Marine Planning and Development Management Bill (MPDM ...

Prepared by the Department of Housing, Planning and Local Government

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Marine Planning and Development

Management Bill (MPDM)

General Scheme

General Scheme of the Marine Planning and

Development Management (MPDM) Bill

Key Concepts


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Page | 2 Public Consultation Copy

Marine Planning and Development Management Bill, 2019

General Scheme

Public Consultation Copy


ARRANGEMENT OF SECTIONS

PART 1

PRELIMINARY AND GENERAL

Heads

1. Short title, construction, collective citation and commencement

2. Sustainable development and protection and enhancement of the health of the marine

area

3. Marine Planning Policy Statement

4. Ministerial guidelines

5. Limitation on Ministerial power.

PART 2

DEFINITIONS AND INTERPRETATION

6. Definitions/Interpretation

7. Maritime Area

8. Nearshore

PART 3

FORWARD PLANNING

9. Restatement of Part 5 of the Planning and Development Act 2018

10. Interpretation

11. Competent Authority

12. Application of Part

13. Marine Spatial Plans

14. Requirements of marine spatial planning

15. Public participation on marine spatial plans

16. Strategic environmental assessment and appropriate assessment

17. Laying of marine spatial plans before each House of the Oireachtas

18. Compliance by Public Bodies

19. Directions of Minister

20. Revocation

21. Designation of Strategic Marine Activity Zones

22. Marine Planning Scheme for Strategic Marine Activity Zones


23. Making of a Marine Planning Scheme

24. Application for Development in a Strategic Marine Activity Zone

PART 4

MARITIME AREA CONSENT

Chapter 1

Planning Interest

25. Definitions/Interpretation

26. Planning Interest

27. Relevant Minister

28. Granting of Planning Interest

28A. Power to designate certain persons as "fit and proper"

29. Regulations and Orders

30. Specific provision for Offshore Renewable Energy Development

30A. Designation of Oversight Body for Offshore Renewable Energy Projects

31. General Zonal Approach for Offshore Renewable Energy Development

32. Centralised Site Specific Arrangements for Integration of Offshore Renewable Energy

Development

Chapter 2

Maritime Area Consent

33. Definitions

34. Maritime Area Consent 34A. Geographic restrictions of Planning Interest and Maritime Area Consent relating international cables 35. General Provisions relating to applications for a Maritime Area Consent 36. Surrender, Suspension, Termination etc. of a Maritime Area Consent

37. Obligations on MAC holders prior to termination or expiry

38. Emergency works on the nearshore

39. Grant of permits by local authorities in lieu of certain other compliance requirements

40. Maritime Consents for exempted development, Marine Environmental Surveys and

certain specified activities

41. Other Foreshore specific provisions

42. Additional provisions relating to offshore renewable energy and offshore gas storage

activities

43. Additional requirements for the extension to the term for a planning interest for

offshore renewable energy activities

44. Procedures to be followed before modifying a Maritime Area Consent for offshore

renewable energy activities

45. Keeping of records and samples

46. Regulations and Orders


Chapter 3

Transitional Measures

47. Transitional Provisions

47A. Transitional Measures for Offshore Renewable Energy Projects

PART 5

DEVELOPMENT MANAGEMENT

Chapter 1

Coastal Local Authorities and Maritime Development

48. Definitions

49. Planning permission responsibilities in the Maritime Area for coastal local authorities

50. Planning Interest requirement

51. Marine specific considerations and conditions

52. Marine Stakeholders

53. Public notice of application

54. Notification obligations of planning authorities

55. Variation of proposed or existing development where Planning and Maritime Area

Consent have been granted.

56. Amendment of Part XV

57. Compulsory acquisition in the Maritime Area

57A. Local Authority Marine Environmental Surveys

58. Consequential and enabling amendments

59. Regulations

Chapter 2

Offshore Development

60. Requirement for permission

61. Planning applications within the Maritime Area

62. Regulations regarding applications for permission within the Maritime Area

63. Jurisdiction of the Board

64. Discussions with the Board prior to making an application

65. Supplemental provisions in relation to consultations (Planning Interest)

66. Opinion of the Board on information to be contained in Environmental Impact

Assessment Report

67. Application to the Board

68. Supplemental provisions

69. Decision by the Board on application under Head 67

70. Supplemental provisions

71. Limit of duration of permission

72. Power to vary the appropriate period


73. Power to extend the appropriate period

74. Objective of the Board in relation to applications under head 67

75. Discussions with the Board prior to making an application for an alteration to

development in the Maritime Area

76. Alterations of Development in the Maritime Area

77. Preparation of Environmental Impact Assessment Report for the purposes of head 76

78. Supplementary provisions

79. Fees

80. Judicial review

81. Supplemental

82. Costs in Environmental Matters

83. Reports and documents of the Board

84. Oral hearing of applications and determinations

Chapter 3

Environmental Impact Assessment for Offshore Development

85. Interpretation

86. Requirement for Environmental Impact Assessment Report

87. Provision of information by applicants to Environmental Impact Assessment Portal

88. Transboundary environmental impacts

89. Application for screening for Environmental Impact Assessment

90. Screening for Environmental Impact Assessment

91. Prescribed information regarding Environmental Impact Assessment reports

Chapter 4

Appropriate Assessment for Offshore Development

92. Interpretation

93. Competent Authority

94. Natura Impact Statement

95. Screening for Appropriate Assessment

96. Appropriate Assessment

97. Proposed development and imperative reasons of overriding public interest

98. European site that does not host priority habitat type or species

99. European site that hosts priority type habitat

100. Regulations


PART 6

ENFORCEMENT

Chapter 1

Planning Interest and Maritime Area Consent

101. Designation of Enforcement Authority in respect of Part 4 (Planning Interest and

Maritime Area Consent)

102. Breach of requirement for, or conditions of, Planning Interest or Maritime Area Consent

103. Warning Letter

104. Decision on enforcement

105. Compliance notice

106. Penalties for offences

107. Prosecution of offences

Chapter 2

Development Management

108. Designation of Enforcement Authority in respect of Part 5 (Development Management)

109. Powers of Authorised Officers

110. Breach of requirement for, or conditions of, Planning Permission

111. Warning Letter

112. Decision on enforcement

113. Compliance notice

114. Penalties for offences

115. Prosecution of offences

116. Injunctions in relation to failure to obtain Planning Permission

Chapter 3

Supplementary enforcement provisions

116A. Powers of Authorised Officers

116B. Disturbance of beach material, depositing of material or noxious articles in or on the

nearshore

116C. Warning Letter

116D. Decision on enforcement

116E. Compliance notice

116F. Penalties for offences

116G. Prosecution of offences

116H. Injunctions in relation to failure to obtain Planning Permission

116I. Removal of dilapidated structures

Chapter 4

Transitional measures for unauthorised occupation of the nearshore

116J. Provisions in relation to unauthorised occupation of the nearshore

PART 7


AMENDMENTS TO OTHER LEGISLATION

Chapter 1

Amendments to the Foreshore Act 1933

117. Amendment of Section 1 (definitions) of Act of 1933

118. Consent under the Foreshore Act not required in certain circumstances

119. Restricting public use of foreshore etc.

120. Enforcement including foreshore responsibilities for coastal local authorities

Chapter 2

121. Consequential Amendments


Part 1

Preliminary and General

Head 1. Short Title, construction, collective citation and commencement

Provide that:

(1) This Act may be cited as the Marine Planning and Development Management Act 2019

(2) Part 8 Chapter 1 of this Act and the Foreshore Acts 1933 to 2017 may be cited together

as the Foreshore Acts 1933 to 2019 and shall be read together as one.

(3) Sections XXX, and the Planning and Development Acts 2000 to 2018 may be cited

together as the Planning and Development Acts 2000 to 2019 and shall be read together

as one.

(4) This Act comes into operation on such day or days as the Minister for Housing, Planning

and Local Government may appoint by order or orders either generally or with reference

to any particular purpose or provision and different days may be so appointed for

different purposes or provisions.


Head 2. Sustainable development and protection and enhancement of the health of the

marine area

Provide a:

(1) general obligation for Ministers and public bodies to - in the discharge of their functions

under the Marine Planning and Development Management Act - aim to achieve sustainable

development including protection and potential enhancement.

Notes:

A similar power set out under S.3 of Marine (Scotland) Act 2010.

There is a difficulty of defining sustainable development and this is unlikely to be in the final

draft.


Head 3. Marine Planning Policy Statement

Provide that:

(1) The Minister for Housing, Planning and Local Government shall prepare and publish a Marine

Planning Policy Statement (MPPS). The first MPPS should be prepared not more than 6 months

from commencement of this provision. The MPPS shall contain information concerning the

policy objectives and priorities of the Government regarding marine planning by the State in

the maritime area for the period of the MPPS.

(2) In preparing the MPPS the Minister shall have regard to:

the National Planning Framework,

the National Marine Planning Framework,

the National Development Plan,

Directive 2014/89/EU of the European Parliament and of the Council of 23 July

2014 establishing a framework for marine spatial planning,

Directive 2008/56/EC of the European Parliament and of the Council of 17 June

2008 establishing a framework for community action in the field of marine

environmental policy (Marine Strategy Framework Directive), and

any policy of the Government relating to marine planning objectives.

(3) After preparing it, the Minister shall lay the MPPS before the Oireachtas and arrange for

publication.

Notes:

Consideration will be given to further policies, directives, conventions and legislation which

should be included within the scope of MPPS development which may include the Climate Action

Plan and the OSPAR Convention.


Head 4. Ministerial guidelines

Provide that:

(1) power for Minister to issue marine planning guidelines to public bodies and that public bodies

shall have regard to those guidelines in the performance of their functions - similar to

statutory planning guidelines issued to planning authorities / An Bord Pleanála under S.28 of

the Planning and Development Act. Marine planning guidelines may contain specific planning

policy requirements that, notwithstanding subsection (1), are required to be applied by public

bodies in the performance of their functions. The Minister may revoke or amend guidelines

issued under this section.

(2) The Minister shall cause a copy of any guidelines issued under this section and of any

amendment or revocation of those guidelines to be laid before each House of the

Oireachtas. The Minister shall publish or cause to be published guidelines issued under this

section.


Head 5. Limitation on Ministerial Power

Provide for:

(1) limitation on Ministerial power such that the Minister shall not exercise any power or control

in relation to the marine planning aspects (development management or enforcement) of any

particular case with which a planning authority or the Board is or may be concerned.

Notes:

This prohibition is a parallel to that set out under S. 30 of the Planning and Development Act 2000 and S.60(3) of the Waste Management Act 2005. It should explicitly not apply to State consent functions of the Minister.


Part 2

Definitions and Interpretations

This Part provides for the definition of Ireland’s maritime area that will extend from the High

Water Mark to the outer limit of the State’s Continental Shelf. The Maritime Area includes the:

(i) sea and tidal areas of the internal waters of the State;

(ii) Territorial sea of the State;

(iii) Exclusive Economic Zone of the State; and

(iv) Continental Shelf of the State.

Although the Foreshore as defined in the Foreshore Act is within the Maritime Area it does

not have any relevance to the operation of the new consenting regime in this Bill. To ensure

consistency with the Maritime Jurisdiction Bill 2019 it is replaced in this scheme by (i) and

(ii) above which is the equivalent area.

The Maritime Area is being established in law for the purposes of

(1) Forward planning under the National Marine Planning framework and related marine

spatial planning processes.

(2) State consenting under the new Maritime Area Consent regime which provides for a

single state consent to enable occupation of any part of the Maritime Area

(3) Development management via augmented existing and new planning procedures

(4) Compliance and enforcement of development management decisions.

For the first time, certain developments in the territorial sea (apart from those developments

connected to land pursuant to Part XV of the 2000 Act), exclusive economic zone (EEZ) and on

the continental shelf will require development consent from An Bord Pleanála. For the purposes

of ensuring that development applications are considered in a streamlined way and subject to a

single environmental impact assessment, the role of development consent authority is being

assigned to planning authorities for the generality of coastal development in a new nearshore

area. An Bord Pleanála will be responsible for certain classes of development within the entire

Maritime Area and for the generality of offshore development beyond the nearshore.

Developments will also be subject to a new single State approval for the entire maritime area

replacing, into the future, existing state consent regimes under the Foreshore and Co ntinental

Shelf Acts. The Maritime Area Consent will regulate the occupation of the maritime area,


subject to the rights accorded to the State in the United Nations Convention on the Law of the

Sea (UNCLOS). The new Maritime Area Consent regime will be clearly distinguished from

development management approvals within the planning system. The Maritime Area Consent’s

primary function is to enable and control occupation of the maritime space and, for certain

developments, other matters such as economic control of resources.

This part also creates in law a new nearshore area, particular to the planning system, for coastal

local authorities to exercise development management and enforcement functions. Coastal

local authorities will also regulate specified minor activities, such as beach horse racing, within

this new area without the requirement for a State consent.

This part provides powers to the Minister for Housing, Planning and Local Government to

designate, by order, a nearshore area for each coastal local authority, allowing for the particular

geography of the relevant coastline. The appropriate outer limit and county boundaries of

nearshore areas will be determined following assessment in conjunction with Ordnance Survey

Ireland, the Chief Boundary Surveyor, relevant local authorities and stakeholder Departments.

Collectively, the local authority nearshore areas shall be construed as the State’s nearshore

area.

The boundary between terrestrial and marine forward planning is the High Water Mark.

Common definitions required for the operation of this Act are also included in this part.


Head 6. Definitions/Interpretations

Provide that:

(1) In this Act –

“foreshore” has the meaning given to it by section 1 of the Foreshore Act 1933;

“internal waters” has the meaning given to it by Head B2 of the Maritime Jurisdiction Bill 2019 ;

“territorial sea” has the meaning given to it by Head B3 of the Maritime Jurisdiction Bill 2019;

“exclusive economic zone” has the meaning given to it Head D1 of the Maritime Jurisdiction Bill

2019

“continental shelf” has the meaning given to it by Head E 1 of the Maritime Jurisdiction Bill 2019

“nearshore area” has the meaning given to it by Head 8;

“maritime area” has the meaning given to it by Head 7;

“coastal planning authority” means the local authority for any of the following:

(i) the county of Louth, Meath, Fingal, Dun Laoghaire-Rathdown, Wicklow, Wexford,

Carlow, Kilkenny, Tipperary, Cork, Kerry, Clare, Galway, Mayo, Sligo, Leitrim or Donegal;

(ii) the city of Dublin, Cork or Galway; and

(iii) Waterford City and County or Limerick City and County;

“local authority” means a local authority for the purposes of the Local Government Act 2001 (as

amended by the Local Government Reform Act 2014);

Notes:

Head 6 defines various words and expressions used in the Bill for the purposes of defining the

maritime and nearshore areas. As per the definitions, the maritime area includes the foreshore

and should be construed as such, and the foreshore includes the nearshore area and should be

construed as such. Consistency with the provisions of the proposed Maritime Jurisdiction Bill

will be required. The extent of the Foreshore/Maritime Area in Carlingford Lough and Lough

Foyle is subject to future international agreement.


Head 7. Maritime Area

Provide that:

(1) In this Act the maritime area is defined as:

the area of sea extending from the High Water Mark to the outer limit of the State’s continental

shelf

the maritime area includes :

(1) the sea and tidal areas of the internal waters of the State;

(2) the territorial sea of the State;

(3) the exclusive economic zone of the State; and

(4) the continental shelf of the State.

Notes:

This head defines the maritime area for the purposes of forward planning, development

management, enforcement and state consenting. Given its centrality to the Act and operation

of the consenting regimes it is stated in a distinct section rather than a definitions section.


Head 8. Nearshore

Provide that:

(1) In respect of that part of the maritime area that is—

(i) contiguous to either or both—

a. the functional area of a local authority, and

b. reclaimed land adjoining such a functional area that does not form a part of the

functional area of another local authority,

and

(ii) is below the line of high water of ordinary or medium tides,

the Minister for Housing, Planning and Local Government may by order designate the

boundaries of an area in the maritime area, being an area that (in relation to the local authority

concerned) is contiguous with the boundaries of the area to which subsections (1)(i)(a) and

(1)(i)(b) relate, and the area so designated shall be known as the nearshore area of that local

authority.

(2) The nearshore area of a coastal local authority shall be an area in which it will exercise

certain planning permission functions and certain enforcement functions as set out in this

Bill.

(3) The baseline for designating a nearshore area shall be the High Water Mark.

(4) The outer limit of a nearshore area shall be determined in accordance with the criteria set

out in subhead 5.

(5) In designating a coastal local authorities nearshore area the Minster shall take into account:

a. The views of the relevant coastal local authorities

b. The views of the public in the relevant coastal local authority areas

c. The distance between high and low water marks

d. The particular geography of the coastline in question including:

i. Islands


ii. Sandbars

iii. Sand spits

iv. River mouths

v. Bays

vi. beaches

e. Development types which are likely to occur on or adjacent to the coast

f. Practical matters relating to coastal local authority boundaries

g. Practicalities in relation to the exercise of coastal local authority functions.

(6) The nearshore area of a local authority designated under subsection (1) shall not include

any part of the maritime area that is declared, whether before or after such designation, to

be a fishery harbour centre by order under section 2 of the Fishery Harbour Centres Act

1968.

(7) An order made by the Minister for Housing Planning and Local Government under this

section may be amended or revoked.

(8) In subsection (1) ‘the line of high water of ordinary or medium tides’ means the line of high

water of ordinary or medium tides of the sea and of every tidal river and tidal estuary and

of every channel, creek and bay of the sea or of any such river or estuary.”.

(9) The nearshore areas of coastal local authorities collectively shall be construed as the

nearshore area.

Notes:

It is proposed to define a new area called “nearshore” for each coastal local authority within

which the coastal local planning authorities and An Bord Pleanála will exercise certain statutory

functions (i.e. granting of development consent and authorisation of activities). The boundary

between terrestrial and marine forward planning is the High Water Mark and forward planning

for the maritime area, including the nearshore will be undertaken within marine spatial planning

processes. A working group comprising of the Department of Housing, Planning and Local

Government; Ordnance Survey Ireland; the Chief Boundary Surveyor; representatives of relevant


local planning authorities and where relevant representatives of other Government Departments

will be convened to develop the necessary technical parameters and procedures to ensure clear,

precise and legally robust designation of the proposed nearshore areas.

The Minister for Agriculture, Food and the Marine is the appropriate Minister for foreshore

functions relating to aquaculture, sea-fisheries related development and fishery harbour centres

under Section 1B of the Foreshore Act. Those activities and any other development within the

functional remit of the Minister for Agriculture, Food and the Marine (MAFM) are excluded from

the scope of the Bill.

Subhead (6) is required to ensure the exclusion of MAFM-related foreshore functions from the

new regime in accordance with the Government Decision. It is intended that the MAFM regime

shall operate as now, i.e., anything that is subject to planning will continue to be subject to

planning, and anything that is subject only to the Foreshore Act will continue to be subject only

to that Act (Part XV of the Planning and Development Act 2000 refers).


Part 3

Forward Planning


Head 9. Restatement of Part 5 of the Planning and Development (Amendment) Act 2018

Provide that:

(1) Part 5 of the Planning and Development (Amendment) Act 2018 is restated verbatim as

enacted subject to the inclusion of references to this Act if required.

Notes:

Part 5 of the Planning and Development (Amendment) Act 2018 is attached at Appendix 1.

If part 5 can be restated verbatim heads 11 to 21 inclusive will not be necessary and serve only

as explanatory material for the restatement.


Head 10. Interpretation (see S. 66 of the Planning and Development (Amendment) Act 2018)

Provide for:

(1) relevant definitions for this part including:

Act of 2006 (Sea Fisheries and Maritime Jurisdiction Act 2006 - to be replaced by Maritime

Jurisdiction Bill 2019)

Coastal Waters

Company (as in Companies Act 2014)

The Directive (Marine Spatial Planning Directive – 2014/89/EU)

Enactment (as in Interpretation Act 2005)

Marine Spatial Plans (as in S. 69 of Planning and Development (Amendment) Act 2018)

Maritime Area (as in Foreshore Act - to be updated)

Minister (to be the Minister for Housing, Planning and Local Government)

North-East Atlantic Marine Region (marine region to which the Convention for the

Protection of the Marine Environment of the North East Atlantic applies)

Public body


Head 11. Competent authority (see S. 67 of the Planning and Development (Amendment) Act 2018)

Provide that:

(1) the Minister for Housing, Planning and Local Government shall be the competent authority

for the purposes of the Marine Spatial Planning Directive.


Head 12. Application of Part (see S. 68 of the Planning and Development (Amendment) Act 2018)

(1) To set out the scope of the application of this part. This part shall apply to the maritime area

but shall not apply to parts of the maritime area to which terrestrial plans (National Planning

Framework (NPF), Regional Spatial and Economic Strategies (RSESs), County Development

Plans (CDPs), Local Area Plans (LAPs), statutory terrestrial planning guidelines or Ministerial

policy directives apply. It shall not apply to activities solely for purposes of defence or national

security.


Head 13. Marine spatial plans (see S. 69 of the Planning and Development (Amendment) Act 2018)

Provide that:

(1) The Minister shall prepare and publish a marine spatial plan (for the entire marine area) or

marine spatial plans (for different parts of the marine area) and set out what the general

objectives of the plan or plans should be. In preparing the plan the Minister shall consider

matters specified in paragraph 1 of Article 5 of the Directive with the aim of contributing to

the matters specified in paragraph 2 of Article 5. The plan or plans should identify matters

specified in paragraph 1 of Article 8 and the Minister shall seek to comply with paragraph 2 of

that Article. The plan or plans shall be known collectively as the National Marine Planning

Framework (NMPF).


Head 14. Requirements of marine spatial planning (see S. 70 of the Planning and Development

(Amendment) Act 2018)

Provide that:

(1) in preparing the plan or plans the Minister shall comply with the requirements of paragraphs

1 and 2 of Article 6, and with Articles 10, 11, and 12 of the Directive and take account of

circumstances particular to the North-East Atlantic Marine Region. There will be a statutory

review mechanism requiring that the National Marine Planning Framework be reviewed

periodically not later than every six years after the publication of the first National Marine

Planning Framework.

(2)


Head 15. Public participation in the preparation of marine spatial plans (see S 71 of the Planning and

Development (Amendment) Act 2018)

Provide that:

(1) the Minister shall make arrangements to ensure compliance by the State with Article 9 of the

Directive.


Head 16. Strategic environmental assessment and appropriate assessment (see S. 72 of the

Planning and Development (Amendment) Act 2018)

Provide that:

(1) marine spatial plans shall, as appropriate, be subject to strategic environmental assessment

(SEA) in accordance with the SEA Directive, and appropriate assessment (AA) in accordance

with the Habitats Directive.


Head 17. Laying of marine spatial plans before each House of the Oireachtas (see S. 73 of the

Planning and Development (Amendment) Act 2018)

Provide that:

(1) the Minister is required to lay the draft marine spatial plan or draft marine spatial plans, with

associated environmental assessments (SEA and AA), before the Oireachtas and require that

the Minister shall have regard, in making the marine spatial plan or marine spatial plans, to

any resolution, report or recommendation made by the Oireachtas.


Head 18. Compliance by public bodies (see S. 74 of the Planning and Development (Amendment) Act

2018)

Provide that:

(1) public bodies shall take the necessary measures to implement the National Marine Planning

Framework (NMPF) through their relevant activities (decisions, plans or policies, regulation of

activities).


Head 19. Directions of Minister (see S. 75 of the Planning and Development (Amendment) Act 2018)

Provide that:

(1) the Minister may direct public bodies to take measures necessary to implement the National

Marine Planning Framework (NMPF).


Head 20. Revocation (see S. 76 of the Planning and Development (Amendment) Act 2018)

Provide for:

(1) the revocation of Part 5 of the Planning and Development (Amendment) Act 2018.


Head 21. Designation of Strategic Marine Activity Zones

Provide that:

(1) where, in the opinion of the Government, specified activity is of economic, social or

environmental importance to the State, the Government may by order, when so proposed

by the relevant Minister, designate any part of the maritime area for the establishment of

a strategic zone to facilitate such activity.

(2) an order under subsection (1) shall –

(a) specify the Minister for the purposes of H2,

(b) specify the activity or activities that may be established in the strategic marine

zone, and

(c) state the reasons for specifying the activity or activities and for designating

zone or zones.

(3) activity that is specified in an order under subsection (2) shall be deemed to include

development that is ancillary to, or required for, the purposes of activity so specified, and

may include any necessary infrastructural facilities and services.

(4) the Government may revoke or amend an order made under this section.

(5) in this section “the relevant Minister” means the Minister vested with statutory functions

in respect of the specified activity that is the subject of the designation under this section.

Notes

The term “relevant Minister” is also used in the Planning Interest/Maritime Area Consent parts

of the Bill for a different purpose: to distinguish between the consenting functions of different

Ministers under this Act. The term “appropriate Minister” is similarly used in the Foreshore Act.

It will be important to ensure a clear distinction in this Act for the different division of functions.


Head 22. Marine Planning Scheme for Strategic Marine Activity Zones

Provide that:

(1) subject to subsection (2), as soon as may be after the making of an order under H1 the

relevant Minister shall prepare a draft marine planning scheme in respect of all or part of

the strategic marine activity zone.

(2) The first draft marine planning scheme under subsection (1) in respect of all or part of a

strategic marine activity zone designated under H1 shall be prepared not later than 2 years

after the making of the order so designating the zone.

(3) A draft marine planning scheme under this section shall consist of a written statement

and a plan indicating the manner in which it is intended that the strategic marine activity

zone or part of the zone designated under Head 3 to which the scheme relates is to be

used and in particular –

(a) the type or types of development, if any, which may be permitted to establish

in the zone or part of the zone (subject to the order of the Government under

Head 1, and the extent of any such proposed development,

(b) proposals in relation to the overall design of proposed development, including

the maximum heights, the external finishes of structures and the general

appearance and design,

(c) proposals relating to the provision of services in the zone, including the

provision of waste and sewerage facilities and water, electricity and

telecommunications services, oil and gas pipelines, including storage facilities

for oil or gas, and

(d) proposals relating to minimising any adverse effects on the environment,

including the natural and built environment, and on the amenities of the area.


Head 23. Making of a Marine Planning Scheme

Provide that:

(1) The relevant Minister shall, as soon as may be –

(a) Send notice and copies of the draft marine planning scheme to specified

Ministers and prescribed authorities,

(b) Publish notice of the preparation of the draft scheme in one or more national

newspapers.

(2) A notice under subsection (1) shall state –

(a) That a copy of the draft marine planning scheme may be inspected at a stated

place or places and at stated times during a stated period of not less than 6

weeks (and the copy shall be kept available for inspection accordingly), and

(b) That written submissions or observations with respect to the draft marine

planning scheme made to the relevant Minister within the stated period will

be taken into consideration when deciding upon the scheme.

(3) (a) Not longer than 12 weeks after giving notice under subsection (2), the relevant

Minister shall prepare and publish a report on any submissions or observations

received under that subsection.

(b) A report under paragraph (a) shall –

(i) List the persons or bodies who made submissions or observations for the

purposes of subsections (1) and (2),

(ii) Summarise the issues raised by the persons or bodies in the submissions

or observations,

(iii) Give the response of the relevant Minister to the issues raised, taking

account of the proper planning and sustainable development of the zone,

the relevant policies and objectives of the National Marine Planning

Framework, and any relevant policies for the time being of the

Government or of any Minister of the Government.

(4) (a) The draft marine planning scheme shall be deemed to be made 6 weeks after the

publication of the report at (3) unless the relevant Minister decides to—


(i) make, subject to variations and modifications, the draft marine

planning scheme, or

(ii) not to make the draft marine planning scheme.

(b)

(ba) The relevant Minister shall determine if a strategic environmental assessment

or an appropriate assessment or both such assessments, as the case may be, is or

are to be carried out as respects one or more than one proposed variation or

modification that would, if made, be a material alteration of the draft marine

planning scheme.

(bb) The relevant Minister shall, not later than 2 weeks after a determination

under paragraph (ba) specify such period as he or she considers necessary

following the determination as being required to facilitate an assessment referred

to in paragraph (ba).

(bc) The relevant Minister shall publish notice of the proposed material alteration,

and where appropriate in the circumstances, the making of a determination that

an assessment referred to in paragraph (ba) is required, in at least one newspaper

circulating in its area.

(bd) The notice referred to in paragraph (bc) shall state—

(i) that a copy of the proposed material alteration and of any determination

by the authority that an assessment referred to in paragraph (ba) is

required may be inspected at a stated place or places and at stated times,

and on a website, during a stated period of not less than 4 weeks (and that

copies will be kept for inspection accordingly), and

(ii) that written submissions or observations with respect to the proposed

material alteration or an assessment referred to in paragraph (ba) and

made to the relevant Minister within a stated period shall be taken into

account by the relevant Minister before the draft marine planning scheme

is made.

(be) The relevant Minister shall carry out an assessment referred to in paragraph

(ba) of the proposed material alteration of the draft marine planning scheme

within the period specified.


(c) Where a draft marine planning scheme is—

(i) deemed, in accordance with paragraph (b), to have been made, or

(ii) made in accordance with paragraph (b)(i),

it shall have effect 4 weeks from the date of such making.

(5) (a) Following the decision of the relevant Minister under subsection (4) the relevant Minister

shall, as soon as may be, and in any case not later than 6 working days following the making of

the decision—

(i) give notice of its decision to the other Ministers, the prescribed

authorities and any person who made written submissions or

observations on the draft marine planning scheme, and

(ii) publish notice of the decision in one or more national newspapers.

(b) A notice under paragraph (a) shall—

(i) give the date of the decision of the relevant Minister in respect of the draft

marine planning scheme,

(ii) state the nature of the decision,

(iii) state that a copy of the marine planning scheme is available for inspection at

a stated place or places (and the copy shall be kept available for inspection

accordingly),

(iv) contain such other information as may be prescribed.

(6) In considering a draft marine planning scheme under this section the relevant Minister shall

consider the proper planning and sustainable development of the strategic marine activity zone

and consider the provisions of the National Marine Planning Framework, and the preservation of

any European Site and the effect the scheme would have on any neighbouring marine areas.

(7) A marine planning scheme made under this section shall be deemed to form part of the

National Marine Planning Framework.



Head 24. Application for Development in a Strategic Marine Activity Zone

Provide that:

(1) Where an application is made to the Board for a development in a strategic marine activity

zone, that section and any permission regulations shall apply, subject to the other provisions of

this section.

(2) The Board shall grant permission in respect of an application for a development in a strategic

marine activity zone where it is satisfied that the development, where carried out in accordance

with the application or subject to any conditions which the Board may attach to a permission,

would be consistent with any marine planning scheme in force for the zone in question, and no

permission shall be granted for any development which would not be consistent with such a

marine planning scheme.

(3) Where the Board decides to grant permission for a development in a strategic marine activity

zone, the grant shall be deemed to be given on the date of the decision.


Part 4



Chapter 1

Planning Interest

This part creates new powers for a Minister to grant a planning interest for a specified

development in a specified part of the maritime area, including the nearshore area.

This new interest acts as the gate into the planning system but it is not a planning decision.

Ministers will confirm that proposed development is broadly in line with the National Marine

Planning Framework and other relevant policies. Ministers will not be assessing the specific detail

of the proposal. Environmental assessment will be a matter exclusive to the planning system.

The Planning Interest construct is intended to ensure that prospective developers have the

financial and technical capabilities to complete proposed projects. The interest is time limited to

prevent long term sterilisation of a part of the Maritime Area by developers unable to complete

projects. Potential spatial conflicts will be minimised through marine spatial planning, spatial

representation of marine development and applications on a common data platform and pre-

application obligations on prospective developers to engage with other users of the marine space.

Consultation between sectoral ministers is not required under this construct. The decision on

whether a development progresses will be made by the planning authority or the Board in the

context of the National Marine Planning Framework. Ministers, stakeholders and the public will

have the opportunity to engage in that decision making process.

This Part provides that a Minister may grant a Maritime Area Consent only if she/he has previously

granted a planning interest, where such an interest is required, in respect of the proposed

development and the applicant has been granted development consent for the proposal by the

planning authority or the Board, as appropriate.

This part also provides in law for a new definition of “Relevant Minister” to designate which

minister will grant Planning Interests and Maritime Area Consents for different development

types. Development and activities for which the Minister for Agriculture, Food and the Marine is

the appropriate Minister under Section 1B of the Foreshore Act will continue to be regulated

under the Foreshore Act and are excluded from the scope of this part.

Application procedures, criteria for consideration when granting a planning interest, alterations,

terminations and ancillary matters are also provided for. The Bill provides for relevant ministers

to apply additional/amended sector specific considerations by way of regulations.


The term “Planning Interest” may be altered to avoid any perception that it forms a substantive

part of the development management decision making process.


Head 25. Definitions/Interpretation

Provide that:

(1) Definitions are included for:

‘permission for development’ shall be read as referring to permission for development

applied for or granted under Part III or XV of the Act of 2000, as the case may be;

‘relevant Minister” has the meaning given to it by Head 27;

Fit and proper person has the meaning in Head 28;

Consent under the Foreshore Act means consent granted under Sections 2, 3, 10 or 13 of

that Act;

“Planning Interest” has the meaning assigned to it under Head 26; ; and

“prescribed” means prescribed by regulations made under Head 29.

(2) Definitions are included for:

Offshore Renewable Energy means energy produced from any non-fossil

renewable resource that is situated in the maritime area including, but not limited

to—

(a) wind or solar,

(b) wave or tidal or other hydropower, and

(c ) biomass,

but does not include energy produced as an incidental by-product of—

(i) activities in respect of which an aquaculture licence or a trial licence

granted under Part II of the Fisheries (Amendment) Act 1997 relates, or

(ii) any other fishing or aquaculture activities duly being carried out.

“Board” means An Bord Pleanála;

“Commission” means the Commission for Regulation of Utilities (CRU);


“decommissioning’, in relation to offshore renewable energy or offshore natural gas

storage infrastructure, means taking the facility, structure or installation or any part of

such facility, structure or installation

(a) permanently out of use with a view to its abandonment where it is situated or its

removal, and

(b) the restoration of the licensed area to its former or proper condition upon

expiry, termination or forfeiture of the licence,

in accordance with an approved decommissioning plan;

“decommissioning plan” means a single unified plan prepared under this Head;

“designated area” means an area designated by order under Part 3/Head 21;

“Electricity Interconnector” means a marine transmission line which is used to link the

electricity system of the State to electricity systems outside of the State. A hybrid cable

containing for telecommunications and electricity shall be deemed as an electricity cable;

“Gas Interconnector” has the meaning given to it by Section 2 of the Gas Act 1976 as

amended by Head 121 of this Bill;

“geothermal energy” means energy stored in the form of heat beneath the surface of solid

earth;

“natural gas” has the meaning given to it by section 2 (as amended by Regulation 4(1)(b)

of the European Communities (Internal Market in Natural Gas) (No. 2) Regulations 2004

(S.I. No. 452 of 2004)) of the Gas Act 1976;

“natural gas undertaking” has the same meaning (inserted by Regulation 41 of the

European Communities (Internal Market in Natural Gas and Electricity) Regulations 2011

(S.I. No. 630 of 2011) as it has in section 2(1) of the Gas (Interim)(Regulation) Act 2002;

“offshore natural gas storage” means the stocking, injection or recovery of natural gas by

or on behalf of a natural gas undertaking into or from an offshore natural gas storage

facility;

“offshore natural gas storage activities” means any activity that is carried out in relation

to the development, operation, maintenance or storage of natural gas in an offshore

location;


offshore natural gas storage facility” means—

(a) a geological feature, natural void, depleted petroleum or natural gas well,

and

(b) any boring or other excavation in the earth's crust,

made or adapted for the purpose of storing and subsequent retrieval of natural gas and

includes any such proposed facility but does not include any offshore natural gas storage

facility that has been decommissioned;

“pipeline” has the meaning given to it by section 2 of the Gas Act 1976;

“record” means any record of information, however compiled, recorded or stored, and

includes—

(a) any book, plan, map and any other document containing information, and

(b) any disc, tape or other article from which information is capable of being

produced in any form capable of being reproduced visually or aurally;

“storage”, in relation to natural gas, has the meaning assigned to it by section 2 of the Gas

(Interim) (Regulation) Act 2002;

“storage of natural gas” means the stocking or storage of natural gas;

“working”, where used in relation to natural gas and offshore natural gas storage,

includes digging, searching for, boring for, getting, raising, taking, carrying away, storing

and treating of gas, and cognate words shall be construed accordingly.

‘submarine cable’ means a cable laid on the seabed;

‘submarine pipeline’ means a pipeline laid on the seabed;

‘telecommunications submarine cable’ means a submarine cable used in the provision of

electronic communications networks and electronic communications services as defined

in the Communications Regulation Act, 2002.

‘telecommunications submarine cable activities’ means any activity that is carried out in

relation to the development, operation or maintenance of a telecommunications

submarine cable.

“Offshore Renewable Energy activities”


activities”, in relation to offshore renewable energy, means any activity that is carried out

in relation to the development, operation and maintenance of an offshore renewable

energy installation including the carrying out of technology trials;

Notes:

Head 25 defines various words and expressions used in the Bill for the purposes of (1) defining

Planning Interest (2) defining relevant Minister with sectoral responsibilities and (3) procedural

matters for managing applications and granted interests.

Definitions for ‘Submarine cable’ and ‘submarine pipeline’ included as they appear in the

Maritime Jurisdiction Bill 2019, which may be subject to revision before enactment. Definitions

may need to be aligned with planning and development act definitions depending upon final

decisions on their treatment within planning MDPM regimes.

Additional definitions may be required.


Head 26. Planning Interest

Provide that:

(1) In this Act Planning Interest is defined as:

A time bound provisional interest in respect of proposed development in a specified part

of the maritime area. This interest is limited to the right to apply for planning permission

and confers no other rights to the maritime area whatsoever.

(2) Development and activities for which the Minister for Agriculture, Food and the Marine is

the appropriate Minister under Section 1B of the Foreshore Act 1933 (as amended) are

excluded from the scope of the planning interest and maritime area consent regimes and

will continue to be regulated under the Foreshore Act.

(3) For the avoidance of doubt in consideration of an application for a planning interest the

relevant Minister is not required to undertake an Environmental Impact Assessment or

Appropriate Assessment which will be undertaken once within the planning system.

(4) For the avoidance of doubt, it is declared that the grant of a planning interest, in respect

of an area within the internal waters, territorial sea, exclusive economic zone or

continental shelf, confers leave to apply for development consent only and cannot be

inconsistent with the rights of the State in the maritime zone concerned, as recognised by

the United Nations Convention on the Law of the Sea and reflected in the Maritime

Jurisdiction Bill 2019.

(5) Exploration and exploitation of natural resources to which the planning interest relates

are located under, in, on or above the seabed concerned (as the case may be) and the

planning interest does not confer any right or interest in the airspace above the seabed,

the water column above the seabed, , the subsoil below the seabed, or the seabed itself.

(6) (i) A person may not apply for permission for development without first having obtained

a planning interest from the relevant Minister save for where provided for under this Bill.


(ii) A person shall not be entitled solely by reason of being granted a planning interest to

carry out any development or activity in the maritime area.

(7) When applying to a planning authority or the Board for permission for development,

consequent on the grant of a planning interest, the holder of the interest shall not, in the

application for permission for development, alter in a material way the project proposal

for which the planning interest was granted. The developer shall be required to apply to

the relevant Minister to amend the planning interest if material alterations are proposed.

(8) Where the relevant Minister grants a planning interest it shall be subject to—

(i) its expiration after a fixed period of time, which may be extended by that Minister

in accordance with head 29, and

(ii) certain contractual obligations, to be specified in the planning interest, being met,

including applying for and securing permission for development from the planning

authority or the Board, as appropriate.

