (8) (b) of EA 2005, where the notice was published before 25th May 2007.
(2) Where proposals for the establishment or discontinuance of a mainstream school have been published under section 28, 28A or 29 of SSFA 1998 (1), regulations 1, 2, 4, 5 and 7 (1) and (2) of the School Organisation Proposals Regulations continue to apply in relation to the proposals.
(3) Where a notice inviting proposals for the establishment of a school has been published under section 66 of EA 2005(2), regulations 1 to 5 and 7 to 12 of the New Secondary School Proposals Regulations continue to apply in relation to the notice and proposals made under section 66 (7) of EA 2005 pursuant to the notice or published under section 66(8)(b) of EA 2005.
(4) Where proposals for the establishment or discontinuance of a special school have been published under section 31 of SSFA (3), regulations 1, 2, 4, 5, 8(1) and (2) of the Special Schools Regulations continue to apply in relation to the proposals.
(5) Sections 28(6), 29(5), 28A(6) and 31(5) of SSFA 1998, regulation 6 of the School Organisation Proposals Regulations, regulation 13 of the New Secondary School Proposals Regulations and regulation 6 of the Special Schools Regulations continue to apply in relation to information to be sent to the school organisation committee.
(6) In cases where the provisions for making objections and comments continue in accordance with the regulations referred to in regulation 4 as applicable, the school organisation committee must send copies of the proposals referred to in paragraphs (2) to (4) respectively (together with any objections or comments and other information received by it in accordance with the regulations referred to paragraph 5 as applicable) to the relevant authority as defined by regulation 5(2), or to the adjudicator as provided for in regulation 9 within 1 week of the end of the representation period.
(7) Except where paragraph (6) or (8) applies, any other proposals referred to in paragraphs (2) to (4) (together with any objections or comments and other information received by it in accordance with the regulations referred to paragraph 5 as applicable) must be sent by the school organisation committee to the relevant authority or to the adjudicator as provided for in regulation 9 by 1st June 2007, and determined in accordance with this Part of these Regulations.
(8) Where the school organisation committee has failed to reach a decision as provided for in paragraph 3(6) of Schedule 6 to SSFA 1998 or regulation 17(1) of the New Secondary School Proposals Regulations, it must send copies of the proposals referred to in paragraphs (2) to (4) respectively (together with any objections or comments or other information received by it in accordance the regulations referred to paragraph 5 as applicable) to the adjudicator by 1st June 2007 and determined in accordance with regulation 14.
(9) Any proposals as referred to in paragraphs (2) to (4) that have been sent to the adjudicator for determination pursuant to—
(a)paragraph 3(5), 3(6), 3(6A), or 3 (6D) of Schedule 6 to SSFA 1998, or
(b)regulation 17 of the New Secondary School Proposals Regulations,
must be determined by the adjudicator afresh as provided for in regulation 14.
4.—(1) Paragraph 2 of Schedule 6 to SSFA 1998 continues to apply in relation to proposals which were published before 25th May 2007 and which remain undetermined on that date.
(2) In relation to proposals published before 25th May 2007 under sections 28, 28A or 29 of SSFA 1998 for the establishment or discontinuance of a mainstream school, regulation 7(1) and (2) of the School Organisation Proposals Regulations continue to apply in relation to the making of objections and comments.
(3) In relation to proposals published under section 66 of EA 2005, regulation 12 of the New Secondary School Proposals Regulations continues to apply in relation to the making of objections and comments.
(4) In relation to proposals published under section 31 of SSFA 1998 for the establishment or discontinuance of a special school, regulations 8(1) and (2) of the Special Schools Regulations continue to apply in relation to making objections and comments.
5.—(1) Proposals published under section 28, 28A, 29 or 31 of SSFA 1998 or section 66 of EA 2005 for the establishment or discontinuance of a maintained school that are undetermined on 25th May 2007 are to be determined by the relevant authority or by the adjudicator as provided for in this Part of these Regulations.
(2) In this Part and Part 3 to these Regulations, the relevant authority is—
(a)in the case of proposals published under section 28 or 28A, 29 or 31 of SSFA 1998 or revocation proposals relating to those proposals, the local education authority who maintain the school or (in the case of a new school) who it is proposed should maintain the school, and
(b)in the case of proposals published under section 66 of EA 2005 or revocation proposals relating to those proposals, the local education authority who published the notice under that section.
