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Sectors

Marine


Philip Lee has an established marine practice, unique in the Irish legal services market.

We have been responsible for delivering some of the most ambitious construction and infrastructure projects in the marine environment in Ireland including:

  • East-West Electricity Interconnector
  • Port of Cork redevelopment at Ringaskiddy
  • America Europe Connect subsea fibre optic cable between US-Ireland
  • Greystones Harbour and Marina PPP
  • Ringsend Wastewater Treatment Plant
  • Securing foreshore consent for a floating data centre on behalf of Nautilus Data Technologies
quotes Really commercial, agile and pragmatic. Legal 500, 2020

 

Our marine projects practice group is advising on the following significant mandates:

  • Acting for RWE Renewables on the Dublin Array offshore wind project
  • Appointed as lead legal advisors to the Aquaculture Licenses Appeals Board
  • Advising Aqua Comms on the financing, consenting and delivery of subsea fibre optic cable projects between US-Ireland-UK-Europe, including the Havfrue and Havhingsten cable systems
  • Lead adviser to the Marine Institute and Sustainable Energy Authority of Ireland (SEAI) on the consenting and procurement of the SmartBay marine energy quarter scale device test site in Galway Bay
  • Lead adviser to SEAI on the consenting and procurement of the AFLOWT floating offshore wind farm test project at the AMETS marine energy test site at Belmullet, Co Mayo
  • Appointed lead legal advisers to Bord Iascaigh Mhara and Bord Bia, advising on a wide range of operational matters including procurement of services and goods for these bodies responsible for the marketing and promotion of Irish food and seafood
  • Advising on the financing and procurement of a new state-of-the-art marine research vessel on behalf of the Marine Institute

 

Our experience advising on coastal and marine projects and matters goes back many years:

  • Advising the Commissioners for Irish Lights on their unique governance and funding structures under old English legislative provisions
  • Advising on certain regulatory aspects of the Arklow Bank offshore wind farm
  • Advising Mainstream Renewable Power on the proposed ‘Energy Bridge’ project to export renewable energy from Ireland to the UK
  • Advising and making consultation submissions on behalf of the Irish Offshore Operator’s Association on the general scheme of the Maritime Area and Foreshore Act, which has since been replaced by the Marine Planning and Development Management bill
  • Advising and making consultation submissions on behalf of the National Offshore Wind Association (NOW Ireland) on the draft Offshore Renewable Energy Development Plan (OREDP)
  • Advising Shannon Foynes Port Company on the regularisation of port-owned and occupied lands, dealing with wrecks, consents for certain activities and works under the Foreshore Acts, and matters relating to pilotage and employment rights and obligations
  • Advising Aqua Comms on the financing and development of the CeltixConnect subsea fibre optic cable
  • Acting for Marine Institute, advising on the exercise of enforcement powers under the Fish Health Directive for aqua culture and related marine activities

 