(9) A planning interest shall not be assigned to another person without the express written

consent of the relevant Minister. No assignment will be approved unless the relevant

Minister is satisfied that the proposed assignee meets all the requirements that would

normally apply to an applicant.

(10) The fees to apply to a planning interest, assignment of a planning interest, or exemptions

from a planning interest may be set out in regulations by the relevant Minister as

appropriate to:

a. the area involved

b. location

c. the development type

d. classes of applicants

e. financial means of classes of applicants

f. public interest considerations


(11) The relevant Minister may delegate decision making authority under this chapter to

official level.

Notes:

This part defines the nature and scope of the Planning Interest and how it fits into the single

consent regime.


Head 27. Relevant Minister

Provide that:

(1) In this Act ‘ relevant Minister’ means:

(i) In relation to Offshore Renewable Energy activities, the Minister for

Communications, Climate Action and Environment.

(ii) In relation to Offshore Gas Storage, the Minister for Communications, Climate

Action and Environment.

(iii) In relation to submarine cables and submarine pipelines, the Minister for


(iv) In relation to Electricity Interconnectors, the Minister for Communications,

Climate Action and Environment.

(v) In relation to Gas Interconnectors, the Minister for Communications, Climate

Action and Environment.

(vi) In relation to all other development and activity in the Maritime Area, exclusive

of the functions assigned to the Minister for Agriculture, Food and the Marine

under Section 1B of the Foreshore Act, the Minister for Housing, Planning and

Local Government.

(2) The functions of the relevant Minister will be the consideration, granting and

enforcement of Planning Interests and Maritime Area Consents as set out in this General

Scheme for the Bill.

(3) Where a development proposal includes activities that encompass the functions of more

than one relevant Minister, responsibility shall rest with the relevant Minister to whose

function the majority of the development relates.

(4) Where a doubt may exist in relation to a development proposal type specified in

subhead 3 the relevant Ministers shall agree which relevant Minister has responsibility.


Notes:

These provisions are intended to designate planning interest and marine consenting

responsibilities between Ministers for different developments and activities. These provisions

are analogous to the designation of ‘appropriate Minister’ in Section 1B of the Foreshore Act.

Foreshore functions held by the Minister for Agriculture, Food and the Marine are excluded

from these provisions as such development and activity will continue to be regulated as now

under the Foreshore Act.


Head 28. Granting of Planning Interest

Provide that:

Applications

(1) On application to the relevant Minister in accordance with this Act and in such form as

may be prescribed by regulation, the relevant Minister may, subject to the provisions of

this part grant a planning interest in respect of a proposed development in a specific

part of the Maritime Area.

(2) The relevant Minister may grant a planning interest subject to or without conditions, or

may refuse to grant a planning interest.

(3) Where the relevant Minister makes a determination on an application he or she shall

give reasons for the decision.

(4) In considering an application for a planning interest the relevant Minister shall have

regard to the following criteria as appropriate to the proposal:

i. The type, nature, scope and extent of the proposed development;

ii. The public interest including the benefits to the State;

iii. The policy objectives of the State relevant to the proposal;

iv. Where relevant, security of energy supply to the State;

v. Whether an applicant is a fit and proper person, as provided for under this Head,

to be granted such a planning interest;

vi. The technical competence of the applicant;

vii. The financial resources available to the applicant;


viii. Where relevant, previous performance by the applicant under any relevant

consent granted by the State including:

a. A maritime area consent under this Act;

b. A consent granted under the Foreshore Act;

c. A continental shelf licence; or

d. Any such licences to which the applicant was a party;

ix. Such matters or information deemed appropriate to the development type by

the relevant Minister; and

x. Any additional criteria appropriate to the development type which may be set

out by regulation by the relevant Minister.

(5) Where a planning interest was granted by the relevant Minister, he or she may, after

receiving an application prior to the expiry of the planning interest and following

consideration of the application, either—

(i) grant an extension, for a specified time, of the period of validity of the planning

interest, including giving reasons for the grant, or

(ii) refuse to grant an extension to the period of validity of a planning interest in which

case he or she shall give reasons for such refusal.

(6) The relevant Minister shall, save in exceptional circumstances, make a determination on

an application for a planning interest, or an application for an extension of a planning

interest, within 90 days of receipt of a complete application. Verification of the

completeness of an application is at the sole discretion of the relevant Minister.

(7) A planning interest shall not be granted under this section to an applicant unless the

applicant—

(i) except where otherwise provided for produces to the relevant Minister a tax


clearance certificate for the time being in force in respect of the applicant, and

(ii) provides such other information as may be required by regulations, made by the

relevant Minister, to be given in respect of an application, and

(iii) provides such other information as may be required by the relevant Minister for the

purpose of making a decision on the application.

(8) Where the applicant is a body corporate, a planning interest under this section may only

be granted to—

(i) a company incorporated under the laws of the State, or

(ii) an EEA company (within the meaning of Part 21 of the Companies Act 2014).

(9) Specific administrative procedures for the consideration of an application for a planning

interest may be set out by the relevant Minister by way of regulations.

Competing Applications, and Auctions.

(10) Where there is more than one application for the grant of a planning interest in respect

of the same part of the maritime area, then the relevant Minister may—

(i) after consultation with such other Minister of the Government, if any, as the

relevant Minister considers appropriate in the circumstances, and

(ii) if the relevant Minister considers it to be in the public interest,

(a) duly grant more than one such planning interest, where he or she

considers that the matters to which such planning interests would

relate—

(I) do not interfere with each other, or

(II) if they could so interfere, would not materially interfere with

each other;


(b) refuse any of the applications concerned;

(c) require one or more of the applicants to alter their applications so as to

ensure that there is no conflict between the applications or overlap in the

applications in respect of those parts of the maritime area concerned;

(d) arrange for the proposed planning interest in the area for which there are

competing applications to be auctioned among the applicants concerned

by means of a tender process limited to those applicants.

(11) The relevant Minister may determine that a specific part of the maritime area be used

for a particular purpose and may, by auction, tender or other competitive process,

determine an appropriate person to whom to grant a planning interest.

Refusal of an application

(12) The relevant Minister may refuse an application for a planning interest or an

application to extend a planning interest for any of the following reasons or for other

good reasons:

(i) in the opinion of the Minister the application is not in the public interest;

(ii) in the opinion of the Minister the application does not comply with the marine

spatial plan or marine spatial plans;

(iii) in the opinion of the Minister the application does not comply with the principles

set out in head 2 (as amended);

(iv) the proposal conflicts with an existing planning interest or application;

(v) in the opinion of the Minister, the applicant has not shown that he or she has

sufficient financial resources or technical competence or both, to undertake,

develop and maintain the proposed activities applied for;

(vi) the application does not comply with the provisions set out in this part, in

regulations, or is otherwise incomplete;

(vii) the relevant Minister is of the opinion that the applicant does not satisfy any or a ll

of the criteria specified in this part;


(viii) the applicant failed to provide, following a request by the relevant Minister,

additional information, particulars or documentation or evidence within the

period specified in the request;

(ix) the relevant Minister is of the opinion that any of the information, particulars or

documentation given in the application or any additional information, particulars

or documentation or evidence given under this section is incorrect or incomplete;

(x) the relevant Minister is of the opinion that the grant of the planning interest,

having regard to all the circumstances, be made to another applicant;

(xi) any other grounds that, in the opinion of the relevant Minister, render it

inappropriate to grant the planning interest;

(xii) that circumstances have changed since the submission of an application rendering

it, in the opinion of the relevant Minister, not appropriate to grant the planning

interest.

(13) The relevant Minister shall in writing notify the applicant of a refusal including the

grounds for refusal.

(14) The relevant Minister shall provide the refused applicant with an opportunity to

a. appeal the refusal; and

b. submit additional information upon which the appeal is based within 30 days.

(15) Grounds for appeal shall be limited to additional information in respect of the reasons

for refusal. For the avoidance of doubt the level of fees or other financial considerations

shall not be grounds for an appeal.

(16) The relevant Minister shall consider the additional information submitted under

subhead 14 and make a final determination on the initial application.

(17) The relevant Minister shall in writing notify the applicant of a final determination

including the grounds for the determination.

(18) A planning interest under this section—

(i) shall not be granted, or


(ii) if granted, its period of operation shall not be extended,

unless the relevant Minister is or continues to be satisfied (as the case may be) that the

applicant is a fit and proper person to hold a planning interest.

Notification of grant

(19) Upon the granting or amendment of a planning interest the relevant Minister shall

publish online a notification of the grant which shall include:

(i) The name of the person to whom the interest was granted

(ii) The address of the person to whom the interest was granted

(iii) The date of the grant

(iv) The term of the grant

(v) The nature of the proposed development or activity for which the interest was

granted

(vi) A spatial representation of the area subject to the grant; and

(vii) Any other information deemed necessary for the purposes of Marine Spatial

Planning

Termination of planning interest

(20) The relevant Minister may at any time suspend a planning interest if satisfied that its

holder ceases to satisfy any of the criteria specified for the purposes of the application

for a planning interest.

(21) Applicants for and holders of a planning interest will be obliged to inform the relevant

Minister of any material change in circumstances relating to the application criteria set

out in this act or by regulation.

(22) The relevant Minister shall in writing notify the holder, the operation of whose planning

interest has been suspended—

(i) of the grounds on which the suspension is based, and


(ii) that unless the holder satisfies the relevant Minister that the grounds for the

suspension are not well founded or that the problem underlying the suspension

has been or will be remedied to the satisfaction of the relevant Minister, the

planning interest will be revoked by a date specified in the notice.

(23) The relevant Minister shall provide the holder with an opportunity to make

submissions and to present evidence before the specified date.

(24) If a holder has satisfied the relevant Minister that the grounds for the suspension are

not well founded or that the problem underlying the suspension has been or will be

remedied within a period acceptable to the relevant Minister, then the relevant Minister

shall terminate the suspension of the planning interest.

(25) If a holder has not satisfied the relevant Minister—

(i) that the grounds for the suspension are not well founded, or

(ii) that the problem underlying the suspension has been or will be remedied within a

period acceptable to the relevant Minister,

then the relevant Minister may revoke the planning interest.

(26) The relevant Minister shall in writing notify the holder of his or her decision under

this part and the date that the termination of the suspension or the revocation of the

planning interest is or becomes effective.

(27) In the case where a planning interest has been suspended no application for a maritime

area consent can be made until the suspension has been terminated.

(28) In the case where a planning interest has been revoked the applicant may not apply for

a maritime area consent for the development in question.


Tax clearance obligations of applicants and planning interest holders

(29) (1) The holder of a planning interest shall, except where otherwise provided for:

(i) not later than one month after each annual anniversary of the grant of the

planning interest, or

(ii) such further period beyond that period of one month as the relevant Minister may

allow,

produce to that Minister a tax clearance certificate for the time being in force in respect

of the holder.

(2) Where the holder of a planning interest fails to comply, then, except where—

(i) the relevant Minister is satisfied that the holder ceases to satisfy specific

criteria

(ii) the planning interest expires,

the planning interest shall cease to have effect until such time as the holder next

produces to that Minister a tax clearance certificate for the time being in force.

(30) During any period when a planning interest ceases to have effect because a tax clearance

certificate for the time being in force has not been produced, the holder of that planning

interest shall be deemed to be ineligible to be granted—

(i) a maritime area consent by any relevant Minister, and

(ii) another planning interest.

Fit and proper person

(31) In assessing whether an applicant is a fit and proper person to hold or to continue to

hold a planning interest, the relevant Minister may have regard to the following criteria:

(i) letters of reference;

(ii) that the applicant, or any other person concerned, stands convicted of—


(a) an indictable offence under this Act or under any other enactment as

may be prescribed by order made by that Minister for the purposes of

this clause, or

(b) any offence involving fraud or dishonesty;

(iii) in the case of a body corporate, whether any of its directors has a

declaration under section 819 of the Companies Act 2014 made against

him or her or is deemed to be subject to such a declaration by virtue of

Chapter 5 of Part 14 of that Act, or is subject or is deemed to be subject

to—

(a) a disqualification order, within the meaning of Chapter 4 of Part 14 of

the Companies Act 2014, whether by virtue of that Chapter or any

other provision of that Act, or

(b) a disqualification outside the State to like effect which corresponds to

a disqualification order within the meaning of Chapter 4 of Part 14 of

that Act;

(iv) whether the applicant, in the case of an individual, is adjudicated bankrupt or

is subject to proceedings for a declaration of bankruptcy or becomes an

arranging debtor or, in the case of a body corporate—

(a) has commenced a voluntary winding-up or is subject to a winding-up

order or is subject to proceedings for such an order,

(b) is subject to the appointment of a receiver or examiner, or

(c) has proposed a compromise or arrangement that is sanctioned under

section 453(2) of the Companies Act 2014 or 201(3) of the Companies

Act, 1963;


(v) in the case of a body incorporated under the laws of another state, whether

any event which corresponds to an event referred to in paragraph (iii) has

occurred in relation to any of its directors or whether any event referred to

in paragraph (iv) has occurred in relation to that body corporate;

(vi) that the applicant or, as appropriate, any person or persons employed directly

or indirectly by him or her to direct or control the carrying out of the

development to which the planning interest will relate has or have the

requisite technical knowledge or qualifications to carry out that

development;

(vii) that the applicant is likely to be in a position to meet any financial

commitments or liabilities that the relevant Minister reasonably considers

will be entered into or incurred by that applicant in carrying out the

development to which the planning interest will relate or in consequence of

ceasing to carry out that development;

(viii) such other matters as the Minister considers appropriate to take into account

in the circumstances.

(a) In this part a ‘person concerned’ means—

(i) where the applicant is a body corporate—

(a) a person who exercises control (within the meaning of section 11 or 432 of

the Taxes Consolidation Act 1997 ) in relation to the body,

(b) a member (including the chairperson) of the body, or the board or board of

directors of the body, or any other person acting in such capacity, or


(c) the managing director or chief executive officer of the body, or any other

person acting in such capacity,

and

(ii) a person to whom paragraph (b)(v) relates or, if a planning interest were to

be granted, would relate,

(ix) previous performance of the applicant under other consents they have been

a party to.

Notes:

Careful drafting will therefore be required to avoid any unintended consequences, to ensure that

the procedure undertaken by the relevant Minister cannot be construed as development

management. Compliance with proper planning and marine spatial planning is a matter for the

planning authority/board. Otherwise, it could be arguable that the Minister is undertaking

development management without the requisite environmental assessments. It also raises the

possibility of conflicting decisions and the appearance if not the fact of prejudicing the planning

authorities’ decisions – this is of particular relevance to the Minister who holds planning

functions, who is statute barred from exercising power or control over specific planning cases.

A similar issue arises with subhead 12 (iii). The relevant Minister cannot ensure sustainable

development and protection and enhancement of the health of the marine area without full

assessment of a project which occurs only in the planning system.


Head 28a Power to designate certain persons as “fit and proper”

Provide that:

(1) The relevant Minister may by regulation designate certain persons, or classes of persons,

as fit and proper for the purposes Head 28(4).

(2) The relevant Minister may make such a designation generally or for particular

development types or purposes.

(3) In making such a designation the relevant Minister shall have regard to:

a. The legal nature of the person or class of person concerned.

b. The statutory role of the person or class of person concerned.

c. The ability of the person or class of person concerned to maintain a fit and

proper status.

d. The purposes for which the person or class of person concerned will be applying

for a planning interest under this Act.

Notes:

This head is intended to create an efficiency by eliminating the requirement to assess fit and

proper person status of certain applicants during each application process. It is envisaged that

such designations will be restricted to entities such as Local Authorities, appropriate State

Bodies and Agencies (e.g. the Marine Institute) and the Offshore Renewable Energy

development body envisaged under Head 32. Such persons will be making numerous

applications over time in the performance of their statutory functions.

Consideration may need to be given to the necessity of the inclusion of this measure in statute

or whether it can/should be robustly achieved administratively by relevant Ministers.


Head 29. Regulations and Orders

Provide that:

(1) For the purpose of enabling any provision of this Part to have full effect the relevant

Minister may, following consultation with the other relevant Minister, make regulations

prescribing any matter or thing which is referred to in this Part as prescribed or to be

prescribed.

(2) Regulations under this Part may contain such incidental, supplementary and

consequential provisions as appear to the Minister to be necessary or expedient for the

purposes of the regulations.

(3) Without prejudice to the generality of subsections (1) and (2) or any requirement in an

application for a planning interest under this Part, regulations under this Part may, where

appropriate to the relevant Ministers functions, provide for conditions and other matters

relating to any of the following:

i. the form of application

ii. the administrative procedures and processes to be used in respect of an application;

iii. obligations on an applicant prior to the submission of an application.

iv. obligations on holders of a planning interest

v. the term of a grant of a planning interest and the extension of the term of the original

grant;

vi. provisions relating to—

a. the payment of fees or administrative charges for-

(I) an application for a planning interest,

(II) an extension of the planning interest term,

(III) any payment of other fees for which a holder of a grant of a

planning interest or a licensee is liable under this Part

vii. The administrative procedures relating to the assignment of a planning interest

including, where relevant, a prohibition or restriction on assignment;

viii. The form of the planning interest including relevant applicable conditions;

ix. notices;

x. force majeure;

xi. transitional provisions relating to existing legislative frameworks and consent regimes;


xii. indemnification by the planning interest holder of the relevant Minister and the State

if the Minister or the State is found liable to pay compensation for any act or omission

of the planning interest holder or the planning interest holder’s officers, employees,

agents or contractors;

xiii. the keeping of records, including in relation to the keeping of geological and ecological

samples, reports, data and plans;

xiv. specified types of development, to the exclusion of others, may be carried out in

specified parts of the maritime area, or

xv. specified types of development may not be carried out in specified parts of the

maritime area, or

xvi. no development may be carried out in specified parts of the maritime area,

xvii. such other matters as are ancillary or consequential to the other provisions of this

subsection.

(4) Any regulations made under this section, which are stated to apply to all applications for a

planning interest, shall apply only to such grants of planning interests, applications or licences, as

the case may be, that are granted or extended after those regulations come into operation.

(5) The Minister and a holder of a grant of a planning interest or a licensee may agree on terms

and conditions to which a grant of a planning interest or licence is to be subject that are in addition

to the conditions prescribed under subsection (1).

(6) Regulations made under this Part shall be laid before the Houses of the Oireachtas as soon as

may be after they are made and, if a resolution annulling the regulations is passed by either such

House within the next 21 days on which that House has sat after the regulations are laid before

it, the regulations shall be annulled accordingly but without prejudice to the validity of anything

previously done under them.

(7) A relevant Minister may by order prescribe that the other provisions of this section shall not

apply to any specified type of development or activity in the maritime area.

Before making an order under this subsection, including the revocation in whole or in part of an

order previously made under it, the relevant minister shall consult with such other Minister of the

Government whom he or she considers appropriate to so consult with in the circumstances.

An order made by the Minister under this subsection may relate to the whole of the maritime

area or any part of it.


Head 30 Specific provision for Offshore Renewable Energy Development

Provide that:

(1) The Minister for Communications, Climate Action and Environment may make

Regulations to provide for two approaches to the forward planning and development of

offshore renewable energy in the Maritime Area as set out in Head 31 and Head 32

below.

(2) In making Regulations under this section, the Minister for Communications, Climate

Action and Environment will have regard to the Marine Spatial Plan and Government

policy on the Framework for the Offshore Electricity Grid.

(3) The Minister for Communications, Climate Action and Environment may determine to

only grant Maritime Area Consents as provided for under Head 31 or 32.

Notes:

This is to provide flexibility for both a zonal (decentralised) and a site specific (centralised)

approach to Offshore Renewable Energy (ORE) Development. Both of these processes are

feasible options for Ireland to develop ORE and it is crucial that the MDPM Bill provides for the

Minister to accept applications for and award Maritime Area Consents under both models.

It is important that the MPDM Bill provides the flexibility required to allow for both a

‘centralised’ and ‘decentralised’ approach to the development of offshore electricity grid

connections1. Under the centralised approach, the identification of maritime zones and specific

sites in line with the National Marine Planning Framework (NMPF) and the provision of grid

connections to those sites by the transmission system operator requires a higher degree of State

coordination than would be the case in a less centralised, developer-led approach.

The centralised approach has the benefit of aligning more closely with the ‘plan led’ approach to

development as set out under the NMPF and the National Development Plan (NDP). However,

such an approach requires significant State capacity at the initial stages of project development

including site selection and may not be feasible in the initial stages of ORE development. It is

expected that a Government Decision in Q2 2020 on the offshore grid framework as well as the

1 Two broad models exist in Europe for regulatory framework for offshore renewables. 1) the UK decentralised system where, following the award of a lease from the Crown Estate, the developer builds the connection to the grid, builds the windfarm itself and carries out all planning permitting. The Government then holds auctions between competing sites for subsidy support. 2) the continental centralised system (Germany, Denmark, the Netherlands) where the State identifies development areas for ORE, conducts site investigations, obtains the required planning consents, and the transmission system operator provides the connection to the electricity grid. The State then tenders for bids from developers to construct and operate the windfarm with a price subsidy if required.


Marine Spatial Plan will provide the policy context that determines whether a centralised or

decentralised grid model will be operated in Ireland for ORE. Notwithstanding this, given the

very different marine areas and policy drivers (Irish Sea, Celtic Sea, Atlantic Ocean) for ORE

development in Ireland it is important to allow the system to adapt and move between the two

different models as policy develops and in order to meet climate and Renewable Electricity

Support (RES) targets.

Under both models, it is intended that the Minister for Communications, Climate Action and

Environment (MCCAE) will establish a competitive process for the award of financial support

under Section 39 (2)(b) of the Electricity Regulation Act to offshore renewable energy projects.

This will be in essence the competitive auction process to be established under the Renewable

Electricity Support Scheme (RESS). It is important that this competitive process takes place in

advance of the award of a maritime area consent by the MCCAE .

Once transitional measures between consenting regimes have been finalised and the policy

context has been set under the National Marine Planning Framework and Marine Spatial Plan(s)

have been adopted, a plan led approach will apply to all future ORE development.


Head 30A Designation of Oversight Body for Offshore Renewable Energy Projects

To establish an Oversight Body to facilitate and co-ordinate the permit granting process for

Offshore Renewable Energy projects. The Oversight Body shall coordinate the issuing of all the

consents required from all relevant authorities and to monitor compliance with time limits.

Notes:

This head is intended to assign an oversight role in respect of:

Providing guidance to the applicant when necessary and assisting the applicant through the

entire administrative permit application and granting process.

The oversight role shall guide the applicant through the administrative permit application

process in a transparent manner up to the delivery of one or several decisions by the

responsible authorities at the end of the process, provide the applicant with all necessary

information and involve, where appropriate, other administrative authorities.


Head 31 General Zonal Approach for Offshore Renewable Energy Development

Provide that:

(1) In addition to the provisions of Head 28(4) for the granting of a planning interest for

offshore renewable energy development the Minister for Communications, Climate Action

and Environment will have regard to the following criteria when considering whether to

issue a grant of a planning interest in a specific part of the maritime area:

a. Consistency of application with zones established under the National Marine

Planning Framework and the Marine Spatial Plan

b. Consistency of application with the grid development plans of the Transmission

System Operator.

c. Due consideration has been given to the maturity and costs of technologies

recognising that specific provisions may be required for offshore test sites.

(2) In line with Head 28(11) the Minister for Communications, Climate Action and

Environment may determine that a specific part of the maritime area be used for offshore

renewable energy development and may establish a competitive process to determine an

appropriate person to whom to grant a planning interest.

(3) Where an application is made to the Board for offshore renewable energy development

in a strategic marine activity zone under Head 24, the Board shall also take account of the

application made for connection of the development to the national electricity

transmission system.

(4) In advance of the granting of a maritime area consent under Head 32, the Minister for

Communications, Climate Action and Environment may establish a competitive process

for the award of a public service obligation levy to an offshore renewable energy

development under Section 39 of the Electricity Regulation Act 1999. The terms and

conditions of such a competitive process will take into account arrangements for access

to and the charging mechanism for connection to and use of the electricity transmission

or distribution system as determined by the Commission for Regulation of Utilities as set

out in Section 35 of the Electricity Regulation Act.

(5) In addition to the general provisions of Head 35, the Minister for Communications, Climate

Action and Environment may only grant a maritime area consent where the promoter of

an offshore renewable energy development has been successful in a competition

established by the Minister under Section 39 of the Electricity Regulation Act.


Notes:

The above Head provides for the decentralised model of Offshore Renewable Energy (ORE)

development but within the context of the Marine Spatial Plan (MSP) and Strategic Marine

Activity Zones. The processes mirror closely those in the general scheme of the Bill with some

minor adaptations for ORE. The key features are that:

Strategic Marine Activity Zones are established by Government

Marine Planning Scheme is developed by the Minster

The Minister receives applications for planning interests for ORE

Applicant proceeds to apply for development consent to An Bord Pleanála (ABP)

following a grant of a planning interest

The Minister establishes a competitive process for support for projects which have

received a planning interest and development consent from ABP (competition between

sites)

Grid connection arrangements are provided by the Transmission System Operator (TSO)

or developer

Maritime Area Consent is granted by the Minister only to projects that 1) have received

a grant of a planning interest, 2) have received development consent and 3) are

successful in the competitive process established by the Minister under Section 39 of the

Electricity Regulation Act (ERA).


Head 32 Centralised Site Specific Arrangements for Integration of Offshore Renewable Energy

Development

Provide that:

(1) The Minister for Communications, Climate Action and Environment may determine that

no grant of a planning interest will be granted for individual applications where the

Government decides to adopt a centralised approach for the development of offshore

renewable energy.

(2) The Minister for Communications, Climate Action and Environment may make regulations

that provide for the Commission for Regulation of Utilities, the Transmission System

Operator or other designated entity to make such arrangements as are necessary to

facilitate the centralised approach to ORE development.

(3) The Minister for Communications, Climate Action and Environment may by Order under

this section designate an entity (“the ORE Development Body”) to undertake grid

development activities which may include site selection and the securing of necessary

permissions in relation to the grid connection to facilitate further ORE development by

third party developers.

(4) The Body designated under subsection (3) may undertake some or all of the following

duties:

(i) Site selection in line with the adopted Marine Spatial Plan and transmission

network planning;

(ii) Carrying out of initial site investigations

(iii) Development management consents as may be required under this Act; and

(iv) Other duties that may be determined by the Minister

(5) Following the making of a Marine Planning Scheme [Head 23] the Minister for

Communications, Climate Action and Environment / ORE Development Body shall select a

site or sites for ORE development in line with the Marine Spatial Plan / National Marine

Planning Framework. The ORE Development Body may carry out site investigations for

the specific area and publish these sufficiently in advance of the competitive process

under (7) below.


(6) Under the Centralised Site Specific Arrangements, applications to the Board for

development in a Strategic Marine Activity Zone may be made by the ORE Development

Body. Relevant planning and consenting processes for the construction and

commissioning of the grid connection to the onshore transmission/distribution network

will be carried out by the Transmission System Operator or the Distribution System

Operator as appropriate.

(7) The Minister for Communications, Climate Action and Environment may invite

applications for the right to develop and operate an ORE installation in respect of sites

designated under subsection (5)

(8) In advance of the granting of a maritime area consent under Head 32, the Minister may

establish a competitive process for the award of a public service obligation levy to an ORE

development under Section 39 of the Electricity Regulation Act 1999. The terms and

conditions of such a competitive process will take into account arrangements for access

to and the charging mechanism for connection to and use of the electricity transmission

or distribution system as determined by the Commission for Regulation of Utilities as set

out in Section 35 of the Electricity Regulation Act.

(9) Under the Centralised Site Specific Arrangements for ORE Development, the Minister may

only grant a maritime area consent where an application for ORE development has been

successful in a competition established by the Minister under Section 39 of the Electricity

Regulation Act.


Notes:

The above Head provides for the centralised model of ORE development but within the context

of the Marine Spatial Plan (MSP) and Strategic Marine Activity Zones. However the emphasis in

this approach is on the State and the designated body for ORE development taking on the

responsibility for developing sites. The processes outlined above depart significantly from the

standard processes set out in this General Scheme for the Bill. The key features and principles

are that:

Strategic Marine Activity Zones are established by Government

Marine Planning Scheme is developed by the Minster

The Minister/ORE Development Body selects sites for ORE development and does not

receive applications for individual planning interests.

ORE Development Body carries out site investigations, TSO assesses grid connection

requirements.

ORE Development Body/TSO submits application for sites to ABP for development

consent

The Minister establishes a competitive process for support for sites which have obtained

development consent from ABP. Successful bidders win right to construct and operate

ORE site (competition for sites)

Grid connection arrangements are provided by the TSO and financed by electricity

network customers subject to decision making by Commission for Regulation of Utilities

Maritime Area Consent is granted by the Minister only to projects that 1) have received

development consent, and 2) are successful in the competitive process established by

the Minister under Section 39 of the ERA.


Chapter 2




This part provides for a new single State consent regime for the maritime area to be known as a

Maritime Area Consent. This new consent regime will replace existing consent regimes under the

Foreshore (exclusive of development for which the Minister for Agriculture, Food and Marine is

the Appropriate Minister under that Act) and Continental Shelf Acts into the future. This consent

is intended to provide for the occupation of the Maritime Area by developers and no project level

environmental assessments will be required to be undertaken by the relevant Minister. Any rights

afforded to an occupier for a particular part of the maritime area will be limited to those

consistent with the United Nations Convention on the Law of the Sea (UNCLOS) and any relevant

Irish maritime jurisdiction legislation.

The relevant Minister as defined in the Planning Interest Part will consider applications for a

Maritime Area Consent only when, where applicable, a Planning Interest had been previously

granted and when, where applicable, planning permission has been granted by the relevant

planning authority.

A common core of requirements will apply to all Maritime Area Consents augmented by

sector/development type specific procedures developed by the relevant Minster. The detail of

these procedures will be set out in regulations made by the relevant Minister, appropriate to their

functions under this Bill.

Consents granted under existing regimes will be managed under the relevant existing legislation

until expiry, termination, assignment or any material change is proposed – at which time an

application will have to be made under the new regime. Transitional measures are set out in

chapter 3. A single Minister will have responsibility for all granted consents, under this Bill or

previous legislative frameworks, relevant to their policy functions.

Developments for which the Minister for Agriculture, Food and the Marine (MAFM) is the

appropriate Minister under Section 1B of the Foreshore Act will be excluded from the new regime

and continue, for now, to be regulated under that Act.


Head 33. Definitions

Provide that:

(1) Required definitions to be identified during the detailed drafting process. Definitions

common to the full Bill will be set out in a preliminary part.


Head 34. Maritime Area Consent

Provide that:

(1) A relevant Minister may consequent to an application being duly made, grant to a person an

approval, to be known as a Maritime Area Consent (MAC), to occupy a specific part of the

Maritime Area for the purposes of a specific proposal for which development consent has

been granted by a planning authority or the Board.

(2) Where a Maritime Area Consent has been granted it shall not be necessary to apply for a

consent under the Foreshore Acts or a licence under the Continental Shelf Act 1967.

(3) A Maritime Area Consent may be granted for exclusive or non-exclusive use of the specified

part of the Maritime Area as deemed appropriate by the relevant Minister.

(4) Development and activities for which the Minister for Agriculture, Food and the Marine is the

appropriate Minister under Section 1B of the Foreshore Act 1933 (as amended) are excluded

from the scope of the Maritime Area Consent regime and will continue to be regulated under

the Foreshore Act. These functions are:

(i) an activity which is wholly or primarily for the use, development or support of

aquaculture, or

(ii) an activity which is wholly or primarily for the use, development or support of sea -

fishing including the processing and sale of sea-fish and manufacture of products derived

from sea-fish.

(iii) development within a designated Fishery Harbour Centre.

(5) Notwithstanding anything contained in this Act, a Maritime Area Consent reserving a rent or

other annual payment exceeding the financial thresholds to be agreed with the Minister for

Public Expenditure and Reform, shall not be granted until the approval of the Minister for

Public Expenditure and Reform has been obtained.

(6) A Maritime Area Consent under this Act may only be granted by the relevant Minister in

respect of an area where—

(i) A planning interest had been granted by him or her in relation to the matter that

would be the subject matter of the Maritime Area Consent if granted, and

(ii) if appropriate, permission for development relating to the planning interest has

been given by the planning authority or the Board consequent to an application in

that regard under the Act of 2000.

(7) When applying to the relevant Minister for a Maritime Area Consent under this Act,

consequent on the grant of permission for development by the planning authority or the

Board, the holder of the planning permission shall not, in the application for a Maritime Area

Consent alter in a material way the project proposal for which permiss ion for development

was granted.


(8) For the avoidance of doubt in consideration of an application for a Maritime Area Consent,

an application to modify a Maritime Area Consent or an application to assign a Maritime Area

Consent, the relevant Minister is not required to undertake an Environmental Impact

Assessment or Appropriate Assessment or screening for same, which has already been

undertaken within the planning system.

(9) The relevant Minister shall ensure that any rights to occupy the Maritime Area granted under

a Maritime Area Consent are consistent with The United Nations Convention on the Law of

the Sea (UNCLOS) for the constituent parts of the Maritime Area

(10) Every Maritime Area Consent shall be granted -

(i) subject to the following conditions:

a. It shall be granted to a specific person;

b. It shall be for the specified purpose of development or activity for which

approval was granted under the Planning and Development Act 2000, if

appropriate;

c. The payment to the relevant Minister of such fees, rents or royalties as may

be prescribed by the relevant Minister;

d. The inclusion of an indemnity clause whereby the holder indemnifies the

relevant Minister and the State against any claim arising out of the exercise

by the holder of his or her rights under the consent;

e. The substantive commencement of development or activity within the

lifetime of the approval granted under the Planning and Development Act

2000, if appropriate and/or within timeframes specified by the relevant

Minister;

f. The completion of the development within the planned/agreed time or

within a reasonable period of time thereafter;

g. The inclusion of appropriate reinstatement/decommissioning clauses,

including where relevant provision for a reinstatement/decommissioning

bond;

h. The holder shall not surrender the Maritime Area Consent concerned

without the prior written approval of the relevant Minister;

i. The holder shall not assign the Maritime Area Consent without the consent

of the Minister;

j. Compliance by the holder with the planning consent;

k. Compliance by the holder with the terms of the Maritime Area Consent;

l. Joint and several liability;

m. Insurance requirements; and

n. Financial Security.

(ii) subject to such other terms and conditions as the relevant Minister deems fits or

desirable in the public interest and specified in the Maritime Area Consent

(iii) subject to such other conditions and requirements as the Minister may deem

appropriate to specify from time to time, including any requirements to provide


data to the Minister.

(11) Every Maritime Area Consent granted under this Act shall contain a power or proviso for

re-entry on the breach, non-performance, or non-observance by the holder of any covenant

on the holder's part (including a covenant for payment of rent, royalty, or other money),

condition, or agreement contained therein.

(12) No Maritime Area Consent granted under this Act shall contain any covenant or

agreement for the renewal of such consent

(13) A Maritime Area Consent can only be assigned to another person with the prior written

approval of the relevant Minister subject to the procedures set out in this Act.

(14) The relevant Minister shall, in every financial year, lay before each House of the

Oireachtas a statement setting forth the following matters, that is to say:—

(i) particulars of Maritime Area Consents granted under this Act during the next

preceding financial year, and

(ii) the total amount of all rents and other periodical payments collected by the

relevant Minister under or by virtue of any Maritime Area Consents granted

under this Act during the said next preceding financial year, and

(iii) any other matter relating to the maritime area which the relevant Minister

thinks proper to include in such statement.

(15) A Maritime Area consent shall be required in respect of any development in the

maritime area save for where explicitly provided for under this Bill.

(16) A person shall not be entitled solely by reason of being granted a Maritime Area Consent

to carry out any development or activity in the maritime area.

Notes:

This part defines the nature and scope of the Maritime Area Consent and how it fits into the

single consent regime.

Consideration will be given to including provisions to mirror Section 16 of the Ministers and

Secretaries (Amendment) Act 2011 relating to disposal of State land, and whether such

provisions should apply to the entire Maritime Area.

Consideration will be given to the inclusion of a maximum term for occupation.

Any material amendments to proposals after an initial grant of planning permission will require

reversion to the planning system for any necessary assessment and revision of the granted

permission or new permission as appropriate.



Head 34A Geographic Restrictions of Planning Interest and Maritime Area Consent relating to

international cables.

Provide that:

(1) Subject to Article 79 of UNCLOS, a Planning Interest and Maritime Area Consent in

respect of electricity interconnectors shall not extend beyond the territorial seas.

(2) Subject to Article 79 of UNCLOS the delineation of the course for the laying of electricity

interconnectors on the Irish continental shelf (as defined by Head 20 of the Maritime

Jurisdiction Bill 2019) may be subject to notification to the Irish State

(3) Without prejudice to Articles 79 or 112 of UNCLOS, a person or body shall notify the

relevant Minister of its intention to lay an electricity interconnector on the Irish

continental shelf and of having laid an electricity interconnector on the Irish continental

shelf.

(4) Such notification shall include, as appropriate:

a. The name and contact details of the owner of the transmission line;

b. The name and contact details of the bodies contracted to lay the transmission

line;

c. Details of the proposed delineation of the course of the transmission line;

d. The proposed dates and duration for the laying of the transmission line and any

other ancillary activities; and

e. Any other information that the Minister may request for the purposes of Marine

Spatial Planning

(5) The Minister shall publish online a copy of the notification

Notes:

Laying of subsea cables is, beyond the territorial sea, a freedom recognised under UNCLOS and imposing a licensing or consent regime (Planning Interest and Maritime Area Consent in the Bill) beyond the territorial sea would not be compatible with international law. Note, in particular, Part VI (Art 79) and part VII (Art 112-115) of UNCLOS. It would appear that under UNCLOS the right of the State to impose consent obligations in respect of delineation is limited to pipelines. Article 79(3) of UNCLOS provides that –

“The delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal State”

UNCLOS does not appear to prohibit a State from requiring notification of the laying of cables so long as such requirement does not impede the laying of cables.

Provision has therefore been made on the assumption that State consent is geographically

limited. Any such cables shall be subject to a notification regime. These provisions apply to

both electricity and telecommunications cables. They do not apply to gas interconnectors.


Publication requirements on the Minister set out in Subhead 7 may be superseded by or

integrated with the operation of an online MSP data platform currently under development.


Head 35. General Provisions relating to applications for a Maritime Area Consent

Provide that:

Applications

(1) On application to the relevant Minister in accordance with this Act and in such form as

may be prescribed by regulation, the relevant Minister may, subject to the provisions of

this part, grant a Maritime Area Consent in respect of a proposed development in a

specific part of the Maritime Area.

(2) The relevant Minister may grant a Maritime Area Consent or may refuse to grant a

Maritime Area Consent and shall give reasons for doing so.

(3) In considering an application for a Maritime Area Consent the relevant Minister shall

have regard to the following criteria as appropriate to the proposal:

(i) The type, nature, scope and extent of the proposed development;

(ii) Any change in the circumstances, capabilities or other criteria upon which the decision

to grant a planning interest was based;

(iii) Appropriate financial terms;

(iv) the public interest, including the benefits to the State; and

(v) Any additional criteria appropriate to the development type which may be set out in

regulation by the relevant Minister.

(4) A Maritime Area Consent shall not be granted under this section to an applicant unless

the applicant—

(i) except where otherwise provided for produces to the relevant Minister a tax

clearance certificate for the time being in force in respect of the applicant, and

(ii) provides such other information as may be required by regulations, made by the

relevant Minister, to be given in an respect of an application, and

(iii) provides such other information as may be required by the relevant Minister for

the purpose of making a decision on the application.

