Offshore wind development and regulation in Ireland

In Ireland a number of consents are required by an offshore wind developer before accessing and carrying out development on the seabed.

The Marine Area Planning Act, 2021 (MAP Act) introduces a new marine area consent (MAC) regime in Ireland along with amendments to the planning consent procedure for development within the nearshore and maritime area.

A developer requires a MAC and a planning consent pursuant to the MAP Act. In an effort to fast track the development of longstanding offshore projects in Ireland, the Minister for Environment, Climate and Communications (Minister) has prioritised the consenting process for longstanding projects, known as “Relevant Projects.” A first Offshore Renewable Energy Support Scheme (ORESS 1) auction took place on 5 May 2023, and four of the six Relevant Projects were successful in it. At least three further offshore auctions are planned for this decade. However, unlike for ORESS 1, there will be a plan-led approach for subsequent auctions under which the state will select Designated Marine Area Plans (DMAP) for project development. Developers will bid into each ORESS auction with the winner being permitted to develop the project and receiving ORESS support at the price it bid.

Participation in ORESS 1 for Relevant Projects required a MAC, which was issued in December 2023 by the Minister, but planning permission was not required.¹ Unlike ORESS 1, given their nature, the ORESS 2 auction will proceed in advance of applications for a MAC to Marine Area Regulatory Authority. A MAC will be required to be eligible to apply for planning consents for all offshore wind projects under the MAP Act.

Farewell to Foreshore…or maybe not entirely

Existing offshore development in Ireland was subject to the Foreshore Act 1933 to 2021 (Foreshore Act). However, to facilitate large-scale development of offshore wind projects (with a government commitment to deliver 7 GW by 2030), a new regulatory process has been designed pursuant to the MAP Act that was signed into law on 11 March 2021. The MAP Act and the new MACs replace the existing foreshore lease and licensing procedure. While existing foreshore leases will remain in place and be effective, any future amendments or changes to foreshore leases will be subject to the MAP Act. Beyond the area of the foreshore, if there is proposed exploration of the seabed or subsoil, consent of the Minister under Section 5 of the Continental Shelf Act 1968, as amended is required.

All offshore wind development projects must make an application to the recently established Marine Area Regulatory Authority (MARA) for a MAC and/or any other licences for marine surveys/investigations in the nearshore and maritime area. It is hoped that this new procedure will speed up the marine survey licensing and leasing process that can currently take anywhere between six to eighteen months.

MAC consent

A MAC is required before planning permission can be sought. The specific details and terms and conditions applicable to a MAC are set out in guidance and sample application documents available from MARA for all offshore development projects.² A MAC will be issued by MARA for a defined area of the seabed for a defined duration which will be applicable up to the decommissioning stage of the project. A MAC application is not subject to a screening for appropriate assessment or appropriate assessment or a screening for environmental impact assessment or environmental impact assessment.

Unlike the Foreshore Act, which related to the defined area of the foreshore (approximately the 12 mile nautical limit), the nearshore area is below the high water mark and the maritime area under the MAP Act extends beyond the area of the foreshore into the outer limit of the continental shelf. The marine area includes:

• the sea and tidal areas of internal waters of the state
• the territorial seas of the state
• the exclusive economic zone

This allows a more streamlined application process for consent to carry out development along the seabed within that defined area (beyond the foreshore).

A determination on an application must be made within 90 days, following receipt of all relevant information by MARA. Matters such as financial provision, security, insurance, decommissioning obligations are all conditioned as part of the MAC.

Fit and proper person

The holder of a MAC must be considered a fit and proper person. Detailed requirements for a fit and proper person are set out in Schedule 2 of the MAP Act. This includes consideration of financial commitments and obligations to meet all liabilities arising, requisite technical knowledge and qualifications, previous performance when granted MAC and other consents and whether the person or person concerned stands convicted of any offences. This information and detail forms part of the application process. Where the holder of a MAC is a consortium or relying on a supporting entity, details of the structure and agreements are required as part of the application process. In addition, details of proposed funding arrangements are required.

Consistency with planning permission

As planning permission is granted post MAC, the MAP Act provides for a degree of flexibility to allow a MAC to be reviewed to take account of any amendments. Where any amendments are required to ensure consistency between the planning permission and the MAC, MARA will make the amendments to the MAC within 30 days of receipt of the planning permission.

Assignment of MAC

A MAC can be assigned from the holder of a MAC to another person. The holder and the proposed assignee should make a joint MAC application to MARA for MARA’s consent in writing to the assignment. Any assignment of a MAC without the consent of MARA is void.

Surrender of MAC

A MAC can be surrendered by application to MARA. MARA must make a determination on a surrender application and be satisfied that all obligations of the MAC holder have been satisfied prior to surrender. Any surrender of a MAC without the consent of MARA is void.

Other relevant consents

In addition to MAC and planning permission other consents (including dumping at sea, derogation licences, section 5 continental shelf act consent) may be required at different stages of an offshore development. The requirements and obligations will arise under separate and distinct regulatory processes, and each is subject to separate rules and timelines. While a number of separate consents and processes may apply, Ireland is an open economy with a fair and transparent regulatory regime with a strong policy commitment to deliver the 2030 targets.