Activities/Sectors

  • Ports and harbours
  • Aquaculture/fish health
  • Marine research and development
  • Biodiversity, archaeology and maritime heritage
  • Marine spatial planning
  • Waste water treatment
  • Dredging and dumping at sea
  • Vessel charter and seizure
Array ( [0] => WP_Post Object ( [ID] => 21173 [post_author] => 14 [post_date] => 2022-04-25 15:09:45 [post_date_gmt] => 2022-04-25 15:09:45 [post_content] => Opening of the first MAC application window for “Phase 1” projects The first application window for the Maritime Area Consent (MAC) regime is now open for a period of eight weeks, closing on Wednesday 22 June 2022. As discussed in our previous update, this first application round concerns “relevant maritime usages” under section 100 of the Maritime Area Planning Act (MAPA), that is proposed offshore wind projects which either applied for or were granted a lease under the Foreshore Act 1933, as amended, before 31 December 2019, or were granted a grid connection offer before that date. Any MAC applications made by these projects will be assessed and determined by the Minister for the Environment, Climate and Communications (the Minister) on an interim basis pending the establishment of the Maritime Area Planning Authority (MARA). The Minister will assess these project applicants in terms of their financial and technical competency, to ensure that only viable projects will be eligible to proceed to commence pre-application consultations with An Bord Pleanála (the Board) and ultimately to apply to the Board for development permission.  As part of the initial MAC application process, applicant projects will be required to carry out a financial viability and technical capability self-assessment and to show evidence of at least 12 months’ continuous experience at the development, construction, and operational stages of an offshore wind farm. Evidence may include copies of press releases, newspaper articles, copies of grants of planning permission, copies of commercial/JV/partnership agreements, generation/commissioning certificate, and/or operational agreements. Statements for the last two financial periods would also be required to complete a financial viability assessment. In addition to tangible experience in delivering an offshore wind farm, prospective MAC applicants must provide evidence of their commitment to their projects through demonstrating experience in project delivery team. Today’s opening of the first MAC application window represents a key milestone in the implementation of the MAPA. MAPA, which constitutes the most ambitious reform of marine governance in Ireland, is expected to play a key role in meeting Ireland’s renewable electricity target of 80% by establishing an integrated consenting regime for offshore renewable energy projects, as well as other project types and activities in the maritime area. MAPA provides for a MAC, which constitutes a conditional consent to occupy a part of the maritime area on an exclusive or non-exclusive basis, and a development permission (aka planning permission), which is granted by the Board, subject to environmental assessment, to develop the part of the maritime area covered by the MAC. There is also, under MAPA, provision to apply to MARA for a licence to carry out certain minor works and activities of a temporary or transient nature, such as maritime surveys, as discussed further below.   A new approach to maritime area consenting MAPA consolidates and arguably streamlines the formerly fragmented consenting regime (which still applies until MAPA is fully commenced). At first glance, MAPA simplifies the development permission process by extending a modified version of Ireland’s terrestrial planning system to the entire maritime area, which is broadly defined as the area extending from the high water or ordinary or medium tides to the outer limit of the continental shelf and the Exclusive Economic Zone (EEZ). The Foreshore Acts have a limited jurisdiction extending only to the 12 nautical mile (nm) limit of the ‘foreshore’ as defined. MAPA covers the entire maritime area including the sea and tidal area of internal waters, the territorial sea, the EEZ and the Continental Shelf, as defined under the Maritime Jurisdiction Act 2021. MAPA distinguishes between the ‘nearshore area’ of a coastal planning authority or authorities (CPA), and the outer maritime area which is the entire maritime area beyond the nearshore area. The nearshore area of a CPA may be designated by the minister but the default nearshore area under MAPA is 3nm from the high-water mark of the ordinary or medium tide. The Board has direct jurisdiction over all projects situated:
  • wholly in the outer maritime area (including projects extending beyond the outer maritime area into the high seas), and
  • partially in the outer maritime area and partially in the nearshore area (including projects extending from the outer maritime area through the nearshore area and on to land).
The Board also has direct jurisdiction over all projects listed in schedule 10 of MAPA, whether they are situated in the nearshore or the outer maritime area. Schedule 10 of MAPA includes strategic infrastructure developments and offshore renewable energy (ORE) projects with more than 5 turbines/generating units or a total output exceeding 5MW. (The CPA will have jurisdiction over projects below this scale where such projects are to be situated wholly within the nearshore area, or partially within the nearshore and partially on land.)  Most ORE projects, therefore, will be subject to a consent procedure similar to the strategic infrastructure development consent procedure under the Planning and Development Act 2000, as amended. Under MAPA, once all of the procedural steps are completed (including pre-application consultation, public consultation, requests for further information, oral hearing etc.,) the Board’s deliberative process on the application for development permission, including the Environmental Impact Assessment (EIA) and Appropriate Assessment (AA), should take no more than 18 weeks before a decision to grant or refuse development permission is made.   