On behalf of the joint committee, I welcome Dr. Cecil Beamish, Mr. John Quinlan, principal officer, and Mr. Kieran Burns, assistant principal officer. Our meeting coincides with Question Time so some of our spokespersons will join us later. I ask the delegation to proceed with the submission to the committee which is much appreciated.
Foreshore Legislation and Renewable Energy: Discussion with Department of Agriculture, Fisheries and Food.
Dr. Cecil Beamish
I thank the Chairman for the invitation. Mr. Burns and Mr. Quinlan are both colleagues who work in this area and deal with the detail of foreshore administration on a daily basis. I will provide an overview of the administration of foreshore legislation. A detailed briefing note has been supplied to the committee which I trust has been forwarded to members.
The Foreshore Acts 1933 to 2005 require that a lease or licence must be obtained from the Minister for Agriculture, Fisheries and Food, prior to undertaking any works or placing structures or material on, or for the occupation of, or removal of material, from State-owned foreshore. The consent of the Minister is also required for development on privately owned foreshore but by far the major portion of foreshore is State-owned. The Foreshore Acts apply to the seabed and shore below the line of high water of ordinary or medium tides and extending outwards to the limit of the territorial seas by 12 nautical miles or 22.224 km. This area around the coast is equivalent to 39,000 sq. km. and it is equivalent to more than 50% of the total land mass of the State so it is quite a large area. It is almost exclusively publicly owned by the State. Leases and licences are granted subject to the payment of fees. Valuation is carried out by the Valuation Office.
The relevant governing legislation consists of the Foreshore Act 1933, Foreshore (Amendment) Act 1992, Fisheries and Foreshore (Amendment) Act 1998 and the Fisheries (Amendment) Act 2003. These amendments take account of matters such as environmental impact statement regulations and the applicability of other EU legislation. The Maritime Safety Act 2005 in part also applies.
Certain developments on the foreshore are subject to the European Communities (Environmental Impact Assessment) Regulations 1989 to 2006 and require the preparation of an environmental impact statement, EIS, which must be provided to the consultative organisations specified in the Foreshore (Environmental Impact Assessment) Regulations 1990. In effect, these environmental impact assessments apply to all the larger developments on the foreshore, such as large marinas, offshore generating stations, etc.
The administration of the foreshore is currently the responsibility of the coastal zone management division of the Department of Agriculture, Fisheries and Food. The division's role is that of property management agent for the State-owned foreshore and of planning authority in the marine environment. These two different roles are very important in terms of the committee's understanding. It is sometimes possible to think that this relates solely to a consent process for development, as in a terrestrial development process on private land. However, most of the development that happens on the foreshore is taking place on State-owned foreshore. The foreshore and the marine environment is quite different from the terrestrial environment. It is all publicly-owned with no boundaries; it is three-dimensional in that things happen on the water, in the water column, on the seabed and under the seabed. It is, therefore, a three-dimensional environment. It also has wildlife and other living organisms which move freely around in that marine environment and do not have boundaries. It also has multiple consent authorities which govern all matters in the marine environment. We have a multiplicity of people who give consent for different activities or regulate or manage different aspects of the marine sphere.
Where a development is proposed on the foreshore, both the property element and the regulatory element must be dealt with in the consent process. The regulatory element is similar to planning permission in an onshore development. Both elements are dealt with in one document through a foreshore lease or licence which is issued permitting the development, generally subject to specified conditions, and setting out the rent payable. In the case of privately-owned foreshore, no payment is due but ministerial consent is required.
A foreshore lease is used where there is long term and virtually exclusive use of the foreshore in question, examples being a pier or a marina, while a foreshore licence is used where there is short-term non-exclusive use, for example, a racing event such as in Laytown on the beach for a day or the laying of a pipeline under the foreshore. In addition to covering the area from ordinary high water to the limit of territorial seas, the Foreshore Acts also apply in certain circumstances to cliffs, beaches and areas contiguous to the foreshore, defined in the Act as "seashore". In carrying out its functions the division consults with various experts within the Department and other State agencies. It ensures that public consultation is carried out and, following full consideration, makes a recommendation to the Minister.
