High court rules that nurseries cannot benefit from same planning rights as schools

Under planning law, schools, together with colleges, universities and hospitals do not require planning permission to put up buildings or extensions as long as they do not exceed set space restrictions.

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The ruling is the first of its kind to determine that a nursery cannot be counted as a school.

Jonathan Buckwell, director of planning and transport consultancy DHA, told Nursery World that the case has implications for the future as it sets a precedent, meaning the ruling could be applied to other similar cases.

Bright Horizons applied for planning permission to install two linked portable cabins within the grounds of its Watford Day Nursery and Pre-school in January 2017. However, the nursery group installed the cabins on the grounds that the nursery counted as a ‘school’ so was therefore exempt.

Watford Borough Council later refused permission on the basis that 'a nursery is not a school' and that provisions within the General Permitted Development Order (GPDO), which enable schools to expand into their grounds without planning permission, did not apply.

Bright Horizons appealed the decision to a planning inspector, who agreed with the council's case.

The nursery group challenged the decision at the high court, but Judge Ockleton found that the inspector had correctly interpreted the GPDO.

The word 'school', in common parlance, indicates an institution where children receive a general education on a considerable number of days a year, he said.

Ruling that the provision of education does not necessarily make an institution a school, he said that the commonly used phrase 'school-age' encompasses the period of a child's life when he or she is required by law to attend school. Similarly, the phrase 'pre-school' is frequently applied to nurseries and other institutions that provide for children below compulsory school age.

Judge Ockleton stated, ‘There cannot, I think, be any doubt that "school" in the sense with which I am concerned is an institution for the provision of education. If used without any qualification (compare "adult school", "ballet school", "dog training school") the word means an institution where a general education is provided for young human beings, typically on the basis of attendance at a specified place for a number of hours on a considerable number of days per year.

‘Amongst the other activities taking place in such an institution there will be some that are either not specifically attributable to education (for example the provision of refreshments) or which may be regarded as having a quality that is not solely educational (for example the organisation of games). But the principal purpose needs to be that set out above. A canteen is not a school, even though a school may have a canteen; a chess club is not a school, even though a school may have a chess club.

‘Similarly, museums and concert-halls are not schools; and they do not become schools within the ordinary unqualified meaning of that word by having substantial outreach or educational activities.’

It will now be down to the council to decide whether to grant retrospective planning permission or take action to enforce the removal of the portable cabins.

A spokesperson for Bright Horizons said, ‘This ruling applies to a request to add additional space at one of our nurseries, and whilst there are a number of points that we dispute we do not intend to appeal the decision’.