ORE grid connections MAPA does not clearly address the permits for electricity generation and grid connection. As outlined by DECC in its consultations on Phase 1 and Phase 2 of offshore wind deployment, project eligibility for the Offshore Renewable Electricity Support Scheme (ORESS1) is contingent on the applicants securing both a MAC from the Minister (or MARA, when established) and a Grid Connection Assessment (GCA) from EirGrid (the TSO). A GCA is expected to operate as a provisional grid offer pending the grant of a development consent and success in the ORESS1 auction. Full grid connection offers will only be made to projects that have secured both a route to market, via ORESS or Corporate Power Purchase Agreement (CPPA) or otherwise, and development permission from the Board. In a Decision Paper issued on 18 February 2022, the Commission for Regulation of Utilities (CRU) directed EirGrid to issue GCAs to Phase 1 projects. The first GCA application window, initially expected for Q1 2022, should be announced shortly. To be considered eligible for a GCA, prospective applicants are to submit a “single desired maximum export capacity” (in MW) for the proposed project, and specify a preferred onshore connection point(s). Onshore connection points shall be agreed with EirGrid in the application confirmation stage. If there is competition for onshore connection points between prospective ORE applicants, the resolution will be sought by “collaborative agreement between the parties”. In the absence of agreement, onshore connection points will be assigned by EirGrid based on prescribed “Offshore Node Assignment criteria”. EirGrid shall issue GCAs within 90 working days of receipt of a complete application. Once issued, the GCA will remain valid until 3 months after the ORESS1 Notice of Award.   Potential to “fast-track” ORE projects Section 295(3) of MAPA empowers the Minister to direct the Board to prioritise a particular class or classes of application, where the Minister considers that it is necessary or expedient that such class or classes of application be determined as expeditiously as is consistent with objectives of maritime spatial planning and principles of proper planning and sustainable development, by reason of its or their being of special strategic, economic or social importance to the State. The exercise of section 295(3) in favour of ORE projects would be supported by the recent EU Commission Communication (COM/2022/108 final) in which EU Commission expressly calls on member states to treat the planning, construction and operation of renewable energy projects, and their connection to the grid and the related grid itself to be “in the overriding public interest and in the interest of public safety” and to qualify for the most favourable procedure available in the planning system. The EC communication indicates that further recommendations for fast permitting for renewable energy projects will be published in May 2022, availing of all flexibilities under EU law and the removal of remaining obstacles, whatever their origin. Member states are asked to fully and rapidly transpose the Renewable Energy Directive and the revised TEN-E framework (see here for a discussion on the revised TEN-E Regulation). The Communication indicates that the accelerated deployment of ORE projects would benefit from the designation of “go to” areas, possibly as part of the requirement to conduct regular reviews of the National Maritime Planning Framework. It calls on member states to “swiftly map, assess and ensure suitable land and sea areas that are available for renewable energy projects, commensurate with their national energy and climate plans, the contributions towards the revised 2030 renewable energy target and other factors such as the availability of resources, grid infrastructure and the targets of the EU Biodiversity Strategy”.  This suggests an urgent need to accelerate the adoption of an updated Offshore Renewable Energy Development Plan, with associated Strategic Environmental Assessment and AA, in parallel to the work required to designate maritime protected areas as previously discussed. Both MAPA and the anticipated further communications from the European Commission provide a solid legal basis to accelerate the permitting procedures for ORE projects, both for the purposes of urgent decarbonisation of the electricity sector and for securing Ireland’s energy supplies, given the current geopolitical context triggered by Russia’s war in Ukraine. Accelerated permitting procedures require not only shorter time-scales but also the appropriate resourcing and prioritisation of involvement of key stakeholders, including the National Parks and Wildlife Service, the Marine Institute, EirGrid, An Bord Pleanála, and local authorities, each of which is integral to a legally and technically robust as well as swifter permitting process for ORE.   A timid progress towards a “one-stop-shop” approach to consenting While the importance of MAPA cannot be underestimated, the new consenting regime does not fully embrace the “one-stop-shop” approach initially advocated by the Joint Oireachtas Committee in February 2014 (see: Report of the Committee on the General Scheme of the Maritime Area and Foreshore Amendment Bill, 31st Dáil Éireann/24th Seanad Éireann). In particular, the new regime does not abolish the obligation to obtain a separate license for the conduct of site investigation works and a subsequent consent for the occupation of the maritime area.  “Environmental surveys carried out for the purpose of site investigations” or in support of a planning permission are expressly included in the list of licensable maritime usages under Schedule 7. MARA, once established, will be responsible for granting and administrating licences for such usages. MARA shall generally endeavour to determine applications for a licence within 30 days of receipt of complete application requirements. Until MARA is established, it is not possible to secure a licence for maritime surveys beyond the 12nm limit, and there appear to be no immediate plans for the State to facilitate such investigations pending the operational establishment of MARA and its licensing functions. This could be considered a wasted opportunity and an unnecessary administrative barrier to ORE project deployment, as prospective project developers could now be progressing initial investigative and feasibility work on a pipeline of ORE projects extending further offshore, beyond the 12nm limit, while MARA is being established and resourced.   For more information in relation to this article please contact Alice Whitttaker and Célia Le Lièvre. [post_title] => Update for Ireland’s offshore wind energy developers: Maritime Area Consent (MAC) applications now open for “Phase 1” projects [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => update-for-irelands-offshore-wind-energy-developers-maritime-area-consent-mac-applications-now-open-for-phase-1-projects [to_ping] => [pinged] => [post_modified] => 2022-04-25 16:46:52 [post_modified_gmt] => 2022-04-25 16:46:52 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.philiplee.ie/?p=21173 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) )