(3) In this Part “proposers” in relation to any proposals means the persons who made the proposals, but does not include a local education authority.
(4) For the purposes of this Part and Part 3 of these Regulations—
(a)proposals under section 66 of EA 2005 are to be taken to be made by the person who submitted them to the relevant authority under subsection (7) of that section, or in the case of proposals published by the relevant authority under subsection (8) of that section, by the relevant authority, and
(b)proposals under section 28, 28A, 29 or 31 of SSFA 1998 for the establishment or discontinuance of a school are to be taken to be made by the person who published them.
6.—(1) All proposals under sections 28, 28A, 29 or 31 of SSFA 1998 or section 66 of EA 2005 for the establishment or discontinuance of a maintained school require consideration under regulation 7.
(2) Discontinuance proposals require consideration under regulation 7 unless paragraph (3) applies.
(3) Discontinuance proposals fall to be dealt with under regulation 16 (and do not require consideration under regulation 7) if the proposals were made by the relevant authority and either—
(a)no objections were made in relation to the relevant proposals in accordance with regulation 7 of the School Organisation Proposals Regulations or regulation 8 of the Special Schools Regulations, or
(b)all objections so made were withdrawn in writing within the periods prescribed by regulation 7 of the School Organisation Proposals Regulations or regulation 8 of the Special Schools Regulations.
7.—(1) Proposals which require consideration under this regulation, other than proposals to which regulation 16 applies, must be considered in the first instance by the relevant authority, or, where regulation 9 applies, by the adjudicator.
(2) Paragraphs (3) and (4) apply in relation to the relevant authority unless the authority is required by any of regulations 9, 10 or 12 to refer the proposals to the adjudicator.
(3) In a case where the proposals were published under section 66 of EA 2005 and two or more sets of proposals were published, the authority may—
(a)reject all the proposals,
(b)approve any of the proposals without modification, or
(c)approve any of the proposals with such modifications as the authority think desirable, after consulting the following persons:
(i)the proposers or the authority who made the proposals; and
(ii)where the proposals are to establish a new foundation, foundation special or voluntary school, the authority who it is proposed should maintain the school;
(4) in any other case, the authority may—
(a)reject the proposals,
(b)approve any of the proposals without modification, or
(c)approve any of the proposals with such modifications as the authority think desirable, after consulting the persons specified in regulation 7(3) (c) and—
(i)where the proposals were published by the governing body of a school, the authority who maintain the school; and
(ii)where the proposals were published by the authority to discontinue a school, the governing body of the school.
(5) Any approval given under this regulation may be expressed to take event only if one of the following events occurs by a specified date—
(a)the grant of planning permission under Part 3 of the Town and Country Planning Act 1990 (4);
(b)the acquisition of the site on which a new school is to be constructed;
(c)the acquisition of playing fields to be provided for the school;
(d)the securing of any necessary access to a site referred to in sub-paragraph (b) or playing fields referred to in sub-paragraph (c);
(e)the private finance credit approval given by the Department for Education and Skills following the entering into of a private finance contract by a local education authority;
(f)the entering into an agreement for any necessary building project supported by the Department for Education and Skills in connection with the programme known as “Building Schools for the Future”;
(g)the making of any scheme relating to any charity connected with the school;
(h)the formation of any federation (within the meaning of section 24(2) of the EA 2002) of which it is intended that the proposed school should form part, or the fulfilling of any other condition relating to the proposed school forming part of a federation;
(i)the Secretary of State giving approval under regulation 5(4) of the Education (Foundation Body) (England) Regulations 2000(5) to an application that a foundation body shall be established and that the school shall form part of a group for which a foundation body shall act;
(j)the Secretary of State making a declaration under regulation 22(3) of the Education (Foundation Body) (England) Regulations 2000 that the school should form part of a group for which a foundation body acts;
(k)in the case of mainstream schools, the agreement to any change to admission arrangements of any other school or schools specified in the approval;
(l)the establishment of any foundation meeting the requirements of section 23A of SSFA 1998(6);
(m)the making of any agreement under section 482 of EA 1996(7) for the establishment of an Academy;
(n)in the case of proposals to establish a maintained school in place of an existing independent school, the securing of approval by the Secretary of State to relax the requirements of the Education (School Premises) Regulations 1999(8) as provided for by section 543 (1) of EA 1996;
(o)in the case of proposals to establish any other maintained school, the securing of approval by the Secretary of State to relax the requirements of the Education (School Premises) Regulations 1999 in respect of school playing fields as provided for by section 543 (1) of EA 1996;
(p)in the case of proposals whose funding is dependent upon capital receipts from the disposal of any school land or buildings, the securing of consent from the Secretary of State for the disposal as provided for by paragraph 2 of Schedule 35A to EA 1996(9) or section 77 of SSFA 1998, or determination in accordance with Schedule 22 to the SSFA 1998 as applicable; and
(q)where the proposals in question depend upon any of the events specified in paragraphs (a) to (p) occurring by a specified date in relation to proposals relating to any other school or proposed school, the occurrence of such an event.
