Property – Educational use – Nursery school operating from annex of premises – Council granting conditional planning permission – Claimant company in breach of condition – Local planning authority issuing breach of condition notice – Whether compliance being necessary in light of planning history – Application granted
The claimant company owned and occupied 10 and 11 Pembridge Square, London W2. The premises adjoined but were operated separately as two schools. Both properties included open areas.
The claimant had operated educational establishments from the two premises since 1963; a three-storey annex to no 10 had been occupied by a nursery school from 1984. In 1987, planning permission was granted for the continued use of the annex as a nursery school, subject to conditions. One of these stipulated (planning condition 3) that the outside areas should be used for a maximum of one hour, morning and afternoon, by no more than 15 children at one time so as to protect the amenity of nearby residents.
The nursery closed in 2003. In 2004, no 10 was opened as a girls’ preparatory school with 150 pupils. Number 11 was operated as a boys’ pre-preparatory school with 240 pupils. The neighbours complained to the defendant local planning authority about the noise caused by the increase in the number of children playing in the outside areas. The defendants issued a breach of condition notice (BCN), requiring compliance with planning condition 3 for two months. Since there was no right of appeal, the claimant applied for judicial review to quash the BCN.
The claimant contended, inter alia, that the nursery school, as a non-residentialeducational institution for the provision, did not require express planning permission by virtue of Class D1(c) of Schedule 10 to the Town and Country Planning (Use Classes) Order 1987. The condition upon which the defendant relied to found the BCN was therefore attached to an unnecessary permission. In any event, as a matter of construction, condition 3 applied only to the nursery school operating from the annex. The condition did not remove the pre-existing deemed permission for children who were on the premises for educational purposes to use the outside areas.
Held: The application was granted.
As a matter of planning law, it could not be said that the grant of conditional planning permission created a new planning unit with the consequence of destroying the existing use rights that allowed the children to use the outside areas. Nor had the planning history of the premises been changed by the establishment of the two schools. What had occurred was an ordinary incident of the use of the existing buildings as premises in which children were being educated. It was clear that, even without the planning permission, the children from both establishments could have used the outside areas of the annex as a playground: Newbury District Council v Secretary of State for the Environment [1981] AC 578 considered.
Furthermore, on its true construction, the 1987 planning permission and condition 3 related only to the use of the annex to no 10 as a nursery school. The use of the outside areas to the rear of both properties was ancillary to that use. A declaration would be made to that effect.
Jonathan Milner (instructed by Marriott Harrison) appeared for the claimant; Robert Lewis (instructed by the legal department of Kensington and Chelsea London Royal Borough Council) appeared for the defendants.
Eileen O’Grady, barrister