(5) Where the applicant is a body corporate, a Maritime Area Consent under this section may

only be granted to—

(i) a company incorporated under the laws of the State, or


(ii) an EEA company (within the meaning of Part 21 of the Companies Act 2014).

Refusal of an application

(6) The relevant Minister may refuse an application for a Maritime Area Consent, an

application to extend a Maritime Area Consent or an application to amend a Maritime

Area Consent for any of the following reasons:

(i) in the opinion of the Minister, the applicant has not shown that he or she has

sufficient financial resources or technical competence or both, to undertake,

develop and maintain the proposed development or activities applied for;

(ii) the application does not comply with the provisions set out in this part, in

regulations, or is otherwise incomplete;

(iii) the relevant Minister is of the opinion that the applicant does not satisfy any or all

of the criteria specified in this part;

(iv) the applicant failed to provide, following a request by the relevant Minister,

additional information, particulars or documentation or evidence within the

period specified in a request;

(v) the relevant Minister is of the opinion that any of the information, particulars or

documentation given in the application or any additional information, particulars

or documentation or evidence given under this section is incorrect or incomplete;

(vi) any other grounds that, in the opinion of the relevant Minister, render it

inappropriate to grant the Maritime Area Consent; and

(vii) that circumstances have changed since the submission of an application rendering

it, in the opinion of the relevant Minister, not appropriate to grant the Maritime

Area Consent.

(7) A Maritime Area Consent under this section—

(i) shall not be granted, or

(ii) if granted its period of operation shall not be extended,

unless the relevant Minister is satisfied that the applicant is a fit and proper person to

hold a planning interest as defined in this Part.

(8) The relevant Minister shall in writing notify the applicant of a refusal including the grounds

for refusal.


(9) The relevant Minister shall provide the refused applicant with an opportunity to

a. appeal the refusal; and

b. submit additional information upon which the appeal is based within 30 days.

(10) Grounds for appeal shall be limited to additional information in respect of the reasons

for refusal. For the avoidance of doubt the level of fees or other financial considerations

shall not be grounds for an appeal.

(11) The relevant Minister shall consider the additional information submitted under

subhead 9 and make a final determination on the initial application.

(12) The relevant Minister shall in writing notify the applicant of a final determination

including the grounds for the determination.

(13) Specific procedures for the consideration of an application for a Maritime Area Consent

may be set out by the relevant Minister by way of regulations.

Modification of a Maritime Area Consent

(14) Where the holder of a Maritime Area Consent so requests the relevant Minister may

modify the conditions or requirements of the consent.

(15) The amendment may be made subject to such modification of the terms and conditions

of the Maritime Area Consent as the relevant Minister considers appropriate.

(16) An amendment to a Maritime Area Consent may only be made if appropriate planning

permission is granted for the modification, if required.

(17) Specific procedures for the consideration of a modification may be set out by the

relevant Minister by way of regulations.

Assignment of a Maritime Area Consent


(18) A Maritime Area Consent may, with the prior consent of the relevant Minister, be

assigned either in whole or in part to a third party, subject to—

(i) the third party being, in the opinion of the relevant Minister, a fit and proper

person in accordance with this part for the purposes of the matters to which the

assignment would relate, and

(ii) The relevant Minister shall have regard, in respect of the third party, to the criteria

for the assessment of applicants for a Planning Interest/Maritime Area Consent as

set out in the application processes under this Part.

(19) Specific procedures for the consideration of an assignment may be set out by the

relevant Minister by way of regulations.

Notification of grant, modification or assignment

(20) Upon the granting, amendment or assignment of a Maritime Area Consent the relevant

Minister shall publish online a notification of the grant which shall include:

(i) The name of the person to whom the Maritime Area Consent was granted;

(ii) The address of the person to whom the Maritime Area Consent was granted;

(iii) The date of the grant;

(iv) The term of the grant;

(v) The nature of the proposed development or activity for which the Maritime Area

Consent was granted;

(vi) A spatial representation of the area subject to the grant; and

(vii) Any other information deemed necessary for the purposes of Marine Spatial

Planning.

Notes:

The Maritime Area Consent (MAC) consideration will be limited to confirming the continuance of the circumstances and criteria of the Planning Interest and the financial terms to apply. There will likely be a variety of financial terms including standard fees etc that may apply to a specific proposal or development type.


Head 36. Surrender, Suspension, Termination, etc. of a Maritime Area Consent

Provide that:

Surrender of a Maritime Area Consent

(1) The holder of a Maritime Area Consent shall not surrender the Maritime Area Consent

concerned without the prior written approval of the relevant Minister.

(2) The relevant Minister may consider the surrender of a Maritime Area Consent if—

(i) the holder submits an application in the prescribed form,

(ii) the applicant provides the prescribed information and any additional information

required by the relevant Minister,

(iii) the holder satisfies the relevant Minister that there are no outstanding

rehabilitation or decommissioning issues in relation to the area that is subject to

the Maritime Area Consent including, where required, planning permission for

demolition works,

(iv) that the financial obligations of the holder have been discharged to the

satisfaction of the relevant Minister.

(v) the holder has—

(a) complied with the requirements in regard to the provision of data as may

be specified by the relevant Minister, and

(b) submitted a report setting out the status of its activities and operations as

close as is practicable to the date of the proposed surrender,

(3) The surrender of a Maritime Area Consent under subsection (1) does not disapply any

obligation imposed upon, or liability incurred by, the holder prior to such surrender.

Suspension and Revocation of a Maritime Area Consent

(4) The relevant Minister may suspend the operation of a Maritime Area Consent if satisfied

that—

(a) the licensed activities/development are not being carried out by the holder, or are

being or have been carried out by a person who is not the holder, or


(b) the holder has breached a provision of this part or regulations made under this

part or a direction issued under this part or a condition of the Maritime Area

Consent,

(c) the holder is no longer a person who is a fit and proper person, as provided for in

this Act, to be granted a planning interest,

(d) and only after having consulted with the holder in relation to the above matters.

(5) The relevant Minister shall in writing notify the holder, the operation of whose Maritime

Area Consent has been suspended—

(i) of the grounds on which the suspension is based, and

(ii) that unless the holder satisfies the relevant Minister that the grounds for the

suspension are not well founded or that the problem underlying the suspension has

been or will be remedied to the satisfaction of the relevant Minister, the Maritime

Area Consent will be revoked by a date specified in the notice.

(6) The relevant Minister shall provide the holder with an opportunity to make submissions

and to present evidence before the specified date.

(7) If a holder has satisfied the relevant Minister that the grounds for the suspension are not

well founded or that the problem underlying the suspension has been or will be

remedied within a period acceptable to the relevant Minister, then the relevant Minister

shall terminate the suspension of the operation of the Maritime Area Consent.

(8) If a holder has not satisfied the relevant Minister—

(i) that the grounds for the suspension are not well founded, or

(ii) that the problem underlying the suspension has been or will be remedied

within a period acceptable to the relevant Minister,


then the relevant Minister may revoke the Maritime Area Consent.

(9) The relevant Minister shall in writing notify the holder of his or her decision under this

part and the date that the termination of the suspension or the revocation of the

Maritime Area Consent is or becomes effective.

Termination of a Maritime Area Consent

(10) A Maritime Area Consent shall terminate—

(i) where the holder is an individual, the holder dies, is adjudicated bankrupt (either

in the State or elsewhere) or becomes an arranging debtor,

(ii) where the holder is a body corporate –

a. the holder commences a voluntary winding-up or becomes subject to a

winding-up order,

b. a receiver or examiner is appointed to the holder,

c. the holder proposes a compromise or arrangement that is sanctioned under

section 453(2) of the Companies Act 2014 or section 201(3) of the

Companies Act, 1963, or

d. where the body is incorporated under the laws of another state, on the

commencement of any event which corresponds to an event referred to

in subparagraph (i) or (ii).

(11) It shall be a condition of every Maritime Area Consent that where an event to which

(10)(i) relates occurs, then—

(i) in the case of an individual to whom the Maritime Area Consent was granted, the

individual or the personal representatives of that individual’s estate, shall notify

the relevant Minister accordingly,

(ii) in the case of a body corporate to which the Maritime Area Consent was granted,

the body corporate or the receiver or examiner, as may be appropriate in the

circumstances, shall notify the relevant Minister accordingly.

Effect of suspension

(12) On the suspension of a Maritime Area Consent —


(i) all rights and powers exercisable under it by the holder are suspended,

(ii) all of the holder’s duties under this Part, the regulations and the Maritime Area

Consent, continue to apply to the holder, and

(iii) where the holder paid any consideration for the grant of the Maritime Area

Consent, the holder shall not be entitled to be repaid such consideration or any

part of it.

Effect of revocation, expiration, termination or surrender of a Maritime Area Consent

(13) On the revocation, expiration, termination or surrender of a Maritime Area Consent—

(i) all rights and powers exercisable by a holder under the Maritime Area Consent

end,

(ii) the conditions specified in the Maritime Area Consent for the purposes of this

section continue to apply to the former holder,

(iii) the former holder continues to be liable for any act or omission done under the

Maritime Area Consent, and

(iv) the former holder is not entitled—

(a) to a refund of any fee, or any part of it, that has been paid, or

(b) to compensation in respect of any expenditure that the former holder may

have incurred.

Obligation of consent holders prior to the expiry of the consent term

(14) Should an existing consent holder wish to continue occupation of the maritime area

following expiry of the consent term, that holder shall be obliged to apply to the

relevant Minister for a new Maritime Area Consent, a minimum of 1 year prior to

expiry or as otherwise agreed with the Minister. The new consent application will be

considered in accordance with the provisions of this Act.

(15) In the circumstances where continued occupation by the consent holder is not

proposed, the holder will be obliged to comply with the decommissioning provisions of

this Act.


Head 37. Obligations on Maritime Area Consent holders prior to termination or expiry of MAC.

Provide that:

(1) Holders of a Maritime Area Consent have an obligation to restore or maintain, to the

satisfaction of the relevant Minister, that part of the Maritime Area the subject of the

consent, or any other part of the Maritime Area affected by the operation of the consent,

prior to the surrender, termination or expiry of the granted consent.

(2) In this head “restore or maintain” means to restore to the original condition or to a level

agreed by the relevant Minister and may include one or more of the following:

(a) Decommissioning of the structures;

(b) Removal of the structures entirely;

(c) Partial removal of the structures;

(d) Re-use of the structures for the same or other purpose including “repowering”;

(e) Restoration of the maritime area to the satisfaction of the relevant Minister;

(f) Burying or encasing structures;

(g) Removal of any deposited or waste material, and

(h) Any other means of satisfactory rehabilitation of the maritime area for other uses

or no use at all.

(3) A Maritime Area Consent shall not terminate until the obligations of subhead (1) have

been discharged to the satisfaction of the relevant Minister.

(4) Holders of a Maritime Area Consent shall not be allowed to surrender the Consent until

the obligations under subhead (1) have been discharged satisfactorily.

(5) No Maritime Area Consent may be assigned by the relevant Minister unless the proposed

assignee displays, to the satisfaction of the relevant Minister, the necessary technical and

financial capabilities to fulfil the obligations under subhead (1)

(6) Holders of a Maritime Area Consent Shall be obliged to apply for any necessary

permissions, including planning permission under this Act or the Planning and

Development Act as appropriate at a time period prior to the expiry of the Maritime Area

Consent to be determined by the relevant Minister unless otherwise agreed with the

relevant Minister.

(7) The relevant Minister may, by regulation, set out further obligations for MAC holders in

relation to the restoration or maintenance of the maritime area in respect of specific

development types, augmenting any development guidelines made under Part 3 of this

Bill.

(8) All Maritime Area Consents shall contain a schedule detailing the overall

restoration/maintenance programme which shall include:

(a) The particulars of the proposed restoration/maintenance programme based on

relevant guidelines, regulation or as otherwise agreed with the relevant Minister;


(b) An estimate of the length of time it would take to carry out the proposed

restoration/maintenance programme, the date of the commencement and

completion of the programme;

(c) An estimate of the costs of the programme;

(d) Timelines for securing the necessary consents/approvals including any required

development consent under the Planning and Development Act or this Bill as

appropriate, and

(e) Any other relevant matters which may be set out by regulation or agreed with the

relevant Minister.

(9) Holders of Maritime Area Consents shall be obliged to update this schedule by

agreement with the relevant Minister at a frequency specified by the relevant Minister.

This update shall take account of new technical knowledge, new information on costs

and timing of any works or such other matters as the relevant Minister may specify.

(10) It shall not be necessary for the relevant Minister to undertake an Environmental

Impact Assessment or Appropriate Assessment when agreeing the schedule specified

under subhead 8 or agreeing a revised Schedule as set out in subhead 9. These

assessments will be undertaken by the planning authority or the Board in the context of

the required planning permission for the works.

(11) Holders of a Maritime Area Consent shall not be enabled solely by virtue of the schedule

specified under subhead 8 to proceed to undertake any works under the programme set

out in the schedule. It shall be the responsibility of the consent holder to secure all

necessary approvals.

(12) The consent holder shall provide, to the satisfaction of the relevant Minister, a financial

guarantee or other form of financial security for the purpose of securing all or part of his

or her obligations relating to decommissioning as set out in the schedule specif ied in

subhead 8.

(13) The financial guarantee or other form of financial security shall be subject to it

remaining satisfactory to the relevant Minister at all times.

(14) The financial guarantee or other form of financial security shall be reviewed, and

revised, if appropriate, as part of the revision of the schedule specified under subhead

9.

(15) Failure to comply with the terms of this head, including the schedule specified in

subhead 8, shall be a matter of enforcement under Part 6 Chapter 1 of this Bill.

(16) The relevant Minister may by way of regulations set out appropriate requirements,

obligations and procedures to give effect to this part including:

(a) Any administrative procedures necessary to give effect to this part;

(b) Particulars, standards and requirements in relation to decommissioning or

restoration of the maritime area generally or for specific development types

including requirements regarding professional qualifications, and equipment;


(c) Other means of satisfactory rehabilitation of the maritime area;

(d) The content of the schedule specified in subhead 8;

(e) Specific procedural requirements in relation to the agreement of a revised

schedule specified in subhead 8;

(f) The frequency by which the schedule specified in subhead 8 should be updated;

(g) The provision of financial security in order to ensure that the consent holder can

pay all or part of his or her obligations relating to restoration or maintenance of

structures;

(h) The form, nature, value and quality of the financial guarantees or other financial

security generally or in relation to a specific development type;

(i) Insurance, safety and security;

(j) Contractual financial penalties for failure to adhere to the

restoration/maintenance programme specified in subhead 8;

(k) Fees to be applied during any extension of the MAC necessary under this Head;

(l) Alternative provisions for trivial and small scale developments, and development

undertaken by Local Authorities and State Agencies;

(m) Any payments for which a holder of a Maritime Area Consent is liable under this

part; and

(n) Any other ancillary matters necessary to give effect to this part.

Notes

This head sets out the obligations on MAC holders in relation to the restoration of the maritime

area prior to the end of the MAC. It is intended to ensure that liabilities and costs to the State

and taxpayers are minimised. Flexibility is required in relation to the manner of restoration and

the means by which it should be undertaken in the context of the wide variety of possible

maritime developments.

An overall programme for future restoration or maintenance will be set out in a MAC schedule

which is subject to periodic updating. Parameters, means and good practice should be set out by

way of guidelines under Part 3 of this Bill. Additional obligations, requirements and procedures

may be set out in regulations allowing flexibility in future management of decommissioning.

This head is also intended to clearly distinguish the estate management role of the relevant

Ministers from development consent undertaken by planning authorities and An Bord Pleanála.

In this regard, as part of the original development consent applications, developers will have to

submit proposals for decommissioning/demolition works which, given the timeframes i nvolved,

will have to be based on best estimates.

When the time comes for restoration or maintenance of the maritime area the consent holder

shall be obliged to secure the necessary consents to authorise the works, including planning

permission.

Failure to undertake those obligations will be a matter for enforcement under Part 6 Chapter 1

of this Bill. Contractual financial penalties may also apply to MAC holders for failing to adhere

to the agreed restoration/maintenance programme.



Head 38 Emergency works on the nearshore.

Provide that:

(1) In the case where occupation of the nearshore is required to facilitate works of a type

undertaken to protect life or property in an emergency situation (including emergency

works in respect of sea defences) a Planning Interest or Maritime Area Consent under

this Bill shall not be required.

(2) A Planning Interest or Maritime Area Consent under this Bill shall not be required for any

“like for like” replacement of damaged structures.

(3) Any such works shall still be subject to the requirements of the Planning and

Development Acts and any other necessary consents, approvals or procedures.

(4) The Minister for Housing, Planning and Local Government may prescribe by regulation

the development types to which this head applies.

(5) Regulations made under subhead 4 may also include:

a. Applicable development types

b. Persons to whom these provisions apply

c. Consultation obligations prior to the undertaking of such works.

d. Notification obligations on completion of such works

e. Indemnification of the State or Local Authority in respect of works undertaken

pursuant to an exemption under this head.

f. Procedures for the granting of a Maritime Area Consent subsequent to the works

should one be deemed necessary in relation to permanent occupation of the

nearshore.

g. Any other ancillary, supplementary or consequential measures as appear to the

Minister to be necessary.

Notes:

This head is intended to facilitate urgent works of an emergency nature required in order to

protect life or property. These provisions are consistent with the “guide to works and

development consents for repairing infrastructure damaged in storm or other emergency events”

(2014) prepared by The National Directorate for Fire and Emergency Management. These

provisions do not remove or amend any other obligation relating to other consent regimes,

including relevant environmental assessments. The purpose is simply to eliminate the delay

which would otherwise be caused by securing a Maritime Area Consent in advance of such

works.

Consideration might be given to amalgamating the legal text of these provisions with those

relating to other exemptions under the revised Head 40.


Head 39. Grant of permits by local authorities in lieu of certain other compliance requirements

Provide that:

(1) In this section ‘prescribed’ means prescribed by regulations made under this section

(2) Where in respect of the nearshore or any part of the nearshore, the Minister for Housing,

Planning and Local Government is of the opinion that the performance of some matter (in

this subsection referred to as a ‘relevant action’) would relate to an activity or one or

more than one class of activity that—

(a) would not be a development in respect of which permission would be

required under Part III of the Planning and Development Act 2000,

(b) would be an activity that could effectively be regulated by a coastal planning

authority by way of the granting of a permit in lieu of the relevant action

concerned,

then the Minister for Housing, Planning and Local Government may prescribe by regulations that

any such activity specified in the regulations, or a class or classes of such activity so specified, is

exempt from complying with the requirements in section 2, 3, 10 or 13 of the Foreshore Act as

the case may be, in so far as those sections relate to that Minister or with the requirement for a

Maritime Area Consent under this Act; in lieu thereof a permit may be granted by the coastal

planning authority concerned.

(3) A permit granted by a coastal planning authority shall be in writing and shall include details

of—

(a) the person to whom it is granted,

(b) the activity and area to which it relates,

(c) the period to which it relates, including any time limits or other restrictions to apply

during that period, and

(d) any other matter as may be prescribed by the Minister for Housing, Planning and Local

Government under subsection (2) for the purposes of this paragraph.

(4) Regulations may be made in respect of—


(a) the deployment of boat moorings by an individual or by a named body or a body

within a prescribed class,

(b) deployment of small scale scientific research devices,

(c) specified types of social, cultural, sporting or charitable events, either generally or

under the aegis of a named body or a body within a named class,

(d) any named event of a type referred to in paragraph (c) that recurs at regular

intervals,

(e) the use of the nearshore for the purposes of making a film, including the filming of

the nearshore for natural history purposes.

(5) Regulations made under this part—

(a) may limit any exemption under that subsection by reference to such criteria as the

Minister for Housing, Planning and Local Government considers appropriate, in

relation to any class of activity, including—

(i) the maximum duration of time that a permit may be granted for,

(ii) periods during which that exemption shall not apply,

(iii) the maximum number of occasions or periods of time that a person or body

may use the exemption in any year or other period,

(iv) the number of persons present or the number of vehicles or the axle weight

of vehicles allowed to be present at any one time,

and


(b) shall, in respect of each class of exempted activity, specify the maximum period for

which a permit may be granted.

(6) Unless otherwise prescribed by regulations under this section in respect of a particular class

of activity, nothing in this section shall be read as preventing a coastal planning authority

from granting a permit to an applicant—

(a) who has previously held a permit under this section in respect of that class of

activity, or

(b) for a period after a subsisting permit held by the applicant in respect of that class

of activity ceases to have effect.

(7) Where regulations provide for permits to be granted by a coastal planning authority in

respect of an activity, then a coastal planning authority shall, before granting a permit,

have regard to the State’s obligations pursuant to—

(a) Directive 2009/147/EC of the European Parliament and of the Council of 30

November 2009 on the conservation of wild birds,

(b) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats

and of wild fauna and flora,

(c) Directive 2011/92/EU as amended by 2014/52/EU [EIA] of the European

Parliament and of the Council on the assessment of the effects of certain public and

private projects on the environment,

(d) Directive 2000/60/EC of the European Parliament and of the Council of 23 October

2000 establishing a framework for Community action in the field of water policy

(Water Framework Directive),


(e) Directive 2008/56/EC of the European Parliament and of the Council of 17 June

2008 establishing a framework for community action in the field of marine

environmental policy (Marine Strategy Framework Directive),

and to any enactment giving effect to any such Directive.

(8) Regulations under this section may provide for such ancillary, supplementary or

consequential measures as appear to the Minister for Housing, Planning and Local

Government to be necessary, including—

(a) the manner of making an application for a permit under this section, and

(b) the payment to a local authority of fees in respect of an application to it for the grant

of a permit and for that purpose—

(i) different amounts may be specified in respect of different classes of

applications, and

(ii) circumstances may be specified in respect of which—

(I) an exemption from the payment of any such fee applies, and

(II) a waiver, remission or refund (in whole or in part) of any such fee applies.

(9) All fees received by a coastal planning authority on the granting of permits to which this

section relates shall be disposed of in such manner as the Minister shall direct.

Notes:

Further consideration to be given to the interrelationship between statutory guidelines made

under head 4 of this Bill and any regulations made under this head.


Head 40. Maritime Area Consents for exempted development, marine environmental surveys

and certain specified activities.

Provide that:

(1) The Minister for Housing, Planning and Local Government may, by regulation, make

specific provision for the consideration and granting of Maritime Area Consents for:

(a) Development that is classed as exempted development in the Planning and

Development Acts and in Regulations made thereunder;

(b) Marine Environmental Surveys as defined in the Planning and Development Act,

and

(c) Other development types prescribed in accordance with this head.

(2) This head shall not apply to:

(a) Any activities or works to which a local authority permitting regime under head 39

applies, and

(b) Any development to which Part XI of the Planning and Development Act applies.

(3) Maritime Area Consents under this head can be granted by a relevant Minister where

the development or activity relates to their functions in accordance with Head 27.

(4) Where permission under the Planning and Development Act is required in respect of

a development the prospective developer shall be obliged to submit the planning

application and Maritime Area Consent applications concurrently.

(5) The relevant Minister may grant a Maritime Area Consent subject to or without

conditions, or may refuse to grant such an application. Conditions shall be prescribed

by regulations under this head on matters relating to the management of the

occupation including:

(a) Indemnification of the State;

(b) Publication of marine notices;

(c) Appointment of a fisheries liaison officer where relevant;

(d) Removal of any plant or equipment upon completion of activ ity;

(e) Other relevant matters relating to the management of the occupation.

(6) The applicant shall be obliged to provide the relevant Minister with a copy of the

determination of the planning authority or board as appropriate within a period

specified by the Minister.

(7) The relevant Minister shall, save for exceptional circumstances, aim to make a

determination on an application within 30 days of receipt of a complete application

or where subhead 4 applies, within 30 days of the receipt of the notification specified

under subhead 6.

(8) Verification of the completeness of an application is at the sole discretion of the

relevant Minister.


(9) Prior to the submission of an application under this head the prospective developer

shall consult with:

(a) The Minister for Agriculture, Food and Marine in respect of his functions under

the Foreshore Act.

(b) The other relevant Minister in respect of his functions under this Act.

(c) Any other relevant marine stakeholders as set out in regulations under Head 52

should the development relate to the functions of that stakeholder.

The applicant shall be obliged to submit evidence of such consultations with the

application.

(10) Where the relevant Minister refuses to grant a MAC under this head, he or she shall

give reasons for such refusal.

(11) The relevant Minister may refuse an application under this head for any of the

following reasons:

(a) in the opinion of the Minister, the application is not in the public interest;

(b) in the opinion of the Minister, the application does not comply with the marine

spatial plan or marine spatial plans;

(c) the proposal conflicts with an existing consent or application;

(d) the application does not comply with the provisions set out in this head, in

regulations or is otherwise incomplete;

(e) the applicant failed to provide, following a request by the Minister, additional

information, particulars or documentation or evidence within the period specified

in a request;

(f) the applicant submits information that was false or misleading;

(g) The proposal impacts upon other users of the maritime area;

(h) the proposal may significantly alter the physical nature of the maritime area in

question;

(i) The development cannot be easily and readily removed and/or the maritime area

remediated to the satisfaction of the relevant Minister; or

(j) any other reason that the relevant Minister considers appropriate:

(12) In considering a Maritime Area Consent under this head, it shall not be necessary for

the relevant Minister to undertake Appropriate Assessment or Environmental Impact

Assessment.

(13) Any Maritime Area Consent granted under this head shall be subject to revocation

upon one month’s written notice being given to the holder, following consultation

with the holder, and without recompense, if the relevant Minister is of the opinion

that:

(a) It is in the public interest that the maritime area in question is used for a different

purpose or none at all;

(b) The occupation impacts significantly upon other users of the maritime area;

(c) the applicant supplied information that was false or misleading during the

application process;


(d) a change in circumstances relating to the environment of the area in question

requires revocation;

(e) Navigational safety has been impacted;

(f) for any other reason that appears to be relevant.

(14) Within one month of notification under subhead 13 the holder of the Maritime Area

Consent under this part shall remove any structures or plant and restore the maritime

area to the satisfaction of the relevant Minister.

(15) The Minister for Housing Planning and Local Government, may by regulation, specify

additional development types to which the procedure under this head applies where:

(a) by reason of its nature, scale and duration, in the opinion of the Minister , it is:

i. unlikely to impact on other users of the maritime area;

ii. unlikely to significantly alter the physical nature of the maritime area in

question;

iii. a structure that can be easily and readily removed and the maritime area

remediated to its previous condition.

(b) Statutory consent or approval is granted by a Government Minister or State body,

or

(c) Development is being undertaken by a Government Minister or State body under

another enactment.

(16) Upon the granting or amendment of a Maritime Area Consent under this head the

relevant Minister shall publish online a notification of the grant which shall include:

(a) The name of the person to whom the Maritime Area Consent was granted;

(b) The address of the person to whom the Maritime Area Consent was granted;

(c) The date of the grant;

(d) The term of the grant;

(e) The nature of the proposed development or activity for which the Maritime Area

Consent was granted;

(f) A spatial representation of the area subject to the grant; and

(g) Any other information deemed necessary for the purposes of Marine Spatial

Planning.

(17) The Minister for Housing, Planning and Local Government may by regulation prescribe

that certain development types are exempt from the requirement for a Maritime Area

Consent under this Act where in his opinion:

(a) the occupation is trivial by virtue of its nature, scale or duration; or

(b) The granting of the Maritime Area Consent would be nugatory by virtue of the

nature of the development, or

(c) Statutory consent under another enactment renders a Maritime Area Consent

unnecessary.

(18) Any development types prescribed under subhead 17 shall be subject to statutory

obligations in lieu of a MAC set out in regulations relating to:

(a) The indemnification of the state;


(b) Publication of marine notices;

(c) Notification of Ministers and marine stakeholders;

(d) Appointment of a fisheries liaison officer where relevant;

(e) Removal of any plant or equipment upon completion of activity.

(19) The Minister for Housing Planning and Local government shall have the power to

direct the cessation of any activities exempted under subhead 18 where:

(a) It is in the public interest that the maritime area in question is used for a different

purpose or none at all;

(b) The occupation impacts significantly upon other users of the maritime area;

(c) Navigational safety has been impacted;

(d) for any other reason that appears to be relevant.

(20) Regulations made under this head may include such matters as:

(a) Additional development types to be subject to the Maritime Area Consent

provision of this head in accordance with subhead 15;

(b) Exempted development types in accordance with Subhead 17;

(c) Statutory obligations for undertakers in accordance with subhead 18;

(d) Administrative procedures to manage such applications. These procedures to be

proportional to the nature, scale and duration of the occupation;

(e) The form of application;

(f) The terms and conditions applicable to a consent granted under this head

including financial terms in accordance with subhead 5;

(g) Any fees or charges that might apply to the application process;

(h) Any other ancillary matters necessary to give effect to this head.

Notes:

This head intends to put in place proportional procedures for minor occupation of the maritime

area where such development is exempted under planning legislation and for other development

types which require minor or temporary occupation. This head provides a fast track procedure

for certain development types such as Marine Environmental Surveys.

The definition of relevant Minister may have to be amended to ensure that MAC applications for

Marine Environmental Surveys are considered by the correct relevant Minister.

This head also provides powers to exempt certain activities from a MAC requirement. This

exemption may include activities that are the subject of another statutory consent regime such

as: Dumping at Sea, Archaeological Surveys, Arterial Drainage Act, and Aids to Navigation. This is

intended to provide flexibility for further streamlining across the regulatory ecosystem where

possible.

As maintenance dredging essentially returns the maritime area to a previous condition and as

there is no permanent occupation, consideration will be given to MAC exemption for such

activities.


Head 41. Other Foreshore specific provisions

Provide that:

Privately owned tidal lands

(1) Where development is proposed to be undertaken on privately owned tidal lands, including

the foreshore, a Planning Interest or Maritime Area Consent under this Act shall not be

required subject to the provisions of this Act.

(2) Where development is proposed partially on privately owned tidal lands and partially on a

State-owned part of the maritime area a Planning Interest and Maritime Area Consent shall

be required for that part of the maritime area that is to be occupied.

(3) Where development is proposed, wholly or partially, on privately owned foreshore the

developer must prove ownership to the satisfaction of the relevant Minister including in

accordance with relevant statutes including:

a. Section 15 of the Foreshore Act, 1933.

b. The State Property Act, 1954.

c. Section 13 of the Statute of Limitations 1957.

(4) In lieu of a Planning Interest the relevant Minister shall provide the proposed developer

with confirmation that the land in question is not state owned foreshore. A corresponding

provision in the Planning and Development Act will be necessary.

(5) Nothing in this part shall remove any obligation to secure relevant permissions under the

Planning and Development Act

Reclaimed foreshore

(6) Reclaimed parts of the foreshore are liable to be redefined as land when the Chief Boundary

Surveyor redefines the High Water Mark in accordance with his statutory duties. Therefore,

where reclamation of the foreshore is proposed it may be more suitable to provide the

State consent under the State Property Act 1954 or alternatively sell the area of foreshore

in question to the developer. Further consideration of this matter and consultation with

the Minister for Public Expenditure and Reform (MPER) as owner of the foreshore will be

necessary to finalise appropriate treatment. Planning permission will still be required both

for the reclamation itself and any development occurring on the reclaimed land.


Head 42. Additional Provisions relating to Offshore Renewable Energy and Offshore Gas

Storage Activities

Public Notice

(1) The Minister for Communications, Climate Action and Environment, following the

designation of a zone for renewable energy activities or offshore natural gas storage in

accordance with head 21 [Designation of Strategic Marine Activity Zones] shall give public

notice in accordance with this section that he or she intends to seek applications or has

received applications to explore an area or areas within a designated zone of the maritime

area for the purpose of assessing the potential of an area or areas within that zone for

renewable energy activities or for the purpose of carrying out renewable energy activities

or for the purposes of offshore natural gas storage activities.

(2) The Minister shall, for the purposes of subsection (1) –

(a) publish a notice in electronic form on the website of the Department of

Communications, Climate Action and Environment,

(b) deposit in the offices of the Department of Communications, Climate Action and

Environment and in one or more places to which members of the public have access

that are in the vicinity of the specified area or areas, as the case may be, a map

showing the boundaries of the area or areas, as the case may be, together with any

other documentation he or she considers relevant, and

(c) publish in at least one newspaper circulating in the vicinity of the area or areas in

respect of which applications are sought a notice stating that –

(i) the Minister intends to seek applications under subsection (1), and

(ii) a map showing the boundaries of the area may be viewed at the places at

which the map has been deposited in accordance with paragraph (a).

(3) A notice under subsection (1) shall specify –

(i) time limits for the receipt of applications,

(ii) any prescribed fees in relation to applications,

(iii) that any application received may be subject to a public consultation process, and

(iv) that any application received shall be subject to such criteria and processes as may

be prescribed by the Minister.

(4) The Minister may as he or she sees fit, grant an extension to the time limits specified

under subsection (3) for the receipt of applications.


(5) An extension under subsection (4) shall be subject to the publication of a public notice

to that effect and such notice shall be published in accordance with subsection (2)


43. Additional requirements for the extension to the term for a planning interest for offshore


Without prejudice to head 28, the Minister for Communications, Climate Action and Environment

shall only grant an extension if-

(a) the Minister is satisfied that at the time of making the application there are valid

grounds that prevent the applicant from submitting an application to the Board,

(b) the Minister is satisfied that the applicant continues to be a fit and proper person to be

granted such an extension,

(c) the Minister is of the opinion that granting an extension continues to align with -

(i) government renewable energy policy, including renewable energy resources, energy policy, including climate change policy and security of supply,

(ii) any other maritime policies, strategies and guidelines as may be in force to govern the designation of renewable energy activities, and

(iii) is in the public interest.

(d) the applicant provides the prescribed information and evidence and any additional

information or evidence required by the Minister,

(e) the requirements regarding public notice and consideration of objections have been

complied with, and

(f) the application fee, as determined by the Minister, has been paid.

Notes:

Due to the variety of projects to which a planning interest applies to there is a need to ensur e

that whatever indemnities that applied at the original stages are also revisited prior to the

extension. We may also consider that extension may be limited to one extension.


Head 44. Procedures to be followed before modifying a Maritime Area Consent for offshore


(1) Without prejudice to head 36 [(subsections (10) to (13)] and head 29 the Minister

for Communications, Climate Action and Environment, before modifying a

Maritime Area Consent in respect of offshore renewable energy activities or

offshore natural gas storage, including the amendment of modifications or the

amendment or the assignment or partial assignment of the Maritime Area

Consent, shall issue a notice—

(a) stating that he or she proposes to make such modification, subject to any

requirement, as the case may be, for the holder of the Maritime Area

Consent to obtain the prior permission of the Board for the modification,

(b) stating the nature of such modification and outlining the reasons for it, and

(c) specifying the period (being not less than 28 days from the date of

publication of the notice) within which representations or objections with

respect to the proposed modification may be made.

(2) A notice under subsection (1) shall be given—

(a) by publishing it on the Department’s website, and

(b) by serving a copy it on the holder of the Maritime Area Consent

(3) Where, within the period specified in subsection (1)(c),

(a) no objections or representations are made or such objections or

representations as are made in that period are subsequently withdrawn,

then the modification of the Maritime Area Consent concerned shall have

effect accordingly, or

(b) objections or representations are made and not subsequently withdrawn,

then the Minister may, having considered those objections and

representations decide—

(i) to approve the modification,

(ii) to withdraw the modification, or


(iii) to reject those objections or representations in part and the

modification shall have effect accordingly.

(4) Where the Minister rejects any objections or representations made under this

section the reasons for the rejection shall be notified to the persons who made

them.

(5) Where subsection (3)(b)(iii) applies a holder of a Maritime Area Consent may,

within 30 days of receiving notification of the Minister’s decision under subsection

(4), appeal to the High Court against that decision.

(6) On the hearing of an appeal made under subsection (5), the High Court may—

(a) consider any evidence adduced or arguments made, whether or not

adduced or made to the Minister under subsection (3), and

(b) make any order or give any direction that it considers appropriate, including an order—

(i) confirming the decision of the Minister,

(ii) modifying that decision, or

(iii) cancelling that decision.

Notes:

For this part it is proposed that the Minister would set out procedures via regulations. If OPC

agrees then the above may be dropped.


45. Keeping of records and samples

(1) In addition to any provisions in relation to the grant of a Maritime Area Consent, the holder of such a consent (in this section referred to as a “consent holder”) shall, in addition to the matters set out in subsections (2) to (5)—

(a) keep accurate geological and ecological plans and maps relating to the licensed area or area to which the Maritime Area Consent relates and such other records in relation to that area as may be directed by the Minister,

(b) keep such geological and ecological samples as may be required to be kept under the Maritime Area Consent, as the case may be, or as may be prescribed,

(c) otherwise keep such accurate records in a form as approved by the Minister or as may be prescribed by him or her, and

(d) provide copies of the plans, maps and other records referred to in paragraphs (a) and (c) to the Minister when requested to do so either within any reasonable time limit specified in the request, or if there is no time limit specified, within 4 weeks of the request.

(2) All records, returns, plans, maps, geological and ecological samples, accounts and information (in this section referred to as the “specified data”) which the consent holder is or may from time to time be required to furnish to the Minister under this Part shall be supplied at the expense of the consent holder and, subject to subsections (3) and (4), the Minister or a person to whom disclosure has been duly made under subsection (3) shall not disclose or cause to be disclosed any such information to a third party except with the consent in writing of the consent holder, which consent shall not be unreasonably withheld.

(3) Subsection (2) does not prevent—

(a) the disclosure of information in compliance with this Part or as otherwise required or permitted by law or any enactment,

(b) the disclosure of information to any person employed in the Commission for Regulation of Utilities,

(c) the disclosure of information to any person employed in Geological Survey Ireland, or

(d) the disclosure of information which, in the opinion of a person to whom this section applies, may disclose to a member of the Garda Síochána or an officer of the Revenue Commissioners the commission of an indictable offence.

(4) The Minister is entitled at any time to make use of any of the specified data for the purpose of preparing and publishing such returns and reports as may be required of the Minister by law.

(5) A person who contravenes subsection (2) commits an offence.

(6) A person guilty of an offence under this section is liable—


(a) on summary conviction, to a class A fine or to imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding €500,000 or to imprisonment for a term not exceeding 3 years or both.

Notes:

The Minerals Development Act was used as a template. There is a need to set out in primary

legislation the records a developer is required to keep.


Head 46. Regulations and orders

Provide that:

(1) For the purpose of enabling any provision of this Part to have full effect the relevant Minister

may, following consultation with the other relevant Minister, make regulations prescribing

any matter or thing which is referred to in this Part as prescribed or to be prescribed.

(2) Regulations under this Part may contain such incidental, supplementary and consequential

provisions as appear to the Minister to be necessary or expedient for the purposes of the

regulations.

(3) Without prejudice to the generality of subsections (1) and (2) or any requirement in an

application for a Maritime Area Consent under this Part, regulations under this Part may,

where appropriate to the relevant Minister’s functions, provide for conditions and other

matters relating to any of the following:

i. the form of application;

ii. the administrative procedures and processes to be used in respect of an application;

iii. obligations on applicant prior to the submission of an application;

iv. obligations on holders of a Maritime Area Consent;

v. the term of a Maritime Area Consent and the extension of the term;

vi. provisions relating to the payment of [any] fees or [other] administrative charges [where

applicable] for-

(I) an application for a Maritime Area Consent,

(II) an extension of the Maritime Area Consent term,

(III) any payment of other fees for which a holder of a Maritime Area

Consent is liable under this Part.

vii. the administrative procedures relating to the assignment of a Maritime Area Consent

including, where relevant, a prohibition or restriction on assignment;

viii. the form of the Maritime Area Consent including relevant applicable conditions

ix. notices;

x. force majeure;

xi. transitional provisions relating to existing legislative frameworks and consent regimes

xii. specified types of development, to the exclusion of others, may be carried out in

specified parts of the maritime area, or


xiii. specified types of development may not be carried out in specified parts of the maritime

area, or

xiv. no development may be carried out in specified parts of the maritime area,

xv. such other matters as are ancillary or consequential to the other provisions of thi s

subsection.

