Category: References

📘 Schedule 2, Category 10(b) – Urban Development Projects

This is the category most relevant to residential developments.

A project falls under Schedule 2 (so may require EIA) if it:

🔹 Includes more than 1 hectare of urban development, OR
🔹 Involves more than 150 dwellings, OR
🔹 Has a site area exceeding 5 hectares

✅ If any one of those is true, then screening is mandatory (Regulation 6), and the LPA must decide whether a full EIA is required based on Schedule 3 criteria (i.e., risk of significant environmental effects).

🧾 Regulation Summary:

CriterionThresholdTriggers Mandatory Screening?
Site area> 0.5 hectares✅ Yes (if Schedule 2 applies)
Dwelling number> 150 dwellings✅ Yes
Total site area> 5 hectares✅ Yes
Sensitive locationAny size or number✅ Yes — must always be screened

🔺 Important Note on Sensitive Areas:

If the site is in or near a Sensitive Area, screening is mandatory regardless of size.

“Sensitive areas” include:

  • Sites of Special Scientific Interest (SSSI)
  • AONBs
  • National Parks
  • Conservation Areas (in some cases)
  • World Heritage Sites
  • Ancient woodland (may be a material consideration)

🧠 Key Point:

These are screening triggers — they don’t automatically require a full EIA, but they require the LPA to conduct an EIA screening opinion to decide if one is needed based on the likely significance of environmental effects.

⚖️ Main Changes to EIA Rules Since 2013

✅ 1. New EIA Regulations

🗓️ In 2017, the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 replaced the 2011 version.

These brought UK law in line with EU Directive 2014/52/EU, which strengthened environmental safeguards.

✅ 2. Stronger Legal Duty to Consider Schedule 3 Factors

  • In 2011, Schedule 3 criteria (like cumulative impacts, sensitive location, etc.) were considered best practice.
  • Under the 2017 Regulations, Regulation 6(4): LPAs must take into account all Schedule 3 selection criteria when issuing a screening opinion.

📌 This is now mandatory — not optional.

✅ 3. Validity Period Introduced (3 Years)

  • Under the 2011 regs, screening opinions had no expiry.
  • Now, under Regulation 9(2) of the 2017 Regulations: A screening opinion expires after 3 years, unless a planning application has been submitted.

✅ 4. Greater Public Transparency

  • LPAs must now:
    • Publish screening and scoping opinions online
    • Provide a “statement of reasons” (Reg. 5(6) and Reg. 29) for why an EIA is or isn’t required
  • This didn’t exist under the 2011 rules.

✅ 5. Expanded Scope of Environmental Effects

  • EIA must now assess:
    • Population and human health
    • Climate change (resilience and emissions)
    • Material assets and cultural heritage
    • Land take, resource use, vulnerability to major accidents

📌 These were previously vague or missing in 2011.

✅ 6. New Right to Request a Scoping Opinion (Reg. 15)

  • Previously, scoping was informal or LPA-led.
  • Now, developers can request a formal Scoping Opinion, and LPAs must consult statutory consultees and respond in writing within 5 weeks.

🔄 What Stayed the Same?

Element2011 Regs2017 Regs
Schedule 2 categories✔️✔️ (same structure)
Thresholds (e.g. 150 dwellings)✔️✔️
“Likely significant effects” test✔️✔️ (but now explicitly bound to Schedule 3)

🧠 Summary: What changed most importantly since 2013?

ChangeWhy It Matters
🟩 Mandatory Schedule 3 considerationLPAs can no longer ignore cumulative or locational risk
🟨 3-year expiry on screening opinionsStops developers “banking” old EIA-free decisions
🟧 Greater transparency + public accessMakes it easier to challenge flawed screenings
🟥 Expanded environmental scopeDevelopers must consider health, climate, resilience, etc.

Regulation 9(2) of the EIA Regulations 2017

🧾 Regulation Reference:

Regulation 9(2), EIA Regulations 2017:

“A screening opinion… shall be treated as no longer effective if a subsequent application for planning permission is not made within a period of 3 years…”

So even if the 2014 screening covered the land — that determination cannot be relied upon now for planning or legal purposes.

⏳ There is an expiration on EIA screening opinions

An EIA screening opinion expires after 3 years from the date it was issued, unless:

  • A planning application has been submitted, and
  • Substantive work has started on the development.

