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Maritime Area Planning Act 2021 - A New Legislative Process for Offshore Renewable Energy Projects

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Ireland

The Maritime Area Planning Act 2021 ("the Act"), described as the most extensive reform of marine governance since the foundation of the State, was signed into law on 23 December 2021.

The Act provides an entirely new legislative framework and streamlined development consent process for activities in the maritime area. Although the Act is not solely applicable to offshore renewable energy projects, it will undoubtedly play a key role in enabling Ireland to achieve its goal of generating 5GW of offshore wind energy by 2030.

The Act provides for two separate consent requirements for an offshore renewable energy project.
 
  • First, a developer must obtain the right to occupy a particular maritime area, known as Maritime Area Consent (“MAC”).
  • Secondly, a developer must seek development permission, which is granted under the Planning and Development Act 2000. A MAC is a pre-requisite to an application for development permission.

On 10 March 2022, Part 4 (Maritime Area Consent) of the MAP Act came into operation, coinciding with the announcement of the Minister for the Environment, Climate and Communications ("DECC") in relation to the opening of the first MAC application window from Monday 25 April to Wednesday 22 June 2022.

Maritime Area Regulatory Authority

The Act establishes a new regulatory body, the Maritime Area Regulatory Authority ("MARA"). This new bodies responsibilities will include the granting of MACs and licences and ensuring enforcement of, and compliance with, the Act. It is expected that MARA will come into existence in early 2023, however the Act contains a provision allowing the Minister for the DECC to exercise the functions of MARA on an interim basis prior to its establishment. The Minister is also permitted to invite applications from certain offshore wind farm developers in advance of the establishment of MARA.

MAC Applications

Foreshore consents are replaced by a more streamlined MAC regime and the planning permission system is extended into the entire maritime area, with development subject to a single comprehensive environmental assessment.

MAC applications are assessed on a case-by-case basis, and the criteria to be applied is set out in Schedule 5 of the MAP Act and includes the following:
 
  • The nature, scope and duration of the occupation of the maritime area concerned for the purposes of the proposed maritime usage;
  • Whether the proposed maritime usage is in the public interest;
  • The location and spatial extent of the occupation of the maritime area concerned for the purposes of the proposed maritime usage;
  • Whether the applicant is a fit and proper person (having regard to criteria set out in the Act);
  • Consistency of the proposed project with the National Marine Planning Framework; and
  • The extent of preparatory work conducted by the applicant, which includes the level of stakeholder engagement.
 
An application must be made in the specified form, accompanied by the specified fee. MARA shall, where practicable, determine applications within 90 days after the day the applicant has complied with all requirements. In assessing the application, MARA will have regard to specific criteria. An application can be refused, granted or part granted or may be granted subject to attached conditions. If an application is refused or only part granted, MARA must provide reasons as to why that is the case. Generally, an application for leave to judicially review the validity of a MAC must be brought within 8 weeks of the date of publication of MARA's decision.

The holder of a MAC who wishes to amend the MAC in any material way, including in order to obtain or assist in obtaining development permission, may make an application for such an amendment. MARA shall make amendment to the MAC if it is satisfied the amendment is non-material. In circumstances where MARA is not satisfied that the amendment is non-material, MARA must give the MAC-holder notice of reasons as to why that is the case, and the MAC-holder is entitled to make submissions on why they believe it is non-material.

Development Planning Permission

Once a MAC has been granted, a planning application can be made. This application will be made to either the Coastal Planning Authority ("CPA") or An Bord Pleanála ("the Board"), dependent on the scale of the development. If a proposed development will involve five or more wind turbines or has an output of more than 5MW, the application must be made to the Board. For smaller scale developments, a developer is only required to submit the planning application to the CPA, so long as the development is wholly within the CPA's 'nearshore' area.

Both the Board and the CPA must have regard to specific criteria when determining the application, including the National Marine Planning Framework. The Board or the CPA may attach further conditions to a planning permission, and alterations can be made to a planning permission which has been granted by the Board.

Offshore Renewable Energy Support Scheme 1 ("ORESS 1")

Another offshore renewable electricity-focused initiative commenced in late 2021, in the form of ORESS 1, which will provide support to renewable electricity projects in Ireland. There have already been two auctions for onshore developments under RESS 1 and 2, so ORESS 1 can be described as the same scheme but in the context of offshore developments. It is an auction-based scheme, which invites renewable electricity projects to bid for capacity and receive a guaranteed price for the electricity they generate. The Government has agreed the proposed elements of the Scheme, which are consistent with the state aid approval for RESS auctions through to 2025.

With a primary focus on cost effectiveness, the RESS delivers a broader range of policy objectives, including:
 
  • Providing an Enabling Framework for Community Participation through the provision of pathways and supports for communities to participate in renewable energy projects.
  • Increasing technology diversity by broadening the renewable electricity technology mix.
  • Delivering an ambitious renewable electricity policy to 2030.
  • Increasing energy security, energy sustainability and ensuring the cost effectiveness of energy policy.

The RESS 2 auction is currently in progress, and is targeted at supporting the achievement of goals envisaged under the National Development Plan and the policies and measures in the Climate Action Plan 2021.

Potential Impact of the Act

The Act will play an integral role in Ireland’s efforts to realise its ambitious renewable electricity target of having renewable energy account for 80% of energy within the State by the year 2030, as set out in the Climate Action Plan. When compared with the previous governing legislation, the Act provides an improved and streamlined consenting process.

Already, the Minister has invited applications from developers of 7 large offshore wind farms, with 6 proposed for the Irish and 1 for the west coast and all of which combined, if successful in their applications, would produce 3GW of renewable power.

A copy of the Act is available here.

Written by Zoe Richardson, Elaine Traynor, Jonathan Moore, and Iarlaith Connor. 

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