Opening of the first MAC application window for “Phase 1”...

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Array ( [0] => WP_Post Object ( [ID] => 21019 [post_author] => 9 [post_date] => 2022-03-30 10:30:26 [post_date_gmt] => 2022-03-30 10:30:26 [post_content] => The Minister for Housing, Local Government and Heritage signed an order (SI. No. 112/2022) giving effect to the relevant provisions of the Maritime Area and Planning Act (MAP Act) governing the new Maritime Area Consent (MAC) regime.  The 10th of March 2022 was appointed as the day on which Part 4 (Maritime Area Consent) of the MAP Act shall come into operation, with the exception of transitional provisions for certain foreshore authorisations specified in Chapter 12. The commencement of the MAC regime enables the Minister for the Environment, Climate and Communications (DECC) to exercise, on an interim basis, the functions of the Maritime Area Regulatory Authority (MARA) and to invite MAC applications for a limited number of relevant projects. “Relevant Projects”, also referred to in the MAP Act as “Special MAC Cases”, are projects that either applied for or were granted a foreshore lease before 31 December 2019; or projects with a valid connection agreement or confirmation of eligibility for such a grid connection offer on 31 December 2019. The commencement of the MAC regime coincides with the announcement by DECC of the opening of the first MAC application window from Monday 25 April to Wednesday 22 June 2022.  The Department has produced guidance materials to help applicants navigate the new consenting regime. The Guidance is directed to relevant projects only and contains important information on the operation of the MAC consenting regime. In essence, the Guidance consists of a General MAC Application Guidance and of two annexes outlining the technical capability and financial viability requirements that will apply to applicants. MAC applicants will be assessed on a case-by-case basis using the criteria set out in Schedule 5 of the MAP Act and supporting guidance. The criteria that DECC (or MARA, once established) shall consider when deciding whether to grant a MAC include, among others:
  • The location, duration and spatial extent of the occupation of the maritime area by the proposed development.
  • Whether the project is in the public interest.
  • Whether the applicant is a “fit and proper person” having regard to the criteria set out in Schedule 2 of the MAP Act.
  • Relevant Ministerial Guidelines.
  • Whether the applicant is tax compliant at the time of the application.
  • Consistency of the project with the National Marine Planning Framework.
  • Consistency of the project with the development plans of the transmission system operator.
  • The extent and nature of the preparatory work, including stakeholder engagement, already undertaken by the applicant.
The first batch of MACs will be granted to relevant projects on a fail/pass basis within the 90-day period prescribed in the Act. Projects which obtain a MAC will still be required to apply for all the requisite consents and planning permission and will be subject to the full assessment procedures by An Bord Pleanála (the Board). Applications for development permission in the maritime area are conditional on the applicants securing a MAC for the occupation of the specified part of the maritime area. Stated differently, it is not possible to request planning permission without first satisfying the Board that the applicant is the holder of a MAC under the MAP Act. The granting of MACs will enable the opening of the first Offshore Renewable Energy Support Scheme (ORESS) in Q4 2022. At this stage, development permission will not be required for auction eligibility in ORESS 1. However, developers shall secure a MAC and Grid Connection Assessment to compete in ORESS 1. Following the initial batch of MACs, responsibility for granting new MACs and managing existing consents will be handed over to MARA from early 2023. MACs granted by the Minister shall remain in force after the establishment of MARA and may be terminated, amended, revoked, or suspended by MARA in accordance with the provisions of the MAP Act. In addition to the above, Part 6 and section 72 governing MARA’s powers in relation to enforcement and forms of document for the purpose of the Act are now in force since 10 March 2022.   For further information in relation to this article, please contact Alice Whittaker or Célia Le Lièvre. [post_title] => DECC announces commencement of the Maritime Area Consent (MAC) regime and opening of first MAC application window under the Maritime Area Planning Act [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => decc-announces-commencement-of-the-maritime-area-consent-mac-regime-and-opening-of-first-mac-application-window-under-the-maritime-area-planning-act [to_ping] => [pinged] => [post_modified] => 2022-03-30 10:40:58 [post_modified_gmt] => 2022-03-30 10:40:58 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.philiplee.ie/?p=21019 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) )

