Nurseries cannot be considered schools in a permitted development context

Bright Horizons submitted an application for a ‘Certificate of Lawfulness’ to Watford Borough Council for the installation of two linked portable cabins in the garden of a registered nursery in 2017. The local authority refused the application and took the view that such a development was only lawful in the context of “schools, colleges, universities or hospitals”, by reference to Class M in Part 7 of Schedule 2 of the General Permitted Development Order (GPDO). Bright Horizons chose to appeal the Council’s decision.

The appeal was dismissed on 26 January 2018 when the Planning Inspectorate concluded that the appeal premises did not fall under the definition of a “school” within the GPDO. The appellant then took the appeal decision to the High Court. The Judge agreed that the Planning Inspectorate’s decision was correct for the following reasons. In the 2014 amendments to the GPDO came the first reference of a nursery. The change gave planning advantages to registered nurseries that nurseries with a different planning history would not have. Both “state-funded schools” and “registered nurseries” that came into existence as a result of Class S or T of the GPDO obtain some of the PD rights granted by the GPDO to schools. In relation to new buildings, the Class M development right is not extended to sites that have changed use under Class S. The Judge noted:

“the definition in Part 7 limits its inclusionary provisions without using any words of exclusion; and in Class M itself the exclusion is of all buildings that have changed use under Class S: it is the origin rather than the destination that defines the exclusion. The mere fact that were it not for the exclusion some nurseries as well as some schools would be included cannot possibly found the proposition that in general the word "school" encompasses all nurseries or even all registered nurseries”.

For the reasons given, the Judge concluded that when used without any qualification, school does not encompass nurseries. Therefore, the provisions of the GPDO to which they had referred had no application at all to nurseries before the amendments in 2014. It provided no good reason for giving the word “school” in the GPDO to anything other than its ordinary meaning, which does not include a nursery.

For further information about planning for the nursery sector, please speak to a member of Planning Potential's specialist team on 020 7357 8000.