Offshore Renewables: Roadmap to Consent

There is great ambition to realise Ireland’s offshore renewable energy potential. The consenting regime for developing infrastructure in the Irish “maritime area” has been overhauled with the introduction of new legislation. Our Planning & Environment team sets out a step-by-step guide which provides a brief overview of the consenting process for large-scale offshore wind projects. They also highlight some of the key strategic decisions developers must make.

The Irish Government has committed to ambitious offshore renewable energy (ORE) targets of 20GW by 2040 and 37GW by 2050, respectively. These targets aim to substantially increase Ireland’s ORE generation and export capabilities. The Future Framework Policy Statement for ORE, published in May 2024, confirms the Government’s strategic, plan-led approach to achieving these targets.

We provide an overview of the key steps and strategic decision-points for developers in securing consent for a large-scale offshore wind project.

Phase 1: Pre-Application Strategy

Step 1: Consider Policy and Spatial Planning

• Compliance with spatial plans and coordination with other offshore infrastructure is increasingly important. As set out in the Future Framework Policy Statement for ORE, the Government is adopting a strategic, plan-led approach to offshore development in preparation for the expansion of offshore wind.
• This means that appropriate locations for offshore wind energy are identified in advance by the Government. The locations are selected based on environmental impacts and in coordination with other marine users.
• The National Marine Planning Framework (NMPF) was Ireland’s first maritime spatial plan, and compliance with the policies set out in the NMPF is important for all offshore projects. However, the more specific identification of maritime areas suitable for offshore wind development is through the new ‘Designated Maritime Area Plans’ (DMAP) process.
• The Government has recently published the South Coast DMAP and it is expected to be approved later in 2024. The Future Framework Policy Statement for ORE identifies two further DMAP ‘priority actions’ for 2024 including:
  • Development of a “future DMAP roadmap” to outline the process and timings for the designation of further DMAPs, and
  • Exploration of the potential for development of a West Coast DMAP.
• Ensuring that your project is aligned with the relevant spatial plans and policies is an essential first step in any offshore wind project.

Step 2: Define your ‘Project’

• Define the ‘project’ that you are seeking permission for:
  • Different elements, like the offshore and onshore aspects of a project, can be consented under separate applications. However, the whole project must be assessed cumulatively. You cannot artificially split a project in a manner which could amount to “project splitting” for the purposes of the EIA Directive or the Habitats Directive. Both Directives are generally applicable to large-scale offshore wind projects.

Step 3: Determine the Type of Consent Required

• Identify the type of consent you need and whether you should seek consent for onshore and offshore elements together or separately.
• The Maritime Area Planning Act 2021 as amended (MAPA) now introduced new procedures[1] for offshore consenting. These include applications for the provision of Maritime Area Consents (MACs) and licences for site investigations. It also introduced the Maritime Area Regulatory Authority (MARA).
• The Planning and Development Act 2000, as amended (PDA), is the primary legislation governing onshore and offshore planning. MAPA introduced amendments to the PDA around seeking planning permission for “maritime” developments.
• The consenting process to develop in the “maritime area” is now a two-stage process and the following are required:
  • A consent to occupy a specified “maritime area”, by way of a valid lease, licence, a MAC, or consent of the landowner, and
  • Planning permission or a planning exemption depending on the type of activity or project
• Site investigations are also generally undertaken by way of a licence to determine the viability and parameters of an offshore wind project.

Large offshore wind projects will generally require both a MAC from MARA and planning permission from An Bord Pleanála (ABP). We have therefore provided an overview of these processes.

Phase 2: MAC Application

Step 1: Pre-Application

• Consult MARA and stakeholders including members of the public. This is non-statutory but advised by MARA.
• Prepare the application and financial and technical capability assessments demonstrating that you, the applicant, can meet MAC commitments.
• Environmental Impact Assessment (EIA) required under the EIA Directive and Appropriate Assessment (AA) required under the Habitats Directive are carried out at permission stage.

Step 2: Determination

• MARA makes a determination having regard to satisfaction of statutory criteria including:
  • Public interest
  • NMPF and transmission system operator development plan compliance, and
  • Stakeholder engagement.
• MARA may refuse, grant with conditions, or partially grant.
• There is potential for judicial review within 8 weeks.

Phase 3: Maritime Planning Permission Application

Step 1: Pre-Application

• Consult ABP and stakeholders/public.
• Prepare application and EIA screening and, if required, an Environmental Impact Assessment Report (EIAR). Additionally, you will need to prepare an AA screening and, if required, a Natura Impact Statement (NIS). EIA scoping may also be recommended.
• At pre-application stage, it should be considered whether an opinion on flexibility is required. This allows ABP to consider design flexibility as part of the assessment of the planning application, if granted. This is helpful where emerging technologies are continually evolving such as turbine design.

Step 2: Determination

• ABP will only consider an application for maritime permission if the applicant holds a MAC. It may also consider an application if other consents to occupy the “maritime area” are held. These can include a valid foreshore lease or licence granted under the Foreshore Act 1933 as amended, or consent of the landowner.
• ABP makes a determination having regard to statutory criteria including:
  • NMPF and/or maritime plan compliance
  • Environmental effects, and
  • Consultation responses
• ABP may refuse, grant with conditions, or partially grant.
• There is potential for judicial review within 8 weeks.

Conclusion

This step-by-step overview highlights some of the key strategic decisions in consenting an ORE project. The following questions can act as a general checklist to assist you:

• Does the project comply with policy and offshore spatial and development planning?
• How should the application for consent be structured, separating/not separating different elements of the project?
• Have site investigations been carried out?
• Has a MAC been obtained?
• How much design flexibility is being sought?
• Have robust EIA and AAs, as applicable, been undertaken?
• Has planning permission been obtained?
• Have any other ancillary consents been obtained such as, for example, a derogation licence?

For more information and expert advice on successfully navigating the consenting process for large-scale offshore wind projects, contact a member of our Planning & Environment or Energy teams.

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The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] To note the powers under the Foreshore Act 1933 as amended have been limited since the commencement of certain provisions of the MAPA and further transitionary measures have been introduced under the Historic and Archaeological Heritage and Miscellaneous Provisions Act 2023.