Draft Marine Planning Policy Statement

Introduction

The Government has recently launched a draft Marine Planning Policy Statement (MPPS), which outlines a programme of legislative reform to modernise the Irish marine planning system. At present, the planning process for a development in a marine area is quite complicated. A development such as an offshore wind farm, for example, requires a number of permissions from different bodies in order to proceed under the current regulatory regime. It is envisaged that the legislative agenda outlined in the MPPS will rationalise this process and provide a more efficient system for the sustainable development of Ireland's marine environment.

The Policy Statement describes the Irish marine planning system as it currently is. It outlines the legislative initiatives being developed to reform the system. It also sets out overarching principles and priorities that will underpin the new system.

The MPPS parallels the 2015 Planning Policy Statement, which underpins the land-planning system in Ireland. It is intended that the MPPS will be followed by the enactment of legislation in 2020 which will provide for the preparation, adoption and review of statutory marine planning policy statements on six-yearly cycles.

The Irish Marine Planning system at present

A planning system generally comprises three elements: forward planning, development management, and enforcement. At present, there is room for significant improvement in each of these three areas in the Irish marine planning system.

1. Forward planning: this is the setting of high-level goals and of an overarching policy "vision" for a geographic area. Currently the majority of planning, licensing and regulation of Irish maritime activity is carried out on a sectoral, demand-driven basis, with no overall plan having been established. This is set to change with the creation of Ireland's first comprehensive marine spatial plan under the European Marine Spatial Planning Directive (more on this below).
2. Development management: this refers to making determinations in respect of applications for specific developments. The main marine development management system is the foreshore lease and licencing system established by the Foreshore Acts 1933-2011, which encompasses pipelines, marinas, and wind farms.
3. Enforcement: this refers to efforts to properly execute the forward plans and to ensure that development management decisions are complied with. Responsibility for enforcement is split between local authorities, the Office of the Planning Regulator, and the Minister for Housing, Planning and Local Government.

The Programme of Reform

There are a number of legislative and other policy initiatives underway which will significantly update and enhance the Irish marine planning system. These include the following:

• Marine Spatial Planning: National planning of the marine environment is required by the European Marine Spatial Planning Directive (Directive 2014/89/EU). This requirement is effected in Irish law by the Planning and Development (Amendment) Act 2018. This Act creates the statutory basis for a national plan of Ireland's maritime area, which will be known as the National Marine Planning Framework (NMPF). The NMPF will establish an overarching plan for the entire Irish marine area, to function as the maritime counterpart to the National Planning Framework. The NMPF will set long-term objectives for the sustainable development of Ireland's maritime area over a 20-year term. A draft NMPF is due to be published in Q3 2019 for a period of public consultation with the final plan to be published before the end of 2020.
• Maritime Jurisdiction Bill: The Maritime Jurisdiction Bill will significantly update and consolidate Ireland's maritime jurisdiction law. One of the main aims of the bill is to define the various maritime zones of the State (the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf). The rights of the State in respect of each zone, as well as the interplay of each zone with the civil and criminal jurisdiction of the State, will be set out in the Bill. The modernisation of Irish maritime jurisdiction law which this Bill represents will complement the reforms of the Marine Planning and Development Management Bill 2019.
• Marine Planning and Development Management Bill 2019: One of the most significant things to come from this policy statement is a refreshed Government commitment to reforming the consents process for offshore developments. Currently, the offshore consents process is governed by the Foreshore Act 1933. This regulatory framework is overly complicated and, generally speaking, unfit for purpose. To illustrate the point: the developer of an offshore wind farm must obtain separate planning permission for the offshore parts (e.g. the turbines) and the onshore parts (e.g. the grid connection works) of the windfarm. In order to spur development of Ireland's foreshore, and to increase production of renewable wind energy, reform of the consents process for offshore developments is needed.

Such reform has been on the Government's legislative programme since 2013, in the form of the Maritime Area and Foreshore (Amendment) Bill. This bill is now to be replaced by the Marine Planning and Development Management Bill 2019.

The main points of the 2019 bill are to:

• empower the Minister for Housing, Planning and Local Government to issue statutory marine planning guidelines (parallel to the statutory planning guidelines issued under Section 28 of the Planning and Development Act 2000)
• provide an improved statutory basis for marine forward planning; introduce a single State consent system for the maritime area for certain types of projects
• eliminate the duplication that presently occurs where some types of developments (e.g. wind farms) are assessed under both the foreshore and the planning systems
• introduce a single development management process for certain project types (including offshore renewable energy development)
• provide transitional arrangements for legacy offshore renewable energy projects

Conclusion

The MPPS is a very welcome development in the area of planning and environmental law; it indicates a reinvigorated Government intention to undertake comprehensive reform of Ireland's marine planning system. The creation of the National Marine Planning Framework will ensure that Ireland's maritime area is developed in accordance with an overarching vision of supporting biodiversity, preserving our marine heritage, and transitioning to a low-carbon economy.

The Marine Planning and Development Management Bill 2019 will rationalise the, currently unwieldy, foreshore leasing/licencing regime - an essential reform if Ireland is to exploit its capacity to generate renewable energy offshore. Furthermore, the reforms will ensure that Ireland meets its obligations under EU and International law, including under the Marine Strategy Framework Directive, the Maritime Spatial Planning Directive, the Ospar Convention, the Aarhus Convention, and the Common Fisheries Policy. The comprehensive reforms envisaged in the MPPS should be welcomed by all who have an interest in the sustainable development of Ireland's maritime area.

The consultation period closed on Friday, 9 August 2019.

For further information see here and here.

For more information in relation to appropriate assessments, mitigation measures and related planning matters, please contact Alan Roberts, Alison Fanagan, Jason Milne or any member of A&L Goodbody's Environmental and Planning team

Date published: 26 June 2019