Category: Nick Upton

THE CURIOUS CASE OF UNLAWFUL RECYCLED SCREENING OPINION … No, Nicky — You Can’t Sell Expired Sausages You Found in the Neighbour’s Garden

Once more, Nick’s creative modus operandi was brought upon us, and yea, the balance was tilted. Creativity is a fine mindset — essential, even — if you’re a fashion designer. But if it’s your foundation in accountancy, you’d be done for it. Apply with caution — if you’re a public servant!

In a recent letter from Nick Upton, Development Manager at EHDC, we see either a profound misunderstanding of how the EIA1 Regulations apply — or something more deliberate. He writes:

“The government does not see EIA regulations as a barrier to growth and that they will only be triggered for a small proportion of very large-scale proposals that have potential impacts outside the area they are located in, such as power stations, major urban extensions, airports for example.”

This conveniently omits any reference to residential development and ignores how the significance of environmental effects must be judged relative to the settlement type — i.e. village versus town or city. It also skips over the requirement to consider cumulative impact, explicitly required by Schedule 3 of the 2017 EIA Regulations.

While it’s true the government doesn’t intend EIA to be a barrier to growth, it is also true — and far more relevant — that the government requires EIA screening by law. That part, Mr Upton does not mention.

Instead, he offers a line designed to mislead:

“The fact that a formal EIA is not required does not mean the applicant does not need to submit environmental information… This was the case with the Beechlands Road scheme.”

This is meant to imply that because “some environmental information” was submitted, no formal EIA screening was necessary — when in fact, the law is clear: the presence of environmental information does not override the mandatory requirement for a lawful, up-to-date EIA screening opinion.

It’s not just misleading. It’s legally irrelevant — and procedurally flawed.

Mr Upton carries on with his gospel:

“You mention that the developer has fragmented the site to avoid the mandatory Environmental Impact Assessment regulations (EIA). Whilst you’ve not provided any evidence of this, in any case, the EIA regulations do allow for a consideration of cumulative developments if and when any future proposal comes forward.”

That statement is deeply problematic — both legally and logically.

By suggesting that cumulative impact can be assessed “if and when any future proposal comes forward,” Mr Upton engages in a classic deferral fallacy. But Schedule 3, Paragraph 1(b) of the EIA Regulations 2017 is explicit:

“The cumulation with other existing and/or approved development.”

This clearly includes existing and reasonably foreseeable phases, especially:

Delaying cumulative assessment until “next time” defeats the entire purpose of EIA screening, which is to detect and prevent significant environmental harm before permission is granted.

Mr Upton also implies it is my job as a resident to prove the developer is salami-slicing — but that is not how the law works.

Under Schedule 3(1)(b) of the EIA Regulations 2017, and reinforced in case law (R (Burridge) v Breckland DC [2013]), it is the LPA’s legal duty to:

  • Identify potential site fragmentation, and
  • Assess cumulative impacts from related developments

It is not the role of a resident to prove this has occurred. The responsibility lies squarely with the decision-maker — in this case, EHDC.

And then the mind-blowing connection struck me:

Mr Nick Upton himself was the case officer who issued the EIA screening opinion for the original 2014 application — a proposal for 144 dwellings on 4 hectares of land by Foreman Homes. That development, in scale and intensity, was more appropriate for a town, not a rural village like Medstead, and clearly posed a risk of significant environmental harm.

And now? It just so happens that Mr Upton is also the supervising officer overseeing the Bargate Homes Phase 2 expansion — a continuation of large-scale development to the south of Medstead — and once again, no new EIA screening opinion has been issued.

Conveniently, he appears to have:

  • Ignored the legal requirement that EIA screening opinions are non-transferable between applicants
  • Failed to apply the updated 2017 EIA Regulations, which clearly state that EIA screening opinions are only valid for three years
  • Completely overlooked the obligation to consider cumulative impact, even as Medstead experienced a 48.14% population increase from 2011 to 2021
  • Dismissed the significance of the proposal simply because the current scheme is for 62 dwellings, compared to 144 in 2014 — as though scale alone determines significance, rather than context

To be clear: Medstead makes up just 1.76% of East Hampshire’s population, yet it absorbed 8.36% of all new housing in the district from 2011 to 2021. That level of disproportionate growth alone should have triggered an up-to-date, cumulative environmental screening.

⚠️ What is most outrageous?

Planning committee members are not legal officers — they rely on the professional advice of planning officers to ensure their decisions are lawful. And yet:

  • No reference to Schedule 3 criteria was provided
  • The committee was led to believe that the 2017 EIA Regulations have somehow reduced screening obligations
  • The absence of a valid screening opinion was never disclosed

This amounts to a misrepresentation of the legal position and likely misdirection of elected members on a matter of material legal consequence.

This constitutes a procedural error and presents a clear ground for Judicial Review, based on misdirection and unlawful avoidance of EIA screening duties.

Medstead saw a much higher proportional growth than the district average — nearly 5.5 times higher than EHDC’s overall rate
Regulation 9(2) of the EIA Regulations 2017
Regulation 6(1) of the 2017 EIA Regulations:
📘 Schedule 2, Category 10(b) – Urban Development Projects
  1. If you think of an EIA as a full medical workup before major surgery — detailed, evidence-based, and critical — then the EIA screening opinion is like triage: do the current symptoms or known risk factors (including past conditions) justify ordering tests — in this case, a full EIA? Local Planning Authorities (LPAs) are legally required to provide reasoning for every screening decision. But too often, LPAs treat the screening as a tick-box exercise. They rely on vague boilerplate phrases like “not likely to have significant effects,” skip cumulative assessment, or recycle old screening opinions from unrelated applications. Worst of all: they get away with it unless someone legally challenges them. And yes, EIA screening opinions can be legally challenged via Judicial Review. ↩︎

|ref:13| “Members of the planning committee have had significant experience of determining planning applications when the ‘titled balance’ applies” says Nick Upton, EHDC Development Manager — as if that’s something to be proud of.

