Decision details

To consider the provision of a new Special Educational Needs and Disability (SEND) Secondary Free School at West Park.

The Cabinet Member with the Economy Portfolio introduced the report of the Group Director of Operations and the Chief Executive (previously circulated) requesting that consideration be given to a strategy to enable this Council to secure ownership of, and make available to the Department for Education (DfE), 1.25 to 1.35 hectares of land at West Park for the new Special Education Needs and Disabilities (SEND) School, also referred to as a special free school. 

It was reported that approval had been received from the government to establish a new, 48 place Autism Spectrum Disorder (ASD) special free school in the borough for children aged between 11 to 19 years of age; as part of planning permission granted for the West Park development, land had been set aside for the provision of education and sports under a separate legal contract known as a Section 106 (s106) agreement; this contract set out measures and financial contributions the developer must make in order to lessen the impact of the development on the community; and that the land had been identified as the preferred location for the SEND school, which was within the ownership of the developer.

The submitted report outlined the conditions of the s106 agreement; the options to provide greater certainty to both the DfE and the Council in terms of delivery of the land and the project, whilst mitigating risks for both parties; the collaboration agreement; the legal charge; the proposed timetable for the delivery of the school; the costs to the local authority; the current position; and the opportunities and risks of the proposal.

RESOLVED – (a)  That negotiations begin with the owners of the sports and education land with a view to documenting the obligations in the Section 106 Agreement for the land to be transferred to this Council by way of an option agreement and that the final agreement of the heads of terms be subject to Cabinet approval.

(b)  That the heads of terms for a lease of 1.25 to 1.35 hectares of land to the new school, be progressed, subject to:-

                                       (i)      agreement of the option; and

                                     (ii)      Cabinet Approval      

(c)  That the Section 106 obligation to transfer land required for the school, be exercised at the appropriate time.

(d)  That the Section 106 financial contribution to fund the local authority costs arising from the construction of the school, be used, and it be noted that the DfE has provided a non-exhaustive list of costs to be funded by this Council, the costs of which will be capped at a figure to be agreed.

(e)  That it be acknowledged that should the amount of Section 106 financial contributions received by the Council, at the point of payment of the local authority costs, be insufficient to fully cover the cost, the Council will forward fund the remainder until the remaining contributions are received, estimated to be 2030, with the full costs and commitment to be estimated and presented for final decision prior to signing of contracts.

REASONS – (a)  The option would:

(i)      enable the Council to call for the transfer of the freehold of the land required for the school at an appropriate time;

(ii)    achieve flexibility on precise location of land required, as the option would enable this Council to specify the land it wished to acquire when exercising the option;

(iii)  achieve certainty and flexibility of timescale for the transfer of the land;

(iv)  enable site investigations to be carried out across the whole Section 106 area if required; and

(v)    final agreement of heads of terms to be subject to Cabinet Approval

(b)  Progressing the Heads of Terms for the lease of land to the new school would provide comfort to DfE to allow progression to the next step, the feasibility study, and subsequent local authority costs analysis.

(c)  Exercising the Section 106 agreement at the appropriate time would:

(i)      be dependent upon agreement of the option;

(ii)    be linked to the timing agreed in the option; and

(iii)  follow the correct legal process for transferring the land.

(d)  Using the Section 106 financial contribution to fund the local authority costs arising from the construction of the school would be:

(i)      an appropriate use of the Section 106 financial contribution;

(ii)    subject to agreement of the costs with the DfE; and

(iii)  subject to a cap on costs as agreed with the DfE.

(e)  Acknowledging that forward funding that may be required will:

(i)      allow the parties to progress negotiations in the knowledge that funding is available at the relevant point in time, should it be required at all; and

(ii)    be subject to final update and decision when costs and payment timetables are known.