(4) Any regulations made under this section, which are stated to apply to all applications for a

Maritime Area Consent, shall apply only to such Maritime Area Consents that are granted or

extended after those regulations come into operation.

(5) The Minister and an applicant for or holder of a Maritime Area Consent may agree on terms

and conditions to which a Maritime Area Consent is to be subject to, that are in addition to

the conditions prescribed under subsection (1).

(6) Every regulation under this Part shall be laid before the Houses of the Oireachtas as soon as

may be after it is made and, if a resolution annulling the regulation is passed by either such

House within the next 21 days on which that House has sat after the regulation is laid before

it, the regulation shall be annulled accordingly but without prejudice to the validity of

anything previously done under it.

(7) A relevant Minister may by order prescribe that the other provisions of this section shall not

apply to any specified type of development or activity in the maritime area.

Before making an order under this subsection, including the revocation in whole or in part of

an order previously made under it, the relevant Minister shall consult with such other

Minister of the Government whom he or she considers appropriate to so consult with in the

circumstances.

An order made by the Minister under this subsection may relate to the whole of the maritime

area or any part of it.


Chapter 3

Transitional Measures


Head 47. Transitional Provisions

Provide that:

Foreshore

(1) In the circumstances where

(i) A consent under the Foreshore Act is due to expire;

(ii) the current occupier intends to continue occupation; and

(iii) no new development is proposed.

an application for a Planning Interest is not required and the occupier may apply directly for a

Maritime Area Consent under this Part

(2) In the circumstances where consent under the Foreshore Act has been granted and the

occupier wishes to undertake new development a Planning Interest and Maritime Area

Consent will be required. The Maritime Area Consent, if granted, will encompass the

entirety of the Maritime Area subject to current and proposed occupation. The foreshore

consent will determine automatically on the grant of the Maritime Area Consent.


(i) consent under the Foreshore Act has been granted;

(ii) a new person wishes to assume occupation of the area of foreshore in question;

(iii) The existing occupier has agreed to end their occupation; and

(iv) no additional development is proposed.

an application for a Planning Interest is not required and the new person may apply

directly for a Maritime Area Consent. The existing foreshore consent will determine

automatically on the grant of the Maritime Area Consent to the new occupier.


(i) consent under the Foreshore Act has been granted;

(ii) a new person wishes to assume occupation of the area of foreshore in question;

(iii) The existing occupier has agreed to end their occupation; and

(iv) new development is proposed.

the new occupier shall apply for a Planning Interest and a Maritime Area Consent will be

required. The Maritime Area Consent, if granted, will encompass the entirety of the


Maritime Area subject to current and proposed occupation. The existing foreshore

consent will determine automatically on the grant of the Maritime Area Consent.

(5) Where a person is undertaking development on privately owned foreshore no planning

interest will be necessary subject to verification of the property claim by the Minister for

Housing, Planning and Local Government. In which case the person in question may apply

directly for planning permission and a Maritime Area Consent will not be necessary.

(6) Other transitional circumstances that may be set out by the relevant Minister in

regulations.

Consultation

(7) Consultation is undertaken between relevant Ministers and the Minister for Agriculture,

Food and the Marine in relation to potential spatial conflicts and competing or overlapping

applications pending the adoption by Government of the Marine Spatial Plan. These

consultation provisions will no longer be required for the operation of the new regime

post adoption of the Marine Spatial Plan.

(8) Prior to granting a Planning Interest the relevant Minister shall consult with the other

relevant Minister and the Minister for Agriculture, Food and the Marine in respect of his

or her functions under Section 1B of the Foreshore Act. Such consultation period being

subject to a maximum term of 4 weeks.

(9) The Minister for Agriculture Food and the Marine shall consult with relevant Ministers in

respect of applications made to him under his functions as set on in Section 1B of the

Foreshore Act. Such consultation period being subject to a maximum term of 4 weeks.

DCCAE Policy Areas


DCCAE will develop appropriate drafting instructions for transitional provisions relevant to its

policy sectors within the scope of this Act.

Notes:

This part provides for transitional measures where existing State consent regimes and legislative

frameworks exist. Additional transitional requirements may be identified during the drafting

process and will be provided for. Regulations are required to cater for any unforeseen transitional

circumstances that arise once the new consent regime is in operation.

Consideration will need to be given to any persisting foreshore conditions that may apply to a

development in the context of a future MAC grant to continue occupation. These may be set out

in the MAC, however their enforcement would be a matter for the new enforcement agency.

Due to the restatement of the ownership of the territorial seas there will be a need to provide for

transitional and confirmatory measures for existing grants of leases and licences – these may be

more appropriate to the Foreshore Part of the Bill.


Head 47a Transitional Measures for Offshore Renewable Energy Projects

Provide that projects that meet the following criteria will be described as Transitional Offshore

Renewable Energy Projects will receive a Planning Interest subject to the terms and conditions

which will apply:

Those which applied for or were granted a lease under the Foreshore Act and/or

Projects which have an existing grid connection offer

Notes:

A transitional protocol developed jointly by DHPLG, DCCAE and the Commission for Energy

Regulation is in the final stages of preparation and will be published shortly. This protocol will

set out transitional requirements in more detail.


PART 5


This part seeks to apply the planning permission regime to the Maritime Area. It defines and

distinguishes the planning permission roles of Planning Authorities and the Board in respect of

maritime development and augments where necessary existing provisions to ensure the

appropriate treatment and consideration by the relevant planning authorities of development in

the maritime context.

It is intended that holistic and comprehensive guidelines will be prepared under part 3 of this Bill

to provide clarity to planners, decision makers and the public. These guidelines will provide both

for general development management and certain specific sectors (e.g. offshore renewable

energy) and activities. This guidance is intended to ensure coherence and consistency of approach

between different planning authorities.

Chapter 1 intends that the majority of such development which is already subject to planning

permission will remain subject to the existing planning legislation and procedures operated by An

Bord Pleanála or planning authority as appropriate. Currently, under Part XV of the Planning and

Development Act, development which adjoins the functional area of a local authority requires

planning permission. Under the new regime this planning function will be extended to the outer

limit of the new nearshore area. At its simplest, if a planning authority or the Board is currently

responsible for a development type on land it will also be responsible for such development within

the nearshore area.

It is intended that certain activities will now come within the remit of the planning system such

as maintenance dredging and environmental surveys required to prepare detailed planning

applications and Environmental Impact Assessment Reports.


Development for which the Minister for Agriculture, Food and the Marine is the appropriate

Minister under Section 1 B of the Foreshore Act will continue to be subject to the planning regime

as now under Part XV of the Planning and Development Act which will be made specific to such

development.

The proposed provisions in Chapter 1 are intended to augment, not replace, the existing

provisions of the Planning and Development Act with certain maritime specific considerations and

procedural requirements. It is intended, where possible, to minimise amendment to the Planning

and Development Act however some adjustment will be necessary to ensure efficient operation

and provide sufficient clarity and transparency for developers, consent authorities, other

stakeholders and the general public.

Coastal Planning Authorities will continue to be responsible for the generality of developments

such as:

• Small piers and slipways,

• Pontoons,

• Small marinas, and

• Minor outfalls.

An Bord Pleanála will continue to be responsible for developments such as:

• Local authority development in the nearshore area requiring Environmental Impact

Assessment and/or, in some cases, Appropriate Assessment

• Major Harbours/Marinas,

• Outfalls related to Waste Water Treatment Plants,

• Large infrastructure – motorways, roads, bridges, and

• Energy interconnectors.

Chapter 2 sets out standalone procedures for specific development types in the maritime area set

out in Schedule X and those located wholly or partly beyond the outer limit of the Nearshore Area

which will also be the responsibility of An Bord Pleanála.


The proposed provisions are modelled closely on the existing provisions of the Planning and

Development Act modified and augmented where necessary for the maritime context.

Development types covered by this chapter include:

• Offshore Renewable Energy,

• Offshore Gas Storage, and

• Telecommunications submarine cables and pipelines.

Chapter 3 sets out the EIA procedures in relation to the standalone procedure of Chapter 2

Chapter 4 sets out the AA procedures in relation to the standalone procedure of Chapter 2.

These new provisions will operate in tandem with the Strategic Marine Activity Zones designated

under Part 3 of this Bill. These provisions are modelled on terrestrial Strategic Development Zones

and will operate as follows

• Strategic Marine Activity Zones will be designated by Government establishing the

spatial extent for a particular development type or activity.

• A Marine Planning Scheme will be prepared by a designated Minister. This planning

scheme is comparable to those in terrestrial Strategic Development Zones and, inter alia,

will set out the allowable development within the zone.

• Development consent applications will be made to An Bord Pleanála whose

consideration and determination will be made in the context of the Marine Planning

Scheme


Chapter 1

Coastal Local Authorities and Maritime Development


Head 48. Definitions

Provide that:

(1) Relevant new and amended definitions for the operation of the new legislative

provisions are inserted into Section 2 of the Planning and Development Act 2000

These may include:

“Relevant Minister” has the meaning given to it by Head 27 of this Bill

“nearshore area” has the meaning given to it by Head 8 of this Bill ,

“maritime area” has the meaning given to it by Head 7 of this Bill;

“coastal local authority” means the local authority for any of the following:

(iv) the county of Louth, Meath, Fingal, Dun Laoghaire-Rathdown, Wicklow, Wexford,

Carlow, Kilkenny, Tipperary, Cork, Kerry, Clare, Galway, Mayo, Sligo, Leitrim or Donegal;

(v) the city of Dublin, Cork or Galway;

(vi) Waterford City and County or Limerick City and County;

“local authority” means a local authority for the purposes of the Local Government Act 2001 (as

amended by the Local Government Reform Act 2014);

“Maritime works” means any act or operation contained in the definition of ‘works’ within this

Act, together with any act or operation in the maritime area or on land for the purposes of

carrying out any act or operation in the maritime area involving

Marine maintenance dredging,

the deposition of any substance or object for a use other than disposal,

the scuttling of any vessel or container for a use other than disposal,

the use of a vehicle, vessel, aircraft, marine structure or floating container to remove

any substance or object from the seabed,

dredging whether or not involving the removal of any substance, material or object

from the seabed,

permanent or temporary placement or navigation of any floating vessel or structure for

the purposes of site investigations,

incineration or the loading of any floating vessel or object for the purposes o f

incineration,

the use of any floating structure or vessel as a base or platform for any development in

the maritime area,


The laying of submarine cables and pipelines.

For the purposes of this Act, Maritime works shall not include

Archaeological surveys

exploration for petroleum or gas and production of petroleum or gas.

Minerals extraction

dumping at sea

Aids to navigation

Activities subject to MPDM permitting regime as prescribed under Head 39.

Dredging for the purposes of harvesting shellfish or any other fishing or aquaculture

purpose.

Marine Environmental Surveys means the assessment, in the maritime area of the environment,

physical geography, sea conditions, wind for the purposes of the preparation of consent

applications, project design, statutory or non-statutory environmental assessments or scientific

research.

“Marine maintenance dredging” means the removal from the maritime area, of accumulated

sediments for the purpose of—

maintaining access channels and berths to water depths in accordance with navigational

charts,

providing turning basins for ships, or

otherwise maintaining adequate water depth along waterside facilities in accordance

with navigational charts.

(2) Other relevant and applicable definitions for the operation of this part are set out

(3) The text of Section 3(1) of the Planning and Development Act 2000 is substituted with:

In this Act, “development” means, except where the context otherwise requires, the

carrying out of any works or maritime works on, in over or under land and/or the maritime

area, or the making of any material change in the use of any structures situated on land or in

the maritime area.


Notes:

This head sets out additional and revised definitions required to ensure the operability of the

planning system in the maritime area. It will be necessary to ensure consistency with definitions

relating to the Maritime Area Consent and, where necessary, the Maritime Jurisdiction Bill, 2019.

Certain activities such as marine environmental surveys and marine maintenance dredging will

now come within the remit of the planning system. Care will need to be taken to avoid the

inadvertent inclusion of fishing and other activities subject to other regulatory regimes within the

definition of maritime works. The exclusion of certain activities from the definition of maritime

works/development might be achieved by way of amending Section 4 of the Act and/or in

regulations.


Head 49. Planning permission responsibilities in the Maritime Area

Provide that:

(1) The existing planning permission functions of local authorities are extended to the outer

limit of the nearshore area.

(2) The operation of Part XI of the Planning and Development Act 2000, which provides for

Local Authority own development, is extended to the outer limit of the nearshore area.

(3) The existing planning permission functions of An Bord Pleanála are extended to the

outer limit of the nearshore area.

(4) Development types specified in Schedule X anywhere in the maritime area will be the

responsibility of An Bord Pleanála subject to the procedures set out in Part 5, Chapters

2, 3 and 4 of this Bill.

(5) Developments located wholly or partly beyond the outer limit of the nearshore area will

be the responsibility of An Bord Pleanála subject to the procedures set out in Part 5,

Chapters 2, 3 and 4 of this Bill.

(6) Where any other doubt might be considered to exist in relation to which provisions of

the Planning and Development Act or this legislation apply, the Board will have powers

to make a determination on appropriate treatment including consideration by a planning

authority. Such a decision may be triggered by:

a. Consideration of the particulars of an application received by the Board;

b. On application for a decision to that effect by a Local Authority;

c. On application for a decision to that effect by a prospective developer.

d. On application for a decision by any other person.

(7) Development and activities for which the Minister for Agriculture, Food and the Marine

is the appropriate Minister under Section 1 B of the Foreshore Act are excluded from the

new planning provisions of this Act. These are development and activities:

a. in relation to a fishery harbour centre.

b. in relation to a function in respect of—

i. an activity which is wholly or primarily for the use, development or

support of aquaculture, or

ii. an activity which is wholly or primarily for the use, development or

support of sea-fishing, including the processing and sale of sea-fish and

manufacture of products derived from sea-fish,


Notes:

This head replaces and extends the application of planning permission in the maritime area set

out in Part XV of the Planning and Development Act. Part XV remains applicable to activities

that are the functional responsibility of the Minister for Agriculture, Food and the Marine under

Section 1B of the Foreshore Act.

This head extends the planning permission responsibilities of the Board into the full maritime

area and extends the planning permission responsibilities of the coastal planning authorities

into the nearshore area only.

In practical terms for coastal planning authorities this will mean very little change from the

current system but allows a coastal planning authority to grant planning permission for any

minor development within the nearshore area.

The Board will have additional development types included within its remit as defined in

Schedule X and have responsibility for all development beyond the nearshore area.

Subhead (6) may require a procedure which could be set out by way of regulations.


Head 50. Planning Interest requirement

Provide that:

(1) a planning authority or the Board shall refuse to accept any application for permission

under the Planning and Development Acts if the application is not accompanied by

documentary evidence that the relevant Minister (under Part 4 of this Bill) has granted a

planning interest (under part 4 of this Bill) to the applicant for that part of the Maritime

Area concerned for the specific purpose of applying for planning permission for the

proposed development.

(2) In circumstances where

a. development is proposed on a privately owned part of the Maritime Area, or

b. urgent emergency works are required consistent with the approach set out in

the revised Head 38, or

c. The Minister for Housing, Planning and Local Government determines that a

planning interest is not required, as provided for under Head 40 of this Bill

a planning interest shall not be required. Documentary evidence that the relevant

Minister (under Part 4 of this Bill) is satisfied that a planning interest is not required shall

accompany the application instead.

Notes:

This head ensures that no planning permission application can be made for development in the

maritime area unless a planning interest has been granted. Development on privately owned

parts of the maritime area, emergency works and certain prescribed activities/development set

out under Head 40 will not require a planning interest. Confirmation that a planning interest is

not required will serve in lieu.


Head 51. Marine specific considerations and conditions.

Provide that:

(1) The Planning Authority and the Board should, when considering an application for

permission under the Planning and Development Act and this Bill, have the power to

attach conditions for:

(a) requiring works for the preservation of archaeological sites, wrecks and

features

(b) requiring the carrying out of works (including the provision of reports) and

actions which the planning authority considers are required for the purposes of

the development authorised by the permission in the maritime area,

(c) regulating the development or use of any maritime area which adjoins, abuts

or is adjacent to the land to be developed and which is under the control of a

‘Planning Interest’ or the applicant for the purposes of the development

authorised, so far as appears to the planning authority to be expedient for the

purposes of or in connection with the development authorised by the

permission,

(d) regulating the development or use of any maritime area which adjoins, abuts

or is adjacent to the land to be developed and which is under the control of the

state, so far as appears to the planning authority to be expedient for the

purposes of or in connection with the development authorised by the

permission,

(e) requiring the provision, protection or maintenance of public access to the

foreshore or along foreshore and all infrastructure or works necessary to

facilitate, protect and maintain such public access. This shall also apply to any

land which adjoins, abuts or is adjacent to the land to be developed and which is

under the control of the applicant or the state,

(f) regulating, control and protection of the right to navigate in the maritime

area,

(g) regulating, control and protection of the right to fish in the maritime area.

(2) Such conditions will augment existing those set out in Section 34 of the Planning

and Development Act 2000 and any relevant regulations made under that Act .

(3) The planning authority and board shall also, where relevant, have regard to

(a) any statutory guidelines made under part 3 of this Act

(b) Statutory guidelines made under the Planning and development Act

(c) Any Ministerial Directives made under this Act or under the Planning Act (section

29)

(d) The National Marine Planning Framework

(e) Marine spatial plans

(f) The National Planning Framework

(g) Regional Spatial and Economic Strategies in force and applying to the area in

which the application is made

(h) Terrestrial development plans

(i) Submissions/observations made by Prescribed Bodies, Public Bodies and the

Public


(4) In addition to those conditions prescribed in Section 34(4) of the Planning and

Development Act the planning authority may make a grant of permission subject to:

(a) …..

(b) …..

(c) ……

(d) …..

Notes:

This head is intended to augment the existing provisions of the planning act through additional

criteria and matters for assessment relevant to the marine context. Given the complexity of the

requirements and variety of development it will be more appropriate to detail such

requirements in regulation and/or guidelines where possible. Any such guidelines or regulations

will apply to applications for maritime development under the Planning and Development Act

and this Bill.

This approach will enable more flexibility in ensuring that marine development is considered in

the most up to date manner taking account, where possible, of emerging practice, case law and

the outcomes of MSP processes. Further scoping and detailed assessment is necessary to

determine appropriate treatment of these considerations via guidelines, regulations or primary

legislation.

Confirmation will be required from relevant Departments in relation to the finalised wording of

the condition making powers under subhead (1).

Subsection (4) – May be provided via regulations.


Head 52. Marine Stakeholders.

Provide that:

1) The Minister for Housing, Planning and Local Government, may by regulations, set out

the persons, authorities, bodies or Ministers who should be consulted by a planning

authority prior to considering a development wholly or partially in the maritime area.

2) Where a planning authority is considering an application for permission under the

Planning and Development Act, that authority shall seek the observations of the bodies

or Ministers set out in subhead 3, should the authority consider that the application

relates to a function of that body or Minister.

3) The bodies or Ministers to which subhead 2 relates include;

(a) The relevant Local Authority (or Authorities) where the Planning authority considers that the

proposal relates to a function of that Local Authority.

(b) The Office of Public Works where the Planning authority considers that the proposal relates

to a function of that office.

(c) An Taisce, The National Trust for Ireland where the Planning authority considers that the

proposal relates to a function of that body.

(d) Fáilte Ireland, the National Tourism Development Authority, where the Planning authority

considers that the proposal relates to a function of that authority.

(e) The Environmental Protection Agency (EPA) where the Planning authority considers that the

proposal relates to a function of that agency.

(f) A harbour authority where the Planning authority considers that the proposal relates to a

function of that authority.

(g) A harbour company where the Planning authority considers that the proposal relates to a

function of that company.

(h) A port authority where the Planning authority considers that the proposal relates to a

function of that authority.


(i) The Minister for Communications, Climate Action and Environment where the Planning

authority considers that the proposal relates to a function of that Minister.

(j) The Commission of Regulation of Utilities where the Planning authority considers that the

proposal relates to a function of that body.

(k) Eirgrid plc where the Planning authority considers that the proposal relates to a function of

that company.

(l) Inland Fisheries Ireland where the Planning authority considers that the proposal relates to a

function of that body.

(m) The Sea Fisheries Protection Authority where the Planning authority considers that the

proposal relates to a function of that authority.

(n) The Commissioners of Irish Lights where the Planning authority considers that the proposal

relates to a function of that body.

(o) The Irish Aviation Authority where the Planning authority considers that the proposal relates

to a function of that authority.

(p) The Marine Survey Office where the Planning authority considers that the proposal relates to

a function of that office.

(q) The Marine Institute where the Planning authority considers that the proposal relates to a

function of that institute.

(r) The Minister for Agriculture, Food and the Marine where the Planning authority considers

that the proposal relates to a function of that Minister.

(s) The Minister for Culture, Heritage and the Gaeltacht, where the Planning authority considers

that the proposal relates to a function of that Minister.


(t) The Minister for Transport, Tourism and Sport, where the Planning authority considers that

the proposal relates to a function of that Minister.

(u) The Minister for Defence where the planning authority considers that the proposal relates to

a function of that Minister.

(v) The Health and Safety Authority where the planning authority considers that the proposal

relates to a function of that authority.

(w) The Irish Coast Guard where the planning authority considered that the proposal related to

the function of that body.

Any other Minister of Government where the Planning authority considers that the proposal

relates to a function of that Minister, or any other body where the Planning authority considers

that the proposal relates to a function of that body.

Notes:

Consideration will be given to a requirement for a planning authority to consult with current

consent holders as set out in the MSP data platform.

Additional consultees for inclusion may be identified. The comprehensive list will evolve over

time as the administrative and organisation structure of the state evolves. It would therefore

seem appropriate to prescribe and maintain this list via regulations. List of consultees might be

more appropriately be provided for in regulations.

Head 53. Public notice of application

Provide that:


(1) Where a requirement exists on an applicant to publish a notification of an application in

a newspaper and where a development would (in whole or in part) be in the maritime

area other than wholly within the nearshore area of a coastal local authority that

notification shall be published in one or more newspapers circulating in the State.


a newspaper and where a development would (in whole or in part) be within the

nearshore area of a coastal local authority that notification shall be published in one or

more newspapers circulating in function area of the coastal local authority concerned.


a newspaper and where a development would (in whole or in part) be within the

nearshore area of more than one coastal local authority that notification shall be

published in one or more newspapers circulating in function area of the coastal local

authorities concerned.

(4) The above provisions will apply to all applications for development made under Parts III,

XA, XAB, XI of the Planning and development Act and the new procedures set out in

chapters 2,3 & 4 of this Bill.

Notes:

Public notice requirements are covered in Section 33(2)(b) of the Planning and Development Act

2000. It may be possible to achieve the above provisions through amending Article 18 of the

Planning and Development regulations.

Site notices are not appropriate to any development without a terrestrial element.

These provisions are common to maritime development under the Planning and Development

Act and under the Standalone regime in this Bill.


Head 54. Notification obligations of planning authorities

Provide that

(1) where an application for development or activity in the Maritime Area is made to a

planning authority, that authority shall be obliged to notify the relevant Minister of the

application. This provision may be covered by Section 33 (2)(f) of the PDA Act 2000 as

amended, which enables the Minister to define this in regulation

(2) Where an application has been made to a planning authority for development or activity

in the Maritime Area the planning authority shall publish online a notification of the

application which shall include:

(a) The name of the applicant;

(b) The address of the applicant;

(c) The date of the application;

(d) The nature of the proposed development or activity;

(e) A spatial representation of the application area; and

(f) Any other information deemed necessary for the purposes of Marine Spatial

Planning.

Article 27 of the Planning and Development Regulations requires Planning Authorities to

publish weekly list, Article 72 covers the Board requirement to publish weekly list. Those

articles may require amendment. Applications under Part 5 Chapters 2-4 should also be

included in the weekly list.

(3) Where a decision has been made by a planning authority in respect of an application for

development or activity in the Maritime Area the planning authority shall notify the

relevant Minister of the decision. Article 72 of the PD Regulations may require

amendment to achieve this.

(4) Where a decision has been made by a planning authority in respect of an application for

development or activity in the Maritime Area the planning authority shall publish online

a notification of the grant which shall include:

(a) The name of the person to whom the interest was granted;

(b) The address of the person to whom the interest was granted;

(c) The file reference number

(d) The date of the grant;

(e) The term of the grant;

(f) The nature of the proposed development or activity for which the interest was

granted;

(g) A spatial representation of the area subject to the grant; and

(h) Any other information deemed necessary for the purposes of Marine Spatial

Planning.


Notes:

Subheads 2 and 4 are intended to detail the publication obligations of consent authorities in the

context of the new MSP data platform. These requirements are indicative only and may be

subject to change pending the outcome of further consideration and MSP development work. It

is likely that the detail of requirements in respect of the MSP data platform will be set out by

way of guidelines.

Article 27 of the Planning and Development regulations requires Planning Authorities to publish

weekly list, Article 72 covers the Board requirement to publish weekly list. Those articles may

require amendment.

It will be necessary to ensure that these provisions are compliant with the General Data

Protection Regulation.


Head 55. Variation of proposed or existing development where Planning and MAC have been

granted.

Provide that in the circumstances where a Maritime Area Consent has been granted by the

relevant Minister under Part 4 of this Bill and the holder of the consent wishes to materially

alter the proposed development before, during or after construction, the holder shall be

required to apply for a new planning permission.

Notes:

In accordance with existing terrestrial provisions, a new planning permission application will be

required where a material alteration is proposed by a developer. Additional provisions may be

required for the planning authority to confirm whether a proposed alternation is materials.

This head may be more relevant to the Maritime Area Consent provisions in Part 4. Its purpose

is to ensure that the responsibility for considering variations in a development rest exclusively

with the planning authority or the Board as appropriate in keeping with the principle that

Ministers will no longer have any development consent responsibility.


Head 56. Amendment of Part XV

Provide that:

(1) Part XV of the Planning and Development Act applies only to development for which the

Minister for Agriculture, Food and the Marine is the Appropriate Minister under Section

1B of the Foreshore Act.

(2) References to the Minister for Communications, Marine and Natural Resources should

be amended to the Minister for Agriculture, Food and the Marine.

Notes:

This head is intended to ensure the continuance of the existing regime for development on the

foreshore under the remit of the Minister for Agriculture, Food and the Marine. Only such

development which adjoins the functional area of the local authority shall, as now, be subject to

the planning regime.

Heads 51 and 61 are intended to apply the planning regime to the Maritime Area for all other

development within scope of the Bill. The relevant elements of Part XV required to apply

existing compulsory acquisition to the nearshore area are set out in Head 57.

The power for the relevant Minister to refer any proposal to the Board for a determination on

whether an environmental impact assessment report shall not be required under the new

regime as Relevant Ministers under this Bill will have no role in relation to the environmental

assessment of project proposals.

The procedure for Local Authority for environmental surveys (site investigations) under Section

228 has been recreated in new head 57a.



Head 57. Compulsory Acquisition in the Maritime Area.

Provide that:

(1) A new section 213A is inserted into the Planning and Development Act 2000 to enable

the continuance of existing compulsory acquisition powers as set out in Section 227 (1),

(2), (3), (10) and (11)under the new regime. As follows:

213A (1) The powers of a local authority to compulsorily acquire land under the

enactments specified in section 214(1) shall, where the local authority concerned is a

planning authority and for the purposes specified in those enactments, extend to the

development which adjoins the functional area of the local authority concerned.

213A(2) For the avoidance of doubt, the power to compulsorily acquire land under

subsection 1 do not apply to those parts of the Maritime Area beyond the territorial sea.

213A (2) The functions of a road authority under sections 49, 50 and 51 of the Roads Act,

1993, shall extend to the development which adjoins the functional area of the local

authority concerned.

213A (3) The functions transferred to the Board under section 214 shall be performable

by the Board in relation to any compulsory acquisition of land to which subsection (1)

applies.

213A (4) Nothing in the State Property Act, 1954, shall operate to prevent a local

authority compulsorily acquiring land within the nearshore area.

213A (5) Where a local authority or roads authority submits an application to the Board

to compulsory acquire land in the Maritime Area it shall not be necessary to apply for or

secure a Planning interest or Maritime Area Consent.

213A (6) This section shall not apply to any application to the Minister for Housing,

Planning and Local Government for a lease under section 2 of the Foreshore Act, 1933, a

licence under section 3 or consent under section 10 of that Act made before the coming

into operation of this section.

213A (7) This Section shall not apply to development for which the Minister for

Agriculture is the Appropriate Minister under Section 1B of the Foreshore Act.

Notes:

This head is intended to ensure that the compulsory acquisition powers under Section 227

continue to apply as now to development which adjoins the functional area of the local

authority concerned. Local Authorities will retain the option of apply for a Maritime Area

consent, mirroring the current option for a lease/licence under the Foreshore Act.

Consideration may be given to extending compulsory acquisition powers to the nearshore area.


Head 57a Local Authority Marine Environmental Surveys

Provide that:

(1) A new Section is inserted into the Planning and Development Act to facilitate Marine

Environmental Surveys by Local Authorities

(2) Where a local authority proposes to enter onto the Maritime Area for the purposes of

carrying out Marine Environmental Surveys, it shall not later than 4 weeks before the

carrying out of such Surveys:

(a) undertake an Appropriate Assessment screening.

(b) publish in at least one newspaper circulating in the area of the proposed site

investigations, and

(c) serve on the bodies prescribed in Subhead 7, a notice of its intention to so do,

and where any such Environmental Surveys would involve excavations, borings

or other tests that would be capable of causing disturbance to the marine

environment, it shall inform those bodies of the details of the proposed

Activities

(3) The bodies may make recommendations to the local authority concerned in relation to

the proposed survey activities and the local authority shall have regard to any such

recommendations when carrying out such investigations.

(4) The local Authority concerned shall also have regard to any relevant guidelines made

under Part 1 of this Bill.

(5) Save for as provided for in subhead 5, where there has been compliance with this

section, Part XI of the planning Act shall not apply and no consent under this Bill shall be

required in respect of any such entry or any environmental surveys carried out in

accordance with this head.

(6) Part XI shall apply to any such Marine Environmental Survey where an Appropriate

Assessment Screening determines that the preparation of a Natura Impact Statement is

required.

(7) The notifiable bodies referenced in Subhead 2b are

(a) Relevant Ministers under this Bill

(b) The Minister for Agriculture Food and the Marine

(c) The Minister for Culture Heritage and the Gaelteacht

(d) The Sea Fisheries protection Authority

(e) Inland Fisheries Ireland

(f) The Marine Survey Office.


Notes:

This head intends to recreate the existing powers of a Local Authority to enter onto the

Maritime Area to conduct site investigations under Section 228. Those powers have been

modified to ensure the proper consideration of navigation and fishing issues and to apply Part XI

to any such activities that require the preparation of a Natura Impact Statement.

Subhead 57(a) 7 may be more appropriate to prescribe by regulation.




Head 58. Consequential and Enabling amendments

Provide that

(1) Only where strictly necessary amendments are made to various provisions of the

Planning and Development Act which may be required to give effect to the operation

this Chapter. Such amendment may be required, inter alia, to sections:

(a) 2 Interpretation

(b) 3 Development

(c) 32 General Obligation to obtain permission

(d) 33 regulations regarding applications for permission

(e) 34 Permission for development

(f) 175 Environmental Impact Assessment of certain development carried out by or

on behalf of local authorities

(g) 177AE Appropriate Assessment of certain development carried out by or on

behalf of local authorities

(h) 179 Local Authority own development

(i) 181 Development by State Authorities

(j) 181A Approval of certain State development requiring environmental impact

assessment

(2) Necessary amendments are made to existing provisions to enable the proper operation

of the regime in the Maritime Area. These include:

(a) Section 36 of the Planning and development Act 2000 (outline planning

permission) shall not apply to the Maritime Area

(b) Compensation provisions under Part XII shall only apply to privately owned

foreshore. They shall not apply to state owned foreshore, the EEZ or the

continental shelf

Notes:

Amendment to some or all of the Sections above may be necessary to enable the extension of

the planning system into the Maritime Area. Further extensive scoping of the Planning and

Development regulations will be necessary to ensure coherence and avoid duplication. Precise

requirements in this regard can only be determined during the drafting process. This head is

included by way of a guide to what amendments might be required in this regard.


Head 59. Regulations

Provide that

(1) For the purpose of enabling any provision of this Part to have full effect the Minister for

Housing, Planning and Local Government may, following consultation with the other

relevant Minister, make regulations prescribing any matter or thing which is referred to

in this Part as prescribed or to be prescribed.

(2) Regulations under this Part may contain such incidental, supplementary and

consequential provisions as appear to the Minister to be necessary or expedient for the

purposes of the regulations.

(3) Minister may provide for such matters relating to the operation of this part including:

(a) administrative procedures and processes.

(b) Pre-application requirements of prospective applicants.

(c) obligations of applicants in relation to the preparation of applications .

(d) obligations of the Board and Local Authorities in relation to application and pre -

application processes.

(e) Criteria and matters relevant to the consideration of development in the maritime

area under this part.

(f) Transitional provisions.

(g) Disapplication of certain provisions of the Planning and Development Act or

existing regulations where required to ensure the proper operation of the

planning system in the maritime Area.

(h) such other matters as are ancillary or consequential to the other provisions of this

part.


PART 5


Chapter 2

Offshore Development

This chapter details the procedural requirements for consideration of offshore development by

An Bord Pleanála. This is a standalone development consent procedure modelled upon the

strategic infrastructure provisions of the Planning and Development Act, 2000, as amended.


Head 60. Requirement for permission

Provide that:

(1) Subject to the other provisions of this Act, permission shall be required under this Part in

respect of any development within the Maritime Area, not being exempted development.

(2) A person shall not carry out any development in respect of which permission is required by

subsection (1), except under and in accordance with a permission granted under this Part.

Notes:

This sets out a general requirement to obtain permission before development is carried out

within the Maritime Area.



Head 61. Planning applications within the Maritime Area

Provide that:

(1) An application for permission for any development within the Maritime Area, exclusive of

the nearshore, shall be made to the Board under this Act

(2) An application for permission for any development anywhere in the Maritime Area of a class

described in Schedule X to this Act, shall be made to the Board Under this Act

(3) An application for permission for any development entirely within the outer limit of the

nearshore not being of a class described in subsection 2, shall be made to the planning authority

in accordance with the provisions of the Planning and Development Acts.

Notes:

This head requires that application be made directly to An Bord Pleanála for permission in

respect of most locations and types of development within the Maritime Area. But application

to the local planning authority is required in respect of certain development types within the

nearshore area, as set out at Head 52 in Part 5, Chapter 1.


Head 62. Regulations regarding applications for permission within the Maritime Area

Provide that:

(1) The Minister may make regulations to provide for such matters of procedure and

administration as appear to the Minister to be necessary or expedient in respect of—

(a) consultations under head 64

(b) the giving of an opinion under head 66

(c) applications for permission under head 67 and

(d) decisions under head 69

(e) decisions under head 73

(f) Alterations of development under head 76

(g) any other ancillary matters

(2) Without prejudice to the generality of subsection (1), regulations under this section may—

(a) make provision for matters of procedure in relation to the making of an application

under head 67, including the giving of public notice and the making of applications in

electronic form, and under head 73,

(b) make provision for matters of procedure relating to the making of observations by

the Environmental Protection Agency under head 68 and matters connected therewith.

Notes:

This head provides authority to the Minister to make regulations in respect of detailed

procedural matters pertaining to planning applications submitted directly to An Bord Pleanála,

under the provisions of Part 5, Chapter 2, of the Bill.

These regulations will generally be similar to Section 33 of the P&D Act, as adapted for the

maritime context, and will be consistent with, or merged with, those made under Part 5 Chapter

1.


Head 63. Jurisdiction of the Board

Provide that

(1) Where an application is made to the Board in accordance with permission regulations for

permission for development within the Maritime Area and (b) all requirements of the

regulations are complied with, the Board may decide to grant the permission subject to or

without conditions, or to refuse it.

Notes:

This head provides authority to An Bord Pleanála to grant (with our without conditions) or

refuse permission in respect of applications for permission made to it under Part 5, Chapter 2.


Head 64. Discussions with the Board prior to making an application

Provide that:

(1) A person who proposes to apply for permission for any development described in head 61(1)

or 61(2) shall, before making the application, enter into consultations with the Board in relation

to the proposed development.

(2) Such a person is referred to subsequently in this Part as a ‘prospective applicant’.

(3) In any consultations under subsection (1), the Board may give advice to the prospective

applicant regarding the proposed application and, in particular, regarding—

(a) the procedures involved in making a planning application and in considering such an

application, including required documentation, whether a website is required for

publication, relevant newspapers for public notices and relevant prescribed authorities,

(b) which considerations, related to proper planning and sustainable development or the

environment, including any relevant Marine Spatial Plan or Marine Activity Zone, may, in

the opinion of the Board, have a bearing on its decision in relation to the application**,

and

(c) Information in respect of the fees payable to the Board in relation to making an

application under Head 67.

Notes:

This head requires that persons intending to make application to the Board for permission under

the provisions of Part 5, Chapter 2, shall enter into preliminary consultations with the Board

before making such application. The Board may give advice in respect of the procedures for

making such application, in respect of relevant considerations in relation to proper planning and

the environment and in respect of the appropriate fees payable to the Board for such

application.

Consultations may be in written form and/or may involve pre-application consultation meetings.

It will need to be clear that this is a preparatory administrative process designed to help ensure

comprehensive development consent applications to the Board. Any outcome of the

consultation is not a development consent decision subject to Judicial Review on Environmental

grounds, or under Aarhus.

There may be a need to specify the type and extent of information to be submitted to ABP when

requesting pre-application consultations. This could include the submission of the information

listed in Schedule 7A of the Planning and Development Regulations 2001, as amended – so as to

allow the Board to give a preliminary view as to whether or not EIA would be required and any

follow-on application would have to include an EIAR. Under the EIA Directive the applicant has

to submit this information to the competent authority before the authority can undertake either

a ‘preliminary examination’ or screening). The substance of Schedule 7A would therefore have

to be included in the new standalone legislation by way of regulations.



Head 65. Supplemental provisions in relation to consultations (Planning interest)

(1) A prospective applicant shall, for the purposes of consultations under head 64, supply to the

Board-

(a) a Planning Interest from the relevant Minister of the Government showing the

prospective applicant enjoys a sufficiency of interest to make an application under head

67 in respect of the proposed development, or documentary evidence from the Relevant

Minister that a planning interest is not required, and

(b) sufficient information in relation to the proposed development so as to enable the

Board to assess the proposed development.

(c) for projects that are of a Class of Development to which Schedule 5 Part 2 of the

Planning and Development Regulations 2001, as amended applies, the information listed

in Schedule 7A of those Regulations (Annex IIA of the EIA Directive)

(2) The holding of consultations under head 64 shall not prejudice the performance by the Board

of any other of its functions under this Act or regulations under this Act and cannot be relied

upon in the formal planning process or in legal proceedings.

(3) The Board shall keep a record in writing of any consultations under section 53A in relation to

a proposed development, including the names of those who participated in the consultations,

and a copy of such record shall be placed and kept with the documents to which any application

to the Board in respect of the proposed development relates.

