By Jack Parker and Ashley Bowes
Natural England has published Guidance suggesting that field survey work can continue during the Covid-19 lockdown in accordance with government Guidance on social distancing in the work place.
The key points from the NE guidance are:
- Statutory planning casework and wildlife licensing applications are key operational priorities for NE.
- Ecologists and environmental professionals should be able to continue with outdoor work, including ecological surveying and supervision, where they can continue to follow Public Health England guidelines.
- Where COVID-19 restrictions prevent survey work, NE will be as flexible as possible in accepting the best available information (e.g. digital evidence) but unless there is sufficient information to rule out significant environmental effects, a precautionary approach may be needed and/or a decision deferred until sufficient evidence is available.
- Licensable works should not commence if they cannot be undertaken in accordance with government guidance. Where work must proceed but may not be completed, contingency plans should be submitted to NE wherever they would significantly alter avoidance, mitigation, compensation or monitoring.
- Licence monitoring works should be undertaken as soon as restrictions permit although NE will accept delays to monitoring data of up to one year from when originally planned.
- Licence returns should be completed and submitted or, if this is not possible, reasons/justifications for the delay should be recorded and the return submitted to NE as soon as possible.
Even during the lockdown, Circular 06/2005 Biodiversity and Geological Conservation – Statutory obligations and their impact on the planning system remains extant. In particular, paragraph 99 makes clear that it is "essential" that the presence or otherwise of protected species and the "extent to which they may be affected" is established before the grant of permission.
Granting permission subject to a "Grampian" style condition should only be adopted in "exceptional circumstances", which is likely to be cases where there is minimal risk of a species being present or affected rather than circumstances such as the present, where a survey may not have been undertaken due to the COVID-19 pandemic. R(Bagshaw) v Wyre Forest DC  EWHC 508 (Admin) is a cautionary tale for a planning authority or developer, which shows the effect of a failure to submit the necessary information prior to the grant of permission, so as to enable a judgment to be reached about presence and effect on protected species.
The need to carry out survey work during lockdown is therefore a major issue for the development sector with the potential to cause major delays in the planning process, particularly in relation to ecological surveys (and to a lesser extent landscape surveys) as we head into the peak survey season. For some projects, a failure to carry out ecological or landscape survey work over the next few weeks and months could mean waiting until next year with consequential delays of 12 months or more in the submission of planning and other applications.
Until now, there has been scant specific guidance from government or elsewhere as to whether survey work should go ahead. Inevitably, faced with uncertainty, there have been a range of responses on the issue. Although written to inform its own advisory and licensing services, the Natural England guidance provides some much needed clarity for the sector from the Government's adviser for the natural environment.
We therefore recommend that surveys are carried out where possible to avoid delays. It should be noted that by Reg.6(2)(f) Health Protection (Coronavirus Restrictions) (England) Regulations 2020, travelling "for the purposes of work" where it is not "reasonably practicable" to work from home is included within the list of "reasonable excuses" for leaving home. Provided social distancing can be maintained to ensure the safety of those carrying out the survey, even the present onerous restrictions provide a lawful basis to conduct the surveys and therefore avoid delays in the determination of permissions.