09/07/2021 Briefing

The Bill reshapes the consenting regime by providing that two separate consents will be required for the development of offshore renewable energy projects.  One consent is needed to occupy the maritime area: a Maritime Area Consent (“MAC”), and another to allow development of that area: a development permission. A MAC must be obtained first, following which the development permission can be sought under the Planning and Development Act 2000 (amendment of which is provided for in the Bill).

The Maritime Area Regulatory Authority (“MARA”) will be established and will be responsible for the granting of MACs, licences (discussed further below) and the enforcement of the new regulatory regime. The Minister for Housing, Local Government and Heritage (the “Minister”) will decide on the establishment day for the MARA and indicated, in April 2021, that establishment was in train and arriving shortly. An Bord Pleanála will be responsible for the grant of the development consent on the foreshore.

What does the Bill say about projects that have already secured a foreshore authorisation (whether a lease or licence) under existing legislation?

Some projects already have a foreshore lease or licence under the Foreshore Act 1933. The Bill provides that a holder of a foreshore authorisation does not need to apply for a MAC until its foreshore authorisation is going to expire, or unless it wishes to amend its currently authorised activity or occupation of the maritime area.

An application for a MAC can be made at any time before the expiration of the foreshore authorisation. A foreshore authorisation will not expire until (a) the holder of the lease or licence has surrendered the authorisation and has been granted a MAC, or (b) the expiration date on the authorisation is reached.

The Bill makes provision for Special MAC Cases, which are projects where the proposed maritime usage involves the use of wind to produce offshore renewable energy. To qualify as a Special MAC Case, projects must have been the subject of an application for a foreshore authorisation made, but not determined, abandoned or withdrawn before 31 December 2019; the subject of a foreshore authorisation; or the subject of a valid connection agreement or confirmation of eligibility to receive a connection before 31 December 2019.

Projects that fall into the category of Special MAC Cases may make a MAC application to the Minister once the Bill is enacted and before the establishment of the MARA. It seems that a separate application to MARA would have to be made for any extended area beyond that which is included in the foreshore authorisation/application.

What is the situation for projects that do not fall into the category of Special MAC Cases?

Such projects cannot avail of ‘first mover’ advantage by applying to the Minister. They must wait for the establishment of the MARA and submit their MAC application to the MARA. Given that scheduled auctions under the Renewable Electricity Support Scheme (RESS) are due to incorporate offshore wind in early 2022 and processing rounds are ongoing under the Electricity Connection Policy (ECP) it is critical that projects have a line of sight of the timescale within which they will be able to identify with some certainty the location of the maritime area in which they can develop and the conditions that will apply to development.

What is the Levy Framework?

The Bill provides that the MARA must establish a levy framework under which MAC holders will pay a levy for the use (or potential use) of the part of the maritime area that is the subject of the MAC.

The levy framework may provide, for example, for different levies to be paid for different classes of MACs; for levies to be paid on the occurrence of specified events; or for the circumstances when a levy may be a nil or token amount. The criteria that the MARA must have regard to when establishing the levy framework is set out in section 88(3) of the Bill. The criteria includes factors such as the likely profit to be gained by the MAC holder; the likely public benefit to be gained from a class of maritime usages for which MACs may be granted; and the marine planning policy statement (which the Minister is required to prepare and publish in accordance with section 6).

A MAC cannot be granted until the applicant has been informed of the levies that it will be required to pay.

On what basis is a MAC granted?

The Bill sets out the criteria that the MARA or the Minister must have regard to when deciding a MAC application (in Schedule 5). The criteria include the nature, scope and duration of the occupation of the maritime area; whether the proposed maritime usage is in the public interest; whether the applicant is a fit and proper person; the National Marine Planning Framework; the level of preparatory work already undertaken in relation to the project; and the level of stakeholder engagement in relation to the project.

The MARA is required to give a decision on an application for a MAC (including reasons for any refusal) within 90 days of determining that an application is valid. Importantly, MARA will not carry out an Environmental Impact Assessment Screening or Appropriate Assessment Screening when deciding a MAC application.

Where the MARA grants only part of the MAC sought, grants it with conditions, or refuses to grant it, it must provide its reasons for its decision to the applicant.  The MARA will state whether or not the MAC is for the exclusive use of the maritime area identified. Exclusive use may be granted but may be contingent on circumstances arising after the MAC is granted.

What happens if there is more than one application for the same area?

The MARA may use a competitive process to determine which applicant will be granted a MAC in circumstances where there are two or more applications for the same area of the maritime area, and where the MARA considers that only one MAC can be granted for that area. It is unclear how this process will operate, but it appears from the wording of the Bill that it may take the form of a levy auction where developers will competitively bid against each other to determine the levy to be paid.

Licenses Authorising Certain Maritime Usages in Maritime Area

The MARA will also be able to issue licences for activities such as dredging, surveys, navigational aids and pontoons etc. with the licensing and decision making process following broadly the same process as that applying to MACs. Licence decisions will be given, where practical, within 30 days of the MARA being satisfied that the application will be valid. A licence cannot be granted for any activity which the MARA determines would require an environmental impact assessment. Clarity around the implications of this – and whether it means that such activities would require development consent from An Bord Pleanála – will likely emerge as the Bill makes its way through the legislative process.

Amendment of the Planning and Development Act 2000

Part 8 of the Bill inserts Part XXI to the Planning Act to deal with the development permission side of the regime. It confirms that a MAC is required before development permission can be sought.

Once a MAC is granted an applicant may apply to An Bord Pleanála for permission to carry out the development on the foreshore (with nearshore activity being regulated by local authorities). Pre-application consultation is required with An Bord Pleanála and there is scope to seek to have the terms of a planning permission amended before development is about to commence or has commenced. In circumstances in which a decision to grant a MAC is being judicially reviewed, the MAC holder may still pursue an application for a planning consent notwithstanding that judicial review proceedings are ongoing.

A highly significant piece of the regulatory jigsaw

The Bill is earmarked as priority legislation in the Summer Legislative Programme. If Ireland’s renewable energy targets (which are binding under EU law) are to be met, and its potential wealth of export resource realised, it is critical that the provisions of the new framework are soon enacted, and that the MARA is established and (along with An Bord Pleanála) adequately resourced. The Bill is a highly significant part of a wider regulatory framework that is being pressed to rapidly evolve to enable the changes needed now to move to net zero.

The authors would like to thank Susanna Morgan for her contribution to this briefing.