(4) The Board may consult with any person who may, in the opinion of the Board, have

information which is relevant for the purposes of consultations under head 64 in relation to a


Notes:

Prospective developers will need to acquire a planning interest under this legislation prior to

this formal engagement with the Board.

This head sets out some additional provisions in relation to the holding of pre-application

consultations, including a requirement for a prospective applicant engaging in such

consultations to submit evidence of sufficient legal interest to make an application for

permission, in the form of a “planning interest” or, in certain cases, other appropriate evidence.

Certain information in relation to the proposed development and its potential environmental

impacts is also required to be submitted to the Board. The Board is required to keep a record of

the consultations and may consult any other person in relation to the matter.

The consultations are without prejudice to the decision of the Board in respect of any

subsequent application for permission.



Head 66. Opinion of the Board on information to be contained in Environmental Impact

Assessment Report

Provide that:

(1) In relation to any proposed development described in head 61(1) or 61(2), or 61(3) as

appropriate , a prospective applicant may request the Board to give to him or her an opinion in

writing prepared by the Board on the scope and level of detail of the information to be included

in an environmental impact assessment report in relation to the development.

(2) On receipt of such a request the Board shall—

(a) consult with the requester and such bodies as may be specified by the Minister for

the purpose, and

(b) after taking into account the information provided by the prospective applicant, in

particular on the specific characteristics of the proposed development, including its

location and technical capacity, and its likely impact on the environment, comply with

the request as soon as is practicable.

(3) A prospective applicant shall, for the purposes of the Board’s complying with a request under

this section, supply to the Board sufficient information in relation to the proposed development

so as to enable the Board to assess the proposed development.

Where an opinion referred to in subsection (2) has been provided, the environmental impact

assessment report shall be based on that opinion, and include the information that may

reasonably be required for reaching a reasoned conclusion on the significant effects on the

environment of the proposed development, taking into account current knowledge and

methods of assessment.

(4) The provision of an opinion under this section shall not prejudice the performance by the

Board of any other of its functions under this Act or regulations under this Act and cannot be

relied upon in the formal planning process or in legal proceedings.

Notes:

This head enables a prospective applicant for permission for development, under the provisions

of Part 5, Chapter 2, to apply to the Board to provide an opinion in respect of the content of the

Environmental Impact Assessment Report, which is to be submitted with the application for

permission, including in respect of the scope and the level of detail of the environmental

information required. This head reflects a provision in EU Directive 2011/92/EU, as amended by

Directive 2014/52/EU, [Article 5(2)].

Elements of this head may be more suitable to regulation. There may be a need to provide for

administrative fees relating to this process.


Head 67. Application to the Board

(1) An application for permission for development described in head 61(1), 61(2) or 61(3), as the

case may be, shall be made to the Board and shall be accompanied by

(a) the prescribed fee,

(b) a valid Planning Interest (or Declaration as appropriate) from the relevant Minister of

the Government showing the prospective applicant has the approval of the relevant

Minister to make an application under head 67 in respect of the proposed development,

(or that the State confirms that it does not own the area in question)

(c)

(i) an environmental impact assessment report or

(ii) the information specified in Schedule 7A to the Planning and Development

Regulations 2001, as appropriate,

and

(iii) a Natura Impact Statement or

(iv) a screening statement in relation to Appropriate Assessment, as appropriate,

in respect of the proposed development,

and

(d) the particulars, plans and drawings as set out in regulations sufficient to describe the


(2) The Board may refuse to deal with any application made to it under this section where it

considers that

(a) the Planning Interest (or Declaration, as the case may be), or

(b) the application for permission, or

(b) the environmental impact assessment report, or

(c) the information specified in Schedule 7A to the Planning and Development

Regulations 2001 in relation to environmental impact assessment, or

(d) the Natura Impact Statement, or

(e) the screening statement in relation to Appropriate Assessment,

as the case may be, is inadequate or incomplete, having regard in particular to the permission

regulations and any regulations made under this Act or to any consultations held under head 64.

(3) Before a person applies for permission to the Board under this section, he or she shall —

(a) publish in one or more newspapers (as directed by the Board) consistent with Head

53 of this Bill a notice indicating the nature and location of the proposed development

and—


(i) stating that—

(I) the person proposes to make an application to the Board for

permission for the proposed development,

(II) where relevant, an environmental impact assessment report has been

prepared in respect of the proposed development, and

(III) where relevant, the proposed development is likely to have

significant effects on the environment of a Member State of the

European Communities or other party to the Transboundary Convention,

(ii) specifying the times and places at which, and the period (not being less

than [6 weeks] ) during which, a copy of the application and, where relevant,

the environmental impact assessment report may be inspected free of

charge or purchased on payment of a specified fee (which fee shall not

exceed the reasonable cost of making such copy),

(iii) inviting the making, during such period, of submissions and observations

to the Board relating to—

(I) the implications of the proposed development for proper planning and

sustainable development, and

(II) the likely effects on the environment of the proposed development,

if carried out, and

(iv) specifying the types of decision the Board may make, under section 53F,

in relation to the application,

(b) as directed by the Board, send a prescribed number of copies of the application and,

where relevant, the environmental impact assessment report to the Environmental

Protection Agency.

(c) as directed by the Board, send a prescribed number of copies of the application and,

where relevant, the environmental impact assessment report to the Minister for

Agriculture, Food and the Marine.

(d) as directed by the Board, send a prescribed number of copies of the application and,

where relevant, the environmental impact assessment report to the Minister for


(e) as directed by the Board, send a prescribed number of copies of the application and,

where relevant, the environmental impact assessment report to the planning authority

or authorities off whose area or areas the proposed development would be situated,

(f) as directed by the Board, send a prescribed number of copies of the application and,

where relevant, the environmental impact assessment report to other prescribed

authorities, together with a notice stating that submissions or observations may, during

the period referred to in paragraph (a)(ii), be made in writing to the Board, in respect of

their functions, in relation to—


(i) the implications of the proposed development for proper planning and


(ii) the likely effects on the environment of the proposed development,

if carried out, and

(g) where the proposed development is likely to have significant effects on the

environment of a Member State of the European Communities or a state which i s a party

to the Transboundary Convention, as directed by the Board, send a prescribed number

of copies of the application and the environmental impact assessment report to the

prescribed authority of the relevant state or states together with a notice stating that

submissions or observations may, during the period referred to in paragraph (a)(ii), be

made in writing to the Board.

(4) The planning authority for the area including that authority’s nearshore area (or, as the case

may be, each planning authority for the areas) off which the proposed development would be

situated may, within 6 weeks from the making of the application to the Board under this section

(or such longer period as may be specified by the Board), prepare and submit to the Board a

report setting out the views of the authority(s), having regard in particular to the matters

specified in section 34(2) of the Planning and Development Acts and additional matters set out

in Head 51 of this Bill.

(5) In addition to any submission referred to in subsection (4), the Board may, where it

considers it necessary to do so, require the planning authority or authorities referred to in that

subsection or any planning authority or authorities on whose area or areas it would have a

significant effect to furnish to the Board such information in relation to the effects of the

proposed development on the proper planning and sustainable development of the area or

areas concerned, as the case may be, and on the environment as the Board may specify.

Notes:

This head concerns applications for development within the Maritime Area submitted to the

Board under the provisions of Part 5, Chapter 2. It sets out requirements in respect of the

contents of such applications, including fees, possession of a planning interest or other

appropriate evidence of legal interest, information in respect of the environment, including

under the EIA Directive, the Habitats Directive and the Birds Directive, and information in

relation to the development description. If the application is inadequate or incomplete in

respect of the foregoing, the Board may refuse to deal with it.

Head 67 also sets out requirements in respect of public notices, inviting submissions to the

Board from the public, and the sending of copies of the application to prescribed authorities, as

set out in the Head or as further directed by the Board, including to other States, where the

proposed development is likely to have significant effects on the environment of such States

(either a Member State of the EU or a party to the Espoo Convention). Provision is made for

detailed submissions from relevant planning authorities.


The provisions under this head will have to be updated to reflect the terrestrial E-Planning

regulations, currently being drafted, which allow electronic submission of documents.

The analogous subhead 4 report under SID (section 37E(5) PDA) is submitted by the Chief

Executive of the planning authority and under section 37E(5) has to submit the report within 10

weeks. Consideration with the local authorities will have to be given to the (1) duration of any

necessary consultation, (2) which applications are appropriate to consult on (nearshore only?)

and (3) the scope of such consultation in the context of the interaction of the LA terrestr ial

forward planning roles and the National Marine Planning framework.


Head 68. Supplemental provisions

(1) Before determining any application for permission under head 67 the Board may, at its

absolute discretion and at any time—

(a) require the applicant for permission to submit further information, including a

revised environmental impact assessment report,

(b) indicate that it is considering granting permission, subject to the applicant for

permission submitting revised particulars, plans or drawings in relation to the

development,

(c) request further submissions or observations from the applicant for permission, any

person who made submissions or observations, or any other person who may, in the

opinion of the Board, have information which is relevant to the determination of the

application,

(d) without prejudice to subsections (2) and (3), make any information relating to the

application available for inspection, notify any person or the public that the information

is so available and, if it considers appropriate, invite further submissions or observations

to be made to it within such period as it may specify, or

(e) hold meetings with the applicant for permission or any other person—

(i) where it appears to the Board to be expedient for the purpose of determining

the application, or

(ii) where it appears to the Board to be necessary or expedient for the purpose

of resolving any issue with the applicant for permission or any disagreement

between the applicant and any other party, including resolving any issue or

disagreement in advance of an oral hearing.

(2) Where an applicant submits a revised environmental impact assessment report to the Board

in accordance with subsection (1)(a) or otherwise submits further information or revised

particulars, plans or drawings in accordance with subsection (1), which, in the opinion of the

Board, contain significant additional information on the effect of the proposed development on

the environment to that already submitted, the Board shall—

(a) make the information, particulars, plans or drawings, as appropriate, available for

inspection,

(b) give notice that the information, particulars, plans or drawings are so available, and

(c) invite further submissions or observations to be made to it within such period as it

may specify.

(3) Where the Board holds a meeting in accordance with subsection (1)(e), it shall keep a written

record of the meeting and make that record available for inspection.

(4) The Board, or an employee of the Board duly authorised by the Board, may appoint any

person to hold a meeting referred to in subsection (1)(e).


(5) Before making a decision under head 69 in respect of a proposed development, the Board

may request the Environmental Protection Agency to make observations in relation to the


(6) The Environmental Protection Agency shall respond to such request within 6 weeks or such

longer period as the Board may specify.


may request the Minister for Agriculture, Food and the Marine to make observations in relation

to the proposed development.

(8) The Minister for Agriculture, Food and the Marine shall respond to such request within 6

weeks or such longer period as the Board may specify.


may request the Minister for Communications, Climate Action and Environment to make

observations in relation to the proposed development.

(10) The Minister for Minister for Communications, Climate Action and Environment shall

respond to such request within 6 weeks or such longer period as the Board may specify.

(11) When making its decision under head 69 on the application the Board shall have regard to

the observations, if any, received from the Environmental Protection Agency within the period

specified under subsection (6) and from the Minister for Agriculture, Food and the Marine,

under subsection (8) and from the Minister for Communications, Climate Action and

Environment under subsection (10).

(12) The Board may, at any time after the expiration of the period specified in a notice under

head 67(3)(a) for making submissions or observations, make its decision under head 69 on the

application.

(13) The making of observations by the Environmental Protection Agency under this section shall

not prejudice any other function of the Agency.

Notes:

Head 68 lays out additional provisions in respect of an application for development within the

Maritime Area, under the provisions of Part 5, Chapter 2. These include providing for the

submission of additional information, revised details in respect of the proposed development

and requesting further submissions or observations to the Board, including prescribed

consultees. Provision is made for giving of further notice to the public of revisions, including of

the Environmental Impact Assessment Report, and invitation of submissions in relation thereto.

The Board is given the authority to convene meetings in relation to the proposed development

(this is in addition to the authority to convene an Oral Hearing).

Additional consultees may need to be specified, consistent with Head 52 in Chapter 1. The

regulations under Head 52 could be applicable to both planning authorities and the Board.


Head 69. Decision by the Board on application under Head 67

(1) When making a decision in respect of a proposed development for which an application is

made under head 67, the Board may consider any relevant information before it or any other

matter to which, by virtue of this Act, it can have regard.

(2) Without prejudice to the generality of subsection (1), the Board shall have regard to —

(a) any environmental impact assessment report submitted under section 53D(1),

(b) any submission from the Environmental Protection Agency, the Minister for

Agriculture, Food and the Marine, or from the Minister for Communications, Climate

Action and Environment, as the case may be, in response to an invitation under head 68;

(c) any submissions or observations made, in response to the invitation referred to in

head 67(3), within the period referred to in that provision, any submission by a planning

authority in accordance with head 67(4), any information furnished in accordance with

head 68(1) and any other relevant information before it relating to—

(i) The likely consequences of the proposed development for proper planning

and sustainable development in the area in which it is proposed to situate the

development, including in relation to navigation, fisheries, archaeology, and the

needs of other users of the marine space, and

(ii) the likely effects on the environment of the proposed development,

(d) any report or recommendation prepared in relation to the application in accordance

with head 83, including the report of the person conducting any oral hearing of the

proposed development and the written record of any meeting referred to in head 68(3),

(e) the provisions of the National Marine Planning Framework, and where relevant, the

National Marine Planning Framework, the National Planning Framework, and any

regional spatial and economic strategy for the time being in force;

(f) where relevant the provisions of the development plan or plans for the area off which

the development is proposed,

(g) if the area or part of the area is a European site,

(h) if the proposed development would have an effect on a European site, that fact,

(i) any relevant provisions of this Act and of any regulations made under this Act.

(j) the policies and objectives for the time being of the Government, a State authority,

the Minister, planning authorities and any other body which is a public authority whose

functions have, or may have, a bearing on proper planning and sustainable

development, and

(k) the national interest and any effect the performance of the Board’s functions may

have on issues of strategic economic or social importance to the State.


(3) In this section, “public authority” means any body established by or under statute which is

for the time being declared, by regulations made by the Minister, to be a public authority for the

purposes of this section.

(4) The Board may, in respect of an application under head 67 for permission—

(a) decide—

(i) to grant the permission, or

(ii) to make such modifications to the proposed development as it specifies in its

decision and grant permission in respect of the proposed development as so

modified, or

(iii) to grant permission in respect of part of the proposed development (with or

without specified modifications of it of the foregoing kind),

or

(b) decide to refuse to grant the permission,

and a decision to grant permission under paragraph (a)(i), (ii) or (iii) may be subject to or

without conditions.

(5) Where an application under head 67 relates to proposed development which comprises or is

for the purposes of an activity for which an integrated pollution control licence or a waste

licence is required, the Board shall not, where it decides to grant permission, subject that

permission to conditions which are for the purposes of—

(a) controlling emissions from the operation of the activity, including the prevention,

limitation, elimination, abatement or reduction of those emissions, or

(b) controlling emissions related to or following the cessation of the operation or the

activity.

(6) Where an application under head 67 relates to proposed development which comprises or is

for the purposes of an activity for which an integrated pollution control licence or a waste

licence is required, the Board may, in respect of that development, decide to refuse a grant of

permission under this section, where the Board considers that the development,

notwithstanding the licensing of the activity, is unacceptable on environmental grounds, having

regard to the proper planning and sustainable development of the area in which the

development will be situated.

(7) The Board may decide to grant a permission for development, or any part of a development,

under this section even if the proposed development, or part thereof, contravenes materially

the marine spatial plan relating to any area in which it is proposed to situate the development.

(8) Without prejudice to the generality of the Board’s powers to attach conditions under

subsection (3) the Board may attach to a permission for development under this section—

(a) conditions for or in connection with the protection of the marine environment

(including the protection of fisheries) or, if the subject of a recommendation by the

Minister for Transport to the Board with regard to the exercise of the power under this

subsection in the particular case (which recommendation that Minister of the

Government may, by virtue of this subsection, make), the safety of navigation


(b) conditions for regulating the development or activity of any area which adjoins, abuts

or is adjacent to the area subject of the permission and which is under the control of the

applicant, if the imposition of such conditions appears to the Board to be expedient for

the purposes or in connection with the development authorised by the permission,

(c) conditions for requiring the carrying out of works (including the provision of facilities )

which the Board considers are required for the purposes of the development authorised

by the permission;

(d) conditions for requiring the taking of measures to reduce or prevent the emission of

any noise or vibration from any structure or area comprised in the development

authorised by the permission

(e) conditions for determining the sequence and timing in which and the time at which

works (and/or activities) shall be carried out;

(f) conditions for the maintenance or management of the proposed development;

(g) conditions for requiring construction and demolition waste to be recovered or

disposed of in such a manner and to such extent as may be specified by the Board;

(h) conditions for requiring the removal of any structures authorised by the permission,

or the discontinuance of any activity so authorised, at the expiration of a specified

period, and the carrying out of any works required for the reinstatement of the site at

the expiration of that period

(i) conditions for requiring the giving and maintaining of adequate security for

satisfactory completion, upkeep and decommissioning of the proposed development;

(j) conditions requiring the payment of a contribution or contributions to the Board or

relevant enforcement body, as the case may be, in respect of the cost of monitoring and

enforcement activities related to the permitted development;

(k) a condition requiring the applicant to submit further information to the Board or any

other local or state authority, as the Board may specify before commencing

development;

(l) a condition requiring—

(i) the construction or the financing, in whole or in part, of the construction of a

facility, or

(ii) the provision or the financing, in whole or in part, of the provision of a

service, in the area off which the proposed development would be situated,

being a facility or service that, in the opinion of the Board, would constitute a

substantial gain to the community.

(9) A condition attached pursuant to subsection (8)(l) shall not require such an amount of

financial resources to be committed for the purposes of the condition being complied with as

would substantially deprive the person in whose favour the permission operates of the benefits

likely to accrue from the grant of the permission.


Notes:

This head sets out the matters, primarily concerning policy, environment and proper planning of

the Maritime Area, which are to inform the decision of the Board in respect of any application

for permission under the provisions of Part 5, Chapter 2.

The Board is authorised to grant permission, grant a modified permission, grant part of the

development or refuse permission. Conditions may be attached to a permission and the general

nature of such conditions is set out.

A number of issues in subhead 8 require careful calibration with State consent regime(s) to

ensure clarity of roles.

(8)(h): It is envisaged that the initial development consent consideration will need to assess best

estimate of decommissioning plans at the outset. The State consent regime will set out and

overall decommissioning/reinstatement schedule which will be subject to a further development

consent closer to the time when such works will be required.

(8)(i): The provision of financial security in relation to decommissioning/reinstatement is

envisaged to be managed in the State consent process.

(8) (l)(ii): Community gain provisions may not be appropriate and are likely to be covered within

the state charging regime for certain project types.


Head 70. Supplemental Provisions

(1) The Board shall send a copy of a decision under head 69 to the applicant, to the Enforcement

Authority designated under Part 6 of this Bill, to any planning authority off whose area the

development would be situated and to any person who made submissions or observations on

the application for permission.

(2) (a) The Board shall cause to be published as soon as may be in one or more newspapers

circulated in the area a notice informing the public of a decision under head 69.

(b) The notice shall state that a person may question the validity of any such decision by

the Board by way of an application for judicial review, under Order 84 of the Rules of the

Superior Courts (S.I. No. 15 of 1986), in accordance with section 54A.

(c) The notice shall identify where practical information on the review mechanism can be

found.

(3) A decision given under head 69 and the notification of the decision shall state—

(a) subject to paragraph (c), the main reasons and considerations on which the decision

is based,

(b) subject to paragraph (d), where conditions are imposed in relation to the grant of

any permission, the main reasons for the imposition of any such conditions,

(c) in relation to the granting or refusal of any permission, where a decision (being a

decision which arises from the consideration of the environmental impact assessment

report concerned) by the Board to grant or refuse permission is different from the

recommendation in a report of a person assigned to report on the application on behalf

of the Board, the main reasons for not accepting the recommendation in the last -

mentioned report to grant or refuse permission,

(d) where a decision to impose a condition (being an environmental condition which

arises from the consideration of the environmental impact assessment report

concerned) in relation to the grant of any permission is materially different, in relation

to the terms of such condition, from the recommendation in a report of a person

assigned to report on the application for permission on behalf of the Board, the main

reasons for not accepting, or for varying, as the case may be, the recommendation in the

last-mentioned report in relation to such condition,

(e) in relation to the granting or refusal of any permission, subject to or without

conditions, that the Board is satisfied that the reasoned conclusion on the significant

effects on the environment of the development was up to date at the time of the taking

of the decision, and

(f) the sum due to be paid to the Board towards the costs incurred by the Board of—

(i) conducting consultations entered into by an applicant under head 64,

(ii) compliance by the Board with a request by an applicant for an opinion of the

Board under head 66, or

(iii) determining an application under head 69,


and, in such amount as the Board considers to be reasonable, state the sum to be paid and

direct the payment of the sum to the Enforcement Authority and any planning authority that

incurred costs during the course of consideration of that application and to any other person as

a contribution to the costs incurred by that person during the course of consideration of that

application (each of which sums the Board may, by virtue of this subsection, require to be paid).

(4) A decision given under head 69 and the notification of the decision shall include a summary

of the results of the consultations that have taken place and information gathered in the course

of the environmental impact assessment and, where appropriate, the comments received from

an affected Member State of the European Union or other party to the Transboundary

Convention, and specify how those results have been incorporated into the decision or

otherwise addressed.

(5) A reference to costs in subsection (3)(f) shall be construed as a reference to such costs as the

Board in its absolute discretion considers to be reasonable costs, but does not include a

reference to so much of the costs there referred to as have been recovered by the Board by way

of a fee charged under Head 79.

(6) A grant of permission under head 69 shall be made as soon as may be after the making of the

relevant decision but shall not become operative until any requirement made under subsection

(3)(f) in relation to the payment by the applicant of a sum in respect of costs has been complied

with.

(7) Where an applicant for permission fails to pay a sum in respect of costs in accordance with a

requirement made under subsection (3)(f) the Board, the authority or any other person

concerned (as may be appropriate) may recover the sum as a simple contract debt in any court

of competent jurisdiction.

(8) A person shall not be entitled solely by reason of a permission under head 69 to carry out

any development.

Notes:

The purpose of this Head is to set out certain detailed requirements concerning the decision of

the Board on an application made to it under the provisions of Part 5, Chapter 2.

The Head includes arrangements for informing relevant authorities, persons who had made

submissions and the public of the decision of the Board.

The Board is required to set out the reasons and considerations for its decision and for any

conditions attached to a grant of permission. If the Board does not accept the recommendation,

to grant or refuse permission, of the person assigned by the Board to report on the application,

it must give the main reasons for so doing. There is a similar duty for the Board to give reasons

for the attachment of an environmental condition on a grant of permission, arising from

consideration of the EIAR, where the terms of that condition differ materially from those

recommended by the person assigned by the Board to report on the application.


The Head includes for payment of costs to the Board and payment toward the costs of certain

authorities and payment of a contribution to the costs incurred by any other person in relation

to consideration of the application.

The Board must confirm that its reasoned conclusions in relation to significant environmental

impacts from the proposed development were up to date at the time of its decision to grant or

refuse permission.

The Head sets out that a person shall not be entitled solely by reason of a permission under

head 69 to carry out any development i.e. other consents or authorisations may be required in

addition to the grant of permission.


Head 71. Limit of duration of permission

Provide that

(1) Subject to subsection (2), a permission granted under this Part, shall on the expiration of the

appropriate period (but without prejudice to the validity of anything done pursuant thereto

prior to the expiration of that period) cease to have effect as regards—

(a) in case the development to which the permission relates is not commenced during

that period, the entire development, and

(b) in case the development is commenced during that period, so much of the

development as is not completed within that period.

(2) (b) Subsection (1) shall not affect—

(i) the continuance of any activity, in accordance with a permission,

(ii) where a development has been completed (whether to an extent described in

paragraph (a) or otherwise), the obligation of any person to comply with any condition

attached to the relevant permission whereby something is required either to be done or

not to be done.

(3) Subsection (1) shall not apply to any permission granted for a limited period only.

In this section and head 73 “the appropriate period” means—

(a) in case in relation to the permission a period is specified pursuant to head 72, that

period, or

(b) in any other case, the period of [five years] beginning on the date of the grant of

permission.

Notes:

The purpose of this Head is to ensure that permissions for development are either acted upon

within the “appropriate period” of five years or such other period as may be specified by the

Board in accordance with the provisions of Head 72. In general, if the development has not

been carried out within the “appropriate period”, the permission shall cease to have effect, but

subject to the provisions of Head 73. Consideration will have to be given to an appropriate

duration of the approval.

Heads 71, 72 and 73 concern duration and extension of planning permission. Ongoing litigation

in relation to the equivalent Section 42 of the PDA. The MPDM text will also need to include

provisions analogous to Section 28 of the Planning and Development (Housing) and residential

tenancies Act 2016 which are awaiting commencement. Which will update the procedure where

EIA/AA is required.


Head 72. Power to vary the appropriate period

Provide that:

Without prejudice to the powers conferred on the Board by this Part to grant a permission for

development for a limited period only, in deciding to grant a permission under head 69, the

Board may, having regard to the nature and extent of the relevant development and any other

material consideration, specify the period during which the permission is to have effect, bein g a

period of not less than 1 year.

Notes:

This Head is to enable the Board, having regard to the nature and extent of the relevant

development and to any other material consideration, to vary the duration of the “appropriate

period”, but it must be at least one year.


Head 73. Power to extend the appropriate period

Provide that

(1) On application to it in that behalf the Board shall, as regards a particular permission under

this Act, extend the appropriate period by such additional period not exceeding 5 years as the

Board considers requisite to enable the development to which the permission relates to be

completed provided that each of the following requirements is complied with:

(a) either the Board is satisfied that—

(i) the development to which the permission relates was commenced before the

expiration of the appropriate period sought to be extended,

(ii) substantial works were carried out pursuant to the permission during that

period, and

(iii) the development will be completed within a reasonable time,

or

(b) the Board is satisfied—

(i) a valid Planning Interest remains in force in relation to the proposed

development,

(ii) that there were considerations of a commercial, economic or technical nature

beyond the control of the applicant which substantially militated against either

the commencement of development or the carrying out of substantial works

pursuant to the permission,

(iii) that there have been no significant changes in the development objectives in

the National Marine Planning Framework, or in the development plan of the area

off which the development is to take place or in regional spatial and economic

strategy for the area off which the development is to take place since the date of

the permission such that the development would no longer be consistent with

National policy and accord with the proper planning and sustainable

development of the area,

(iv) that the development would not be inconsistent with the proper planning

and sustainable development of the area having regard to any guidelines issued

by the Minister or any relevant Minister under this Act or any other relevant Act,

notwithstanding that they were so issued after the date of the grant of

permission in relation to which an application is made under this section, and

(v) where the development has not commenced, that an environmental impact

assessment, or an appropriate assessment, or both of those assessments, if

required, was or were carried out before the permission was granted.

(vi) That the development would not be inconsistent with any Ministerial Directives

issued under this Act or any other relevant Act.

(c) the application is in accordance with such regulations under this Act as apply to it,


and

(d) the application is duly made prior to the end of the appropriate period.

(2) In extending the appropriate period under subsection (1) the Board may attach conditions

requiring the giving of adequate security for the satisfactory completion of the proposed

development, and/or may add to or vary any conditions to which the permission is already

subject under head 69.

(3) (a) Where an application is duly made under this section to the Board and any

requirements of, or made under, regulations under the Act are complied with as

regards the application, the Board shall make its decision on the application as

expeditiously as possible.

(b) Without prejudice to the generality of paragraph (a), it shall be the objective of the

Board to ensure that it shall give notice of its decision on an application under this

section within the period of 8 weeks beginning on—

(i) in case all of the requirements referred to in paragraph (a) are complied with

on or before the day of receipt by the Board of the application, that day, and

(ii) in any other case, the day on which all of those requirements stand complied

with.

(4) A decision to extend an appropriate period shall be made once and once only under th is

section and the Board shall not further extend the appropriate period.

(5) Particulars of any application made to the Board under this section and of the decision of the

Board in respect of the application shall be recorded on the Board’s website and register.

(6) Where a decision to extend is made under this section, head 71 shall, in relation to the

permission to which the decision relates, be construed and have effect, subject to, and in

accordance with, the terms of the decision.

Notes:

The Board is authorised to extend the “appropriate period” of a permission, once only. This is

only in certain limited circumstances and subject to meeting a series of detailed tests.


Head 74. Objective of the Board in relation to applications under Head 67

Provide that

(1) Subject to subsections (2) to (5), it shall be the objective of the Board to ensure that a

decision under head 69 on an application made under head 67 is made—

(a) within a period of [18 weeks] beginning on the last day for making submissions or

observations in accordance with the notice referred to in head 67(3)(a)(ii), or

(b) within such other period as the Minister may prescribe either generally or in respect

of a particular class or classes of matter.

(2) Where it appears to the Board that it would not be possible or appropriate, because of the

particular circumstances of the matter with which the Board is concerned, to determine the

matter within the period referred to in paragraph (a) or (b) of subsection (1) as the case may be,

the Board shall, by notice in writing served on the applicant for permission, the Enforcement

Authority, any planning authority involved and any other person who submitted submissions or

observations in relation to the matter before the expiration of that period, inform the authority

and those persons of the reasons why it would not be possible or appropriate to determine the

matter within that period and shall specify the date before which the Board intends that the

matter shall be determined.

(3) Where a notice has been served under subsection (2), the Board shall take all such steps as

are open to it to ensure that the matter is determined before the date specified in the notice.

(4) The Minister may by regulations vary the period referred to in subsection (1)(a) either

generally or in respect of a particular class or classes of applications referred to in head 67,

where it appears to him or her to be necessary, by virtue of exceptional circumstances, to do so

and, for so long as the regulations are in force, this section shall be construed and have effect in

accordance therewith.

(5) Where the Minister considers it to be necessary or expedient that a certain class or classes of

application under head 67 that are of special strategic, economic or social importance to the

State be determined as expeditiously as is consistent with proper planning and sustainable

development, he or she may give a direction to the Board that priority be given to the

determination of applications of the class or classes concerned, and the Board shall comply with

such a direction.

(6) The Board shall include in each report made under section 118 of the Planning and

Development Act a statement of the number of matters which the Board has determined within

a period referred to in paragraph (a) or (b)of subsection (1) and such other information as to the

time taken to determine such matters as the Minister may direct.

Notes:

This Head sets a statutory objective for the Board to make its decision in respect of a n

application for permission under Part 5, Chapter 2, within a period of 18 weeks from the last

date for receipt of observations from the public. However, provision is made for the Board to

extend the time for its decision, because of the particular circumstances of the case and to issue


notice accordingly. The Head also gives the Minister the authority to vary this period and also to

give a direction to the Board to priorities certain classes of development.

An 18 week period for a determination may not suffice due to the complexities and additional

considerations in the Maritime Area. 26 weeks would appear to be more suitable target

timeframe.


Head 75. Discussions with the Board prior to making an application for an alteration to

development in the Maritime Area

Provide that

(1) A person who is carrying out or intending to carry out a development permitted in

accordance with a permission granted under the provisions of head 69, and who proposes to

request the Board to alter the terms of the development the subject of the permission, before

making the request, may enter into consultations with the Board in relation to the proposed

alteration

(2) In any consultations under subsection (1), the Board may give advice to the prospective

applicant regarding the application for the proposed alteration and, in particular, regarding

what considerations, related to proper planning and sustainable development or the

environment, may, in the opinion of the Board, have a bearing on its decision in relation to the

request.

Notes:

This Head mirrors the provisions of Head 64 regarding consultations, but in respect of a

situation where a development has already been permitted under the provisions of Head 69 and

it has subsequently been considered appropriate by the applicant to request the Board to alter

the terms of the said permission. Prior to submission of such request to alter the terms of the

permission, the person may enter into discussions with the Board.

Consideration may need to be given to make such discussions mandatory, however the scale of

any proposed changes will be important and perhaps not possible to set out in legislation. It is

important to be clear that this is an administrative procedure relating to ensuring more robust

and complete applications. It is not a development consent and should not be subject to

Judicial review on the basis that it is.

There should be a disclaimer in Head 75 to the effect that any such discussions are without

prejudice to the Board’s decision on the relevant application – similar to that at Head 65.


Head 76. Alterations of Development in the Maritime Area

Provide that

(1) Subject to subsections (2) to (8) and head 62, the Board may, on the request of any person

who is carrying out or intending to carry out a development permitted in accordance with a

permission granted under the provisions of head 69, alter the terms of the development the

subject of a permission granted under this Act.

(2) (a) As soon as practicable after the making of such a request, the Board shall make a decision

as to whether the making of the alteration to which the request relates would constitute the

making of a material alteration of the terms of the development concerned.

(b) Before making a decision under this subsection, the Board may invite submissions in

relation to the matter to be made to it by such person or class of person as the Board

considers appropriate (which class may comprise the public if, in the particular case, the

Board determines that it shall do so); the Board shall have regard to any submissions

made to it on foot of that invitation.

(3)(a) If the Board decides that the making of the alteration would not constitute the making of

a material alteration of the terms of the development concerned, it shall alter the permission

accordingly and notify the person who made the request under this section, the Environmental

Protection Agency and the planning authority or each planning authority off which is located the

area concerned, of the alteration.

(b) If the Board decides that the making of the alteration would constitute the making of such a

material alteration, it shall—

(i) by notice in writing served on the requester, require the requester to submit to the

Board the information specified in Schedule 7A to the Planning and Development

Regulations 2001 in respect of that alteration, or in respect of the alternative alteration

being considered by it under subparagraph (ii)(II), unless the requester has already

provided such information, or an environmental impact assessment report on such

alteration or alternative alteration, as the case may be, to the Board, and

(ii) following the receipt of such information or report, as the case may be, determine

whether to—

(I) make the alteration,

(II) make an alteration of the terms of the development concerned, being an

alteration that would be different from that to which the request relates (but

which would not, in the opinion of the Board, represent, overall, a more

significant change to the terms of the development than that which would be

represented by the latter alteration), or

(III) refuse to make the alteration.

(4) Where the requester is submitting to the Board the information referred to in subsection

(3)(b)(i), that information shall be accompanied by any further relevant information on the

characteristics of the alteration under consideration and its likely significant effects on the

environment including, where relevant, information on how the available results of other


relevant assessments of the effects on the environment carried out pursuant to European Union

legislation other than the Environmental Impact Assessment Directive have been taken into

account.

(5) Where the requester is submitting to the Board the information referred to in subsection

(3)(b)(i), that information may be accompanied by a description of the features, if any, of the

alteration under consideration and the measures, if any, envisaged to avoid or prevent what

might otherwise have been significant adverse effects on the environment of the alteration.

(6) Before making a determination under subsection (3)(b)(ii)], the Board shall determine

whether the extent and character of -

(a) the alteration requested under subsection (1), and

(b) any alternative alteration it is considering under subsection (3)(b)(ii)(II)]

are such that the alteration, were it to be made, would be likely to have significant effects on

the environment and, for this purpose, the Board shall have reached a final decision as to what

is the extent and character of any alternative alteration the making of which it is so considering.

(7)(a) Subject to paragraph (b), within 8 weeks of receipt of the information referred to in

subsection (3)(b)(i), the Board shall make its determination under subsection (6).

(b) Subject to paragraph (c), the Board shall not be required to comply with paragraph

(a) within the period referred to in paragraph (a) where it appears to the Board that it

would not be possible or appropriate, because of the exceptional circumstances of the

alteration under consideration (including in relation to the nature, complexity, location

or size of such alteration) to do so.

(c) Where paragraph (b) applies, the Board shall, by notice in writing served on the

requester before the expiration of the period referred to in paragraph (a), inform him or

her of the reasons why it would not be possible or appropriate to comply with

paragraph (a) within that period and shall specify the date before which the Board

intends that the determination concerned shall be made.

(8) If the Board determines that the making of either kind of alteration referred to in subsection

(3)(b)(ii)]—

(a) is not likely to have significant effects on the environment, it shall proceed to make a

determination under subsection (3)(b)(ii)], or

(b) is likely to have such effects, the provisions of head 77 shall apply.

(9) If, in a case to which subsection (8)(a) applies, the Board makes a determination to make an

alteration of either kind referred to in subsection (3)(b)(ii)], it shall alter the permission

accordingly and notify the person who made the request under this section, the Environmental

Protection Agency and the planning authority or each planning authority off which is located the

area concerned, of the alteration.

(10)(a) In making a determination under subsection (6), the Board shall have regard to—

(i) the criteria for the purposes of determining which classes of development are likely to

have significant effects on the environment set out in any regulations made under

section 176 of the Planning and Development Act,


(ii) the criteria set out in Schedule 7 to the Planning and Development Regulations 2001,

(iii) the information submitted pursuant to Schedule 7A to the Planning and

Development Regulations 2001,

(iv) the further relevant information, if any, referred to in subsection (4) and the

description, if any, referred to in subsection (5),

(v) the available results, where relevant, of preliminary verifications or assessments of

the effects on the environment carried out pursuant to European Union legislation other

than the Environmental Impact Assessment Directive, and

(vi) in respect of an alteration under consideration which would be located on, or in, or

have the potential to impact on a European Site, the likely significant effects of such

alteration on such site, area, land, place or feature, as appropriate.

(b) The Board shall include, or refer to, in its determination under subsection (6) the main

reasons and considerations, with reference to the relevant criteria listed in Schedule 7 to the

Planning and Development Regulations 2001, on which the determination is based.

(1) Where the determination of the Board under subsection (6) is that the alteration under

consideration would not be likely to have significant effects on the environment and the

applicant has, under subsection (5), provided a description of the features, if any, of the

alteration concerned and the measures, if any, envisaged to avoid or prevent what might

otherwise have been significant adverse effects on the environment of the alteration

concerned, the Board shall specify such features, if any, and such measures, if any, in the

determination.

(2) (a) Before making a determination under a determination under subsection (3)(b)(ii)]

or (6), the Board shall—

(i) make, or require the person who made the request concerned under

subsection (1) to make, such information relating to that request available for

inspection for such period,

(ii) notify, or require that person to notify, such person, such class of person or

the public (as the Board considers appropriate) that the information is so

available, and

(iii) invite, or require that person to invite, submissions or observations (from

any foregoing person or, as appropriate, members of the public) to be made to it

in relation to that request within such period,

as the Board determines and, in the case of a requirement under any of the preceding

subparagraphs, specifies in the requirement; such a requirement may specify the means

by which the thing to which it relates is to be done.

(b) The Board shall have regard to any submissions or observations made to it in

accordance with an invitation referred to in paragraph (a).

c) The Board shall notify any person who made a submission or observation to it in

accordance with that invitation of its determination under subsection (3)(b)(ii)] or (6).


Notes:

The purpose of this Head 76 is to provide a mechanism for a person, who is carrying out or

intending to carry out a development permitted in accordance with a permission granted under

Head 69, to request the Board to alter the terms of the said permission. Provision is made for a

series of preliminary determinations by the Board in relat ion to the “materiality” of the

proposed alteration and the likelihood of significant environmental impacts arising ( thereby

necessitating the carrying out of an Environmental Impact Assessment – see Head 77).

Upon completion of the process set out under Head 76, which includes authority to request

information in respect of impacts on the environment and consultations as appropriate, the

Board may alter the terms of the original permission to accommodate the proposed alteration.

In the case of an alteration which is considered by the Board not to be “material”, the Board

shall make the relevant alteration. Following receipt of the appropriate environmental

information and appropriate consultations, including with the public, as the case may be, where

the alteration is material, but would not be likely to have significant effects on the environment,

the Board may make the alteration, or a different less significant alteration, or refuse to make

the alteration. However, where significant environmental effects arising from the proposed

alteration have been identified, the provisions of Head 77 must be applied and an EIAR

submitted.

