When is a Nursery a School, a School a Nursery and a Nursery-School?

Nurseries are not the same as schools under planning legislation, the High Court has decided, but the whilst the headlines reference the GPDO it is worth reminding ourselves where they might still co-allign.

In Bright Horizons Family Solutions Ltd v Secretary of State for Communities And Local Government [2019] EWHC 14 CMG Ockelton, Vice President of the Upper Tribunal, sitting as a judge of the High Court he said that he was asked to decide “is a nursery, attended by young children, a ‘school’ within the meaning of the general permitted development order.

Bright Horizons had been in use as a nursery since 1997 (previously being used as 3 storey dwelling house).  It applied for a Lawful Development Certificate in respect of two porta-cabins in the grounds to provide extra floor space for the nursery in accordance with Schedule 2, Part 7, Class M of the GPDO which permits certain extensions for schools, colleges, universities and hospitals.  The size limits and positions of the proposed development were not in doubt or contention so the case fell on whether the nursery could qualify under Class M at all – as a schools, colleges, universities or hospital.

The Judge concluded that “the starting-point must be the ordinary meaning of the ordinary word "school” … in my judgment that word, when used without any qualification, does not encompass nurseries… Therefore, the provisions of the GPDO to which I have referred had no application at all to nurseries before the amendments in 2014.”

So what is the relevance of the 2014 Amendments?  

I cannot be the only planning lawyer in the country who still has pinned to my wall an easy Guide to the Use Classes Order, updated many times over in the last decade with a lot more “permitted changes” summarised through than before – many of which allow a change to state-funded school or registered nursery grouping the two separate uses together as one. 

And this is where it is crucial one now moves from the summary to the full Regulations:-

• Part 2 Class A – enhanced fencing PD for a school – including a school or nursery created pursuant to Class S or T of Part 3.
• Part 3 Class S – conversion of an agricultural building to a school or registered nursery – rights granted in respect of “associated operational development” – reasonably necessary for the use.
• Part 3 Class T – conversion of B1 (business), C1 (hotels), C2 (residential institutions), C2A (secure residential institutions) or D2 (assembly and leisure) to school or a registered nursery – rights granted in respect of “associated operational development” – reasonably necessary for the use.
• Part 7 Class O – school includes premises which have changed use under Class T  and (except for Class M to allow additional space ) Class S.
•  A Class T nursery (i.e. a PD nursery created out of anything other than a farm building) can extend under Class M.
• A PD Nursery can provide hard standing.

The Judge summarised it neatly thus: -

If the extension is to a school, it is within Class M. If the extension is to premises which have changed use to a nursery under Class T, it is within Class M, because of the definition of "school". If the extension is to premises which have changed use to a nursery under Class S, it is not within Class M, because of the specific exclusion in Class M itself and in the definition of "school". If the extension is to premises in use as a nursery, but not as a result of a change of use under either Class S or Class T, it can be within Class M only if the word 'schools' in Class M is to be read as incorporating nurseries.

And he concluded that a it does not.

The Judge ruled out this lacuna being either absurd or unfair but in my view is certainly an oddity which the practitioner needs to bear in mind as they go through the complexities of the PD Regs.

“A ride on an elephant may be educational, but that does not mean that a zoo is a school.””