(6) Part 1 of Schedule 1 to these Regulations has effect for specifying the modifications to which this Part of these Regulations are to be subject where proposals published under section 66 of EA 2005 relate to a school which is proposed to be situated in an area other than that of the authority who published the notice.
(7) Part 2 of Schedule 1 to these Regulations has effect for specifying the modifications to which this Part of these Regulations are to be subject where proposals published under section 28, 28A, or 31 of SSFA 1998 relate to a school which is proposed to be established in an area other than that of the authority who it is proposed should maintain the school.
8.—(1) The requirement to consider proposals under regulation 7 only applies if, at the time when the proposals fall to be considered, the relevant authority are satisfied that the proposals do not relate to any proposals under section 113A of the Learning and Skills Act 2000(10) which fall to be determined by the Secretary of State but have not yet been determined by him.
(2) Where proposals published under section 28, 28A, 29 or 31 of SSFA 1998 or section 66 of EA 2005 for the establishment or discontinuance of a maintained school appear to the relevant authority to be related to—
(a)other proposals published under any of those sections or under sections 7, 10, 11 or 15 and not yet determined, or
(b)proposals published under Schedule 7 to the Learning and Skills Act 2000 and not yet determined,
the authority must consider the proposals together.
9.—(1) The relevant authority or the school organisation committee, as the case may be, must refer to the adjudicator—
(a)all proposals published under section 66 of EA 2005 in response to a notice under that section, if they consist of or include any proposals which are made by the relevant authority, or
(b)any proposals under section 28, 28A or 31 of SSFA 1998 which are made by the relevant authority,
within 1 week from the end of the representation period as prescribed by the regulations referred to in regulation 4, or by 1st June 2007 as provided for in regulations 3(6) and 3(7).
10.—(1) If by the end of 2 months from the date of expiry of the period in which proposals, objections and comments must be forwarded to the relevant authority as provided by regulations 3(6) and 3(7) as applicable, the authority have not determined whether to give any approval under regulation 7(3) or (4), they must within 2 weeks refer to the adjudicator—
(a)in the case mentioned in regulation 7(3), all the proposals published under section 66, and
(b)in the case mentioned in regulation 7(4), the proposals concerned,
together with comments made on the proposals by the authority and any other comments and objections in relation to the proposals that they have received.
11.—(1) The relevant authority must if so requested by any relevant person within 4 weeks from the date of the notification of the determination pursuant to regulation 17 refer to the adjudicator any proposals which the relevant authority have determined under regulation 7 together with any reasons given by the authority for their determination.
(2) The persons specified in paragraph 14 of Schedule 2 are relevant persons for the purposes of paragraph (1).
(3) References to the adjudicator falling within paragraph (1) must be made within 1 week from the date on which the authority receives notice of a request for a referral.