Regulations under MPDM rather than existing Planning Act regulations may be required for

Subhead 10.

Provisions under this head will need to be consistent with EIA and AA obligations. Amendment

to Schedule 7 of the Planning Act may be required.


Head 77. Preparation of Environmental Impact Assessment Report for the purposes of head 76

Provide that

(1) This section applies to a case where the determination of the Board under head 76(6)

is that the making of either kind of alteration referred to in head 76(3)(b)(ii) is likely to

have significant effects on the environment.

(2) In a case to which this section applies, the Board shall require the person who made

the request under head 76 (‘the requester’) to prepare an environmental impact

assessment report in relation to the proposed alteration of the terms of the

development concerned and, in this subsection and the following subsections of this

section, ‘proposed alteration of the terms of the development concerned’ means—

(a) the alteration referred to in subsection (3)(b)(ii)(I) of that section, and

(b) any alternative alteration under subsection (3)(b)(ii)(II) of that section the

making of which the Board is considering (and particulars of any such alternative

alteration the making of which is being so considered shall be furnished, for the

purposes of this subsection, by the Board to the requester).

(3) An environmental impact assessment report under this section shall contain—

(a) any information that any regulations made under this Act require to be contained in

environmental impact assessment reports generally under this Act, and

(b) any other information prescribed in any regulations made under this Act to the

extent that—

(i) such information is relevant to—

(I) the given stage of the consent procedure and to the specific

characteristics of the development or type of development concerned,

and

(II) the environmental features likely to be affected,

and

(c) a summary, in non-technical language, of the information referred to in

paragraphs (a) and (b).

(4) (a) When an environmental impact assessment report under this section is prepared,

the requester shall as soon as may be submit a copy of the report and one electronic

copy of the report which shall be searchable by electronic means as far as practicable) to

the Board, together with either—

(i) a copy of the published notice referred to in paragraph (c), or

(ii) a copy of the notice proposed to be published in accordance with

paragraph (c) together with details of its proposed publication and date,

(b) submit a copy of the confirmation notice to the Board,


(c) publish a notice, in the prescribed form, in one or more newspapers circulating in the

area in which the development concerned is proposed to be, or is being, carried out—

(i) stating that an environmental impact assessment report has been submitted

to the Board in relation to the proposed alteration of the terms of the

development concerned,

(ii) indicating the times at which, the period (which shall not be less than 4

weeks) during which and the place or places where a copy of the environmental

impact assessment report may be inspected,

(iii) stating that a copy of the environmental impact assessment report may be

purchased on payment of a specified fee (which fee shall not exceed the

reasonable cost of making such copy), and

(iv) stating that submissions or observations may be made in writing to the Board

before a specified date (which date shall not be less than 30 days after the notice

was first published) in relation to the likely effects on the environment of the

proposed alteration of the foregoing terms,

(d) send a copy of the environmental impact assessment report together with a notice in

the prescribed form to the Environmental Protection Agency and the planning authority

or each planning authority off which is located the area concerned and to any prescribe d

body or person stating that—

(i) the report has been submitted to the Board in relation to the proposed

alteration of the terms of the development concerned,

(ii) before a specified date (which date shall be the same as provided or

proposed to be provided for by the notice under paragraph (c)) submissions or

observations may be made in writing to the Board in relation to the likely effects

on the environment of the proposed alteration of the foregoing terms,

(e) send a copy of the environmental impact assessment report, together with a notice

in the prescribed form, to a Member State of the European Communities or a state

which is a party to the Transboundary Convention where, in the Board’s opinion, the

proposed alteration of the terms of the development concerned is likely to have

significant effects on the environment in that state, together with a notice (in the

prescribed form, if any) stating that—

(i) the report has been submitted to the Board in relation to the likely effects on

the environment of the proposed alteration of the foregoing terms,

(ii) before a specified date (which date shall be the same as provided or

proposed to be provided for by the notice under paragraph (c)) submissions or

observations may be made in writing to the Board in relation to the likely effects

on the environment in that state of the proposed alteration of those terms,

and the Board may, at its discretion and from time to time, extend any time limits

provided for by this subsection.


(5) On the preceding subsections having been complied with, the Board shall, subject to

subsections (6) and (7), proceed to make a determination under head 76(3)(b)(ii) in

relation to the matter.

(6) In making that determination, the Board shall, to the extent that they appear to the

Board to be relevant, have regard to the following:

(a) the environmental impact assessment report submitted pursuant to

subsection (4)(a), any submissions or observations made in response to the

invitation referred to in subsection (4)(c) or (d) before the date specified in the

notice concerned for that purpose and any other relevant information before it

relating to the likely effects on the environment of the proposed alteration of

the terms of the development concerned

(b) where such alteration is likely to have significant effects on the environment

in another Member State of the European Communities, or a state which is a

party to the Transboundary Convention, the views of such Member State or

party;

(c) the provisions of the National Marine Planning Framework, the National

Planning Framework, and any regional spatial and economic strategy for the time

being in force and of any relevant marine spatial plan.

(d) the provisions of the development plan or plans for the area off which the

development is proposed,

(e) if the area or part of the area is a European site, that fact,

(f) if the proposed development would have an effect on a European site, that

fact,

(g) the policies and objectives for the time being of the Government, a State

authority, the Minister, planning authorities and any other body which is a public

authority whose functions have, or may have, a bearing on proper planning and


(h) any social or economic benefit that would accrue to the State, a region of the

State or the area off which the development concerned is to be carried out in

the terms as they are proposed to be altered;

(i) commitments entered into and the stage at which the development

concerned has progressed under the permission in the terms as originally

granted; and

(j) any relevant provisions of this Act and of any regulations made under this Act.

(7) The Board shall not make a determination under head 76(3)(b)(ii) in a case to which

this section applies at any time prior to the date specified, pursuant to subparagraph (iv)

of subsection (4)(c), in the notice under subsection (4)(c).

(8) Where the Board makes a determination under head 76(3)(b)(ii)] in a case to which

this section applies—

(a) it shall—


(i) give public notice of the determination (including notice in the area in which

the development concerned is proposed to be, or is being, carried out),

(ii) inform the prescribed bodies or persons sent a copy of the environmental

impact assessment report in accordance with subsection (4)(d), and

(iii) inform any state to which an environmental impact assessment report has

been sent under subsection (4)(e) of the determination, including, if the

determination is of the kind referred to in paragraph (b), particulars of the

determination, and

(b) if the determination is a determination to make an alteration of either kind referred

to in head 76(3)(b)(ii), it shall alter the permission accordingly and notify the requester

of the alteration.

(9) Where the Board makes a determination under head 76(3)(b)(ii) in a case to which

this section applies, the determination shall—

(a) state the reasoned conclusion, in relation to the significant effects on the

environment of the proposed alteration, on which the determination is based,

(b) where the determination (being a determination which arises from the

consideration of the environmental impact assessment report concerned) by the

Board to make an alteration of either kind referred to in head 76(3)(b)(ii), or to

refuse to make an alteration, is different from the recommendation in a report

of a person assigned to report on the request on behalf of the Board, state the

main reasons for not accepting the recommendation in the last-mentioned

report, and

(c) include a summary of the results of the consultations that have taken place

and information gathered in the course of the environmental impact assessment

and, where appropriate, the comments received from an affected Member State

of the European Union or other party to the Transboundary Convention, and

specify how those results have been incorporated into the determination or

otherwise addressed.

(10) Where the Board makes a determination under head 76(3)(b)(ii), in a case to which

this section applies, to make an alteration of either kind referred to in that section and

imposes a condition (being an environmental condition which arises from the

consideration of the environmental impact assessment report concerned) in relation to

the determination which is materially different, in relation to the terms of such

condition, from the recommendation in a report of a person assigned to report on the

request on behalf of the Board, the determination shall indicate the main reasons for

not accepting, or for varying, as the case may be, the recommendation in the last -

mentioned report in relation to such condition.

(11) Where the Board makes a determination under head 76(3)(b)(ii), in a case to which

this section applies, to make an alteration of either kind referred to in that section, the

determination shall be accompanied by a statement that the Board is satisfied that the

reasoned conclusion on the significant effects on the environment of the alteration was

up to date at the time of the making of the determination.


Notes:

This Head applies to a case where the determination of the Board under Head 76 is that the

making of the proposed alteration is likely to have significant effects on the environment and,

therefore, will necessitate the carrying out of an environmental impact assessment (EIA) by the

Board. Head 77 sets out detailed provisions for compilation and submission, by the person

requesting the alteration, of an environmental impact assessment report (EIAR) and for the

giving of notice inviting submissions to the Board in this connection, which will inform the Board

in carrying out the EIA and making its decision regarding the proposed alteration under the

provisions of Head 76.

Subhead (6) - Under head 69 these matters have to be ‘considered’

Subhead (6) (c) - The Planning Act will need amendment to include additional references

Procedural detail in this head may be more appropriate to regulation.


Head 78. Supplementary provisions

Provide that:

(1) (a) Paragraph (b) applies where a person—

(i) is carrying out or intending to carry out development within the Maritime

Area and intends to make a request under head 76 (1), accompanied by an

environmental impact assessment report, to the Board to alter the terms of the

development, or

(ii) is required by the Board pursuant to head 77 to submit an environmental

impact assessment report to the Board.

(b)(i) Subparagraph (ii) applies where, before a person submits an environmental impact

assessment report to the Board, he or she requests the Board to give him or her an

opinion in writing on the scope and level of detail of the information required to be

included in the report.

(ii) Subject to subparagraph (iii), the Board shall, taking into account the

information provided by the person referred to in subparagraph (i), in particular

on the specific characteristics of the proposed alteration, including its location

and technical capacity, and its likely impact on the environment, give an opinion

in writing on the scope and level of detail of the information to be included in an

environmental impact assessment report, subject to any prescribed

consultations to be carried out by the Board in relation to such opinion.

(iii) The Board shall give the opinion before the submission by the person

referred to in subparagraph (i) of the environmental impact assessment report.

(2) Where an opinion referred to in subsection (1) has been provided, the environmental

impact assessment report shall be based on that opinion, and include the information

that may reasonably be required for reaching a reasoned conclusion on the significant

effects on the environment of the proposed alteration of the terms of the development,

taking into account current knowledge and methods of assessment.

Notes:

This Head enables a person, who is making a request to the Board to alter the terms of a

permitted development, in circumstances where such request will be accompanied by an

environmental impact assessment report (EIAR), or an EIAR has been required by the Board per

Head 77, to apply to the Board to provide an opinion in respect of the content of the EIAR,

including in respect of the scope and the level of detail of the environmental information

required.

Like with other administrative procedures this process is not a development consent decision

making process. It is essentially a pre-application procedure to ensure robust and

comprehensive applications.


Head 79. Fees

Provide that

(1) The Board may determine fees that may be charged, subject to the approval of the Minister,

in relation to any matter referred to in this Part and a fee as so determined shall be payable to

the Board by any person concerned as appropriate.

(2) The Board may, subject to the approval of the Minister, provide for the payment of different

fees in relation to different classes or descriptions of development, for exemption from the

payment of fees in specified circumstances and for the waiver, remission or refund in whole or

in part of fees in specified circumstances

(3) The Board shall review the fees determined under subsection (1) from time to time, but at

least every three years, having regard to any change in the consumer price index since the

determination of the fees for the time being in force, and may amend the fees to reflect the

results of that review, without the necessity of the Minister’s approval under subsection (1).

(4) For the purposes of this section, “change in the consumer price index” means the difference

between the All Items Consumer Price Index Number last published by the Central Statistics

Office before the date of the determination under this section and the said number last

published before the date of the review under subsection (3), expressed as a percentage of the

last-mentioned number.

(5) Where the Board determines or amends fees in accordance with this section, it shall give

notice of the fees in at least one newspaper circulating in the State, not less than 8 weeks

before the fees come into effect.

Notes:

This Head provides for the Board, subject to ministerial approval, to set the fees chargeable in

relation to discharge of its functions under this Part 5. A review of the fees is required at least

every three years.


Head 80. Judicial Review

Provide that:

(1) Where a question of law arises on any matter with which the Board is concerned, the Board

may refer the question to the High Court for decision.

(2) A person shall not question the validity of any decision made or other act done by the Board

in the performance or purported performance of a function under this Act, otherwise than by

way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I.

No. 15 of 1986) (the ‘Order’).

(3) the Board may, at any time after the bringing of an application for leave to apply for judicial

review of any decision or other act to which subsection (2) applies and which relates to a matter

for the time being before the Board, apply to the High Court to stay the proceedings pending the

making of a decision by the Board in relation to the matter concerned.

(4) On the making of such an application, the High Court may, where it considers that the matter

before the Board is within the jurisdiction of the Board, make an order staying the proceedings

concerned on such terms as it thinks fit.

(5) Subject to subsection (7), an application for leave to apply for judicial review under the Order

in respect of a decision or other act to which subsection (2) applies shall be made within the

period of 8 weeks beginning on the date of the decision or, as the case may be, the date of the

doing of the act by the Board.

(6) Subject to subsection (7), an application for leave to apply for judicial review under the Order

in respect of a decision or other act to which subsection (2) applies shall be made within the

period of 8 weeks beginning on the date on which notice of the decision or act was f irst sent.

(7) The High Court may extend the period provided for in subsection (5) or (6) within which an

application for leave referred to in that subsection may be made but shall only do so if it is

satisfied that—

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within

the period so provided were outside the control of the applicant for the extension.

(8) References in this section to the Order shall be construed as including references to the

Order as amended or replaced (with or without modification) by rules of court.

Notes:

Heads 80-82 will need to reflect the analogous revised provisions of the Housing and Planning

and Development 2019 once enacted.


Head 81. Supplemental

Provide that

1) In this section—

‘Court’, where used without qualification, means the High Court (but this definition shall not be

construed as meaning that subsections (2) to (6) and (9) do not extend to and govern the

exercise by the Supreme Court of jurisdiction on any appeal that may be made);

‘Order’ shall be construed in accordance with head 80;

‘section 54A leave’ means leave to apply for judicial review under the Order in respect

of a decision or other act to which head 80 (2) applies.

(2) (a) An application for head 80 leave shall be made by motion ex parte and shall be grounded

in the manner specified in the Order in respect of an ex parte motion for leave.

(b) The Court hearing the ex parte application for leave may decide, having regard to the issues

arising, the likely impact of the proceedings on the respondent or another party, or for other

good and sufficient reason, that the application for leave should be conducted on a n inter partes

basis and may adjourn the application on such terms as it may direct in order that a notice may

be served on that person.

(c) If the Court directs that the leave hearing is to be conducted on an inter partes basis it shall

be by motion on notice (grounded in the manner specified in the Order in respect of an ex parte

motion for leave)—

(i) if the application relates to a decision made or other act done by the Board on

referral, to the Board and each party or each other party, as the case may be, to the

referral,

(ii) if the application relates to a decision made or other act done by the Board on an

application for permission, to the Board and to the applicant for the permission where

he or she is not the applicant for leave,

(iii) if the application relates to a decision made or other act done by the Board in the

performance or purported performance of a function referred to in head 80(2), to the

Board, and

(iv) to any other person specified for that purpose by order of the High Court.

(d) The Court may—

(i) on the consent of all of the parties, or

(ii) where there is good and sufficient reason for so doing and it is just and equitable in

all the circumstances,

treat the application for leave as if it were the hearing of the application for judicial

review and may for that purpose adjourn the hearing on such terms as it may direct. ]

(3) The Court shall not grant head 80 leave unless it is satisfied that—


(a) there are substantial grounds for contending that the decision or act concerned is

invalid or ought to be quashed, and

(b) (i) the applicant has a sufficient interest in the matter which is the subject of the

application, or

(ii) where the decision or act concerned relates to a development identified in or under

regulations made under section 176 of the P&D Act, for the time being in force, as being

development which may have significant effects on the environment, the applicant—

(I) is a body or organisation (other than a State authority, a public authority or

governmental body or agency) the aims or objectives of which relate to the

promotion of environmental protection,

(II) has, during the period of 12 months preceding the date of the application,

pursued those aims or objectives.

(4) A sufficient interest for the purposes of subsection (3)(b)(i) is not limited to an interest in

land or other financial interest.

(5) If the court grants head 80 leave, no grounds shall be relied upon in the application for

judicial review under the Order other than those determined by the Court to be substantial

under subsection (3)(a).

(6) The Court may, as a condition for granting head 80 leave, require the applicant for such

leave to give an undertaking as to damages.

(7) The determination of the Court of an application for head 80 leave or of an application for

judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the

Court to the Supreme Court in either case save with leave of the Court which leave shall only be

granted where the Court certifies that its decision involves a point of law of exceptional public

importance and that it is desirable in the public interest that an appeal should be taken to the

Supreme Court.

(8) Subsection (7) shall not apply to a determination of the Court in so far as it involves a

question as to the validity of any law having regard to the provisions of the Constitution.

(9) If an application is made for judicial review under the Order in respect of part only of a

decision or other act to which head 80(2) applies, the Court may, if it thinks fit, declare to be

invalid or quash the part concerned or any provision thereof without declaring invalid or

quashing the remainder of the decision or other act or part of the decision or other act, and if

the Court does so, it may make any consequential amendments to the remainder of the decision

or other act or the part thereof that it considers appropriate.

(10) The Court shall, in determining an application for head 80 leave or an application for judicial

review on foot of such leave, act as expeditiously as possible consistent with the administration

of justice.

(11) On an appeal from a determination of the Court in respect of an application referred to in

subsection (10), the Supreme Court shall—

(a) have jurisdiction to determine only the point of law certified by the Court under

subsection (7) (and to make only such order in the proceedings as follows from such

determination), and


(b) in determining the appeal, act as expeditiously as possible consistent with the

administration of justice.

(12) Rules of court may make provision for the expeditious hearing of applications for section

54A leave and applications for judicial review on foot of such leave.

Notes:

This Head sets out certain detailed procedural matters in relation to judicial review, including

provision for the High Court to treat the application for leave as if it were the hearing of the

application for judicial review. Leave can only be granted if the Court is satisfied that there are

substantial grounds for contending the decision or act should be quashed and that the applicant

for leave has sufficient interest in the matter. However, a wider discretion is allowed to the

Court in relation to admission of applications from non-governmental organisations with an

interest in the environment, where the application is in relation to a case concerning European

environmental law.

(It should be noted that heads 80-82 will reflect the updated Housing and Planning and

Development Bill 2019 General Scheme once approved by the Government.)

See Head 80 note.


Head 82. Costs in Environmental Matters

Provide that:

(1) This section applies to proceedings of the following kinds:

(a) proceedings in the High Court by way of judicial review, or of seeking leave

to apply for judicial review, of—

(i) any decision or purported decision made or purportedly made,

(ii) any action taken or purportedly taken,

(iii) any failure to take any action,

pursuant to a statutory provision that gives effect to—

(I) a provision of Council Directive 85/337/EEC of 27 June 1985 to which Article 10a

(inserted by Directive 2003/35/EC of the European Parliament and of the Council of

26 May 2003 providing for public participation in respect of the drawing up of

certain plans and programmes relating to the environment and amending with

regard to public participation and access to justice Council Directive 85/337/EEC and

96/61/EC) of that Council Directive applies,

(II) Directive 2001/42/EC of the European Parliament and of the Council of 27 June

2001 on the assessment of the effects of certain plans and programmes on the

environment, or

(III) a provision of Directive 2008/1/EC of the European Parliament and of the

Council of 15 January 2008 concerning integrated pollution prevention and control

to which Article 16 of that Directive applies, or

(IV) paragraph 3 or 4 of Article 6 of the Habitats Directive; or

(b) an appeal (including an appeal by way of case stated) to the Supreme Court from a decision

of the High Court in a proceeding referred to in paragraph (a);

(c) proceedings in the High Court or the Supreme Court for interim or interlocutory relief in

relation to a proceeding referred to in paragraph (a) or (b).

(2) Notwithstanding anything contained in Order 99 of the Rules of the Superior Courts (S.I. No.

15 of 1986) and subject to subsections (3), (4) and (5), in proceedings to which this section

applies, each party to the proceedings (including any notice party) shall bear its own cost s.

(3) The costs of proceedings, or a portion of such costs, as are appropriate, may be awarded to

the applicant to the extent that the applicant succeeds in obtaining relief and any of those costs

shall be borne by the respondent or notice party, or both of them, to the extent that the actions

or omissions of the respondent or notice party, or both of them, contributed to the applicant

obtaining relief.

(4) The Court may award costs against a party in proceedings to which this section applies if the

Court considers it appropriate to do so—

(a) because the Court considers that a claim or counterclaim by the party is frivolous or

vexatious,


(b) because of the manner in which the party has conducted the proceedings, or

(c) where the party is in contempt of the Court.

(5) Subsection (2) does not affect the Court’s entitlement to award costs in favour of a party in a

matter of exceptional public importance and where in the special circumstances of the case it is

in the interests of justice to do so.

(6) In this section a reference to ‘the Court’ shall be construed as, in relation to particular

proceedings to which this section applies, a reference to the High Court or the Supreme Court,

as may be appropriate.]

(7) In this section ‘statutory provision’ means a provision of an enactment or instrument under

an enactment.

Notes:

This Head provides that, in review cases in the High Court or in the Supreme Court, concerning

European environmental law, each party (including notice parties) shall bear its own costs.

However, the Court may award costs or portion thereof to the applicant for judicial review in

certain circumstances. There is also discretion given to the Court to award costs against a party

in the case of certain misbehaviour, including contempt of Court, and to award costs in favour of

a party in a matter of exceptional public importance and where in the special circumstances of

the case it is in the interests of justice to do so.

(It should be noted that heads 80-82 will reflect the updated Housing and Planning and

Development Bill 2019 General Scheme once approved by the Government.)

See Head 80 note.


Head 83. Reports and documents of the Board

Provide that

1) The Board or an employee of the Board duly authorised by the Board may in connection with

the performance of any of the Board’s functions under this Act, ass ign a person to report on any

matter on behalf of the Board.

(2) A person assigned in accordance with subsection (1) shall make a written report on the

matter to the Board, which shall include a recommendation, and the Board shall consider the

report and recommendation before determining the matter.

(3) Where, during the consideration by it of any matter falling to be decided by it in

performance of a function under or transferred by this Act or any other enactment, the Board

either—

(a) is required by or under this Act or that other enactment to supply to any person

documents, maps, particulars or other information in relation to the matter, or

(b) considers it appropriate, in the exercise of its discretion, to supply to any person such

documents, maps, particulars or information (‘relevant material or information’),

subsection (4) applies as regards compliance with that requirement or such supply in the

exercise of that discretion.

(4) It shall be sufficient compliance with the requirement referred to in subsection (3) for the

Board—

(a) where an environmental impact assessment report is submitted with an application

or request for declaration, or any such report is received by the Board in the course of

considering an application or request, to place on its website for inspection and make

available for inspection and purchase by members of the public at the offices of the

Board from as soon as may be after receipt of such report—

(i) the application or request, as the case may be,

(ii) the environmental impact assessment report,

(iii) the notice or notices, as the case may be, published in one or more

newspapers circulating in the area in which it is proposed to carry out the

development, or off which the development is located, indicating the nature and

location of the proposed development or development, as the case may be,

(iv) any further information furnished by, or alterations to the terms of the

development made by, or a revised environmental impact assessment report

furnished by, the person who is proposing to carry out the development and

(v) any other relevant material or information, or

(b) in any other case, to do both of the following (or, as appropriate, the Board, in the

exercise of the discretion referred to in subsection (3), may do both of the following):

(i) make the relevant material or information available for inspection—


(I) at the offices of the Board or any other place, or

(II) by electronic means; and

(ii) notify the person concerned that the relevant material or information is so

available for inspection.

(5) Within 3 days following the making of a decision on any matter falling to be decided by it in

performance of a function under or transferred by this Act or under any other enactment, the

documents relating to the matter—

(a) shall be made available by the Board for inspection at the offices of the Board by

members of the public, and

(b) may be made available by the Board for such inspection—

(i) at any other place, or

(ii) by electronic means,

as the Board considers appropriate.

(6) Copies of the documents referred to in subsection (5) and of extracts from such documents

shall be made available for purchase at the offices of the Board, or such other places as the

Board may determine, for a fee not exceeding the reasonable cost of making the copy.

(7) The documents referred to in subsection (5) shall—

(a) where an environmental impact assessment was carried out, be made available for

inspection on the Board’s website in perpetuity beginning on the third day following the

making by the Board of the decision on the matter concerned, or

(b) where no environmental impact assessment was carried out, be made available by

the means referred to in subsection (5)(b) for a period of at least 7 years beginning on

the third day following the making by the Board of the decision on the matter

concerned.

Notes:

This Head makes provision for assignment of a person (i.e. an Inspector) to report on any matter

to the Board, in writing with a recommendation for the Board’s consideration. It also provides

for public access to documents relevant to applications to the Board, including Inspectors’

reports.

Subsection (4) - maybe question over use of word “declaration”.

Sections 5 and 57 of the P&D Act include the making of a declaration by a planning authority,

but these are reviewable by the Board which goes on to issue a decision.

May need to add in a provision similar to Section 5 (what is development and what is exempted

development), but acted upon by the Board.


Head 84. Oral hearing of applications and determinations

Provide that

(1) The Board may in its absolute discretion, hold an oral hearing of an application under head

67 or 76.

(2) An applicant for permission under head 67 or for an alteration under head 76 may request an

oral hearing of the application and such request for an oral hearing shall be submitted with the

application under head 67 or 76, as the case may be.

(3) Any person who makes an observation in relation to an application under head 67 or 76 may

request an oral hearing of the application and such request for an oral hearing shall be

submitted with the observation under head 67 or 76, as the case may be.

(1) (a) A request for an oral hearing shall be made in writing to the Board and shall be

accompanied by such fee (if any) as may be payable in respect of the request in

accordance with head 79.

(b) A request for an oral hearing which is not accompanied by such fee (if any) as may be

payable in respect of the request shall not be considered by the Board.

Notes:

This Head mirrors the authority given to the Board, under section 134A of the Planning and

Development Act, 2000, as amended, to convene Oral Hearings in relation to applications under

the provisions of Head 67 and 76 of this Part.


CHAPTER 3

Environmental Impact Assessment for Offshore Development

This Chapter applies the main provisions of the EIA Directive 2011/92/EU, as amended by

Directive 2014/52/EU, in respect of the assessment of the effects of certain public and private

projects on the environment i.e. environmental impact assessment.


Head 85. Interpretation

Provide that

In this Part—

‘environmental impact assessment’ means a process—

(a) consisting of—

(i) the preparation of an environmental impact assessment report by the applicant in

accordance with this Act and regulations made thereunder,

(ii) the carrying out of consultations in accordance with this Act and regulations made

thereunder,

(iii) the examination by the Board of—

(I) the information contained in the environmental impact assessment report,

(II) any supplementary information provided, where necessary, by the applicant

in accordance with head 86(4) and (5), and

(III) any relevant information received through the consultations carried out

pursuant to subparagraph (ii),

(iv) the reasoned conclusion by the Board on the significant effects on the environment

of the proposed development, taking into account the results of the examination carried

out pursuant to subparagraph (iii) and, where appropriate, its own supplementary

examination, and

(v) the integration of the reasoned conclusion of the Board into the decision on the

proposed development, and

(b) which includes—

(i) an examination, analysis and evaluation, carried out by the Board in accordance with

this Part and regulations made thereunder, that identifies, describes and assesses, in an

appropriate manner, in the light of each individual case, the direct and indirect

significant effects of the proposed development on the following:

(I) population and human health;

(II) biodiversity, with particular attention to species and habitats protected

under the Habitats Directive and the Birds Directive;

(III) land, soil, water, air and climate;

(IV) material assets, cultural heritage and the landscape;

(V) the interaction between the factors mentioned in clauses (I) to (IV), and

(ii) as regards the factors mentioned in subparagraph (i)(I) to (V), such examination,

analysis and evaluation of the expected direct and indirect significant effects on the

environment derived from the vulnerability of the proposed development to risks of


major accidents or disasters, or both major accidents and disasters, that are relevant to

that development;

Notes:

This Head sets out definitions regarding the EIA process, based primarily on provisions of the EIA

Directive 2011/92/EU, as amended by Directive 2014/52/EU.


Head 86. Requirement for Environmental Impact Assessment Report

Provide that

(1) An environmental impact assessment shall be carried out by the Board in respect of an

application for permission for proposed development where either—

(a) the proposed development would be of a class specified in—

(i) Part 1 of Schedule 5 of the Planning and Development Regulations 2001, and

either—

(I) such development would equal or exceed, as the case may be, any

relevant quantity, area or other limit specified in that Part, or

(II) no quantity, area or other limit is specified in that Part in respect of

the development concerned,

or

(ii) Part 2 (other than subparagraph (a) of paragraph 2) of Schedule 5 of the

Planning and Development Regulations 2001 and either—

(I) such development would equal or exceed, as the case may be, any

relevant quantity, area or other limit specified in that Part, or

(II) no quantity, area or other limit is specified in that Part in respect of

the development concerned,

or

(b)

(i) the proposed development would be of a class specified in Part 2 of Schedule

5 of the Planning and Development Regulations 2001 but does not equal or

exceed, as the case may be, the relevant quantity, area or other limit specified in

that Part, and

(ii) it is concluded, determined or decided by the Board, in exercise of the

powers conferred on it by this Act, that the proposed development is likely to

have a significant effect on the environment.

(2) An applicant for permission to carry out a proposed development referred to in subsection

(1)(a) shall furnish an environmental impact assessment report, which shall be prepared by

experts with the competence to ensure its completeness and quality, to the Board, in

accordance with the permission regulations.


(3) Where the Board receives an application for permission for proposed development referred

to in paragraph (b) of subsection (1) in relation to which the Board has made a determination

referred to in that paragraph, and the application is not accompanied by an environmental

impact assessment report, the Board shall require the applicant to submit an environmental

impact assessment report and where the environmental impact assessment report is not

submitted within the period specified, or any further period as may be specified by the Board,

the application for consent for the proposed development shall be deemed to be withdrawn.

(4) (a) The Board shall consider whether an environmental impact assessment report

submitted under this section identifies and describes adequately the direct and indirect

significant effects on the environment of the proposed development.

(b) Where the Board considers that the environmental impact assessment report does

not identify or adequately describe such effects, it shall require the applicant for

permission to furnish, within a specified period, such further information, prescribed

under head 91, which is necessary to ensure the completeness and quality of the

environmental impact assessment report and which is directly relevant to reaching the

reasoned conclusion on the significant effects on the environment of the proposed

development, as the Board considers necessary to remedy such defect.

(5) In addition to any requirement arising under subsection (4), the Board shall require an

applicant for consent to furnish, within a specified period, any further information that the

Board considers necessary to enable it to carry out an environmental impact assessment under

this section.

(6) Where information required by the Board under subsection (4) or subsection (5) is not

furnished by the applicant for consent within the period specified, or any further period as may

be specified by the Board, the application for consent for the proposed development shall be

deemed to be withdrawn.

(7) In carrying out an environmental impact assessment under this section the Board shall

consider—

(a) the environmental impact assessment report;

(b) any further information furnished to the Board pursuant to subsections (4) or (5);

(c) any submissions or observations validly made in relation to the environmental effects

of the proposed development;

(d) the views, if any, provided by any other Member State under head 88 or Regulations

made under that section.


(8) (a) Paragraph (b) applies where an environmental impact assessment under this section

and an appropriate assessment following a determination under chapter 4 of this part are

required to be carried out simultaneously in respect of the same development.

(b) The Board shall coordinate the 2 assessments.

(9) In carrying out an environmental impact assessment under this section the Board shall

ensure it has, or has access as necessary to, sufficient expertise to examine the environmental

impact assessment report to ensure its completeness and quality and may have regard to and

adopt in whole or in part any reports prepared by its officials or by consultants, experts or other

advisers.

(10) (a) Where the Board decides to grant permission for the proposed development, it shall—

(i) attach such conditions, if any, to the grant as it considers necessary, to avoid,

prevent or reduce and, if possible, offset the significant adverse effects on the

environment of the proposed development,

(ii) in the decision, specify the features, if any, of the proposed development and

the measures, if any, envisaged to avoid, prevent or reduce and, if possible,

offset the significant adverse effects on the environment of the proposed

development, and

(iii) subject to paragraph (b), where appropriate, specify in the decision

measures to monitor the significant adverse effects on the environment of the

proposed development, being measures which, as regards the types of

parameters to be monitored and the duration of the monitoring, are

proportionate to the nature, location and size of the proposed development and

the significance of the effects on the environment of the proposed development.

(b) Where the Board decides to grant permission for the proposed development, it may,

if appropriate to avoid duplication of monitoring, and without prejudice to existing

monitoring arrangements pursuant to national or European Union legislation (other than

the Environmental Impact Assessment Directive), identify those arrangements (or such

of those arrangements as it thinks appropriate in the particular case) to be used for the

purpose of paragraph (a)(iii).]

(11) When the Board has decided whether to grant or to refuse permission for the proposed

development, it shall inform the applicant for permission and the public of the decision and shall

make the following information available to the applicant for permission and the public:

(a) the content of the decision and any conditions attached thereto;


(b) an evaluation of the direct and indirect significant effects of the proposed

development on the matters set out in paragraph (b) of the definition of ‘environmental

impact assessment’ in head 85;

(c) having examined any submission or observation validly made,

(i) the main reasons and considerations on which the decision is based, and

(ii) the main reasons and considerations for the attachment of any conditions,

including reasons and considerations arising from or related to submissions or

observations made by a member of the public;

(d) any report referred to in subsection (9);

(e) information for the public on the procedures available to review the substantive and

procedural legality of the decision, and

(f) the views, if any, furnished by other Member States of the European Union pursuant

to head 88.

(12) The Minister may make permission regulations in relation to the submission of planning

applications which are to be accompanied by environmental impact assessment reports.

(13) (a) (i) At the request of an applicant or of a person intending to apply for permission,

the Board may take the action specified in subparagraph (ii) where the Board is satisfied that—

(I) exceptional circumstances so warrant,

(II) the application of the requirement to prepare an environmental

impact assessment report would adversely affect the purpose of the

proposed development, and

(III) the objectives of the Environmental Impact Assessment Directive are

otherwise met.

(ii) Subject to subparagraph (iii), the Board may grant in respect of the proposed

development an exemption from a requirement of or under regulations under this

section to prepare an environmental impact assessment report.

(iii) No exemption may be granted under subparagraph (ii) in respect of the proposed

development if another Member State of the European Union or other state party to the

Transboundary Convention, having been informed about the proposed development and

its likely significant effects on the environment in that State or state, as the case may be,

has indicated that it intends to furnish views on those effects.

(b) The Board shall, in granting an exemption under paragraph (a), —


(i) consider whether the effects, if any, of the proposed development on the

environment should be assessed in some other form, and

(ii) make available to members of the public the information relating to the

exemption decision referred to under paragraph (a), the reasons for granting

such exemption and the information obtained under any other form of

assessment referred to in subparagraph (i),

and the Board may apply such requirements regarding these matters in relation to the

application for permission as it considers necessary or appropriate.

(c) Notice of any exemption granted under paragraph (a), of the reasons for granting the

exemption, and of any requirements applied under paragraph (b) shall, as soon as may

be—

(i) be published in Iris Oifigiuil and in at least one daily newspaper published in

the State,

(ii) be given, together with a copy of the information, if any, made available to

the members of the public in accordance with paragraph (b), to the Commission

of the European Communities.

Notes:

Head 86 implements the relevant provisions of the EIA Directive for the carrying out of

Environmental Impact Assessment, by the Board, of proposed development coming within the

scope of the EIA Directive (as transposed into the Planning and Development Regulations, 2001,

as amended).

An applicant for permission, under Head 67, in respect of such development, including so called

“sub-threshold” development likely to have significant effects on the environment, is required

to submit to the Board an environmental impact assessment report (EIAR), prepared by

competent experts. Where such application is not accompanied by an EIAR, the Board shall

require the applicant to submit same. Provision is made for the Board to seek further

information where it considers that the EIAR does not adequately describe the significant effects

of the proposed development on the environment. The Board is required to have access to

appropriate expertise to examine the EIAR in respect of completeness and quality.

If permission is granted by the Board, it is required to attach any necessary conditions and

specify features of the development, if any, which relate to mitigation of adverse environmental

impacts and to specify proportionate measures for monitoring of impacts.

Head 86 includes detailed requirements in relation to informing the applicant and the public of

its decision to grant or refuse permission, including giving reasons and considerations for its

decision and providing information in relation to possible review of its decision.


In accordance with the Directive, there is authority given to the Board to exempt a development

from EIA in exceptional and limited circumstances, provided the objectives of the EIA Directive

are otherwise met.

The Minister has authority, under Head 86, to make further regulations in respect of planning

applications accompanied by an EIAR.


Head 87.Provision of Information by Applicants to EIA Portal

Provide that

(1) Subject to subsection (2), an applicant for permission for proposed development shall, within

the period of 2 weeks before—

(a) the making of an application for such permission which is to be accompanied by an

environmental impact assessment report, or

(b) the submission of an environmental impact assessment report when required by the

Board, as the case may be, to do so, provide the prescribed information in electronic

form to the EIA portal in the manner set out on the portal.

(2) Where it is provided for in national legislation that a person other than the applicant for

permission for proposed development shall provide information to the EIA portal, that person

shall, not later than public notification of a proposed development which is to be accompanied

by an environmental impact assessment report, provide the prescribed information in electronic

form to the EIA portal in the manner set out on the portal.

Notes:

This Head provides for upload of the relevant information to the EIA Portal, in the case of

applications for permission where an EIAR is required. Further detail will be set out in

regulation.

Those provisions would need to mirror and reflect Part 10 Articles 97A, 97B & 97C of the

planning and development regulations.


Head 88. Transboundary Environmental Impacts

Provide that

(1) (a) The Minister may make regulations in respect of applications for development which

require the submission of an environmental impact assessment report, where the Board

in dealing with any application is aware that the development is likely to have significant

effects on the environment in another Member State of the European Communities or a

state which is a party to the Transboundary Convention or where the other State

concerned considers that the development would be likely to have such effects.

(b) Without prejudice to the generality of paragraph (a), regulations under this

subsection may make provision for the following:

(i) the notification of the Minister regarding the application;

(ii) the submission of information to the Minister regarding the application;

(iii) the notification of the other State involved and the provision of information

to that State;

(iv) the making of observations and submissions regarding the application from

the other State involved and the entering into consultations with that State;

(v) the extension of time limits for the making of decisions under this Act.

(2) The Board shall have regard, where appropriate, to the views of any Member State of

the European Communities or other party to the Transboundary Convention in relation

to the effects on the environment of the proposed development.

(3) Notwithstanding any other provisions of this Act, the Board may, following the

consideration of any submissions or observations received or any consultations entered

into by the Board, impose conditions on a grant of permission in order to reduce or

eliminate potential transboundary effects of any proposed development.

(4) In any case where—

(a) notification has been received from another Member State of the European

Communities or other party to the Transboundary Convention, in respect of any

development, or

(b) a planning authority or a State authority requests, or in any other case where the

Minister otherwise decides,

the Minister may request another Member State of the European Communities or other

party to the Transboundary Convention to forward information in respect of any

development which is subject to the Environmental Impact Assessment Directive or

Transboundary Convention and which is likely

to have significant environmental effects in Ireland’s Maritime Area.


(5) (a) The Minister or the Board, having consulted with the Minister, may decide to forward

submissions or observations to, or enter into discussions with, the other state involved

in respect of the development referred to in subsection (4) regarding the potential

transboundary effects of that development and the measures envisaged to reduce or

eliminate those effects.

