Peter Burke (Longford-Westmeath, Fine Gael) | Oireachtas source

The Maritime Area Planning Bill was enacted on 23 December 2021 and established the legal framework for a new planning system for the maritime area. One of the main features of the Act is the creation of a new State consent, namely, the maritime area consent, as a first step in a new and streamlined planning process. The Minister approved and signed a commencement order on 10 March 2022 to commence certain required elements of the Act, namely, sections 72(4) and 72(6). Section 72(4) sets out the process for the application for, and grant or refusal of, MACs. The commencement of these sections enabled the opening of the MAC window for relevant projects in accordance with the transition protocol as set out in the Act. Under the transition protocol, the Minister for the Environment, Climate and Communications has responsibility for assessing and granting the MACs for the relevant projects, that is, the first batch of offshore wind energy projects eligible to apply. The Department of the Environment, Climate and Communications engaged the Chief State Solicitor's Office, CSSO, to advise on the drafting of the terms of reference for MACs.The CSSO engaged senior counsel who identified the need to redefine elements of the Act to further safeguard the interests of the State and to enable the practical implementation of the legislation in granting maritime area consents. On foot of these findings, the Attorney General has advised of a number of technical amendments required to facilitate the operation of the Act. The policies and principles of the Act remain unchanged.

The Government has proposed amendments on section 3 on the advice of the Attorney General. The amendment proposed by the Senator does not accord with the advice of the Attorney General. This amendment seeks to alter the application of the Maritime Area Planning Act to specifically promote the conservation of seagrass. This is a policy objective and would be more appropriately addressed as part of the maritime protected area or designated maritime area plan. The managed conservation of seagrass is something this Government feels very strongly about both in terms of its use as a natural carbon sink and its potential to be part of the coastal erosion solution. We are open to a development of a maritime area plan to facilitate further this goal. However, it is not appropriate to identify a single objective in the application of the entire Maritime Area Planning Act.

Amendment No. 15 seeks to increase the period when judicial review proceedings under Order 84 can be brought from eight weeks to three months. Applying such an amendment was introduced an inconsistency in the planning legislation by creating a disparity of time periods between the Maritime Area Planning Act and the Planning and Development Act and as such would cause uncertainty among the public.

Furthermore, eight weeks is a timeframe that has been recommended by the Attorney General. Section 33A(6) provides that the High Court may extend the eight-week period within which an application for leave may be made if it is satisfied that there is a good and sufficient reason for doing so and the circumstances that result in the failure to make an application for leave within the period so provided were outside the control of the applicant for the extension.

On Opposition amendment No. 16, the Government amendment providing for the insertion of chapter 8A in Part 2 introduces specific judicial review provisions including that:

The Court shall not grant section 33A 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 Act of 2000, for the time being in force, as being development which may have significant effects on the environment, the applicant [and so on].

The Senator's amendment seeks to remove the requirement that a development be identified under section 176 of the 2000 Act. Since section 176 of the Planning and Development Act relates to prescribed classes of development that may have significant effects on the environment and wider area that require assessment, the Senator's amendment is a significant change of policy of the section and I therefore oppose the amendment.

On amendment No. 17, the Department of the Environment, Climate and Communications engaged the Office of the Chief State Solicitor to advise on the drafting of terms and conditions for the maritime area consents. Legal counsel has been engaged and on foot of those findings, the Attorney General has advised on the technical amendments. This includes the technical amendment that was proposed by the Government to section 85 relating to the assignment of MACs. That amendment includes the regulation-making power for classes of MACs assignment, as well as for the procedures that will apply to an application by the proposed MAC assigner or the proposed MAC assignee. The Government amendment of section 85 will allow for scenarios such as the future transfer of transmission assets to EirGrid.

Amendment No. 18 seeks to remove procedural fairness from the issuing of special enforcement notices by MARA. I will therefore oppose the amendment.

On amendment No. 19, the Government amendment that inserted Chapter 8 was drafted on the advice of the Attorney General. I am satisfied that it was significantly complete. Furthermore, section 137(1) of the Maritime Area Planning Act provides that MARA may appoint persons to be authorised officers for the purposes of all or any of the provisions of the Act as it thinks appropriate. I will therefore oppose the amendment.

Amendments Nos. 20 and 21 seek to delete provisions for design flexibility in the outer maritime area which have been provided for in accordance with Government amendment No. 77 on Committee Stage. The amendment to provide for design flexibility for planning applications introduced a preplanning application procedure for planning applications seeking a level of flexibility with regard to the details of the proposed development to be submitted as part of the application. The design envelope approach will be based on options or parameters, all of which will be thoroughly assessed as part of the planning application. The flexibility will be limited to that which is assessed as part of the application. The amendment is intended to legislate for an approach which facilitates flexibility and provides for significant clarity to allow An Bord Pleanála to consider what level of information is appropriate on a case-by-case basis, while also providing appropriate safeguards for environmental assessment. Such flexibility is particularly fundamental for renewable energy projects where the technology is continually improving and may not be finalised prior to the submission of the planning application. A number of members of the Committee on Housing, Local Government and Heritage wanted to design flexibility to be included in the Maritime Area Planning Act and raised this during the committee hearings on the Bill. At that time we were cognisant of the need to apply principals across both terrestrial and maritime to avoid confusion and we were not yet ready for those to be developed. Since then, we have taken the time to revisit the issue in a joined-up manner and are now moving to address it. I think this addresses the committee's opinion expressed during the hearings.

The achievement of our 2030 renewable energy targets is dependent on robust planning legislation that is transparent and affords adequate protection to the environment while facilitating necessary and appropriate development. Therefore I oppose both amendments.