Registered childcare numbers against a planning condition

Two different numbers govern how many children a nursery may take, and they are set by two bodies that do not speak to each other. The registration number comes from the early years regulator and is driven by the floor area of the rooms. The nursery numbers planning condition comes from the planning permission and is usually driven by parking, drop-off and noise. Where the planning cap is the lower of the two, it is the one that binds, and taking more children than it allows is a breach of planning control regardless of what the registration certificate says.

Operators buy nurseries without checking the second number far more often than they should.

Why two different numbers exist

Registration under the early years framework works from space. The statutory framework sets indoor space requirements per child by age band, at 3.5 m² for children under two, 2.5 m² for two year olds and 2.3 m² for children aged three to seven, measured as usable floor space excluding corridors, toilets and storage. Multiply the room areas by the age mix and you have the registered capacity.

Planning works from effects. The case officer who dealt with the original application was thinking about how many cars arrive between 8am and 9am, whether the drop-off can be absorbed by the frontage, and how much noise 40 children generate in a garden backing onto houses. A number was chosen to make those effects acceptable, and it went into a condition.

So a converted house with generous rooms can register for 46 places and carry a planning condition limiting it to 30 children at any one time. Both numbers are correct. Only one of them is enforceable by the council's planning enforcement team.

How a planning condition caps capacity

Conditions on nurseries take a few recognisable forms, and the wording determines what you can actually do.

The distinction between a cap on total attendance and a cap on outdoor numbers matters commercially. A business with a 30 child total cap and a large building is constrained far more tightly than one with a 30 child outdoor cap and an unrestricted indoor number. Check which you have by reading the decision notice rather than relying on what the previous operator says.

Also check whether the condition counts children on the register, children present, or places offered. Conditions drafted around "children attending" have been argued both ways, and a precisely drafted replacement condition is worth asking for when you vary one.

The section 73 route to add places

Varying a numbers condition is done by an application under section 73 of the Town and Country Planning Act 1990, to vary or remove a condition on the existing permission. It is a fresh application with its own fee, consultation and determination period, and it results in a new permission carrying the amended condition.

Three points on how to use it well.

First, apply to vary the condition to a specific higher number rather than to remove it. An application to remove a cap entirely invites refusal, because it leaves the authority with no control, and officers will often grant a higher figure where they would not grant an open-ended one.

Second, expect the whole condition set to be revisited. A section 73 permission is a new permission, and the authority can reimpose the other conditions in updated form. That is usually neutral, occasionally helpful, and occasionally a problem where an old permission contains a generous hours condition.

Third, do not use section 96A for this. Non-material amendments are for minor changes only, and increasing the number of children at a nursery is not one, whatever the increase. Our note on nurseries in commercial units, play space and drop off covers the underlying requirements the authority will test again.

Evidence on parking and drop-off

Drop-off is the reason most numbers conditions exist, so it is where the evidence has to be strongest. What persuades is observed data from the existing operation rather than modelled trip rates.

• A survey of arrivals and departures in 15 minute intervals across a full week, counting vehicles and dwell times.
• The proportion of children arriving on foot, which is often higher than assumed at a neighbourhood nursery.
• The number of on-site spaces and how they are used, with turnover rather than capacity as the measure.
• Observations of where parents actually stop, including informal stopping on the frontage.
• A staggered session structure, with the start times you propose to spread the peak.
• Any walking bus, buggy park or pick-up arrangement that reduces vehicle trips.

A short Transport Statement built on that survey data is proportionate for most variations. Where the increase is substantial or the site sits on a classified road, expect the highway authority to ask for more.

Illustrative example: a nursery registered for 52 places with a condition capping attendance at 36. A week of arrival surveys shows a peak of 14 vehicles in the busiest 15 minutes, with 31 per cent of children arriving on foot and an average dwell of four minutes. The applicant proposes 46 children with session start times staggered at 8am, 8.30am and 9am, and a one way drop-off loop. The predicted peak rises modestly rather than proportionately. Those figures are illustrative.

Play space and noise

Outdoor play is the second constraint. The early years framework requires providers to offer access to outdoor play daily, or outdoor activities each day unless conditions make it unsafe, so more children means either more outdoor space or a rota.

A rota is the usual answer and it needs to be set out properly: how many groups, how long each session, which part of the garden, and what happens in wet weather. Where the garden backs onto housing, the noise case is judged on duration, timing and numbers rather than against the industrial sound standard, so a rota that caps simultaneous outdoor numbers is both the mitigation and the condition the officer will reach for. A Noise Impact Assessment is needed where plant, extract or a car park are also involved, and those sources are assessed under the standard that does apply to them.

Staff numbers and arrival patterns

Staff are vehicles too, and they are the part applicants forget. The framework sets staff to child ratios by age band, and those ratios are revised from time to time, so check the current figures before calculating.

More children means more staff, arriving before the children and leaving after them. And that helps the transport case, because staff arrivals fall outside the parent peak, but it needs spaces or a credible statement about how staff travel. A nursery with six on-site spaces and nine staff has a parking problem that the authority will notice even if the drop-off case is sound.

Enforcement and complaint risk

Exceeding a numbers condition is a breach of planning control. The authority can serve a breach of condition notice, against which there is no right of appeal, and prosecution follows non-compliance. It can also serve an enforcement notice, which is appealable.

In practice enforcement is complaint led, and the complaint usually comes from a neighbour who has counted cars. Once a file is open, the authority will ask for attendance records, and those records are the same ones the regulator holds. Running above the cap while an application is pending is a poor strategy, since the officer assessing the variation is the person who will see the enforcement file.

What to submit with a variation

1. A completed section 73 application identifying the permission and the condition by number.
2. The arrival and departure survey data, with the methodology and dates.
3. A short transport note interpreting the survey and setting out the staggered session structure.
4. A management plan covering outdoor rotas, numbers outdoors at once, staff travel and a neighbour contact point.
5. Plans showing the parking layout, buggy store, bin store and the drop-off route.
6. A statement on registered capacity against the proposed planning number, so the officer understands the gap.
7. A Planning Statement addressing the policies on amenity, parking and childcare provision.

You can see which supporting documents your variation is likely to need by entering the postcode on PlanScope.

This is general guidance, not legal advice. Space standards and staff ratios are set by the early years framework and change, so confirm the current figures and check the condition wording with your local planning authority before relying on this.

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