(b) The Minister may make regulations regarding the provision of public notification of

any environmental impact assessment report or other information received by the

Minister or the Board under subsection (4), and the making of submissions or

observations regarding the information.

(6) The Minister may enter into an agreement with any other Member State of the

European Communities or other party to the Transboundary Convention regarding the

detailed procedures to be followed in respect of consultations regarding proposed

developments which are likely to have significant transboundary effects.

Notes:

Head 88 sets out provisions based on generally similar requirements in the EIA Directive

2011/92/EU, as amended by Directive 2014/52/EU. These concern a case where a proposed

development is likely to have significant effects on the environment in another Member State of

the European Communities or a state which is a party to the Transboundary Convention (Espoo)

or where the other State concerned considers that the development would be likely to have

such effects. The Board is required to have regard to the views of that State and may impose

relevant conditions to reduce or eliminate transboundary environmental impacts. Further detail

in this regard will be set out in regulations, including in respect of notifying and informing the

other State and providing for submissions from that State.

Provision is also made under Head 88 for the Minister or the Board (following consultation with

the Minister) to make submissions to or hold consultations with another State in respect of a

proposed development in that State, which is likely to have significant transboundary effects on

Ireland’s Maritime Area.

The Minister may enter into an agreement with any other Member State of the European

Communities or other party to the Transboundary Convention regarding the detailed procedures

to be followed in respect of consultations.


Head 89. Application for screening for Environmental Impact Assessment

Provide that

(1) In this section and head 90 —

‘screening determination for environmental impact assessment’ means a determination

made as part of a screening for environmental impact assessment:

(a) as to whether a proposed development would be likely to have significant effects on

the environment, and

(b) if the development would be likely to have such effects, that an environmental

impact assessment is required.

(2) (a) Subject to head 90, where a proposed development is of a class standing specified in

Part 2 of Schedule 5 to the Planning and Development Regulations 2001 and does not equal or

exceed, as the case may be, the relevant quantity, area or other limit standing specified in that

Part, an application for a screening for environmental impact assessment in respect of that

development may be submitted to the Board.

(b) Subject to head 90, where a proposed development is of a class standing prescribed

under section 176 of the Planning and Development Act for the purposes of this

paragraph, an application for a screening for environmental impact assessment in

respect of that development shall be submitted to the Board.

(3) An application under subsection (2) shall contain—

(a) the name and address of the applicant,

(b) where the applicant is

(i) not in possession of a Planning Interest in respect of the proposed

development

the name and address of the person in possession of a Planning Interest

(c) a location map

(d) a description of the nature and extent of the proposed development, its

characteristics, its likely significant effects on the environment (including the

information specified in Schedule 7A to the Planning and Development Regulations

2001) including, where relevant, information on how the available results of other

relevant assessments of the effects on the environment carried out pursuant to

European Union legislation other than the Environ- mental Impact Assessment Directive

have been taken into account, and


(e) any such other information as may be prescribed by the Minister,

and be accompanied by such fee as may be prescribed by the Board.

(4) An application under subsection (2) may be accompanied by a description of the features, if

any, of the proposed development and the measures, if any, envisaged to avoid or prevent what

might otherwise have been significant adverse effects on the environment.

(5) For the purposes of enabling the Board to carry out a screening for environmental impact

assessment on foot of an application under subsection (2), the Board may do either or both—

(a) seek further information that it considers necessary from the applicant or any other

person that the Board considers appropriate, and

(b) consult any person, including those bodies set out in Head 51 where the application

may relate to their function or activities

and consider any submissions or observations made by that person, and, where paragraph (a) or

(b) applies, the Board shall specify the period within which the information or views concerned

are required to be received by the Board.

(6) Subject to subsection (7), where the applicant is

(i) not in possession of a Planning Interest in respect of the proposed

development or

(ii) not the owner or occupier of the land the subject of the proposed

development,

the Board shall invite in writing—

(a) the person in possession of a Planning Interest in respect of the proposed

development, or

(b) the owner, or

(c) where the owner is not the occupier of the land, the occupier of that land

to make a submission on an application made under subsection (2), and the Board shall

specify the period within which the submission or submissions is or are required to be

received by the Board.

(7) The invitation under subsection (6) shall state that:


development, or

(b) the owner, or

(c) where the owner is not the occupier of the land, the occupier of that land,


may provide a description of the features, if any, of the proposed development and the

measures, if any, envisaged to avoid or prevent what might otherwise have been

significant adverse effects on the environment of the development.

(8) The Board may reject an application under subsection (2) if in the opinion of the Board

the application is incomplete in any material detail.

(9) Where the Board rejects an application in accordance with subsection (8), it shall—

(a) subject to subsection (10), return the documents to which subsection (3)

relates to the applicant, and

(b) give reasons for its decision to the applicant,

And where the applicant is not


development, or

(b) the owner of the land , or

(c) where the owner is not the occupier of the land, the occupier of that land,

the Board shall also notify person in possession of a Planning Interest in respect of the proposed

development, the owner and, where the owner is not the occupier of the land, the occupier, of

its decision under subsection (8).

(10) Subsection (9) is without prejudice to the Board —

(a) making a copy of a document,

(b) retaining an electronic copy of a document, or

(c) by agreement with the applicant concerned, retaining a document,

to which that subsection relates.

Notes

This Head sets out detailed provisions for an application to the Board to determine whether

environmental impact assessment is required, including submission of an EIAR, in relation to so

called “sub-threshold” development. That is a development of a class specified in Part 2 of

Schedule 5 to the Planning and Development Regulations 2001, but which falls below the

relevant quantity, area or other limit set out in Part 2 of Schedule 5.

Consideration needs to be given to subhead 6 in the context of the limitations on the Minister

for Housing, Planning and Local Government exercising any power or control over individual

planning applications or applications under this Act. Any such consultation, if required, would

likely need to be strictly limited.


Head 90. Screening for Environmental Impact Assessment

Provide that

(1) The Board shall, where appropriate, carry out screening for appropriate assessment in

respect of a proposed development as provided for by head 95 at the same time as

carrying out a screening for environmental impact assessment in respect of the

development under subsection (2).

(2) Subject to subsections (1) and (3), the Board shall, on foot of an application under

subsection (2) of head 89 and to which subsections (8) and (9) of that section do not

relate, carry out a screening for environmental impact assessment in respect of the

proposed development

(a) where further information, views or submissions—

(i) are duly sought by the Board under subsection (5) or (6) of head 89,

and

(ii) are duly received by the Board within the period specified under the

said subsection (5) or (6), within the period of 3 weeks from the date

that such information, views or submissions are so received,

or

(b) where further information, views or submissions are not sought by the

planning authority under subsection (5) or (6) of head 89, as the case may

be, within the period of 4 weeks from the receipt of the application under

head 89(2).

(3) (a) Subject to paragraph (b), the Board shall not be required to comply with subsection

(2)(a) or (b) within the period of 3 weeks or 4 weeks, as the case may be, referred to in that

subsection where it appears to the Board that it would not be possible or appropriate, because

of the exceptional circumstances of the proposed development (including in relation to the

nature, complexity, location or size of such development) to do so.

(b) Where paragraph (a) applies, the Board shall, by notice in writing served on—

(i) the applicant,

(ii) the person in possession of a Planning Interest in respect of the proposed

development,

(iii) the owner of the land the subject of the proposed development, if he or she

is not the applicant,

(iv) the occupier of the land the subject of the proposed development, if he or

she is not the applicant or owner of such land, and


(v) any other person from whom further information was sought or any body

which was consulted pursuant to head 89(5),

before the expiration of the period of 3 weeks or 4 weeks, referred to in subsection

(2)(a) or (b), as the case may be, inform him or her of the reasons why it would not be

possible or appropriate to comply with that subsection within that period and shall

specify the date before which the Board intends that the screening determination for

environmental impact assessment concerned shall be made.

(4)(a) Before making a decision on an application under head 89(2), the Board shall—

(i) consider the criteria for determining whether a development would or would not be

likely to have significant effects on the environment, as set out in Schedule 7 to the

Planning and Development Regulations 2001,

(ii) take into account—

(I) the information provided pursuant to head 89(3)(d), and

(II) the available results, where relevant, of preliminary verifications or

assessments of the effects on the environment carried out pursuant to European

Union legislation other than the Environmental Impact Assessment Directive,

and

(iii) have regard to any description, information, views or submissions received in

accordance with head 89(5) or (6) and, where relevant, head 89(6) or (7).

(b) The Board shall include, or refer to, in its screening determination for environmental

impact assessment made under this section, the main reasons and considerations, with

reference to the relevant criteria listed in Schedule 7 to the Planning and Development

Regulations 2001, on which such determination is based.

(6) (a) Paragraph (b) applies where the screening determination for environmental impact

assessment made under this section is that the proposed development would not be

likely to have significant effects on the environment and there has been provided, under

head 89(4) or (7), as the case may be, a description of the features, if any, of the

proposed development and the measures, if any, envisaged to avoid or prevent what

might otherwise have been significant adverse effects on the environment of the


(b) The Board shall specify such features, if any, and such measures, if any, in its

screening determination for environmental impact assessment made under this section.

(6) The Board shall give notice in writing of its screening determination for environmental

impact assessment made under this section to—


(a) the applicant,

(b) any person or body consulted under head 89(5), and

(c) where head 89(6) applies,

(i) the applicant,


development,







as appropriate in the circumstances,

and the notice shall include the Board’s reasons for that determination.

(7) The notice under subsection (6) shall be placed with any application for permission for

proposed development subsequently made in respect of which an application for a screening for

environmental impact assessment was made under head 89(2).

(8) The Board shall publish the screening determination for environmental impact assessment,

either or both—

(a) on its website, and

(b) in a national newspaper, together with a notice

stating that a person may question the validity of the screening determination for

environmental impact assessment by the Board, by way of an application for judicial review,

under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986), in accordance with

heads 80 and 81, and identifying where practical information on the mechanism for questioning

the validity of the determination can be found.

(9)(a) Where the Board makes a screening determination for environmental impact assessment

under this section, the following documents shall, within 3 working days, be placed on its

website for inspection and be made available for inspection and purchase by members of the

public during office hours for at least the minimum period referred to in paragraph (b):

(i) a copy of the application made under head 89(2) and any description, information,

views, submissions, particulars, evidence, written study or further information received

or obtained from—

(i) the applicant,



development,







(ii) a copy of any report prepared by or for the Board in relation to the application, and

(iii) a copy of the screening determination for environmental impact assessment made

under this section by the Board.

(c) The minimum period for the purposes of paragraph (a) is 8 weeks from the

date of the screening determination for environmental impact assessment

made under this section by the Board.

Notes:

This Head applies the generally similar provisions of the EIA Directive 2011/92/EU, as amended

by Directive 2014/52/EU, to the determination by the Board of whether Environmental Impact

Assessment is required of a proposed so called “sub-threshold” development. That is a

development of a class specified in Part 2 of Schedule 5 to the Planning and Development

Regulations 2001, but which falls below the relevant quantity, area or other limit set out in Part

2 of Schedule 5.

Subsection (4)(a) - Schedule 7 should be duplicated in Regulations relating to the standalone

legislation.


Head 91. Prescribed Information regarding environmental impact assessment reports

Provide that

(1) The Minister may prescribe the information that is to be contained in an environmental

impact assessment report.

(2) Any reference in an enactment to the information to be contained in an environmental

impact statement specified under Article 25 of the European Communities (Environmental

Impact Assessment) Regulations, 1989, shall be deemed to be a reference to information

prescribed under this section.

Notes:

Head 91 provides for the making of regulations by the Minister regarding EIARs. These will be

based essentially on the requirements of the EIA Directive 2011/92/EU, as amended by Directive

2014/52/EU.


CHAPTER 4

Appropriate Assessment for Offshore Development

This Chapter applies relevant provisions of Article 6(2), 6(3) and 6(4) of the Habitats Directive

92/43/EEC (applicable also to sites designated under the Birds Directive 2009/147/EC) in respect

of proposed offshore developments and assessment of their impact on the Natura 2000 network

of European Sites (Special Areas of Conservation and Special Protection Areas). It mirrors, with

relevant changes, similar provisions in the Planning and Development Act, 2000, as amended.

Notes:

Should look at whether the use of the word “consent” should be retained in Chapter 4 or should

be changed to “permission”.


Head 92. Interpretation

Provide that

(1) In this Part—

‘appropriate assessment’ shall be construed in accordance with head 96;

‘candidate site of community importance’ means—

(a) a site—

(i) in relation to which the Minister has given notice pursuant to regulations

under the European Communities Act 1972 that he or she considers the site may

be eligible for identification as a site of Community importance pursuant to

Article 4, paragraph 1 of the Habitats Directive, which notice may be amended in

accordance with such regulations under the European Communities Act 1972,

(ii) that is included in a list transmitted to the Commission in accordance with

Article 4, paragraph 1 of the Habitats Directive, or

(iii) that is added in accordance with Article 5 of the Habitats Directive, to the list

transmitted to the European Commission pursuant to Article 4, paragraph 1 of

the Habitats Directive,

but only until the adoption in respect of the site of a decision by the European

Commission under Article 21 of the Habitats Directive for the purposes of the third

paragraph of Article 4(2) of that Directive; or

(b) a site—

(i) which is subject to a consultation procedure in accordance with Article 5(1) of

the Habitats Directive, or

(ii) in relation to which a Council decision is pending in accordance with Article

5(3) of the Habitats Directive;

‘candidate special area of conservation’ means a site that is a candidate site of Community

importance or a site of Community importance;

‘candidate special protection area’ means a site in relation to which the Minister for Culture,

Heritage and the Gaeltacht has given notice pursuant to regulations under the European

Communities Act 1972 that he or she considers that the site may be eligible for classification as

a special protection area pursuant to Article 4 of the Birds Directive but only until the public

notification of the making of a decision by that Minister to classify or not to classify such a site

as a special protection area;

‘compensatory measures’ shall be construed in accordance with section 205(8) in relation to

granting permission for proposed development;

‘competent authority’ shall be construed in accordance with head 93

‘consent for proposed development’ shall be construed in accordance with head 95(8);

‘European site’ means—


(a) a candidate site of Community importance,

(b) a site of Community importance,

(c) a candidate special area of conservation,

(d) a special area of conservation,

(e) a candidate special protection area,

(f) a special protection area;

‘Land use plan’ means—

(a) regional spatial and economic strategy,

(b) a planning scheme in respect of all or any part of a strategic development zone,

(c) an amendment of a planning scheme in respect of all or any part of a strategic

development zone,

(d) a development plan,

(e) a variation of a development plan, or

(f) a local area plan;

‘Marine spatial plan’ shall be construed in accordance with Part 3 of this Act

“maritime area” has the meaning given to it by Head 7 of this Bill;

‘maritime zone’ means any of the internal waters, territorial sea, contiguous zone, exclusive

economic zone and continental shelf of the State;

‘Natura 2000 network’ has the meaning assigned to it by Article 3, paragraph 1 of the Ha bitats

Directive;

‘Natura impact report’ shall be construed in accordance with head 94;

‘Natura impact statement’ shall be construed in accordance with head 94;

“nearshore area” has the meaning given to it by Head 8 of this Bill ,

‘proposed development’ shall be construed

(a) in accordance with Head 48 of this Act

and

(b) notwithstanding that the development has been carried out, development in relation

to which an application for substitute consent is required under Part ?

‘screening for appropriate assessment’ shall be construed in accordance with head 95;

‘site of community importance’ means a site that has been included in the list of sites of

Community importance as adopted by the Commission in accordance with the procedure laid

down in Article 21 of the Habitats Directive;

‘special area of conservation’ means a site that has been designated by the Minister as a special

area of conservation pursuant to Article 4, paragraph 4 of the Habitats Directive;

‘special protection area’ means an area classified by the Minister pursuant to Article 4,

paragraph 1 or Article 4, paragraph 2 of the Birds Directive, as a special protection area;


‘Strategic Marine Activity Zones’ shall be construed in accordance with Part 3 of this Act.

(2) Subject to this Part, a word or expression that is used in this Part, and that is also used in the

Habitats Directive or the Birds Directive has, unless the context otherwise requires, the same

meaning in this Part as it has in the Habitats Directive or the Birds Directive, as the case may be.

Notes:

This Head sets out definitions relevant to assessment of development in the Maritime Area

under the Habitats Directive.

References in the head title are to analogous provisions in the Planning and Development Act.


Head 93.Competent Authority

Provide that

(1) A competent authority, in performing the functions conferred on it by or under this Part,

shall take appropriate steps to avoid in a European site the deterioration of natural habitats and

the habitats of species as well as the disturbance of the species for which the site has been

designated, insofar as such disturbance could be significant in relation to the objectives of the

Habitats Directive.

(2) The competent authority in the State for the purposes of this Part and Articles 6 and 7 of the

Habitats Directive, shall be—

(a) in relation to a proposed development within the Maritime Area, exclusive of the

nearshore, the Board,

(b) in relation to proposed development within the nearshore of a class described in

Schedule X to this Act, the Board,

(c) in relation to proposed development within the nearshore of a class that requires

Environmental Impact Assessment, the Board,

(d) in relation to proposed development that may be carried out by a local authority

within the nearshore, the Board, and

(e) in relation to other development within the nearshore, the local authority.

Notes:

This Head sets out the duty, as required by Article 6(2) of the Habitats Directive, of a

“competent authority” (either the Board or a local authority in this context), in performing its

functions under Part 5 of this Bill, to take appropriate steps to avoid, in a European Site , the

deterioration of natural habitats and the habitats of species as well as disturbance of the species

for which the areas have been designated, in so far as such disturbance could be significant in

relation to the objectives of the Habitats Directive.

The Head designates the Board as the competent authority for most developments, save certain

developments within the nearshore area, where the local authority is the competent authority.

Subsection (2) Should Article 7 of the Habitats Directive be included or should it be Article 6

only?


Head 94. Natura Impact Statement

Provide that

(1) In this Part, a Natura impact statement means a statement, for the purposes of Article 6 of

the Habitats Directive, of the implications of a proposed development, on its own or in

combination with other plans or projects, for one or more than one European site, in view of the

conservation objectives of the site or sites.

(2) Without prejudice to the generality of subsection (1), a Natura impact statement shall

include a report of a scientific examination of evidence and data, carried out by competent

persons to identify and classify any implications for one or more than one European site in view

of the conservation objectives of the site or sites.

(3) The applicant for consent for proposed development may, or if directed in accordance with

subsection (4) by a competent authority, shall furnish a Natura impact statement to the

competent authority in relation to the proposed development.

(4) At any time following an application for consent for proposed development a competent

authority may give a notice in writing to the applicant concerned, directing him or her to furnish

a Natura impact statement.

(5) Where an applicant for consent for proposed development who, having been directed in

accordance with subsection (4), fails to furnish a Natura impact statement within the period

specified in the notice, or any further period as may be specified by the competent authority,

the application for consent for the proposed development shall be deemed to be withdrawn.

(6) (a) Without prejudice to subsection (1) a Natura impact statement shall include all

information prescribed by regulations under head 100.

(b) Where appropriate, a Natura impact statement shall include such other information

or data as the competent authority considers necessary to enable it to ascertain if the

proposed development will not affect the integrity of the site.

Notes:

Head 94 defines a Natura Impact Statement (NIS) as a statement, for the purposes of Article 6 of

the Habitats Directive, of the implications of a proposed development, on its own or in

combination with other plans or projects, for one or more than one European site, in view of the

conservation objectives of the site or sites. (Essentially, an NIS is an expert scientific report to

inform the determination by the competent authority as to whether a proposed development is

likely to have an adverse impact on the integrity of any European Site).

An applicant for permission, under Part 5 of this Bill, for proposed development in the Maritime

Area may, or if directed by the competent authority, shall submit an NIS to the competent

authority in relation to the proposed development. In the event that an NIS is required, but not

submitted within the allotted time, the application for permission shall be deemed to be

withdrawn.


Head 95. Screening for Appropriate Assessment

Provide that

(1) A screening for appropriate assessment of an application for consent for proposed

development shall be carried out by the competent authority to assess, in view of best scientific

knowledge, if that proposed development, individually or in combination with another plan or

project is likely to have a significant effect on the European site.

(2) A competent authority shall carry out a screening for appropriate assessment under

subsection (1) before consent for a proposed development is given.

(1) In carrying out screening for appropriate assessment of a proposed development a

competent authority may request such information from the applicant as it may consider

necessary to enable it to carry out that screening, and may consult with such persons as

it considers appropriate and where the applicant does not provide the information within

the period specified, or any further period as may be specified by the authority, the

application for consent for the proposed development shall be deemed to be withdrawn.

(2) The competent authority shall determine that an appropriate assessment of a proposed

development is required if it cannot be excluded, on the basis of objective information,

that the proposed development, individually or in combination with other plans or

projects, will have a significant effect on a European site.

(3) The competent authority shall determine that an appropriate assessment of a proposed

development is not required if it can be excluded, on the basis of objective information,

that the proposed development, individually or in combination with other plans or

projects, will have a significant effect on a European site.

(4) (a) Where, in relation to a proposed development, a competent authority makes a

determination that an appropriate assessment is required, the competent authority shall

give notice of the determination, including reasons for the determination of the

competent authority, to the following—

(i) the applicant,

(ii) if appropriate, any person who made submissions or observations in relation

to the application to the competent authority, or

(iii) if appropriate, any party to a referral.

(b) Where a competent authority has determined that an appropriate assessment is

required in respect of a proposed development it may direct in the notice issued under

paragraph (a) that a Natura impact statement is required.

(c) Paragraph (a) shall not apply in a case where the application for consent for the

proposed development was accompanied by a Natura impact statement.


(5) A competent authority shall, as soon as may be after making a decision in relation to the

application for consent for proposed development, make available for inspection by

members of the public during office hours at the offices of the authority, and may also

publish on the internet any notice that it issues under subsection (6) in relation to a


(6) In this section ‘consent for proposed development’ means, as appropriate a grant of

permission.

(7) In deciding upon a declaration under chapter 3 of this Act the Board shall where

appropriate, conduct a screening for appropriate assessment in accordance with the

provisions of this section.

(8) In deciding upon an application under head 89 in respect of a screening for

environmental assessment the Board shall, where appropriate, conduct a screening for

appropriate assessment in accordance with the provisions of this section.

Notes:

Article 6(3) of the Habitats Directive requires “appropriate assessment” of plans or projects

likely to have a significant effect on a European Site. Head 95 sets out a detailed process in

respect of projects proposed in the Maritime Area, whereby the competent authority (the Board

or the local authority as the case may be) can screen a particular project to determine if it is

likely to have any significant effect on a European Site, by itself or in combination with other

plans or projects.

As provided for under Article 6(3) of the Habitats Directive, Head 95 sets out that, if it cannot be

excluded by screening, on the basis of objective information, that the proposed development,

individually or in combination with other plans or projects, will have a significant effect on a

European site, then an appropriate assessment of the proposed development must be carried

out by the competent authority before any permission for development can be granted. This

necessitates provision of an NIS by the applicant.

If screening shows that the project is not likely to have any significant effect on a European Site,

by itself or in combination with other plans or projects, appropriate assessment will not be

required.


Head 96. Appropriate Assessment

Provide that

(1) An appropriate assessment carried out under this Part shall include a determination by the

competent authority under Article 6.3 of the Habitats Directive as to whether or not a

proposed development would adversely affect the integrity of a European site and an

appropriate assessment shall be carried out by the competent authority, in each case where

it has made a determination under head 95(4) that an appropriate assessment is required,

before consent is given for the proposed development.

(2) In carrying out an appropriate assessment under subsection (1) the competent authority

shall take into account each of the following matters:

(a) the Natura impact statement;

(b) any supplemental information furnished in relation to any such

statement;

(c) if appropriate, any additional information sought by the authority

and furnished by the applicant in relation to a Natura impact statement;

(d) any information or advice obtained by the competent authority;

(e) if appropriate, any written submissions or observations made to

the competent authority in relation to the application for consent for

proposed development;

(f) any other relevant information.

(3) Notwithstanding any other provision of this Act, a competent authority shall give

consent for proposed development only after having determined that the proposed development

shall not adversely affect the integrity of a European site.

(4) Subject to the other provisions of this Act, consent for proposed development may be

given in relation to a proposed development where a competent authority has made

modifications or attached conditions to the consent where the authority is satisfied to do so

having determined that the proposed development would not adversely affect the integrity of the

European site if it is carried out in accordance with the consent and the modifications or

conditions attaching thereto.

(5) A competent authority shall give notice of its determination under subsection (1) in

relation to a proposed development to the applicant for consent to the proposed development,

giving reasons for the determination.

(6) A competent authority shall, as soon as may be after making a decision in relation to the

application for consent for proposed development, make available for inspection by members of

the public during office hours at the offices of the authority, and may also publish on the internet

any notice given by the authority under subsection (5).


Notes:

This Head states that the result of an Appropriate Assessment of a project shall determine

whether or not a proposed development would adversely affect the integrity of a European site.

It reiterates relevant provisions of Article 6(3) of the Habitats Directive regarding Appropriate

Assessment and sets out the matters to be taken into account by the competent authority in

carrying out the Appropriate Assessment.

Head 96 states that a competent authority shall give consent for proposed development only

after having determined that the proposed development will not adversely affect the integrity

of a European site. Consent for proposed development may be given, where the competent

authority has made modifications or attached conditions to the consent, whereby the authority

is satisfied that the proposed development would not adversely affect the integrity of the

European site, if it is carried out in accordance with the consent and the modifications or

conditions attaching thereto.


Head 97. Proposed development and imperative reasons of overriding public interest

Provide that

(1) Where, notwithstanding a determination by a competent authority that a proposed

development will adversely affect the integrity of a European site, and in the absence of

alternative solutions, a competent authority considers that consent should nevertheless

be given for the proposed development for imperative reasons of overriding public

interest, the authority shall-

(a) set out the imperative reasons of overriding public interest that necessitate the

giving of consent for the proposed development,

(b) propose the compensatory measures that are necessary to ensure that the

overall coherence of the Natura 2000 network is protected,

(c) prepare a statement of case that imperative reasons of overriding public interest

exist and of the compensatory measures that are required,

(d) forward the said statement to the Minister together with a copy of the planning

application and Natura impact statement.

(2) A statement of case referred to in subsection (1)(d) shall specify—

(a) the considerations that led to the assessment by the competent authority

that the proposed development would adversely affect the integrity of a

European site,

(b) the reasons for the forming of the view by the competent authority that

there are no alternative solutions (including the option of not giving consent for

the proposed development),

(c) the reasons for the forming of the view by the competent authority that

imperative reasons of overriding public interest apply to the proposed

development,

(d) compensatory measures that are being proposed as necessary to ensure the

overall coherence of Natura 2000 including, if appropriate, the provision of

compensatory habitat and the conditions to which any consent for proposed

development shall be subject requiring that the compensatory measures are

carried out.

(3) In relation to a European site that does not host a priority natural habitat type or

priority species, the imperative reasons of overriding public interest may include those

of a social or economic nature.


(4) In relation to a European site that hosts a priority natural habitat type or prior ity

species, the only imperative reasons of overriding public interest that may be considered

are those relating to—

(a) human health,

(b) public safety,

(c) beneficial consequences of primary importance to the environment, or

(d) subject to subsection (7), having obtained an opinion from the European

Commission other imperative reasons of overriding public interest.

(5) A competent authority shall furnish a copy of the statement of case referred to in

subsection (1) to an applicant for consent for proposed development.

(6) A competent authority shall make a statement of case, referred to in subsection (1),

available for inspection by members of the public at the offices of the authority during

its public opening hours and may also publish the statement on the internet.

(7) In invoking imperative reasons of overriding public interest under subsection (4)(d) the

competent authority shall advise the Minister why he or she should be satisfied to

request an opinion from the European Commission.

(8) In this section and in heads 98 and 99 ‘compensatory measures’ are measures proposed

in the first instance by the applicant and then by a competent authority or the Minister,

as the case may be, for the purposes of ensuring that the overall coherence of Natura

2000 is protected and such measures may include the provision of compensatory

habitat.

(9) For the purposes of this section and heads 98 and 99 a competent authority may attach

a condition to a grant of consent for proposed development relating to compensatory

measures that the authority or the Minister may require which may include a condition

requiring the making of contributions to finance the provision of compensatory

measures and any such condition shall have effect as if it was attached to the grant of

consent for proposed development, pursuant to the relevant provisions of this Act, that

apply to such a grant of consent.

Notes:

In accordance with Article 6(4) of the Habitats Directive, Head 97 sets out that, notwithstanding

an Appropriate Assessment determining that there would be adverse impacts on the integrity of

a European Site, consent may be given for a proposed development in certain circumstances, in

the absence of alternative solutions, where there are imperative reasons of overriding public

interest.

The relevant process is set out under Head 97. The competent authority is required to set out

the main relevant reasons and considerations for which it considers consent should be granted,

the imperative reasons of overriding public interest which apply to the proposed development

and a “statement of case” for consideration by the Minister. The competent authority may


include compensatory measures in the statement of case, which measures may be required by a

condition of the consent.

A distinction is made between European Sites hosting a priority natural habitat type or priority

species and other European Sites, whereby consent may only be given for development in the

former, where the overriding reasons of public interest concern matters of human health or

public safety or there are beneficial consequences of primary importance to the environment.

Alternatively, a process is set out in relation to such priority sites to obtain an opinion from the

European Commission whereby other imperative reasons of overriding public interest may be

relied upon to grant consent.


Head 98.European site that does not host priority habitat type or species

Provide that

(1) (a) Where the Minister receives a statement of case under head 97(1) relating to a

European site that does not host a priority habitat type or priority species, he or she

shall as soon as possible request the views of the Minister for Culture, Heritage and the

Gaeltacht as to whether the compensatory measures are sufficient to ensure that the

overall coherence of the Natura 2000 network is protected.

(b) Following receipt of the views of the Minister for Culture, Heritage and the

Gaeltacht, the Minister may enter into consultations with the competent authority, who

having consulted with the applicant for consent for the proposed development, may

submit to the Minister a modified proposal for the development, modified proposed

conditions to be attached to the proposed development or modified or alternative

proposed compensatory measures.

(iii) The Minister may enter into consultations with the Minister for Culture, Heritage and

the Gaeltacht and further consultations with the competent authority in relation to the

proposal for the development or any modified proposal for the development, the

proposed conditions or any modified proposed conditions to be attached to the

proposed development and the compensatory measures or any alternative proposed

compensatory measures.

(2) The Minister for Culture, Heritage and the Gaeltacht as soon as possible after the

request of the Minister for views under subsection (1)(a) or, as the case may be, the

completion of consultations with the Minister under subsection (1)(c), shall furnish an

opinion to the Minister as to whether the compensatory measures or modified or

alternative proposed compensatory measures, as the case may be, are sufficient to

ensure that the overall coherence of the Natura 2000 network is protected.

(3) Where the Minister for Culture, Heritage and the Gaeltacht has furnished an opinion

that the compensatory measures, or revised or modified compensatory measures, as the

case may be, are sufficient to ensure that the overall coherence of the Natura 2000

network is protected, the Minister as soon as possible following the receipt of the

opinion, shall issue a notice to this effect to the competent authority and the competent

authority may decide to grant consent for the proposed development with or without

conditions.

(4) Where the Minister for Culture, Heritage and the Gaeltacht has furnished an opinion

that the compensatory measures, or revised or modified compensatory measures, as the

case may be, are not sufficient to ensure that the overall coherence of the Natura 2000

network is protected, the Minister as soon as possible following the receipt of the

opinion shall issue a notice to this effect to the competent authority and the competent

authority shall not grant consent for the proposed development.


(5) Where the Minister issues a notice under subsection (3) he or she shall inform the

Commission of the matter, including the compensatory measures proposed.

(6) The competent authority shall make available for inspection by members of the public

during office hours at the office of the authority, and may also publish on the internet a

notice issued to the authority under subsection (3) or (4).

Notes:

Head 98 sets out a process of consultation, following receipt by the Minister of a statement of

case from the competent authority under the provisions of Head 97. The Minister must request

the opinion of the Minister for Culture, Heritage and the Gaeltacht as to whether the

compensatory measures are sufficient. Following receipt of the opinion of the said Minister for

Culture, Heritage and the Gaeltacht, the Minister may consult the competent authority, which,

having consulted the applicant, may submit to the Minister a modified proposal for the

development, modified proposed conditions to be attached to the proposed development or

modified or alternative proposed compensatory measures. These will be subject of further

consultations. The Minister may consult with the Minister for Culture, Heritage and the

Gaeltacht in respect of such modifications, as also with the competent authority.

Upon completion of the process, the Minister for Culture, Heritage and the Gaeltacht will issue

an opinion as to whether the compensatory measures or modifications or alternative proposed

compensatory measures, as the case may be, are sufficient to ensure that the overall coherence

of the Natura 2000 network is protected. If the opinion is to the effect that the measures or

modifications are not sufficient, consent cannot be granted by the competent authority. But, if

the opinion is affirmative, consent may be granted and the EU Commission is notified.


Head 99. European site that hosts priority type habitat

Provide that

(1) (a) Where the Minister receives a statement of case under head 97(1) relating to a

European site that hosts a priority habitat type or priority species he or she shall as

soon as possible request the views of the Minister for Culture, Heritage and the

Gaeltacht as to whether the compensatory measures are sufficient to ensure that the

overall coherence of the Natura 2000 network is protected.

(b) Following receipt of the views of the Minister for Culture, Heritage and the

Gaeltacht, the Minister may enter into consultations with the competent authority, who

having consulted with the applicant for consent for the proposed development, may

submit to the Minister a modified proposal for the development, modified proposed

conditions to be attached to the proposed development, or modified or alternative


(c) The Minister may enter into consultations with the Minister for Culture, Heritage and

the Gaeltacht and into further consultations with the competent authority in relation to

the proposal for the development or any modified proposal for the development, the

proposed conditions or any modified proposed conditions to be attached to the

proposed development and the compensatory measures or any modified or alternative


(2) (a) Where the Minister considers that the imperative reasons of overriding public

interest comprise or include a reason or reasons other than the reasons set out in head

97(4)(a) to (c), the Minister shall consider whether the opinion of the Commission

should be sought in relation to the matter.

(b) Where the Minister proposes not to seek the opinion of the Commission he or she

shall as soon as possible consult with such other Minister of the Government as the

Minister considers appropriate having regard to the functions of that other Minister

and request that other Minister to furnish his or her views as soon as possible.

(c) The Minister shall consider any views received from any other Minister of the

Government consulted under paragraph (b) where those views are received by the

Minister before he or she decides whether to seek the opinion of the Commission

under paragraph (a).

(3) The Minister for Culture, Heritage and the Gaeltacht, as soon as possible after the

request of the Minister for views under subsection (1)(a) or, as the case may be, the

completion of consultations with the Minister under subsection (1)(c), shall furnish an

opinion to the Minister as to whether the compensatory measures or modified or

alternative proposed compensatory measures, as the case may be, are sufficient to

ensure that the overall coherence of the Natura 2000 network is protected.


(4) Where the Minister forms the opinion that the imperative reasons of overriding public

interest comprise only a reason or reasons set out in head 97(4)(a) to (c) and the

Minister for Culture, Heritage and the Gaeltacht has furnished an opinion that the

compensatory measures, or revised or modified compensatory measures as the case

may be, are sufficient to ensure that the overall coherence of the Natura 2000 network

is protected, the Minister shall issue a notice to this effect to the competent authority

and the competent authority may decide to grant consent for the proposed

development, with or without conditions.

(5) Where—

(a) the Minister forms the opinion that the imperative reasons of overriding

public interest comprise or include a reason or reasons other than those in head

97(4)(a) to (c), and

(b) the Minister has obtained the opinion of the Commission in relation to the

matter, and

(c) the Minister for Culture, Heritage and the Gaeltacht has given an opinion that

the compensatory measures, or revised or modified compensatory measures as

the case may be, are sufficient to ensure that the overall coherence of the

Natura 2000 network is protected, the Minister shall issue a notice to this effect

to the competent authority, accompanied by a copy of the opinion of the

Commission, and the competent authority, only after having considered the

opinion of the Commission may decide to grant consent for the proposed

development, with or without conditions.

(6) Where—

(a) the Minister forms the opinion that the imperative reasons of overriding

public interest comprise or include a reason or reasons other than those in head

97(4)(a) to (c) and the Minister has decided not to seek the opinion of the

Commission in relation to the matter, or

(b) the Minister for Culture, Heritage and the Gaeltacht has given as his or her

opinion that the compensatory measures or modified or alternative proposed

compensatory measures, as the case may be, are not sufficient to ensure the

overall coherence of the Natura 2000 network is protected,

the Minister shall issue a notice to this effect to the competent authority and the

competent authority shall not grant consent for the proposed development.

(7) Where the Minister issues a notice under subsection (4) or (5) he or she shall inform

the Commission of the matter, including the compensatory measures proposed.

(8) The competent authority shall make available for inspection by members of the public

during office hours at the offices of the authority and may also publish on the internet

a notice issued to the authority under subsection (6), (7) or (8).


Notes:

In the case of a European site that hosts a priority habitat type or priority species, a similar

process of consultations is commenced as in Head 98, but this is more elaborate because of the

priority status of the habitat or species.

Where the Minister considers that the relevant overriding reasons of public interest concern

matters other than those of (i) human health, (ii) public safety or (iii) beneficial consequences of

primary importance to the environment, he or she shall consider if the opinion of the

Commission should be sought. If the Minister proposes not to seek such the Commission’s

opinion, he or she shall consult with other Government Ministers, as appropriate, and consider

their views before deciding whether to seek the opinion of the Commission. The Minister for

Culture, Heritage and the Gaeltacht is required to issue an opinion as to whether compensatory

measures, modifications or alternative compensatory are sufficient to ensure the overall

coherence of the Natura 2000 network is protected.


only those of (i) human health, (ii) public safety or (iii) beneficial consequences of primary

importance to the environment, and where the Minister for Culture, Heritage and the Gaeltacht

is satisfied that the compensatory measures, modifications or alternative compensatory

measures are sufficient, the competent authority is so notified and the Commission informed by

the Minister. The competent authority may grant consent for the development.



primary importance to the environment, and the Minister has obtained the opinion of the

Commission, and the Minister for Culture, Heritage and the Gaeltacht is satisfied that the

compensatory measures, modifications or alternative compensatory measures are sufficient, the

competent authority is so notified by the Minister, who is also required to inform the

Commission. Only after consideration of the Commission’s opin ion, may the competent

authority grant consent for the development.



primary importance to the environment, and the Minister has decided not to seek the opinion of

the Commission or where the Minister for Culture, Heritage and the Gaeltacht is not satisfied

that the compensatory measures, modifications or alternative compensatory measures are

sufficient, the competent authority is notified to this effect by the Minister and may not grant

consent for the development.


Head 100. Regulations

Provide that

(1) The Minister may by regulations make provision for such matters of procedure and

administration as appear to the Minister to be necessary or expedient for any matter

referred to in this Part as prescribed or to be prescribed.

(2) Without prejudice to the generality of the forgoing, the Minister may make regulations,

for the purpose of this Part, to give effect to a provision of the Treaty on the European

Union, or a legislative act adopted by an institution of the European Union, including the

Habitats and Birds Directives.

