Offshore Development Consents – the Next Step Towards Meeting … – Lexology

Following the publication of the provisional results last week of the first auction under the Offshore Renewable Electricity Support Scheme (ORESS) (see our previous article here), all eyes will be on the four successful offshore wind farm proposals under ORESS (ORESS Projects).

It is hoped the ORESS Projects will provide a combined capacity of 3,074MW as a contribution to Phase 1 of Irelands offshore wind energy development programme.

The ORESS Projects already hold Maritime Area Consents (MACs), which allow them to apply for development consent from An Bord Pleanla (ABP). ABPs new marine/offshore renewable energy function will decide these development consent applications. The new function is currently being established and staffed with experts, consultants and panelists in the fields of marine geology, marine engineering, marine biology, marine archaeology, and other fields relevant to offshore wind farm development.

Application Process for Development Consent

Applications for development consent for offshore renewable energy projects will be made under the Planning and Development Acts 2000-2022 (PDA) (a new Part XXI was inserted into the PDA by the Maritime Area Planning Act 2021). This is similar to the process governing applications for permission for strategic infrastructure development (SID). The applications are made directly to ABP (following pre-application consultations). The process of applying for development consent incorporates the requirements of the Environmental Impact Assessment Directive (EIA Directive) and the Habitats Directive. Public participation is included as part of the process. Almost all of the ORESS Projects are in pre-application consultations with ABP regarding ABPs expectations concerning the development consent applications.

ABP has the power to hold oral hearings and must give reasoned decisions within 18 weeks of the lodgment of the application (or such later period as ABP requires). This mandatory timeline is similar to that provided for Large Scale Residential Development.

Crucially, and similarly to the SID provisions of the PDA, ABP can approve amendments to planning permission granted for relevant offshore development, subject to the obligations imposed under the EIA Directive and the requirements for public participation. The facility to amend development consents is key given the fast-moving nature of the technology used in offshore renewable energy developments.

Judicial Review

As with development consents granted onshore, decisions granting development consent for offshore development can be subject to judicial review. To obtain leave to apply for judicial review, a challenger must show that they have a sufficient interest in the matter and substantial grounds to challenge the decision to grant the consent.

It is worth noting that the draft Planning and Development Bill 2022 (intended to introduce a range of changes to the planning regime) proposes changes to the judicial review provisions of the PDA, including tightening standing requirements and allowing ABP to correct errors in its decisions in response to judicial review. See our previous article here.

Possible Issues that May Arise

Commercial fisheries interest groups and coastal communities have expressed concern about future impacts from the Phase 1 offshore wind projects. The concerns are based on the extensive size of the marine area proposed to be covered by the Phase 1 projects and the fact that, for the most part, they are to be located within 12 nautical miles from shore. This emphasises the need for developers to pay close attention to these concerns in their non-statutory consultations/liaisons with stakeholders at the pre-application stage and, later, and more formally, in the Environmental Impact Assessment Reports (EIARs) accompanying their applications for development consent.

In addition, developers will need to ensure that they have appropriate technical and legal advice to support their applications for development consent. Neither EIA nor AA / AA screening was required to be carried out at MAC stage; consequently, it will be carried out as part of the application for development consent to ABP. The process of collecting and compiling the data needed to inform the EIARs and AA Screenings/Natura Impact Statements (NISs) has been underway for the past 12-24 months by the ORESS Projects.

The EIARs and AA screening reports / NISs must be carefully prepared, to give ABP the information it requires to carry out the assessments. Developers of offshore projects will need to have regard to issues of cumulative assessment and potentially even transboundary impact assessment.

EIA scoping will be crucial. The Maritime Area Planning Act 2021 makes provision for applications for development consent to ABP regarding offshore wind farms to cover, in addition to the offshore infrastructure, the landfall infrastructure and the onshore elements. Development proposals will need to demonstrate a wide range of expertise in relation to the offshore environment, which is very different from the onshore environment. The sea birds, marine mammals and fish in these particular offshore environments must be considered by appropriate expert consultants. Regard will also need to be had to commercial fisheries, navigation, and underwater archaeology.

Developers should ensure that they have engaged consultants with specific expertise in the qualifying interests of the many coastal/marine SPAs and SACs around Ireland for the purposes of the AA screening reports and NISs.

Summary

In summary, the PDA has been amended to facilitate a speedy and efficient application process for offshore development consent, which includes requirements under the EIA and Habitats Directives. However, judicial reviews (which have the potential to delay developments) are often centered around perceived deficiencies in EIARs and NISs. Therefore, developers should ensure they have engaged a specialist team of technical and legal advisors with appropriate expertise before finalising the important application for offshore development consent.

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Offshore Development Consents - the Next Step Towards Meeting ... - Lexology