Court rules that a nursery is not a school

The High Court has ruled that a nursery operator cannot extend its premises using permitted development rights.

What are permitted development rights?

Permitted development rights (PD Rights), in effect, allow specified types of development without the need to obtain planning permission.

Why did the nursery operator think that it could use PD Rights?

The Town and Country Planning (General Permitted Development) (England) Order 2015 (the 2015 Order) permits, in Class M of Part 7, "the erection, extension or alteration of a school, college, university or hospital building."

There are various circumstances in which development under Class M is not permitted and, even where it is, specified conditions must be met.

Bright Horizons Family Solutions Limited (the nursery operator in this case) submitted an application for a certificate of lawfulness of proposed use or development in relation to the installation of two linked portable cabins in order to increase the size of one of its nurseries.

The view of the nursery operator was that a nursery fell within the definition of 'school' and, therefore, the extension to its nursery premises was permitted under the PD Rights regime.

Is nursery included within the definition in Class M?

There are some existing circumstances in which a nursery cannot use the PD Rights in Class M. These include where a building has been changed to a nursery from an agricultural building using PD Rights. This was not the case here, so the question was whether the general definition of "school" includes nursery. 
The nursery operator's view was that, other than in cases where the definition of "school" specifically excluded nurseries, there was no reason why "school" in Class M should not include a nursery.

The Court, however, disagreed. It made reference to various institutions which, although described as schools, would not be commonly understood to fall within the meaning of "school". For example, a ballet school or dog training school. 

The Court was also clear that, in order to be a "school", the purpose of the institution must be the provision of education. The age of the children was also relevant. Its view was that 'the ordinary use of the word "school" does not comprise institutions whose objective is the education or training of people above the age of about 18.' Equally, 'an institution concerned with children below school age is unlikely to be regarded, without qualification, as a "school"'.

The result was that Class M does not include nurseries and, therefore, the PD Right cannot be used for an extension to nursery premises.

What are the implications for nursery operators?

Nurseries will need to take advice before carrying out any extensions or alterations to stand-alone premises. In the absence of a successful appeal of this decision, or a change to the 2015 Order, it is likely that planning permission will be required.

The position in relation to nurseries within a school may differ. On the assumption that the nursery use is ancillary to the school, and the school is carrying out the works, it is likely to benefit from the PD Rights. However, where a nursery is not ancillary to the school use, or where an independent nursery operator is situated on school grounds, it is unlikely to benefit from PD Rights. In such circumstances, planning permission would be required.

This case is somewhat surprising given that crèches, day nurseries and schools all fall within use class D1, non-residential institutions. The decision in this case does not appear to make any mention of this use class. 

Following this decision, and pending any appeal, whether or not a nursery will benefit from PD Rights is complex. Advice should be sought in relation to the specific circumstances of each case.

TLT's Planning Team has extensive experience in advising on PD Rights and other planning issues. If you have matters that you would like to discuss, please get in touch. 

Contributor: Alexandra Holsgrove Jones

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2019. Specific advice should be sought for specific cases. For more information see our terms & conditions.