It’s Friday — so I thought I’d have a bit of harmless fun with one of the more amusing parts of EHDC’s official response to what I considered a call for reflection. That call was addressed to elected representatives and focused on repeated planning outcomes that I — and many others — view as institutionally flawed and damaging to the integrity of the local planning process. More on that in another chapter.

Anyway, I’ve broken the response down into 27 specific points. This gem is Point 13 — and I figured it was too good not to share. I hope you’ll forgive a bit of sarcasm — just this once 🙂

Experience with Tilted Balance Is Not a Badge of Honour. Someone should forward Nick Upton the memo 🙂


Framing “significant experience with tilted balance” as a strength is like someone walking into a job interview and proudly declaring: “One of my key qualifications is that I’ve been repeatedly placed on performance improvement plans.” It doesn’t signal expertise — it signals repeated failure to meet core standards.

Likewise, regular exposure to tilted balance decisions isn’t a badge of honour — it’s a symptom of persistent strategic failure. If the planning committee is now comfortable operating in this fallback mode, it raises questions not about their experience, but about the council’s inability to correct course.

Cllr Angela Glass, a councillor who has “significant experience of determining applications under the ‘tilted balance’” 🙂 and has been in office since 2011, said the following at the meeting held on Thursday, 20 March 2025:

“~Beechlands Road — I don’t know when it was built, but that was supposedly, perhaps unsustainable. I don’t know. It’s a similar distance. It was presumably virgin land, as this is. But it was built.
We’re talking about a narrow margin between the properties on that side of the road and the proposed properties on this site.
And with the tilted balance and the state we are in at the moment, I really feel — however much my heart may say that fields perhaps should not be developed — I actually think that if this were to go to appeal, we would probably lose that appeal, because I think this would be deemed to be acceptable — whether sustainable or not.
And I don’t often say that, but I really do think on this occasion that the tilted balance has to come into play.”

🚨 Why Cllr Angela Glass’s Planning Remarks Demand Scrutiny

1. Misuse of Precedent (Illegality)

“Beechlands Road… that was perhaps unsustainable… but it was built… this is a similar site…”

This implies she’s using a prior development — one she admits may not have been sustainable — as a justification for approving the current application.

📌 Why it’s a problem: You cannot lawfully rely on a flawed precedent to justify a new planning decision. Each proposal must be judged on its own merits.

Planning law is not precedent-based like case law. Each application must be determined based on current evidence, local context, and specific material considerations. Relying on past approvals — particularly those not reassessed for sustainability — creates a circular logic loop where flawed decisions justify further flawed decisions. This undermines the purpose of NPPF paragraph 11(d), which demands an up-to-date weighing of site-specific impacts and benefits.

🧑‍⚖️ R (Smech Properties) v Runnymede BC [2016] confirmed that planning judgment cannot lawfully be substituted with speculation or retrospective justifications based on unrelated developments.

This type of flawed reasoning erodes the safeguards embedded in NPPF Paragraph 11(d), which mandates a live, evidence-based weighing of site-specific impacts.

2. Substitution of Planning Judgment with Appeal Fear

“I think if this went to appeal, we’d probably lose… I think it would be deemed acceptable — whether sustainable or not.”

Here, she openly substitutes her statutory duty to evaluate sustainability with a speculative fear of losing an appeal.

📌 Why it matters:
This reverses the logic of NPPF Paragraph 11(d), which only permits approval when the benefits clearly and demonstrably outweigh the harms — after proper weighing of sustainability, infrastructure, local constraints, and other national policy considerations.

This isn’t just bad planning. It fits the public law definition of irrationality:

A decision made by abandoning the legal framework and replacing it with personal speculation.

The NPPF does not say, “approve unless you might lose at appeal.” It says the benefits must significantly and demonstrably outweigh the adverse impacts, measured against the development plan and the NPPF as a whole.

3. Pre-determination / Lack of Impartiality

“I don’t often say this, but the tilted balance has to come into play.”

This phrasing suggests that the “tilted balance” is being misunderstood — or misrepresented — as a green light for approval. It is not. It is a framework for weighing competing factors, not an override switch.

📌 Why it’s a problem:

Cllr Glass’s statement, delivered with rhetorical emphasis (“I don’t often say this…”), gave her comments extra weight during deliberation. But her explanation of the tilted balance was flawed — and uncorrected — during the meeting. This risks:

  • Triggering a ground of procedural impropriety in a Judicial Review
  • Spreading misunderstanding to less experienced councillors
  • Prejudicing the overall outcome of the vote

📈 The Bigger Picture

Between 2011 and 2021, EHDC approved over 410 new dwellings in Medstead alone — a rural parish — without ever reassessing the cumulative environmental impact through a fresh Environmental Impact Assessment (EIA).

By comparison:

This is not a case of isolated planning oversights. It is a systemic failure of process — compounded by flawed reasoning and unsupported assertions made by a senior councillor, on record, during decision-making.