Marine Planning Legislation: Bill to be published in the New Year

The pre-legislative scrutiny process for the proposed Marine Planning and Development Management Bill commenced at the end of November 2020, at the same time that a revised FAQ document (version 2) is published by the Department. The publication of the Bill itself is not expected until January or February 2021. The FAQ document flags a few key changes to the General Scheme approved by Government in December 2019.

Firstly, the Bill is expected to focus on offshore renewable energy projects, energy interconnectors, cables and pipelines, and subsea telecommunications cables. Other sectors and activities are expected to be incorporated at a later stage.

Secondly, it is anticipated that a more streamlined approach will be taken, with a two-stage as opposed to the three-stage process identified in the General Scheme. Prospective developers will apply for a planning interest in the marine area and a draft marine area consent (equivalent, in some ways, to a foreshore lease or foreshore licence). The prospective developer would then apply for development consent. It is only on the grant of a development consent that a marine area consent would be executed as between the developer and the State. Important details, such as assessment criteria and conditions, are intended to be set out in schedules to the Act.

Thirdly, a body with powers to ensure compliance with development and marine area consents must be established, with the power to initiate enforcement action if necessary.

The current goal is that the new MPDM legislation will be enacted by March 2021. This is an ambitious target for new legislation required to deliver complex projects against a backdrop of new planning and environmental judgments delivered by the Irish and European Courts with increasing frequency and complexity. It is hoped that the pre-legislative scrutiny and subsequent legislative processes on the Bill will facilitate engagement by those with specialist engineering, legal, environmental, and commercial knowledge of what is required for a robust consenting regime.

The General Scheme anticipated a single development consent application procedure, to avoid unnecessary duplication of decision-making procedures that exists today. This makes great sense in relation to relatively homogenous project types, such as interconnectors, cables, and pipelines.  Offshore renewable energy projects involve very different infrastructural elements in the marine and terrestrial environments, with connection to the grid solutions not always clarified until a late stage in the project development. The MPDM Bill needs to facilitate both a single application approach and a phased application approach, subject to ensuring holistic over-arching environmental impact and appropriate assessment under EU Directives.

The General Scheme anticipated the extension of the consenting area to include the entire Exclusive Economic Zone (EEZ) which extends out to the 200nm limits in certain locations. The scope of the Foreshore Acts currently only covers the area out to the 12nm limit. The legislative scheme needs to facilitate investigation of and applications for suitable areas beyond the 12nm limit, in order to encourage a pipeline of potential projects to meet Ireland’s potential in the medium to longer term.

The General Scheme needs to facilitate a streamlined development consent process which recognises also the importance of consultation with interested parties, including the environmental NGO sector and the public concerned. The legislation needs to give the decision-maker clear, robust, and unambiguous powers. The Courts have increasingly signalled a willingness to engage in detail in the substance of decision-making, highlighting in numerous cases the difficulties that are created when legislation fails to clearly articulate what is required of the decision-maker, the applicant, and the public concerned.

We have a unique opportunity to put in place a marine planning regime which learns from the experience of other countries with more mature sectoral experience and a robust approach to environmental conservation and sustainable development. This is particularly true when considering appropriate development guidelines, de minimis criteria for non-invasive site investigation, transparency and certainty around fees, and for ensuring that National Parks and Wildlife Service as well as the decision-making bodies are suitably resourced at appropriate levels.

For more information in relation to this article please contact Alice Whittaker:
T: + 353 1 237 3700
E: awhittaker@philiplee.ie
W: www.philiplee.ie