Maritime Area Regulation

Overview

The Maritime Area Planning Act 2021 puts in place a comprehensive and coherent planning system for the entire Maritime Area. The constituent elements of this system are:

Forward Planning;
Development Management; and
Enforcement.

The Act also intends to establish a new agency, Maritime Area Regulatory Authority (MARA) to undertake certain consenting and enforcement functions. The main features of the maritime planning system are set out below.

The new planning system will operate in the maritime area that will extend from the high water mark to the outer limit of Ireland’s continental shelf and include the territorial seas and the Exclusive Economic Zone.

Consent

The consenting regime established in the Act comprises three distinct elements:

Maritime Area Consent (The MAC):

sets the terms of occupation of the maritime area, including rehabilitation obligations;
governs the relationship between the MARA and the holder; and
acts as the gateway into the planning permission Failure to secure planning permission will terminate the MAC automatically.

Licensing

Specified maritime usages are subject to a licensing regime and will not require a MAC or planning permission. Any activity that attracts an Environmental Impact Assessment requirement will not be licensable and will be subject to planning permission.

Planning Permission (development consent).
The terrestrial planning permission regime, augmented with marine specific considerations, is extended to the entire maritime area.
It is within this process that specific projects are examined in detail including Environmental Impact Assessments and Appropriate
Local authorities will examine all other applications within their own designated “nearshore area” extending a maximum of 3 nautical miles from the shore.

An Bord Pleanála will examine applications for specified infrastructural, all far offshore (i.e. outside three nautical miles) projects and those which cross more than one local authority nearshore area

Enforcement and compliance

The enforcement and compliance regimes established in the Act encompass the following:

Provisions for ensuring compliance and enforcement with the terms of MACs and licences granted by the MARA including investigatory powers for Authorised Officers, enforcement notices and the creation of offences.
The MARA will ensure compliance with the terms of MACs, licences and planning permission for the maritime area beyond the nearshore.
Local Authorities will ensure compliance with planning permission conditions within their nearshore area.
Provisions to facilitate collaboration, cooperation and coherence between the MARA, Local Authorities and other maritime enforcement

The Maritime Area Regulatory Authority

It is intended that the MARA will:

Grant Maritime Area Consents;
Licence specified maritime usages;
Ensure compliance and enforcement of MACs, licences and offshore development consents;
assume responsibility for the management and enforcement of the existing Foreshore portfolio of leases and licences currently administered by the Minister for Housing, Local Government and Heritage; and
provide a nexus for inter-agency cooperation and

Transitional

The Minister for the Environment, Climate and Communications will consider a limited number of MAC applications (relevant projects) prior to the establishment of MARA to expedite planning permission applications for those projects.

All ongoing foreshore consent applications made prior to the establishment of MARA is determined by the Minister for Housing, Local Government and Heritage. No further applications under the Foreshore Act are made to the Minister.

The MARA will assume responsibility for these MACs and Foreshore consents once established.

A time-bound pathway to potential regularisation pathway for currently unauthorised occupation of the Failure to secure either a MAC or, where required, retention/substitute consent under the Planning and Development Act will result in appropriate enforcement action.

Maritime Area

The maritime area for the purpose of forward planning, development management and state consenting comprise the territorial seas (foreshore), the exclusive economic zone and the agreed continental shelf.

There is a new area to be called ‘nearshore’ from the high water mark three nautical miles seaward, in which each coastal planning authority will exercise statutory authority as provided for in the Act, such as the granting of development consent.

Ministerial Powers

Marine planning policy statement

The Minister for Housing, Local Government and Heritage shall prepare and publish a Marine Planning Policy Statement setting out the policy objectives and priorities of the Government in relation to marine planning by the State in the maritime area for the period to which the statement relates.

Ministerial guidelines

The Minister may issue marine planning guidelines to public bodies regarding any of their functions under this Act and that public bodies shall have regard to those guidelines in the performance of their functions. Guidelines under the Act are broadly analogous to guidelines issued under Section 28 (ministerial guidelines) of the Planning and Development Act.

Ministerial Policy Directives

The Minister may issue policy directives to public bodies regarding any of their functions under this Act and that public bodies are required to comply with any such directives in the performance of their functions.

Limitation on Ministerial powers

There is a limitation on Ministerial power (similar to Section 30 of the Planning and Development Act, 2000) such that the Minister shall not exercise any power or control in relation to the marine planning aspects of any particular case with which a coastal planning authority or An Bord Pleanála is or may be concerned.

