Town and country planning – Certificate of lawful development – Nursery – Claimant seeking statutory review of inspector’s decision dismissing appeal against refusal of certificate of lawful development – Inspector concluding proposed increase in indoor space for nursery not permitted development – Whether nursery attended by young children was “school” within Town and Country Planning (General Permitted Development) (England) Order 2015 – Claim dismissed
The claimant ran a nursery for young children at 3 Park Avenue, Watford, where its premises, which had been in use as a nursery since 1997, were a three-storey former dwelling-house in a suburban development of similar houses, mostly Edwardian in date. In 2017, the claimant applied to the defendant local planning authority for a certificate of lawful development in respect of a proposed development by the installation of two linked portable cabins in the garden of the premises, to increase the indoor space available for the nursery. Before an answer was given, the cabins were installed.
The interested party local authority subsequently refused the certification on the basis that, although the proposed modular buildings (which had now been installed) were permitted development under the regulations set out in class M in part 7 of schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO), class M was not applicable in this case because it applied only to “schools, colleges, universities or hospitals” whereas this site was a children’s nursery. A nursery was not a school so that class M was not applicable.
An inspector appointed by the defendant secretary of state dismissed an appeal by the claimant. The claimant applied for statutory review of that decision
under section 288 of the Town and Country Planning Act 1990. The interested party took no part in the proceedings.
Held: The claim was dismissed.
(1) In the present case there was no doubt that the neither the size nor the position of the development would infringe the provisions set out in the GPDO. The question was whether class M could permit development on the site at all. If the extension was to a school, it was within class M. There was no doubt that a “school” was an institution for the provision of education. If used without any qualification (compare “adult school”, “ballet school”, “dog training school”) the word meant an institution where a general education was 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 would be some that were either not specifically attributable to education (for example the provision of refreshments) or which might be regarded as having a quality that was not solely educational (for example the organisation of games). But the principal purpose had to be a general education. The ordinary use of the word “school” did not comprise institutions whose object was the education or training of people above the age of about 18. As it was generally understood, the commonly-used phrase “school-age” encompassed the period in a young person’s life beginning with the requirement to go to school and ending with the age at which the person is too old to have education in a school. An institution concerned with children below school age was unlikely to be regarded as properly called, without qualification, a “school”. The unqualified use of the word “school” did not in its ordinary meaning include a nursery.
(2) There was no provision in the GPDO that “school” included nursery, nor a less-encompassing provision that “school” included registered nursery. There were only provisions that treated certain nurseries in the same way as certain schools sharing a similar planning history. If there had been a change of use under class S or class T, there were GPDO benefits (save in class M for sites with a class S change of use) for state funded schools and registered nurseries. The claimant had assumed, without establishing, that in general terms “school” would include a nursery. However, the starting-point was the ordinary meaning of the ordinary word “school”. That word, when used without any qualification, did not encompass nurseries. Therefore, the provisions of the GPDO had no application at all to nurseries before amendments in 2014. Those amendments gave new development rights enabling change of use without permission from certain classes of use to “state-registered school or registered nursery”. As part of the advantageous treatment of such change of use, the buildings so affected were given other permitted development rights, and the treatment of them used the words of the change of use provisions. The key to those provisions was not to be found by treating the words “registered nursery” in isolation, but by considering the whole phrase “premises which have changed use under Class S [or Class T] of Part 3 of this Schedule (changes of use) to become a state-funded school or registered nursery” as a unit implementing consequential provisions in relation to such premises. The effect was that some nurseries were to be treated in the same way as some schools for some (but not all) purposes; and the language used demonstrated that that treatment was derived from their use history. There was no good reason for giving to the word “school” in the GPDO anything other than its ordinary meaning, which did not include a nursery.
(3) There were some oddities in the GPDO provisions about schools But the only oddity of relevance in the present case was that as a result of the apparent encouragement of change of use to state-funded school or registered nursery in the 2013 and 2014 amendments to the order, registered nurseries created by such a change of use had some planning advantages that nurseries with a different history did not have. That was neither absurd nor unfair. Accordingly, the construction of class M adopted by the inspector was correct and gave no ground to quash his decision.
Thea Osmund-Smith (instructed by Shakespeare Martineau) appeared for the claimant; Richard Moules (instructed by the Government Legal Department) appeared for the defendant; The interested party did not appear and was not represented.
Eileen O’Grady, barrister