The Minister for Housing, Local Government and Heritage signed an order (...

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Array ( [0] => WP_Post Object ( [ID] => 19470 [post_author] => 9 [post_date] => 2021-05-14 13:51:23 [post_date_gmt] => 2021-05-14 13:51:23 [post_content] => The Department of the Environment, Climate and Communications (DECC) has published the framework and associated new policy for Ireland’s future offshore electricity transmission system to facilitate significant growth in renewable energy and to help meet the ambitious target of 5GW of installed offshore wind generation by 2030. The full press release from the DECC is available here. [post_title] => Government publishes framework for Ireland’s offshore electricity transmission system to facilitate growth in renewable energy [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => government-publishes-framework-for-irelands-offshore-electricity-transmission-system-to-facilitate-growth-in-renewable-energy [to_ping] => [pinged] => [post_modified] => 2021-05-14 13:51:23 [post_modified_gmt] => 2021-05-14 13:51:23 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.philiplee.ie/?p=19470 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) )

The Department of the Environment, Climate and Communications (DECC) has published the...

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Array ( [0] => WP_Post Object ( [ID] => 18677 [post_author] => 9 [post_date] => 2020-12-21 12:33:33 [post_date_gmt] => 2020-12-21 12:33:33 [post_content] => As published in Renewable Energy Magazine, December 2020. Offshore wind will play a crucial role in Ireland meeting its climate targets and reaching 70 per cent renewable electricity by 2030. There are currently several challenges to be tackled to ensure the timely development of Irish offshore wind projects, one such challenge being the establishment of a policy framework for the delivery of offshore grid in line with the National Marine Planning Framework. To assist in determining the suitable grid delivery model to be adopted to facilitate the build-out of offshore wind in Ireland, the Department of Communications, Climate Action and Environment (DCCAE) published a Consultation to Inform a Grid Development Policy for Offshore Wind in Ireland in June 2020. The consultation paper, and the accompanying report prepared by Navigant, outlined four example grid delivery models, spanning from a fully developer-led (centralised) model to a fully plan-led (decentralised) model. These models drew on grid development approaches adopted in other jurisdictions but were tailored to the Irish context. The ultimate grid delivery model selected in Ireland may not necessarily be one of these models, but rather may comprise of elements of these models. Under the first option, the fully developer-led grid delivery model which is applied in Britain, the developer is responsible for the prerequisites to the development: consents, site selection and pre-development of the wind farm site, and upon the project’s success in the auction, the construction of the wind farm and the offshore wind farm transmission assets. Any onshore grid reinforcements are undertaken by EirGrid and ESB Networks in a reactive manner to the auction results. The second option considers an approach whereby the State defines the minimum distance to shore for the wind farm. EirGrid proactively plans and coordinates the onshore grid reinforcements and for each RESS auction, identifies the locations, capacities and timelines for the onshore connection points. The developer remains responsible for site selection and pre-development, and the consenting and construction of the offshore wind farm and transmission assets. The last two options shift responsibilities from the developer to a state body such as, or in conjunction with, EirGrid or ESB Networks. A single state body for offshore renewable energy (ORE) developments will manage the planning and the site pre-development processes. In the third model, the developer wins an auction for a pre-developed site and is then responsible for the construction, financing, operation and maintenance of both the wind farm and the offshore transmission assets. The fourth model adopts a fully plan-led approach, an approach which has been adopted in the Netherlands, with more responsibility being placed on EirGrid and ESB Networks. In addition to site pre-development, the construction, ownership, operation and maintenance of the offshore wind transmission assets are centrally planned by EirGrid and ESB Networks. Unlike the other three options where the offshore wind transmission assets are owned and operated by the developer who manages and bears the risk of outages, under this option, the developer bears the responsibility and risk of outage for a defined period, although the transmission assets are owned by ESB Networks and are operated by EirGrid. The consultation paper summarised the analysis previously carried out on the advantages and disadvantages of each model and sought responses to specific questions in relation to the options and the seven key drivers identified as impacting on the choice of model. These drivers were not weighted but many in the industry believe that the most important driver is facilitating the timely development of offshore wind capacity to achieve the 2030 targets. They argue that this will only be possible if a developer-led model is adopted, being more compatible with existing legislative and policy framework. Others believe that in the long-term, the plan-led model will facilitate more onshore-offshore transmission coordination with the potential result of less infrastructure being required. These responses will hopefully assist and inform the Government in its selection of a robust offshore grid development policy which will ultimately contribute to Ireland becoming a powerhouse for offshore wind farm development. For further information in relation to the above article, please contact Siobhan McCabe. [post_title] => Offshore grid development: Who will lead the way? [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => offshore-grid-development-who-will-lead-the-way [to_ping] => [pinged] => [post_modified] => 2021-01-18 16:54:44 [post_modified_gmt] => 2021-01-18 16:54:44 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.philiplee.ie/?p=18677 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) )