The Act also limits the Minister from exercising any such power in relation to MACs, licences or related enforcement matters

Maritime Spatial Plans

Designation of competent authority for purposes of Mari- time Spatial Planning (MSP) Directive

The Minister is the competent for the purposes of the Maritime Spatial Planning (MSP) Directive 2014. In this Part, the Minister as competent authority is referred to in the legal text as the “competent authority (M)”.
The Minister shall prepare and publish Maritime Spatial Plans. Marine Spatial Plans balance the different demands for using the maritime area including the need to protect the marine environment.

The Act sets out the obligations on the Minister in respect of compliance with the Maritime Spatial Planning Directive when preparing Maritime Spatial Plans, and also provides that the Minister must carry out a review of such a plan or plans not later than 6 years after publication.

Public participation on MSPs

The Act requires the Minister to make arrangements to ensure compliance by the State with the public participation requirements set out in Article 9 of the Maritime Spatial Planning Directive and the Aarhus Convention.

The Minister shall prepare and publish a “public participation statement” to clearly detail the form(s) of participation opportunities and mechanisms in the development of plans. A copy of the public participation statement shall also be laid before each House of the Oireachtas.

The Minister is required to lay a draft Maritime Spatial Plan, with any associated Environmental Reports and Appropriate Assessment Reports, before each House of the Oireachtas. The Minister cannot make the Maritime Spatial Plan until a resolution approving the draft has been passed by each House. The Minister must have regard to any resolution, report or recommendation of any committee of the Houses of the Oireachtas.

Designation of public bodies who may make DMAPs

A Designated Maritime Area Plan or DMAP is a management plan for a specific area and can be used to develop multi-activity area plans; to promote use of specific activities; and/or for the purposes of the sustainable use and protection of particular marine environments.

Any Minister, Local Authority or State agency can bring forward proposals to prepare a DMAP for one or more such areas. The Minister may designate one or more than one public body to be a competent authority for the purposes of preparing and publishing a DMAP.

DMAPs I

The Act provides the various matters that must be specified within a DMAP proposal along with the approval/refusal procedure conducted by the Minister. It also provides for a competent authority to submit a new proposal taking into account the Minister’s reasons for refusal.

It provides that a competent authority shall, as soon as is practicable after the DMAP proposal has been approved, prepare a draft DMAP.

The competent authority shall prepare and publish a public participation statement to clearly detail the form(s) of participation opportunities and mechanisms in the development of plans. The Minister shall cause a copy of the public participation statement to be laid before each House of the Oireachtas.

The competent authority shall take account of any relevant factors arising from public participation, appropriate assessment and strategic environmental assessment.

DMAPs II

The Act also provides for the procedure by which the Minister ensures consistency of the draft DMAP with the MSP Directive; the marine planning policy statement; the National Marine Planning Framework or other relevant directives and guidelines.

The competent authority is required to lay a draft DMAP, with any associated Environmental Reports and Appropriate Assessment Reports, before each House of the Oireachtas. The competent authority cannot make the DMAP until a resolution approving the draft has been passed by each such House. The competent authority must have regard to any resolution, report or recommendation of any committee of the Houses of the Oireachtas.

The competent authority is required to carry out a review of the DMAP not later than 6 years after it was first published.

The Act provides for DMAPs that are exclusively within the nearshore area of one or more CPAs to be laid before each CPA concerned instead of being laid before the Houses of the Oireachtas.

Strategic Environmental Assessment and Appropriate Assessment (or screenings for same) are undertaken as required when preparing or amending plans, guidelines and directives.

Minister and Bodies

The Act provides for the Minister or competent authority to make material and non-material amendments to plans made under this Part. The Minister may also make regulations to specify classes of non-material amendments.

Public bodies are to take the necessary measures, consistent with their functions, to secure the objectives of the National Marine Planning Framework (NMPF).

The Minister may give a direction to a public body to adopt such measures as are specified in the direction in relation to the implementation of Maritime Spatial Planning, compliance with the National Marine Planning Framework, or compliance with the State’s obligation under the Maritime Spatial Planning Directive, and the public body must comply with such a direction.

Maritime Authorisation Database

The Minister shall establish and maintain a Maritime Authorisation Database to ensure visibility of all relevant marine consents granted by public bodies. The data held on the database will relate to relevant authorisations (licences, consents, approvals etc.) of maritime usage.

The details held will allow Maritime Authorisation Database users to ascertain the part of the maritime area in question, the maritime usage authorised and the name and contact details of the authorisation holder.

The Minister shall take such steps as he or she considers necessary to ensure that the particulars maintained on the Maritime Authorisation Database are correct.