12. Where the relevant authority are required under any of regulations 9 to 11 or under Schedule 7 to the Learning and Skills Act 2000 to refer any proposals (“the relevant proposals”) to the adjudicator, the authority must also within 1 week from the date of expiry of the period in which proposals, objections and comments must be forwarded to them as provided by regulations 3(6) and 3(7), refer to the adjudicator—
(a)any other proposals under section 28, 28A, 29 or 31 of SSFA 1998 or section 66 of EA 2005 which relate to the area of the relevant authority and which by virtue of regulation 8(2) fall to be considered with the relevant proposals, and
(b)where the relevant proposals are referred to the adjudicator by virtue of regulation 11, any other proposals under section 28, 28A, 29 or 31 of SSFA 1998 which by virtue of regulation 8(2) were determined by the relevant authority with the relevant proposals.
13.—(1) Nothing in regulations 7(1) to (4) prevents the proposers by whom any proposals have been made from withdrawing those proposals by notice in writing—
(a)to the relevant authority, and
(b)in a case where the proposals have been referred to the adjudicator, also to the adjudicator,
at any time before the proposals are determined under regulation 7 by the authority or by the adjudicator.
(2) Nothing in regulation 7(1) to (4) prevents the relevant authority from withdrawing any proposals made by the authority themselves by notice in writing to the adjudicator at any time before the proposals are determined under regulation 7 by the adjudicator.
14.—(1) Where any proposals are referred to the adjudicator under any provision of this Part of these Regulations—
(a)he must consider the proposals or, in a case where the proposals have previously been determined by the relevant authority, must consider them afresh,
(b)the following provisions of regulation 7 apply to him in connection with his decision on the proposals as they apply to the relevant authority—
(i)paragraph (3) or (4) (as the case requires), and
(ii)paragraph (5), and
(c)regulation 8 applies to him as it applies to the relevant authority.
15.—(1) Where proposals submitted to a local education authority in accordance with section 66(7) of EA 2005 consist of or include proposals to establish an Academy, the authority must within 1 week of receiving those proposals consult the Secretary of State before taking any decision under regulation 7.
(2) The relevant authority may not approve under regulation 7 proposals to establish an Academy unless the Secretary of State, on being consulted under paragraph (1), has given a statement in writing that, if the proposals were approved, he would be willing to commence negotiations with a view to entering into an agreement [under section 482 of EA 1996] for the establishment of an Academy.
(3) If the proposals have been referred to the adjudicator under regulation 9, 10 or 12, the reference in paragraph (1) to the authority is to be read as a reference to the adjudicator.
(4) Paragraph (2) has effect in relation to a decision of the adjudicator under regulation 7 as it has effect in relation to a decision of the relevant authority under that regulation.
(5) Approval under regulation 7 by the relevant authority or the adjudicator of proposals to establish an Academy does not oblige the Secretary of State to enter into, or seek to enter into, an agreement under section 482 of EA 1996.
16.—(1) Where any discontinuance proposals have been made and regulation 6 does not require the proposals to be considered under regulation 7, the authority must (subject to the following provisions of this paragraph) determine whether the proposals should be implemented.
(2) Any determination under paragraph (1) must be made within 2 months from the date of expiry of the period in which proposals, objections and comments must be forwarded to them as provided by regulations 3(6) and 3(7).
(3) The requirement to make a determination under paragraph (1) only applies if, at the time when the proposals fall to be considered, the relevant authority are satisfied that the proposals do not relate to any proposals under section 113A of the Learning and Skills Act 2000 which fall to be determined by the Secretary of State but have not yet been determined by him.
(4) The requirement to make a determination under paragraph (1) does not apply where the proposals appear to the relevant authority to be related to—
(a)other discontinuance proposals published under section 29 or section 31 of SSFA 1998 or section 15 and not yet determined,
(b)proposals for the establishment of a maintained school published under section 28, 28A or 31 of SSFA 1998 or section 66 of EA 2005 or section 10 or 11 and not yet determined, or
(c)proposals published under Schedule 7 to the Learning and Skills Act 2000 and not yet determined.
(5) Where, in the case of any proposals falling within paragraph (1)—
(a)the authority fail to make a determination under that sub-paragraph within the period mentioned in paragraph (2), or
(b)the requirement to make such a determination does not apply by virtue of paragraph (3) or (4),
the proposals require consideration under regulation 7 and, in a case falling within sub-paragraph (a), must be referred to the adjudicator.