As published in Renewable Energy Magazine,...

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Array ( [0] => WP_Post Object ( [ID] => 18660 [post_author] => 9 [post_date] => 2020-12-18 00:42:25 [post_date_gmt] => 2020-12-18 00:42:25 [post_content] => As published in Renewable Energy Magazine, December 2020. 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) was 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 further information in relation to the above article, please contact Alice Whittaker. [post_title] => Marine planning legislation: Bill to be published in the new year [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => marine-planning-legislation-bill-to-be-published-in-the-new-year [to_ping] => [pinged] => [post_modified] => 2021-01-18 16:55:13 [post_modified_gmt] => 2021-01-18 16:55:13 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.philiplee.ie/?p=18660 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) )

As published in Renewable Energy Magazine, December 2020. The pre-legislative...

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Array ( [0] => WP_Post Object ( [ID] => 18532 [post_author] => 9 [post_date] => 2020-11-17 23:23:25 [post_date_gmt] => 2020-11-17 23:23:25 [post_content] => As published in the Engineers Journal, November 13th 2020. Subsea fibre optic cables transfer 99% of transoceanic data, operating at the speed of light and on a global scale. They are the physical structures which enable international connectivity in virtually all areas of our lives, including internet access, video calls, gaming and content-streaming services, not to mention time-critical transactions, writes Alice Whittaker. Exceptional data speed and capacity The demand for these cables is ever-growing as individuals and businesses become increasingly reliant on this method of telecommunication and require exceptional data speed and capacity. Subsea cables are considered to be more reliable than satellite communication and allow for a larger capacity of data transfer with enhanced levels of security. The strategic importance of subsea cables for a country like Ireland is highlighted in the government’s public consultation on ‘International Connectivity for Telecommunications’ published on October 19, 2020. Access to international communications This consultation document, which invites responses up until November 27, 2020, endorses the value of access to international telecommunications as a “key driver in the growth of social, economic and industrial development”. Furthermore, the significance of rapid data and communication, which is facilitated by these subsea cables, has been particularly appreciated given the changes introduced to the daily routines of so many by COVID-19, including working from home, reliance on home entertainment services and virtual communications in lieu of travel and socialising in person. A report published by ComReg in April 2020 observed that 60% of broadband users had seen an increase in usage of their home broadband since the beginning of the pandemic. Microsoft reported that same month that it recorded more than 4.1 billion minutes of Microsoft Teams meetings in a single day, with Microsoft CEO Satya Nadella reported as saying, “we’ve seen two years’ worth of digital transformation in two months”. Notable contribution to Irish economy Long before the pandemic, the subsea cable industry has been making a notable contribution to the Irish economy across many sectors. The draft National Marine Planning Framework notes that subsea international networks make Ireland an attractive region for investment for the technology and digital sectors, with international firms choosing to locate in areas with access to cable landing points to avail of connectivity. The government’s Statement on the Role of Data Centres in Ireland’s Enterprise Strategy identifies Ireland as a location of choice for many different sectors reliant on digital and telecommunications capabilities, all of which in turn rely on subsea cable interconnectivity. Ireland’s connection with subsea cables goes back even further. The first transatlantic cable was laid between Newfoundland and Valentia Island, Co Kerry, facilitating the first