EIA Regulations 2017, Regulation 6(4) and Schedule 3

🏛️ Citation:

Town and Country Planning (Environmental Impact Assessment) Regulations 2017

  • Regulation 6(4):
    “When forming an opinion as to whether development is EIA development, the relevant planning authority must take into account the selection criteria set out in Schedule 3.”
  • Schedule 3 – Selection Criteria for Screening Schedule 2 Development
    Includes consideration of:
    1(b): “The cumulation with other existing and/or approved development.”
    2: “The environmental sensitivity of geographical areas likely to be affected by development.”
    3(a–d): “Characteristics of the potential impact (e.g. size of area affected, magnitude of impact, resource use, pollution, risk of accidents).”

🥇 1. Paragraph 1(b): Cumulative Impact

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

✅ Why it matters most for Medstead:
This is your strongest argument. Medstead has experienced non-plan-led, fragmented development, and Bargate clearly phased the current site following an adjacent build. Cumulative effects were foreseeable, quantifiable, and obligated under law. EHDC’s failure to screen this development cumulatively is likely the clearest and most actionable legal error.

🥉 2. Paragraph 2: Environmental Sensitivity

“The environmental sensitivity of geographical areas likely to be affected…”

✅ Why it’s significant:
Medstead is a rural village with weak infrastructure, proximity to biodiversity, and no robust mitigation plan. While not designated AONB or Green Belt, its vulnerability increases the significance of even “moderate” impacts. This supports your cumulative argument by showing the setting amplifies the impact.

🏅 3 Paragraph 3: Magnitude and Scale

“The magnitude and spatial extent of the impact…”

✅ This reinforces the argument that scale is relative. 62 homes in a city might be minor; in Medstead, it’s substantial. This clause helps debunk EHDC’s claim that “most housing schemes don’t need EIA” — showing they’ve ignored the context-driven logic required by law.

Town and Country Planning (Environmental Impact Assessment) Regulations 2017, Regulation 6(1):

“A person who proposes to carry out development may request the relevant planning authority to state in writing its opinion as to whether the development is EIA development.”

This requirement applies to each new development application and cannot be satisfied by a screening opinion issued to another party under a previous proposal.

Even though an applicant may request an EIA screening opinion,
🔴 The planning authority still has a legal duty to screen development proposals if they may be EIA development — even without a formal request.

And crucially:

🔹 Each new development must be screened on its own merits —
🔹 A screening opinion issued to another party (even on the same site) does not carry forward to a new applicant or proposal.

⚖️ Key Case Law and Legal Precedent

Environmental Assessment: The Curious Case of the Recycled Screening Opinion

1. R (Bateman) v South Cambridgeshire DC [2011] EWCA Civ 157

  • A screening direction issued years earlier was relied on to avoid fresh EIA screening.
  • The Court of Appeal held that each new planning application must be independently assessed to determine if it amounts to EIA development.
  • You cannot rely on a past screening opinion if the new application is materially different.

✅ This supports your position: the 2014 screening opinion for Foreman Homes cannot be reused for Bargate’s 2024 application.

2. R (Loader) v Rother DC [2016] EWHC 2014 (Admin)

  • The court emphasised the importance of properly considering cumulative impacts.
  • A failure to consider other planned developments nearby made the EIA screening unlawful.

✅ Supports your Medstead argument: the saturation of housing and infrastructure strain must be reassessed with each application.

3. R (Squire) v Shropshire Council [2019] EWCA Civ 888

  • The council issued a screening opinion without properly assessing indirect and cumulative environmental effects.
  • The court quashed the decision — reaffirming that the local authority has a duty to fully assess the potential for significant effects, even if EIA is not formally requested.

✅ Reinforces that screening must be thorough, current, and site-specific.

4. Case C-290/03 Commission v Spain [2006] ECR I-1073 (European Court of Justice)

  • Even though the directive said a Member State “may” require screening, the ECJ held that failure to assess the likely significant effects of development was still a breach of EIA law.

🟩 Summary of Legal Position

  • “May request” in Regulation 6 does not reduce the planning authority’s obligation.
  • If the authority fails to assess whether the development might require EIA, that can be unlawful — especially if they rely on:
    • An outdated opinion,
    • A different developer’s scheme,
    • Or omit cumulative impacts.