(3) Without prejudice to the generality of subsection (1) or (2), regulations under this

section may—

(a) contain such incidental, supplementary and consequential provisions as

appear to the Minister to be necessary for the purposes of the regulations,

(b) contain provisions repealing, amending or applying, with or without

modification, other law, exclusive of the European Communities Act 1972 and

the European Communities Act 2007,

(c) make provision for—

(i) compensatory measures including relating to provision of

compensatory habitat, conditions that may be attached to a consent for

proposed development, financial contributions, or bonds required in

relation to compensatory measures, implementation, management, and

supervision of implementation of compensatory measures,

(ii) conditions for the purposes of this Part that may be attached to a

consent for proposed development, including in relation to protection of

species or habitats of species,

(iii) consultation between an applicant for consent for proposed

development and a competent authority for any purpose under this Part,

(iv) consultation between a competent authority and the Minister for any

purpose required under this Part,

(v) in relation to proposed development or classes of development, in

addition to matters provided by or under this Act in relation to an

application for consent for proposed development, the submission of a

Natura impact statement with an application for consent,


(vi) information or classes of information to be contained in a Natura

impact statement,

(vii) qualifications of persons or classes of persons who shall furnish

information referred to in subparagraph (vi),

(viii) information or classes of information to be contained in notices

published under this Part,

(ix) persons or classes of persons to be notified that an appropriate

assessment or a screening appropriate assessment is to be carried out,

(x) persons or classes of persons to be notified of the outcome of an

appropriate assessment or a screening for appropriate assessment,

Notes:

The Minister is empowered to make regulations in respect of the matters relevant to Chapter 4.


Schedule X

Developments within the Nearshore coming within the Jurisdiction of An Bord Pleanala under

the Standalone MPDM regime.

1. Offshore Renewable Energy development including ancillary infrastructure

2. Offshore Gas Storage development including ancillary infrastructure

3. Telecommunications interconnectors

4. Electricity Interconnectors (TBC)

Notes:

This schedule requires further consideration and additional development types to be specified.

Consistency with development types specified in Head 27 relevant Minister will be necessary.

This schedule enables additional development types to be added at a later date.

Should be expanded to include all ancillary works / structures e.g. electricity connection of

offshore renewables.


Part 6

Enforcement

In the context of the increasing levels of activity and (complex) development in Irish waters the

enforcement framework needs to be strengthened and rationalised. Just as there is a wide range

of marine regulatory bodies, so too is there a range of marine enforcement (not just planning)

and monitoring bodies of one kind or another. These include DHPLG, DAFM, DCCAE, DTTAS, the

EPA, SFPA, the Naval Service, the Marine Institute, Inland Fisheries, Irish Lights.

Taking account of this, options for marine planning enforcement will be examined that will place

a strong emphasis on:

Clear compliance obligations flowing from a clearly articulated decision framework,

ultimately based upon the marine planning policies and objectives set out in the National

Marine Planning Framework;

The need for consent-holders to demonstrate and prove compliance;

Collaboration between bodies with marine planning responsibilities, with an emphasis on

cross-compliance;

The sharing of information, expertise and resources where appropriate; and,

A flexible approach to deploying enforcement resources, taking account of geographical

as well as functional capacity.


Chapter 1 – Planning Interest and Maritime Area Consent


Head 101. Designation of Enforcement Authority in respect of Part 4 (Planning Interest and

Maritime Area Consent)

To provide that the relevant Minister shall be the competent authority for the purposes

enforcement of Part 4.

Notes:

This head is intended to assign enforcement responsibility in respect of:

The requirement to obtain Planning Interest and / or Maritime Area Consent; and,

Compliance with the conditions of a Planning Interest and / or Maritime Area Consent To the relevant Minister (HPLG or CCAE) as appropriate, depending on the nature of the development.


Head 102. Breach of requirement for, or conditions of, Planning Interest or Maritime Area

Consent

Provide that:

(1) a person who:

(a) commits a breach of requirement for a Planning Interest or Maritime Area

Consent, or

(b) fails to comply with any condition of a Planning Interest or Maritime Area Consent,

commits an offence.

(2) A person guilty of an offence under this section shall be liable— (a) on summary

conviction, to a fine not exceeding [ ], (b) on conviction on indictment, to a fine or to

imprisonment for a period not exceeding 2 years, or to both.

Notes:

This head is intended to provide that it shall be an offence for a person to:

Fail to obtain a Planning Interest or Maritime Area Consent, or

Breach conditions attached to a Planning Interest or Maritime Area Consent. It is also intended to provide that persons guilty of an offence under this head shall be liable for summary conviction (liable for fine at a level to be specified) or conviction on indictment (liable to a fine or to imprisonment for a period not exceeding 2 years, or to both).


Head 103. Warning letter

Provide that

(1) where it appears to the relevant Minister part that:

(a) a person has contravened a requirement to obtain Planning Interest or Maritime Area

Consent; or

(b) a person holding a Planning Interest or Maritime Area Consent is carrying on activity that

is non-compliant with the conditions of their consent, the Minister may issue a warning letter to

that person.

(2) Further provide that the warning letter shall state:

(a) That the Minister has reasons to believe that the person may have may contravened a

requirement to obtain Planning Interest or Maritime Area Consent; or may be carrying on activity

that is non-compliant with the conditions of their consent;

(b) That the person on whom the letter is served may make submissions or observations in

writing to the Minister regarding the purported offence within a specified timeframe;

(c) That where the Minister considers that the person has contravened a requirement to

obtain a consent or is operating in breach of conditions of their consent, a compliance notice may

be issued;

(d) The possible penalties for offences; and,

(e) That the Minister may seek costs incurred in relation to enforcement proceedings where

a compliance notice is served or court action is taken.

Notes:

This is intended to provide for fair procedures in relation to possible enforcement action,

allowing an individual to demonstrate compliance before the relevant Minister proceeds to

serve a compliance notice.


Head 104. Decision on enforcement

Provide that as soon as practicable following the serving of a warning letter, the Minister shall

make such investigations as considered necessary to make a decision on whether to issue a

compliance notice. In reaching this decision, the Minister shall consider any representations

made by the person on whom the warning letter is served.

Where the Minister establishes that the person has failed to obtain a consent or is operating in

breach of a condition or conditions of a consent, the Minister shall issue a complia nce notice.


Head 105. Compliance notice

Provide that:

(1) where it appears to the relevant Minister part that:

(a) a person has contravened a requirement to obtain Planning Interest or Maritime Area

Consent; or

(b) a person holding a Planning Interest or Maritime Area Consent is carrying on activity that

is non-compliant with the conditions of their consent,

the Minister may issue a compliance notice to that person. The compliance notice is a

notice requiring a person to take such steps as are specified in it.

(2) A compliance notice must—

(a) state the Minister’s grounds for believing that non-compliance has occurred,

(b) require the person to take such steps as the Minister considers appropriate to

ensure that the non-compliance in question is complied with,

(c) state the period before the end of which those steps must be taken.

Notes:

This head is intended to provide that the appropriate Minister (HPLG or CCAE) may issue a compliance notice to a person the Minister believe has either (1) failed to obtain a Planning Interest or Maritime Area Consent or (2) breached a condition or conditions of an existing Planning Interest or Maritime Area Consent. The compliance notice must set out the steps required to bring the person into compliance and must also state the grounds on which the notice is based and specify the period in which the necessary compliance steps must be taken.


Head 106. Penalties for Offences

Provide for the setting of penalties for those liable of offences under this part, including penalties

for those convicted summarily and on indictment and higher penalties for failure to obtain

Planning Interest or Maritime Area Consent. Mitigating circumstances to be included.

Notes:

This head is intended to provide for the penalties to be applied in respect of non-compliance with a Planning Interest / Maritime Area Consent or higher penalties for failure to obtain consents.


Head 107. Prosecution of Offences

Provide for the taking of summary prosecutions for an offence under Part 4 to be brought and

prosecuted by the relevant Minister, including timeframes within which prosecution may be taken

and statute of limitations.

Notes:

This head is intended to provide details and process for the taking of summary prosecutions for

an offence under Part 4, including timeframes within which prosecution may be taken and statute

of limitations.


Chapter 2 – Development Management


Head 108. Designation of Enforcement Authority in respect of Part 5 (Development

Management)

To provide that coastal local authorities / [ ] shall be the competent authorities for the purposes

enforcement of Part 5.

Notes:

This head is intended to provide that local authorities shall be responsible for enforcement

activities under Part 5 of the Bill in respect of those developments for which they will have

responsibility (from a development management perspective). It is further intended to provide

that [ ] shall be responsible for enforcement activities under Part 5 of the Bill in respect of

those developments for which An Bord Pleanála has responsibility (from a development

management perspective).

It is intended that the new marine enforcement regime will be based on the following principles,

in line with those outlined in the Government’s Marine Planning Policy Statement (June 2019):

I. Proportionate - Any action taken by the competent authority, including monitoring, compliance or

investigation, is proportionate to specific, identified, risk or need for intervention.

II. Risk-based - Those involved in high risk marine activities, those carrying out activity in high risk areas

such as in or adjacent to a marine protected area, those involved in novel or complex activities, and/or

those with a previous history of non - compliance can expect a greater level of monitoring.

III. Polluter pays - The competent authority will work to ensure that those responsible for flouting

marine planning legislation will be accountable their actions and that they do not profit from non-

compliance or gain competitive advantage over compliant operators;

IV. Consistent – The competent authority’s actions will be consistent, in that it should make similar

(but not necessarily the same) decisions about activity in similar circumstances, in accordance with its

delegated responsibilities, statutory objective and guidance;

V. Transparent – The competent authority’s regulatory actions will be transparent, by publishing

information to its regulated stakeholders indicating how it will, for example, process applications for


licenses and what enforcement action it can take and may take in appropriate circumstances (for

example by publication of this document); and

The approach taken by the competent authority to facilitate compliance will be to adopt the principles

of, inform, educate and enforce using a range of measures from guidance and monitoring (including

administrative and data monitoring but also inspections-based) with a focus on compliance promotion

or assistance, through to actual enforcement with the possibility for formal sanction (penalties and,

where necessary, prosecution).


Head 109. Powers of Authorised Officers

Provide: (1) That in exercising its functions under this Part, [ ] may appoint an officer or member of staff

of: (a) [ ]; (b) [ ]; (c) [ ]; (d) [ ]; and (e) [ ];

to be an authorised officer.

(2) That every member of: (a) An Garda Síochána (b) The Permanent Defence Forces for the time being serving on board any ship, vessel or

aircraft belonging to or employed in the service of the State shall be an authorised officer for the purposes of this Part.

(3) That an authorised officer shall, in the discharge of functions under this Part, shall have regard to such policy considerations as [ ] directs.

(4) For the specific powers of authorised officers in respect of inspecting offshore development, including powers to board any vessel or installation and request copies of reports or consents / certificates.

Notes:

This head is intended to provide that the Agency may designate officers from within [ ] or from

other bodies listed to act as authorised officers. Under the Dumping at Sea Acts, the EPA has the

power to designate authorised officers from various public bodies to assist the discharge of the

enforcement function. Officers from the Marine Institute or Inland Fisheries Ireland may be

designated as such but “Every member of the Permanent Defence Forces (not below the rank of

leading seaman or corporal) for the time being serving on board any ship, vessel or aircraft

belonging to or employed in the service of the State shall be an authorised officer for the purposes

of this Act.” The same, or a similar, model is proposed here whereby [ ] can call in the assistance

of a number of bodies that have sea-faring capability to support its enforcement function.

The head also provides for the elaboration of specific functions of authorised officers – again

broadly in line with Dumping at Sea arrangements.


Head 110. Breach of requirement for, or conditions of, Planning Permission

Provide that:

(1) a person who:

(a) commits a breach of requirement for, or conditions of a Planning Permission, or

(b) fails to comply with any condition of a Planning Permission,

commits an offence.

(2) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding,

(b) on conviction on indictment, to a fine or to imprisonment for a period not exceeding

2 years, or to both.

Notes: This head is intended to provide that it shall be an offence for a person to:

Fail to obtain Planning Permission, or

Breach conditions attached to a Planning Permission. It is also intended to provide that persons guilty of an offence under this head shall be liable for summary conviction (liable for fine at a level to be specified) or conviction on indictment (liable to a fine or to imprisonment for a period not exceeding 2 years, or to both).


Head 111. Warning letter

Provide that

(1) where it appears to a local authority / [ ] part that a person has committed a breach of

requirement for, or conditions of a Planning Permission, or failed to comply with any

condition of a Planning Permission, the local authority / [ ] may issue a warning letter

to that person.

(2) that the warning letter shall state:

(a) That the local authority / [ ] has reasons to believe that the person has

committed a breach of requirement for, or conditions of a Planning Permission, or

failed to comply with any condition of a Planning Permission;

(b) That the person on whom the letter is served may make submissions or

observations in writing to the local authority / [ ] regarding the purported offence

within a specified timeframe;

(c) That where the local authority / [ ] considers that the person has committed a

breach of requirement for, or conditions of a Planning Permission, or failed to

comply with any condition of a Planning Permission, a compliance notice may be

issued;


(e) That the local authority / [ ] may seek costs incurred in relation to

enforcement proceedings where a compliance notice is served or court action is

taken.

Notes:


allowing an individual to demonstrate compliance before the local authority / [ ] proceeds to

serve a compliance notice.


Head 112. Decision on enforcement

Provide that

(1) as soon as practicable following the serving of a warning letter, the local authority / [ ]

shall make such investigations as considered necessary to make a decision on whether to

issue a compliance notice. In reaching this decision, the local authority / [ ] consider any

representations made by the person on whom the warning letter is served.

(2) Where the local authority / [ ] establishes that the person has failed to obtain a consent

or is operating in breach of a condition or conditions of a consent, the local authority / [ ]

shall issue a compliance notice.

Notes:

This provides that the local authority / [ ] must make a determination, after serving a warning

letter, promptly and must consider representations made by the person on whom the warning

letter is served.


Head 113. Compliance notice

Provide that:

(1) where it appears to the relevant local authority or [ ], as appropriate, that:

(i) a person has contravened a requirement to obtain a Planning Permission; or

(ii) a person holding a Planning Permission is carrying out development that is

non-compliant with the conditions of their Planning Permission,

the relevant local authority or [ ], as appropriate, may issue a compliance notice to that

person. The compliance notice is a notice requiring a person to take such steps as are

specified in it.

(2) A compliance notice must—

(a) state the grounds for believing that non-compliance has occurred,

(b) require the person to take such steps as the relevant local authority or the

Agency, as appropriate, considers appropriate to ensure that the non-compliance in

question is complied with including by remediation, where appropriate,


Notes:

This head is intended to provide that a local authority (coastal planning authority) or [ ] may issue a compliance notice to a person the local authority (coastal planning authority) or [ ] believe has either (1) failed to obtain Planning Permission or (2) breached a condition or conditions of an existing Planning Permission. The compliance notice must set out the steps required to bring the person into compliance and must also state the grounds on which the notice is based and specify the period in which the necessary compliance steps must be taken.


Head 114. Penalties for Offences



Planning Permission. Mitigating circumstances to be included.

Notes:

This head is intended to provide for the penalties to be applied in respect of non-compliance with conditions attached to a Planning Permission or higher penalties for failure to obtain Planning Permission.


Head 115. Prosecution of Offences


prosecuted by the relevant local authority or local authority (coastal planning authority) or [ ],

as appropriate, including timeframes within which prosecution may be taken and statute of

limitations.

Notes:



of limitations.


Head 116. Injunctions in relation to failure to obtain Planning Permission

Provide that:

(1) where an unauthorised development has been, is being or is likely to be carried out or

continued, the High Court or the Circuit Court may, on the application of a local authority, local

authority (coastal planning authority) or [ ] or any other person, by order require any person

to do or not to do, or to cease to do, as the case may be, anything that the Court considers

necessary and specifies in the order to ensure, as appropriate, the following that

(a) the unauthorised development is not carried out or continued;

(b) any unauthorised structures are removed;

(c) damage caused by the unauthorised development is remediated and the conditions

restored to status prior to the commencement of any unauthorised development.

Notes:

This head is intended to provide for the taking of injunctions by order, by a local authority, local

authority (coastal planning authority) or [ ] or any person, where unauthorised development is

being or is likely to be carried out. It further provides that the Courts may order that the

unauthorised development is not carried out or is discontinued, any unauthorised structures are

removed and the impact of the unauthorised development is remediated.


Part 6

Chapter 3

Supplementary enforcement provisions

This chapter sets out additional enforcement provisions including offences and additional

powers for local authorities in relation to certain coastal activities in the nearshore area or on

tidal lands including:

Disturbance of Beach Material

Depositing of material

Depositing of noxious articles

These provisions are intended to modernise and replace similar powers set out in the Foreshore

currently granted to MHPLG and transfer responsibility for enforcement to the relevant local

authority. The provisions will be additional to any existing powers granted to the local

authorities under other legislation.

Current sections 6 and 7 of the Foreshore Act regulates the disturbance of beach material. A

prohibitory order or notice is required in order to create and offence. This has proved

impractical to enforce and it is intended in this legislation to remove that requirement by

making it an offence generally to disturb beach material without authorisation.

This chapter shall make it an offence to disturb beach material, deposit material or deposit

noxious articles in the nearshore area and provide for enforcement powers ultimately through

the courts.

It shall also provide powers for local authorities to remove dilapidated structures from the

nearshore.

Notes:

Further consideration needs to be given to the interaction of these powers with existing

functions – in particular Dumping At Sea. This may require a limitation on the area in which

these enforcement functions operation.


Head 116A. Powers of Authorised Officers

Provide: (1) That in exercising its functions under this Part, a local authority may appoint an officer or

member of staff of to be an authorised officer.

(2) That every member of: (a) An Garda Síochána (b) The Permanent Defence Forces for the time being serving on board any

ship, vessel or aircraft belonging to or employed in the service of the State

shall be an authorised officer for the purposes of this Part.

(3) That an authorised officer shall, in the discharge of functions under this Part, shall have regard to such policy considerations as the local authority directs.

Notes:

This head is intended to provide that the local authority may designate officers to discharge the

enforcement function. Under the Dumping at Sea Acts, the EPA has the power to designate

authorised officers from various public bodies to assist the discharge of the enforcement function.

The same, or a similar, model is proposed here whereby the local authority can call in the

assistance of a number of bodies that have sea-faring capability to support its enforcement

function.

The head also provides for the elaboration of specific functions of authorised officers – again

broadly in line with Dumping at Sea arrangements.


Head 116B Disturbance of Beach material, depositing of material or noxious articles in or on

the nearshore.

Provide that

(1) In this part the following definitions apply

‘beach material’ means sand, clay, gravel, shingle, stones, rocks, situated within the

area of the nearshore or other part of the foreshore or seashore and includes—

(a) outcrops of rock or any mineral substance above the surface of the seashore,

(b) bent grass growing on the seashore, and

(c) seaweed whether growing or rooted on the nearshore or other part of the

foreshore or seashore or deposited or washed up on the seashore by the action

of tides, winds, and waves or any of them, but does not include minerals within

the meaning of Section 2 of the Minerals development Act

‘Noxious articles’ means glass, china, earthenware, metal, or other article (whether

whole or broken) which would or might cause injury to a person bathing or wading on or

from such lands or otherwise using such lands nor any material or substance (whether

solid or liquid) which would or might be injurious or offensive to any such person.

(2) A person who, or causes

(a) Removal or disturbance beach material in the nearshore or tidal lands without

proper authorisation or

(b) Deposition of material of any nature in the nearshore or tidal lands without

proper authorisation or

(c) Deposition of noxious articles on the nearshore or tidal lands,

commits an offence and is subject to penalties provided in Head 116F

Notes: This head is intended to provide that it shall be an offence for a person to:

Fail to obtain appropriate permission in relation to the disturbance or removal of any beach material, or fails to comply with an order in relation to the same

Endangers nearshore users through the placement of noxious materials or fails to comply with an order in relation to the same

The definition of beach material reflects section 239 of the Minerals Development Act 2017 that amends the definition the Foreshore Act of “beach materials” to exclude minerals. It may be necessary to also point to the definition of minerals in that legislation.


Head 116C Warning letter

Provide that

(1) where it appears to a Coastal Planning Authority that a person has failed to comply with

any provisions of this act in as set out in Head 116B, then the Coastal Planning Authority

may issue a warning letter to that person.

(2) that the warning letter shall state:

(a) That the Coastal Planning Authority has reasons to believe that the person may

have committed an offence in the nearshore area.

(b) That the person on whom the letter is served may make submissions or

observations in writing to the Coastal Planning Authority regarding the

purported offence within a specified timeframe;

(c) That where the Coastal Planning Authority considers it appropriate a compliance

notice may be issued;


(e) That the Coastal Planning Authority may seek costs incurred in relation to

enforcement proceedings where a compliance notice is served or court action is

taken.

Notes:


allowing an individual to demonstrate compliance before the Coastal Planning Authority

proceeds to serve a compliance notice.


Head 116D. Decision on enforcement

Provide that

(1) as soon as practicable following the serving of a warning letter, the Coastal Planning

Authority shall make such investigations as considered necessary to make a decision on

whether to issue a compliance notice. In reaching this decision, the Coastal Planning

Authority may consider any representations made by the person on whom the warning

letter is served.

(2) Where the Coastal Planning Authority establishes that the person has failed to obtain a

consent or is operating in breach of a condition or conditions of a consent, the Coastal

Planning Authority shall issue a compliance notice.

Notes:

This provides that the Coastal Planning Authority must make a determination, after serving a

warning letter, promptly and must consider representations made by the person on whom the

warning letter is served.


Head 116E. Compliance notice

Provide that:

(1) where it appears to the relevant Coastal Planning Authority, that:

(a) a person has contravened a requirement to obtain appropriate permission; or

(b) a person holding a appropriate Permission is not in full compliance with this

Permission,

the relevant Coastal Planning Authority or, may issue a compliance notice to that person.

The compliance notice is a notice requiring a person to take such steps as are specified in

it.

(2)A compliance notice must—

(a) state the grounds for believing that non-compliance has occurred,

(b) require the person to take such steps as the relevant Coastal Planning Authority

or the Agency, as appropriate, considers appropriate to ensure that the non-

compliance in question is complied with including by remediation and restoration of

the nearshore area where appropriate,


Notes:

This head is intended to provide that a coastal planning authority may issue a compliance notice to a person that the coastal planning authority believe has either (1) failed to obtain Permission, or (2) breached a condition or conditions of an existing Permission or (3) committed an offence under this section. The compliance notice must set out the steps required to bring the person into compliance and must also state the grounds on which the notice is based and specify the period in which the necessary compliance steps must be taken.


Head 116F. Penalties for Offences



Planning Permission. Mitigating circumstances to be included.

Notes:

This head is intended to provide for the penalties to be applied in respect of breach non-compliance with conditions attached to a Planning Permission or higher penalties for failure to obtain Planning Permission.


Head 116G. Prosecution of Offences


prosecuted by the relevant coastal planning authority including timeframes within which

prosecution may be taken and statute of limitations.

Notes:



of limitations.


Head 116H. Injunctions in relation to failure to obtain Planning Permission

Provide that:

(1) where an offence, under section 6, is being or is likely to be carried out or continued, the High

Court or the Circuit Court may, on the application the coastal planning authority or any other

person, by order require any person to do or not to do, or to cease to do, as the case may be,

anything that the Court considers necessary and specifies in the order to ensure, as appropriate,

the following that:

(a) the removal, disturbance deposition of material is not carried out or continued;

(b) any damage caused by depositing of noxious articles are remediated by the removal of

such noxious articles and the nearshore restored to the status prior to the

commencement of any unauthorised activity.

Notes:

This head is intended to provide for the taking of injunctions by order, a local authority or any

person, where beach materials are being removed, disturbed and where noxious articles have

been placed on the nearshore. It further provides that the Courts may order that the unauthorised

activity is not carried out or is discontinued, any unauthorised materials are removed and the

impact of such unauthorised activity on the nearshore is remediated.


Head 116I Removal of Dilapidated Structures

Provide that:

(1) The local authority has the power to remove dilapidated structures from the nearshore

or tidal lands, in certain circumstances, whether belonging to the state or not.

(2) Where the local authority considers that any building, pier, wall, or other structure is out

of repair or dilapidated and in the opinion of the local planning authority is likely to

cause (directly or indirectly):

(a) an obstruction to navigation

(b) An obstruction to fishing

(c) Impacts on other users of the nearshore/tidal lands area

(d) a threat to the safety of users of the nearshore area

then the local authority may pull down and remove such structure or cause such

structure to be pulled down and removed, and may for that purpose authorise any

person to enter on such structure and the nearshore area or tidal lands adjacent

thereto.

(3) The Local Authority shall not under this section pull down or remove or cause to be

pulled down and removed any structure of which the owner is known and can be found

without serving on such owner a notice in writing requiring him either to repair or to

pull down and remove such structure and giving him a reasonable opportunity so to do.

(4) Whenever the Local Authority pulls down and removes or causes to be pulled down and

removed any structure under this section, the Coastal Planning Authority shall be

entitled to be paid by and to recover from the owner of such structure the costs and

expenses of such pulling down and removal as a civil debt in any Court of competent

jurisdiction.

Notes:

This head is intended to provide for the removing of any dilapidated structures that may pose an

obstruction or danger to users of the nearshore area. This provides for notice to be served on

the owner to allow reasonable time to remove or repair the structure before the local authority

acts to remove it.


Part 6

Chapter 4

Transitional measures for unauthorised occupation of the nearshore

This chapter intends to provide for a variety of circumstances where development and

occupation of the foreshore, prior to the enactment [commencement] of the MPDM Act, did not

secure both planning permission and consent under the Foreshore Act.

Broadly speaking it will, if acceptable to MPLHG, allow development consent consideration of a

development under existing provisions in the Planning and Development Act 2000 for retention

or substitute consent. If an applicant fails to secure any of the necessary approvals ,

enforcement action can be taken under Chapters 1 & 2 of this part. If the applicant secures the

necessary planning permission consideration can then be given to a subsequent application for a

maritime area consent.

These measures apply to the nearshore only and are not applicable to development subject of

Part 5 chapters 2-4 (offshore development).

These measures only apply to development constructed prior to enactment/commencement of

MDPM.

Notes:

Section 46(2) of the PDA 2000 places a limitation of 7 years in relation to enforcement action

under that legislation. Consideration needs to be given to the appropriateness of this limitation

to development enforcement in the maritime area under this Act.

Section 13 (1) (c) of the Statute of Limitations Act 1957 limits action to recover state owned

foreshore to “sixty years from the date of the accrual of the right of action, or of forty years

from the date on which the land ceased to be foreshore, whichever period first expires”.

Consideration may need to be given to MPDM consistency with those provisions.


Head 116J Provisions in relation to unauthorised occupation of the nearshore

Provide that:

(1) MHPLG can make a determination on whether a particular development should be

considered a candidate for retention.

(2) In making the determination under subhead (1) the Minister may consider the following:

(a) The nature of the development

(b) The scale of the development

(c) The purpose of the development

(d) The location of the development

(e) Any economic, social or environmental benefits of the development

(f) Construction date of the development

(g) Planning permission status

(h) Foreshore consent status

(i) Spatial conflicts

(j) Compliance with national policy

(k) Other relevant circumstances.

(3) If deemed not to be a retention candidate MHPLG may take enforcement action under

Part 6 Chapter 1 enforcement provisions and/or make use of common law torts such as

trespass and nuisance where applicable.

(4) If planning permission for the development had previously been refused by a planning

authority or the Board, MPHLG may take enforcement action under Part 6 Chapter 1

enforcement provisions and/or make use of common law torts such as trespass and

nuisance where applicable.

(5) If the development is determined to be a retention candidate and:


(a) Planning permission has already been granted for the development (or is

exempted development2) the occupier should be invited to make an application

to the relevant Minister for a Maritime Area Consent in accordance with part 4

of this Bill, or

(b) Planning permission has not been granted or has not been granted for the entire

development the developer shall be invited to apply to the relevant Minister for

a planning interest in accordance with Part 4 of this Bill.

(6) On grant of a planning interest consideration of the development will be undertaken

under existing retention provisions of Part III of the Planning and Development Act 2000

or the existing substitute consent provisions of Part XA of the Planning and Development

Act 2000.

(7) If the application for a planning interest is refused MHPLG may take enforcement action

under Part 6 Chapter 1 enforcement provisions and/or make use of common law torts

such as trespass and nuisance where applicable.

(8) If the relevant permission is granted the occupier may subsequently apply to the

relevant Minister for a Maritime Area Consent in accordance with part 4 of this Bill.

(9) If the relevant planning permission is refused the relevant coastal planning authority

may take enforcement action under Part 6, Chapter 2 enforcement provisions.

(10) If the application for a Maritime Area Consent is refused, MHPLG may take

enforcement action under Part 6 Chapter 1 enforcement provisions and/or make use of

common law torts such as trespass and nuisance where applicable.

(11) These provisions shall apply only to development which commenced prior to the

enactment/commencement of the relevant Parts of this Act

(12) These provisions shall apply to the nearshore only.

(13) These provisions shall not apply to offshore development that is subject to Part

5 Chapters 2-4 of this Act.

2 Does not apply to LA own development which is exempt.


Notes:

Further consideration needs to be given to Local Authority own development that did not secure

Permission under Part 8 of the Planning and Development regulations.

It may be necessary to include provisions in Part XA PDA 2000 to ensure that applications for

substitute consent relating to the Maritime Area require an accompanying planning interest.

In the circumstances of Head X (4) where planning permission for a development had been

previously refused it may be more appropriate for the planning authority to undertake the

enforcement role.


Retention Candidate?

Enforcement

Action

Application

Planning

Interest?

Retention/Sub

stitute

consent?

Maritime Area

Consent?

Unauthorised occupation

Authorised occupation Removal/Remediation

<< Failed <<

<< Failed <<

<< Failed <<


Part 7

Amendments to Other Legislation

Chapter 1

Amendments to the Foreshore Act 1933

Overview/Introduction

This part amends the Foreshore Act to provide that where a new Maritime Area Consent is to be granted there will be no requirement on occupiers of the foreshore to apply for or secure a consent under the Foreshore Act. This part also provides for powers to restrict public use of the foreshore in certain circumstances by the appropriate Minister and coastal local authority.

Subject to a wider review of enforcement matters new enforcement powers may be created for coastal local authorities, Appropriate Ministers or another State Agency including issuing of enforcement notices, prosecution of offences, penalties, injunctions and so on.


Head 117. Amendment of section 1 (definitions) of Act of 1933

Provide that:

(1) Section 1 of the Act of 1933 is amended—

(a) by substituting the following for the definitions given to “seashore” and “beach

material”, respectively:

“ ‘seashore’ means the nearshore and every beach, bank, and cliff contiguous thereto

and includes all sands and rocks contiguous to the nearshore;

‘beach material’ means sand, clay, gravel, shingle, stones, rocks, and mineral

substances situated within the area of the nearshore or other part of the foreshore

or seashore and includes—

(a) outcrops of rock or any mineral substance above the surface of the seashore,

(b) bent grass growing on the seashore, and

(c) seaweed whether growing or rooted on the nearshore or other part of the

foreshore or seashore or deposited or washed up on the seashore by the action

of tides, winds, and waves or any of them;”,

and

(b) by inserting the following definition:

‘coastal local authority’ means the local authority for any of the following:

(a) the county of Louth, Meath, Fingal, Dun Laoghaire-Rathdown, Wicklow,

Wexford, Carlow, Kilkenny, Tipperary, Cork, Kerry, Clare, Galway, Mayo, Sligo,

Leitrim or Donegal;


(b) the city of Dublin, Cork or Galway;

(c) Waterford City and County or Limerick City and County;

‘local authority’ means a local authority for the purposes of the Local Government

Act 2001 (as amended by the Local Government Reform Act 2014);

‘maritime area’ has the meaning assigned to it by Section 7 of the Marine Planning

and development Act 2019

‘nearshore area’ has the meaning assigned to it by Section 8 of the Marine Planning

and development Act 2019

“Act of 1992” means the Foreshore (Amendment) Act 1992.

Notes:

This head amends the Foreshore Act to update definitions relevant to its operation in the

context of the Marine Planning and development Act 2019. Further definitions may be required.


Head 118. Consent under the Foreshore Act not required in certain circumstances

Provide that:

(1) A new section is inserted after Section 1D of the foreshore Act

“(1E) In respect of functions for which the Minister for Housing, Planning and Local Government

is the appropriate minister under Section 1B, consent under Section 2, 3 and 13 shall not be

required where a person has applied for a Planning Interest or Maritime Area Consent under the

Marine Planning and Development Management Act 2019”

Notes:

This head is intended to remove the requirement to apply for consent under this Act where

consent has been sought under the Maritime Area Consent regime. Transitional provisions for

integration in the new regime will be set out in detail in the Maritime Area Consent part of the

Marine Planning and Development Act. Development and Activity for which MAFM is the

appropriate Minister under Section 1B are excluded from the new regime and will continue, for

now, to be regulated under the existing provisions of the Foreshore Act. Consideration may

need to be given to any additional provisions that may be necessary in this regard.


Head 119. Restricting public use of foreshore, etc.

Provide that:

(1) The Act of 1933 is amended by substituting the following for section 8—

(1) Where the appropriate Minister is of the opinion that—

(a) the entry of the public onto or over, or

(b) any other use by the public of,

any particular area of foreshore belonging to the State ought in the public

interest to be prohibited, restricted, regulated or otherwise controlled in

any way, then that Minister may by order so provide.

(2) Where the appropriate Minister is considering making an order under this section,

then that Minister so considering shall consult with—

(a) one or both of the other appropriate Ministers before making the

order if, in the opinion of the Minister so considering, the making of

the order would be likely to impact on the functions of one or both of

the other appropriate Ministers (whether or not those functions relate

to an activity to which section 1B relates), as the case may be,

(b) any other Minister of the Government where the making of the order

would be likely to impact on functions exercisable by such other

Minister, and

(c) the relevant coastal local authority if any part of the foreshore to

which the order would apply is also part of the nearshore area of that

authority,


and the Minister so considering shall have regard to any submissions made

to him or her pursuant to this section by those other Ministers or by that

authority before proceeding to make the order.

(3) Where a coastal local authority is of the opinion that—

(a) the entry of the public onto or over, or

(b) any other use by the public of,

any particular area of its nearshore area, together with any land in its

functional area on the landward side of that particular area that is

contiguous to and in the neighbourhood of that area, ought in the public

interest to be prohibited, restricted, regulated or otherwise controlled in

any way, then that authority may make bye-laws to that effect.

(4) Where the making of a bye-law by a coastal local authority would be likely to impact

on functions exercisable by a Minister of the Government then, in considering the

making of a bye-law under this section, the coastal authority shall consult with each

Minister who could be so impacted and shall be obliged to have regard to any

submissions made by each such Minister before proceeding to make the bye-law.

(5) A person who fails to comply with an order made under subsection (1) or a bye-law

made under subsection (2) commits a summary offence and is liable on summary

conviction to a class E fine.

(6) Whenever the appropriate Minister or authority has made or proposes to make an

order or bye-law under this section, that Minister or authority may hold a public

inquiry in regard to the continuation or the making (as the case may be) of such order

or bye-law.”.


Notes:

The purpose of this head is to provide for clarity of responsibility and streamline the process for

restricting and/or regulating public use of the foreshore in certain circumstances by the

appropriate minister and coastal local authority.


Head 120. Enforcement including foreshore responsibilities for coastal local authorities

Provide that:

(1) Issues relating to offenses and enforcement are subject to further consideration in the context

of existing legislative frameworks, existing and future marine enforcement responsibilities and

Article 9A of the EIA Directive. This review will encompass both State consenting and

development management. Subject to the outcome of that review it is anticipated that the

following sections of the Foreshore Act 1933 will be amended:

(a) at Section 6, in relation to prohibiting by order the removal of beach material from

seashore;

(b) at Section 7, in relation to prohibiting by notice the removal of beach material from

foreshore;

(c) at Section 8, in relation to making regulations in respect of the public use of foreshore;

(d) at Section 9, in relation to the authorisation of sea defence works on seashore not

belonging to the State;

(e) at Section 10, in relation to the erection of structures on tidal lands not belonging to

the State;

(f) at Section 11, in relation to the removal of dilapidated structures from foreshore,

whether belonging to the State or not;

(g) at Section 12, in relation to the removal of structures unlawfully erected on foreshore

belonging to the State;

(h) at Section 13, in relation to the prohibition of the deposit of material on seashore or

foreshore; and

(i) at Section 14, in relation to the prohibition of the deposit of noxious articles on tidal

lands or into the sea;

(2) Certain new or updated provisions may also be required in the Act of 1933 and the Act of 1992

including:


(a) Power of High Court to prohibit continuance of certain contraventions of Act of 1933

(b) Indictable offences under the Foreshore Acts 1933 to 2018

(c) Summary proceedings for offences


Chapter 2

Consequential Amendments

Head 121. Consequential Amendments

The Minister for Communications, Climate Action and Environment will provide necessary heads

for consequential amendments relating to his policy areas.

Department of Transport, Tourism and Sport will need to be consulted in relation to potential

impacts of roads and railways legislation insofar as they pertain to the foreshore i.e . site

investigations and emergency works.

Amendment to Energy (Miscellaneous Provisions) Act 1995

Section 1 of the Energy (Miscellaneous Provisions) Act 1995 is amended by substituting in

subsection (1) the following the definition of “energy infrastructure”:

“‘energy infrastructure’ means—

(a) any land, premises or installation (including an installation located at sea),

(b) any offshore renewable energy activity to which the Marine Planning and Development

Management Act 2020 relates

(c) unless the context otherwise requires, any plant, machinery or equipment,

which is used or, subject to subsection (2), has been used for the purposes of the production,

storage, transmission or distribution of electricity, natural gas or petroleum or for the purposes

of such an offshore renewable energy activity, not being in respect of any of those purposes —

(i) an installation, plant, machinery or equipment situate in any domestic premises,

factory or place of work and supplying the energy requirements of that domestic premises,

factory or place of work,

(ii) a service station,

(iii) a vehicle designed or adapted for the transport of petroleum or natural gas,

or

(iv) a battery, cable or other thing belonging to, or used in connection with, any

appliance;”.


Notes:

This extends Energy (Miscellaneous Provisions) Act 1995 to offshore renewable projects.

Amendment to Gas Act 1976

Section 2 of the Gas Act 1976 is amended by the insertion after “"functions" of the following

definition-

“Gas Interconnector” means “a gas transmission pipeline which crosses or spans a border

between Ireland and an EU Member State or between Ireland and a third country for the

purpose of connecting the natural gas system of Ireland to those Member States or third

countries.”

The term interconnector in relation to gas is not defined in Irish legislation. An interconnector is

defined in relation to electricity only in S.I. No. 528 of 2018 and S.I. No. 445 of 2000.

The EU Gas Directive 2009/73 provided a definition for interconnectors but this definition was

not transposed. The definition of interconnector in Directive 2009/73 only referred to member

states. A new EU Directive 2019/692/EC of the European Union and of the Council of 17 April

2019 provides for an amended definition of interconnector to take account of interconnection

with Third Countries.

“Interconnector” in relation to means “a transmission line which crosses or spans a border

between Member States for the purpose of connecting the national transmission system of

those Member States or any a transmission line between a Member State and a third country up

to the territory of the Member States or the territorial sea of that Member State”

In light of Brexit and UK becoming a third country it is intended to amend the Gas Act 1976 by

inserting a definition of a gas interconnector in line with the definition of interconnector in the

Directive by way of an SI transposing said Directive.

However, there has been a legal challenge (Case T-526/19) seeking to annul EU Directive

2019/692/EC. In light of this a definition of gas interconnector is included in MPDM Bill as an

alternative legislative vehicle if transposition is adversely affected by the evolution of Case T -

526/19.


In UK a gas interconnector is defined in section 5 of Gas Act 1986. The UK intends bringing in an

SI which would amend the existing UK legislation to preserve the continued application of EU

law to the transmission lines between Great Britain / Northern Ireland and EU Member States.



housing.gov.ie

Department of Housing, Planning and Local Government





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