17.—(1) The local education authority must notify the following persons of each decision taken under regulation 7 together with their reasons—
(a)the persons or body who submitted the proposals;
(b)subject to paragraph (5), each objector;
(c)the Secretary of State;
(d)where proposals include provision for 14-16 education or sixth form education, the Learning and Skills Council for England;
(e)the Diocesan Board of Education for any diocese of the Church of England any part of which is comprised in the area of the authority;
(f)the bishop of a diocese of the Roman Catholic Church any part of which is comprised in the area of the authority;
(g)where the proposals concern a special school, the relevant Primary Care Trust, NHS trust and NHS foundation trust, and
(h)the adjudicator.
(2) In the case of any determination made by an authority pursuant to regulation 16, the relevant authority must notify the governing body of the school which is the subject of the proposals, and the Secretary of State.
(3) The authority must notify the persons referred to in sub-paragraphs (a) to (c) of paragraph (1) if they refer any proposals or matter to the adjudicator under regulation 10.
(4) The adjudicator must notify the persons referred to in sub-paragraphs (1)(a) to (g) and the relevant authority of each decision together with his reasons.
(5) Where objections to a proposal take the form of a petition (that is to say a document containing the text of one objection signed by more than one objector) the authority or the adjudicator as the case may be may comply with paragraph (1) (b) by—
(a)notifying the person (if any) who appears to them to have arranged for the petition to be sent to the local education authority; or
(b)if there is no such person, notifying the objector whose name appears first on the petition.
(6) Where proposals have been sent to the decision-maker and further proposals are sent to the decision maker which in the opinion of the decision-maker pursuant to regulation 8(2) are related, the decision-maker must notify the proposers or the local education authority as the case may be of that fact.
18.—(1) Where—
(a)any proposals have been approved under regulation 7, or
(b)the relevant authority have determined under regulation 16 to implement any proposals,
then the proposals must be implemented, in the form in which they were so approved or determined, in accordance with this Part of, and Schedule 2 to, these Regulations.
(2) Subject to paragraphs (9) and (12), the relevant authority may, at the request of the proposers who made the proposals referred to in paragraph (1), or, where the proposals were made by the authority themselves on their own initiative—
(a)modify the proposals after consulting—
(i)the proposers or the local education authority who made the proposals,
(ii)where the proposals are to establish a new foundation, foundation special or voluntary school, the local education authority who it is proposed should maintain the school,
(iii)where the proposals were published by the governing body of a school, the authority who maintain the school, and
(iv)where the proposals were published by the authority to discontinue a school, the governing body of the school, and
(b)where any approval was given in accordance with regulation 7(5), specify a later date by which the event in question must occur.
(3) If the relevant authority or the adjudicator (where the original proposals were referred to him under paragraph (9) or (12)) are satisfied—
(a)that implementation of the proposals would be unreasonably difficult, or
(b)that circumstances have so altered since approval was given under regulation 7 that implementation of the proposals would be inappropriate,
the authority or the adjudicator may determine that paragraph (1) is to cease to apply to the proposals.
(4) The relevant authority or the adjudicator may only make a determination under paragraph (3) where proposals that they or he should do so have been published by the proposers or a local education authority (“revocation proposals”).
(5) Revocation proposals must contain—
(a)a description of the original proposals as published in accordance with sections 28, 28A, 29 or 31 of SSFA 1998 or section 66 of EA 2005;
(b)the date of publication of the original proposals;
(c)details of who published the proposals; and
(d)a statement as to why it is proposed that, in accordance with paragraph (3), paragraph (1) should not apply in relation to the original proposals.
(6) Revocation proposals must be published by—
(a)posting them in a conspicuous place in the area to be served by the school,
(b)where the original proposals were discontinuance proposals, by posting them at or near the main entrance to the school, or if there is more than one entrance, all of them, and
(c)publishing them in at least one newspaper circulating in the area to be served by the school.
(7) The proposers must submit their revocation proposals within 1 week of the date of publication to the relevant authority.
(8) In relation to revocation proposals—
(a)any person may object to or comment on such proposals and such objections and comments must be sent to the local education authority within 6 weeks of the date of publication of such proposals;
(b)any determination by the authority must be made within 2 months of the end of the representation period.
(c)in cases where the authority does not make a determination within the time specified in sub-paragraph (b), they must refer the proposals to the adjudicator within 1 week from the end of that period .
