Legally, Free Schools are Academies. This is the part of the Academies Act that covers consultation. Underline is our hilight and bold italics are our comments.

Academies: other provisions
9  Impact: additional schools

(1)This section applies when the Secretary of State is deciding whether to enter into Academy arrangements in relation to an additional school.

(2) The Secretary of State must take into account what the impact of establishing the additional school would be likely to be on maintained schools, Academies and institutions within the further education sector in the area in which the additional school is (or is proposed to be) situated.

(3) A school is an “additional school” for the purposes of this section if—

(a)it does not replace a maintained school that has been or is to be discontinued, and

(b)it is not a school in respect of which an Academy order has effect.

Because Academies are formed from existing schools, this defines additional schools as free schools, and outlines that the Secretary of State must take into account impact on maintained schools. 

Department for Education guidance that says that the Secretary of State does not need to reject a final decision to open a free school only on the basis of its likelyhood of having a negative effect on local schools. 

The consultation’s input on the impact upon local schools is solely fed into by the Local Authority,  If the Local Authority feels that there is likely no impact (despite issues with data and and protests of nearby schools) – then that will be what the Secretary of State hears.  

The approval of the school lies directly upon the consultation report written by the free school’s lawyers and the report written by the Local Authority.

(4)For the purposes of subsection (3)(a) a school does not replace a maintained school if it provides education for pupils of a wider range of ages than the maintained school.

10  Consultation: additional schools

(1) Before entering into Academy arrangements with the Secretary of State in relation to an additional school, a person must consult such persons as the person thinks appropriate.

The free school proposer must consult with whomever they feel is appropriate.  That is not very specific and could potentially leave the consultation open to hearing less than the full set of viewpoints.

(2) The consultation must be on the question of whether the arrangements should be entered into.

They need to ask if people want the school or not, the consultation cannot merely be on curriculum, organisation, etc.

(3) “Additional school” has the same meaning as in section 9.

Read the DfE’s position on the Local Authority role in consultations