transatlantic communications in 1858. While that cable connection lasted only three weeks, the subsequent investment in subsea telecommunications infrastructure accelerated international trade and transformed relations between Europe and the USA. Protect subsea cables In 1884 the Convention for the Protection of Submarine Telegraph Cables was adopted in Paris. The parties to the convention (including Ireland as part of what was then the United Kingdom of Great Britain and Ireland) agreed to adopt the laws necessary to protect subsea cables from willful or negligent damage. The convention set out requirements to be followed by those installing and operating subsea cables and those carrying out other marine activities including fishing, to try to ensure that damage would not occur to this valuable new class of critical infrastructure. Many of the convention’s legal principles were ultimately incorporated into the United Nations Convention on the Law of the Sea (UNCLOS) adopted in 1982. The UNCLOS put on a legal footing internationally agreed maritime jurisdictions. The territorial sea lies within the 12 nautical mile limit, the continental shelf lies within the 200 nautical mile limit (incorporating the state’s exclusive economic zone, or EEZ) and beyond that lies the High Seas. While the ‘high seas’ might evoke thoughts of piracy and lawlessness, in fact the UNCLOS granted a right for any party to lay submarine cables on the seabed of the high seas and included provisions to protect those cables from damage. The UNCLOS provided a similar right for subsea cables within each territory’s EEZ, subject any rules or regulations laid down by the territory consistent with the UNCLOS. Foreshore Act 1933 Cables within the territorial seas are subject to such regulations as each state may adopt. In Ireland, the laying and operation of cables out to the 12 nautical mile limit is subject to licence under the Foreshore Act 1933, as amended, but beyond the 12 nautical mile limit the Foreshore Act does not apply. As noted in the draft National Marine Planning Framework, a ‘robust and coherent marine and foreshore planning system is expected to encourage and support future investment in submarine telecommunications’. In that respect, a Marine Planning and Development Management Bill is in preparation which is expected to provide a new regulatory framework for developments in the marine environment, including subsea cables in the Irish territorial sea. As the general scheme of the bill acknowledges, the laying of subsea cables in the EEZ and beyond is a right protected under the UNCLOS and therefore the national rules must not conflict with the UNCLOS. The government consultation on ‘International Connectivity for Telecommunications’ also identifies that a key objective of the new legislation will be to ensure that Ireland ‘remains an attractive location for providers of international connectivity’. Ireland has proved an attractive location for Aqua Comms, a successful Irish company specialising in the building and operation of subsea fibre optic cable systems. Aqua Comms has been responsible for the successful delivery and operation of the CeltixConnect cable connecting Ireland with the UK, and the America Europe Connect cable connecting the USA and Ireland. The ‘AEC2’ cable from the USA to Denmark with a branch to Ireland is soon to be deployed, and when the branch to Ireland is operational will make this the first subsea cable connecting Ireland to mainland Europe via Denmark. Philip Lee has provided legal support to Aqua Comms since 2012 on the financing and development of its strategically significant infrastructure. With further investment by Aqua Comms and others, supported by a strong policy and legislative framework, Ireland’s reputation as a strategic telecommunications hub, first established in 1858, will continue to grow in this increasingly interconnected world.   For further information in relation to the above article, please contact Alice Whittaker. Article written with the assistance of Fiona McLoughlin. 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As published in the Engineers Journal, November 13th...

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