(9) The relevant authority must refer to the adjudicator any matter falling within paragraph (2) and any revocation proposals, together with objections and comments in relation to them, where the initial decision was made by the adjudicator within—
(a)2 weeks of the request from the proposer or from the authority making a decision on its own initiative in relation to matters falling within paragraph (2), or
(b)2 weeks of the end of the representation period.
(10) The relevant authority must notify the following persons of each decision taken under paragraph (3) and their reasons—
(a)the persons or body who submitted the proposals;
(b)subject to paragraph (12), each objector;
(c)the Secretary of State;
(d)where proposals include provision for 14-16 education or sixth form education, the Learning and Skills Council for England;
(e)the Diocesan Board of Education for any diocese of the Church of England any part of which is comprised in the area of the authority;
(f)the bishop of a diocese of the Roman Catholic Church any part of which is comprised in the area of the authority;
(g)the adjudicator; and
(h)where the proposals relate to a special school,
(i)the relevant Primary Care Trust , for the area in which the school is situated, and
(ii)any NHS trust or NHS foundation trust responsible for a hospital or other provision in the area in which the school is situated.
(11) Where objections to a proposal take the form of a petition (that is to say a document containing the text of one objection signed by more than one objector) the authority or the adjudicator as the case may be may comply with paragraph (1) (b) by—
(a)notifying the person (if any) who appears to them to have arranged for the petition to be sent to the local education authority; or
(b)if there is no such person, notifying the objector whose name appears first on the petition.
(12) If by the end of the period of 2 months from the date of the request from the proposer, 2 months of a decision taken on the authority’s own initiative or 2 months from the date of publication of the proposals as referred to in paragraph (9) as the case may be, the relevant authority have failed to make a determination, the authority must refer the matter to the adjudicator.
(13) The relevant authority must if so requested by any relevant person within 4 weeks from the date of the notification of the determination pursuant to regulation 17 refer any revocation proposals which the relevant authority have determined under paragraph (3) together with any reasons given by the authority for their determination.
(14) The persons specified in paragraph 14 of Schedule 2 are relevant persons for the purposes of paragraph (13).
(15) References to the adjudicator falling within paragraph (13) must be made within 1 week from the date on which the authority receives notice of a request for a referral.
(16) Where any matter is referred to the adjudicator under this regulation—
(a)the relevant authority may refer to the adjudicator with the matter their comments on it,
(b)the adjudicator must consider the matter afresh, and
(c)such of the provisions of paragraphs (2) and (3) as are relevant shall apply to him in connection with his decision on that matter as they apply to the authority.
19.—(1) Where, by virtue of regulation 18(3), regulation 18(1) (duty to implement) ceases to apply to any proposals, those proposals are to be treated for the purposes of this Part of these Regulations as if they had been rejected under regulation 7.
(2) Where—
(a)any approval under regulation 7 was given in accordance with regulation 7(5), and
(b)the event specified under regulation 7(5) does not occur by the date in question (whether as specified under that provision or as specified under regulation 18(2)(b)),
regulation 18(1) ceases to apply to the proposals.
(3) Where, by virtue of paragraph (2), regulation 18(1) ceases to apply to any proposals approved by the relevant authority under regulation 7 and not referred to the adjudicator, those proposals must be considered afresh by the authority under that regulation.
(4) Where, by virtue of paragraph (2), regulation 18(1) ceases to apply to any proposals approved by the adjudicator under regulation 7, those proposals must be considered afresh by him under that paragraph (and regulation 14 applies accordingly).
Sections 28, 28A and 29 of SSFA 1998 ceased to apply to England by virtue of being amended by section 30 of and paragraph 18 and 20 of Schedule 3 to the Act.
Section 66 of EA 2005 ceased to apply to England by virtue of its being amended by section 30 of and paragraph 49 of Schedule 3 to the Act.
Section 31 of SSFA 1998 ceased to apply to England by virtue of its being amended by section 30 of and paragraph 23 of Schedule 3 to the Act.
Section 23A was inserted by section 33 of the Act.
Section 482 was inserted by section 65 of the Education Act 2002 (c.32)
Schedule 35A was inserted by Schedule 7 to the Education Act 2002 (c.32).