📌 Bottom line: EHDC had a legal obligation to issue a new screening opinion for Bargate’s 2024 application, under the 2017 Regulations, and its failure to do so is highly questionable — possibly unlawful.

REQUEST FOR SCREENING OPINION – RESIDENTIAL DEVELOPMENT COMPRISING 144 DWELLINGS – Land East of Cawk House, Stoney Lane, Medstead

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    SCREENING OPINION

    src: EDHC

    ⚖️ Summary: 2014 EIA Screening – Foreman Homes, 144 dwellings

    ✅ EHDC determination:

    EIA was not required, even though:

    • The site was 3.8 ha
    • The proposal exceeded the 0.5 ha threshold in Schedule 2, 10(b)
    • It involved 144 dwellings, just under the indicative 150-unit threshold

    📌 EHDC explicitly stated the scheme was Schedule 2 development but not EIA development because:

    “…not likely to have significant effects on the environment by virtue of factors such as the characteristics and location of the development and the scale and nature of the proposal.”​

    🧠 Key Observations:

    1. ✔️ Properly classified as Schedule 2

    They didn’t ignore the legal threshold — EHDC acknowledged that both site area and dwelling count triggered Schedule 2 status.

    2. ❗ Dismissed significant effects despite cumulative risk

    Like the Bargate case, this screening decision did not find “likely significant effects”, and it did not reference cumulative development pressure in any meaningful way — despite:

    • 144 dwellings being objectively large for a rural village
    • Previous developments already adding pressure
    • Parish and County Highways officers raising infrastructure concerns

    3. ⚠️ Highways comments confirm cumulative concern

    Hampshire Highways accepted no EIA for highways specifically, but required:

    A full Transport Assessment to evaluate the impact on the local highway network​.

    They didn’t object — but their neutrality doesn’t imply no environmental significance overall.

    4. 🟥 Inconsistency with later positions

    We now have:

    • A history of large-scale growth in Medstead (Bargate, Foreman Homes, etc.)
    • A pattern where EHDC repeatedly chose not to require full EIA
    • Minimal cumulative logic applied each time — even as the thresholds were approached or exceeded

    This builds a legal and factual basis to say:

    EHDC’s approach to EIA screening has systematically ignored cumulative impact, especially in village-scale settings, despite mounting pressure and proximity to known environmental constraints (woodland, PROW, flood concerns, etc.).

    📌 Final Legal Insight:

    The 2014 screening for Foreman Homes was procedurally compliant under the 2011 EIA Regulations but arguably substantively flawed, just like the Bargate case.

    Both show:

    • Failure to apply Schedule 3 cumulative assessment robustly
    • Over-reliance on narrow thresholds
    • Dismissal of rural pressure as “not significant”, despite large-scale transformation

    ⏳ Under UK law (Regulation 9(2) of the EIA Regulations 2017):

    An EIA screening opinion expires after 3 years from the date it was issued, unless:

    • A planning application has been submitted, and
    • Substantive work has started on the development.

    ❗ Is it realistic to put 144 dwellings on 3.8 ha next to bungalows in a rural village?

    🚩 No — not without significant visual, landscape, infrastructure, and social impact — all of which should have triggered red flags in both:

    • The EIA screening process, and
    • The planning decision itself.

    🧠 Key Concerns:

    🟧 1. Density is disproportionately high

    • Village settings in East Hampshire typically support 25–35 dph (dwellings per hectare)
    • 72 dph is closer to urban infill levels
    • Squeezing this in next to bungalows creates urbanising impact → a Schedule 3 trigger under EIA Regs

    🟨 2. Contextual harm

    • The juxtaposition between 2-storey estates and low-density rural homes can cause:
      • Overbearing visual effects
      • Drainage mismatch
      • Social infrastructure overload (e.g. GPs, roads, schools)
    • These are precisely the kinds of effects the EIA process is meant to flag

    🟥 3. Cumulative effects

    • The two sites are close in both time and space
    • EHDC should have considered the combined visual and infrastructure pressure
    • Failing to link them in screening opinions is arguably irrational and legally unsafe

    ⚖️ In legal/technical terms:

    This level of intensification in a village location very likely should have been considered “likely to have significant environmental effects”, particularly when factoring in:

    • Landscape character
    • Cumulative housing growth
    • Infrastructure capacity
    • Settlement hierarchy (Medstead ≠ urban hub)

    The Town and Country Planning (Development Management Procedure) (England) Order 2015

    This is a statutory instrument (SI 2015/595) that sets out how planning applications must be processed in England. It includes rules about validation, publicity, consultation, and decision-making.