The Minister has the power to direct a public body to provide the Minister with information relating to the maritime area for the purposes of keeping the Maritime Authorisation Database up to date.

The Minister may delegate any of the functions relating to the maintenance of the Maritime Authorisation Database to the MARA and also provides that the Minster is responsible for monitoring, approving or reviewing the performance of any such delegated functions.

Maritime Area Regulatory Authority

The Act provides for the establishment of a new Agency which is known as an tÚdarás Rialála Limistéir Mhuirí or, in the English language, the Maritime Area Regulatory Authority or the MARA.

The Act details functions of the MARA including considering and granting Maritime Area Consents and Licence applications. Other functions of the MARA detailed in the Act include the MARA’s role in relation to the enforcement and compliance of provisions of this Act.

The MARA shall have regard to the National Marine Planning Framework, the United Nations Convention on the Law of the Sea (UNCLOS), the Sea-Fisheries and Maritime Jurisdiction Act 2006, Government Policies and the need for co-operation between users of the maritime area, in the performance of its functions.

Board of the MARA

The Act provides for the establishment of the board of the MARA consisting of a chairperson and up to 10 ordinary members including officers from named public bodies. All appointments to the Board are made by the Minister of such persons that have sufficient experience and expertise to contribute to the effective and efficient performance of the MARA’s functions.

A member can be reappointed to the Board but will not be entitled to hold office for more than 2 consecutive terms and in any event may not serve for a period of more than 10 years.

The Board of the MARA must ensure that the functions of the MARA are performed efficiently, effectively and to the highest standards, ensuring that the objectives of the MARA are consistent with those functions and the statement of strategy. The Board of the MARA must ensure that appropriate systems and procedures are in place to perform those functions and achieve those objectives. The Board of the MARA also has the responsibility for designing a comprehensive framework for the setting of levies.

Board Matters

The Act provides for situations where potential conflicts of interest arise for any member of the Board of the MARA. The member must declare their interest which is to be recorded and they must take no part in any relevant deliberations on that matter.

The Minister may remove a member of the Board of the MARA for contravening these provisions. The Act contains standard provisions to allow the Minister to remove all members of the Board of the MARA from office in certain circumstances.

The Board of the MARA shall hold as many meetings as are necessary for the performance of its functions but no fewer than four per year. A quorum will comprise half plus one. Where there is an equal division of votes, then the chairperson shall have a second or casting vote.

The Board of the MARA may establish committees to assist and advise it on matters relating to its functions. Non-board members with specialist knowledge and experience may be appointed to these committees.

The Act provides that a holder of a maritime authorisation or staff member is ineligible for appointment to either the Board of the MARA or to a committee of the Board.

CEO

The Act provides for the appointment of the Chief Executive of the MARA. The Chief Executive Officer of the MARA is appointed by the Government, after recommendation by the Public Appointments Service, following an open selection competition. The terms and conditions of appointment are as may be determined by the Minister with the consent of the Minister for Public Expenditure and Reform.

The Chief Executive Officer shall carry on and manage, and control generally, the administration and business of the MARA including any such functions assigned under the MAP Act or delegated by the Board.

The Chief Executive Officer can delegate any function assigned to him or her to a member of staff of the MARA. The Chief Executive Officer shall, at the request in writing of a Committee, attend before it to give an account of the general administration of the MARA.

The Act provides for the appointment of staff to the MARA, who are Civil Servants and for their remuneration from MARA funds. The Act also provides for the engagement of temporary staff, and the engagement of consultants and advisers.

Corporate strategy of the MARA

The MARA shall prepare a statement of strategy within 12 months of the establishment day and thereafter not earlier than 6 months before and not later than the expiration of each subsequent period of 5 years following that day.

The statement of strategy shall include the objectives and priorities for each principal activity, the objectives and priorities for each of the principal activities and strategies for achieving those objectives; the manner to assess performance for each activity, human resource activity, organisational structure (including corporate support) and other relevant matters.

The Act provides for the preparation of financial accounts and for the audit by the Comptroller and Auditor General’s Office of the accounts of the MARA.

The Act provides for the preparation of an annual report on the performance of the functions and principal activities of the MARA during the preceding year and such other matters as the Minister may specify and that copies of the report are laid before each House of the Oireachtas.

The MARA shall provide the Minister, upon request, with information that, in the opinion of the MARA, the Minister is likely to consider significant for the performance of his or her functions. The Minister may issue guidelines in relation to the giving of information under the Act which the MARA is required to comply with.