Key Contact: Alice Whittaker – Partner

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.