    🔸 Relevant points about publicising an application:

    Under Article 15 of this Order, local planning authorities (LPAs) — like your council — must publicise planning applications in one or more of the following ways depending on the type of development:

    a) For most applications (e.g., minor/household):

    • Site notice displayed for at least 21 days, or
    • Neighbour notification letter to adjoining owners/occupiers.

    b) For major developments or those affecting listed buildings or conservation areas:

    • Newspaper advertisement in a local paper and
    • Site notice.

    The goal is to give the public the opportunity to view, comment on, or object to the application within a statutory 21-day period.

    🔸 Council’s Broader Responsibilities Regarding Public Consultation

    While the 2015 Order sets the minimum legal baseline, councils can go beyond that in their Statement of Community Involvement (SCI). This is a document every LPA must produce under the Planning and Compulsory Purchase Act 2004.

    ✳ The council’s responsibilities include:

    • Notifying affected residents in a clear and timely manner.
    • Making application documents easily accessible online and in physical offices (if applicable).
    • Ensuring consultations are inclusive, especially for developments likely to cause significant local impact.
    • Providing transparent records of consultation outcomes and how they influenced decisions.

    🔸 Examples of Failures (that can be challenged):

    • Failure to post a site notice or notify nearby residents.
    • Inadequate or missing newspaper adverts (where required).
    • Not waiting the full 21-day period before deciding.
    • Refusing to accept late comments even when no decision has been made yet.
    • Making application documents difficult to access.
    • Ignoring material objections without addressing them.

    🔹 Important Extras:

    • Developers themselves may carry out informal consultation before submitting an application — but this is separate from the council’s duties.
    • The Localism Act 2011 encourages early engagement with communities, but it’s not legally binding unless incorporated into policy.

    ✅ Summary:

    • Councils must follow Article 15 of the 2015 Order: publish notices/site notices/neighbour letters depending on the case.
    • The public must get 21 days to comment.
    • Councils have a broader duty to ensure meaningful consultation — especially for major or controversial applications — and this should be detailed in their Statement of Community Involvement.
    • Inadequate consultation or failure to follow publicity rules can be a ground for Judicial Review.

    Medstead saw a much higher proportional growth than the district average — nearly 5.5 times higher than EHDC’s overall rate

    📍 East Hampshire District (EHDC)

    • 2011 population: 115,608
    • 2021 population: 125,700
    • Growth:
      • Absolute increase: 10,092 people
      • Percentage increase: ~8.73%

    📎 Source (2021): https://www.ons.gov.uk/visualisations/censuspopulationchange/E07000085/
    📎 Source (2011): https://cdn.easthants.gov.uk/public/documents/Census%20infographic%20EHDC.pdf

    📍 Medstead (Civil Parish)

    • 2011 population: 2,036
    • 2021 population: 3,016
    • Growth:
      • Absolute increase: 980 people
      • Percentage increase: ~48.14%

    📎 Source: https://www.citypopulation.de/en/uk/southeastengland/admin/east_hampshire/E04004515__medstead/

    📊 Proportionality of Development in Medstead (2011–2021)

    • Dwelling completions in Medstead (net gain): 410
    • Dwelling completions across East Hampshire District (EHDC): 4,906
    • ➤ Medstead accounted for ~8.36% of all new dwellings in EHDC

    👥 Population Context (2011 Census)

    • Medstead population (2011): 2,036
    • EHDC population (2011): 115,608
    • ➤ Medstead represented just ~1.76% of EHDC’s total population

    ⚖️ Conclusion: Disproportionate Development

    Despite making up only 1.76% of the district’s population, Medstead absorbed 8.36% of all new housing in the 2011–2021 period.

    This shows a development burden over four times higher than what would be expected if housing were distributed in proportion to population size.

    📌 This is strong, quantitative evidence that development in Medstead was not proportionate. It supports arguments about infrastructure strain, planning fairness, and unsustainable growth at the local level.

    🧮 Step-by-Step: How EHDC’s Annual Housing Need is Calculated

    ✅ Step 1: Get the Baseline from ONS

    Use the latest household growth projections for your area (East Hampshire). These projections come from the Office for National Statistics (ONS), which estimates how many new households will form in each local authority area over time.

    • Look at the average annual household growth over a 10-year period.

    🧾 Example (as of April 2025): ONS projects East Hampshire will grow by 3,678 households over 10 years → that’s 368 new households per year (baseline).

    ✅ Step 2: Apply the Affordability Uplift

    If housing in the district is expensive compared to local earnings, the required housing number is increased.

    🔍 What is the Affordability Benchmark?

    The government uses a benchmark affordability ratio of 4.0, which assumes that housing is reasonably affordable if the median house price is no more than four times the median annual earnings in the area.

    If the local affordability ratio is above 4.0, an uplift must be applied to the housing need to reflect increased demand caused by unaffordable housing.

    💡 How the Uplift Works

    For every 1.0 point above the benchmark of 4.0, the baseline housing need is increased by 0.25 (25%). This formula is set by the government in its Planning Practice Guidance (PPG).

    🔎 What’s the Logic Behind the Benchmark of 4.0?

    • The 4.0 affordability ratio is a policy judgment: it reflects the idea that housing becomes unaffordable when it costs more than four times the average local salary.
    • Historically, house prices around 3–4× income were considered manageable by mortgage lenders.
    • The government uses 4.0 as a threshold where no uplift is applied — it’s the point where housing is just about affordable without overstretching buyers.

    ⚖️ If house prices are below 4× average income, housing is considered affordable enough, and no additional housing pressure needs to be factored into the council’s housing target.

    📈 Why Apply a 25% Uplift per Point Above 4.0?

    • The uplift rate of 0.25 (25%) per point over 4.0 is meant to scale proportionally with housing stress.
    • For every 1.0 increase in the affordability ratio, the assumption is:
      • Demand exceeds supply
      • Additional homes are needed to cool price pressure

    ✅ Example: If the ratio is 5.0 (just one point over), the government assumes a 25% uplift is enough to help restore balance between supply and demand over time.

    If it’s 13.0 (as in East Hampshire), the uplift becomes over 225% — because prices are so far detached from wages, the area needs a lot more housing just to stabilize affordability.

    This method is intentionally simple and scalable. It avoids overcomplicated modelling and gives each council a clear formula based on just two data points.

    ✅ Example A: Affordable Area

    If the affordability ratio is 4.0 or below, no uplift is applied.

    ✅ Example B: Unaffordable Area

    If the affordability ratio is 13.03, as in East Hampshire:

    Affordability ratio13.03
    Affordability benchmark4
    Above the benchmark of 4(13.03-4) = 9.03
    Adjustment Factor = 25 % of the excess over the benchmark(0.25 * 9.03) = 2.2575
    Baseline – Total projected new households (2024–2034)3,678
    Baseline – Annual average growth3,678 ÷ 10 = 368 households/year
    Affordability Adjustment (uplift)​+83 households per year
    Total Annual Housing Need368 + 83 = 451 households/year

    ✅ Step 3: Cap It (In Some Cases)

    • If the Local Plan is up-to-date (reviewed within 5 years and aligned with national policy), the number can be capped to avoid sharp increases.
    • ⚠️ As of 2024, EHDC’s Local Plan is out of date, so no cap applies.

    ✅ Step 4: Use It for the 5-Year Supply

    The final number becomes EHDC’s annual housing requirement.

    • To remain compliant, EHDC must show enough land for 5 years of housing need.
    • 💡 If need = 560 homes/year → EHDC must show land for 2,800 homes over 5 years.

    📌 Where This Is Written

    • National Planning Policy Framework (NPPF) – Paragraphs 61–62
    • Planning Practice Guidance (PPG): Housing and Economic Needs Assessment

    Annual housing need for East Hampshire District Council (EHDC) using the Standard Method as of April 2025

    📍 Data Sources:

    • Data Source: ONS 2018-based household projections.
    • Affordability Data: Latest median house price to income ratio.

    🧾 Key Definitions (Glossary)

    • ONS (Office for National Statistics) – UK government agency responsible for population and economic data.
    • Affordability Ratio – Ratio of median house price to median local earnings; used to assess how affordable housing is.
    • Standard Method – The formula councils must use to calculate annual housing need.
    • Local Plan – The council’s official planning document setting out what can be built and where.
    • 5-Year Housing Land Supply – A requirement for councils to show they have enough land available to meet 5 years of housing need.