The marine licence vetting committee, MLVC, is an advisory body of technical, scientific, marine safety and engineering experts which advises the Minister regarding the appropriateness of issuing a lease, licence or consent in respect of cases referred to it. It also advises on the conditions to be attached in the event that the Minister agrees with its recommendation. Where the proposed development on the foreshore is by, on behalf of, or in partnership with, a local authority and a mandatory environmental impact statement is required, the Foreshore Acts do not apply. Instead an application is made directly to An Bord Pleanála and copies of the application and accompanying EIS are made available to the Minister by the applicant. The Minister is a statutory consultee and has a set period of time within which to respond to a request from the board for observations. This situation may also occur where An Bord Pleanála agrees to deal with a local authority application which is below the EIA thresholds.
On the specific issue of offshore electricity generating stations and developments in that area in respect of the foreshore, these offshore electricity generating stations may include wind, wave and tidal projects and may in the future include combinations of same. The development of offshore energy generation projects on the foreshore, requires a consent under the Foreshore Act 1933. Current policy is set out in a policy document, Offshore Electricity Generating Stations - Note for Intending Developers, which sets out the process for considering such applications. The document states that official policy is that such developments must be a minimum distance of 5 km from the shore. It also sets out the bonds to be charged at the application stage and the period of validity of licences. It also deals with the timing of the consents required from other bodies for matters such as onshore planning permission and Commission for Energy Regulation licences.
Recent policy announcements on support schemes for offshore electricity generation by the Department of Communications, Energy and Natural Resources resulted in a large increase in the number of applications for such projects. Twelve applications were submitted for such projects in the six years between January 2001 and June 2007, whereas 41 applications were submitted in the year to November 2008. A number of the applications which have been received this year overlap each other. Some applications are duplicate applications while others are partly duplicate applications as they relate to the same area of the foreshore. Where applications do not overlap, their proximity to each other may diminish the wind resource available to each. The question of the cumulative visual impact also needs to be considered. The problem is particularly acute on the east coast owing to the number of applications which have been received in respect of this area.
The Department has sought legal advice on the administration of consent applications in the new circumstances which have arisen this year. The marine environment in which we operate when we are dealing with foreshore projects is quite different from the terrestrial environment. As the foreshore is a commons, or State property, one has the freedom to make applications in respect of it. It is possible for applicants to be competing for the same territory. Applications for development in the terrestrial environment relate to privately owned land.
I wish to outline how the licensing process works. The developer must apply for a licence for site exploration, which normally lasts for four years, in the first instance. The developer is required to provide a refundable deposit of €100,000 to the Department. If the developer determines that the site is suitable and subsequently applies for a lease to construct a wind farm or if the site proves unsuitable, the deposit is refunded. If the developer does not explore the site appropriately or if the site proves suitable and the developer decides not to proceed to the lease stage, the deposit is retained for the State.
The public consultation period in respect of a foreshore licence for an offshore electricity generating station lasts one month. The commencement of the public consultation process is advertised in national and regional newspapers and on the Department's website. Consultation takes place with a range of statutory and non-statutory bodies, including the national parks and wildlife service, marine and aviation safety groups and a range of environmental non-governmental organisations.
If the licensed site proves suitable, an application may be made for a foreshore lease. The lease application process evaluates the project and its impact in detail using specialist advisers and statutory and non-statutory consultees. It is followed by a process of extensive public consultation. Each public consultation process in respect of a foreshore lease for an offshore electricity generating station lasts two months. More than 120 organisations have been consulted about recent applications. The commencement of the public consultation process is advertised in national and regional newspapers and is placed on the Department's website. In addition, the developer is required to make an environmental impact statement and photomontages available in a locally accessible place, such as a Garda station or a library, for the duration of the process.
Two leases have been granted for offshore wind farms to date allowing for the construction of 420 turbines, but just seven turbines have been constructed so far. This demonstrates that issues other than foreshore licensing have an impact on whether offshore electricity generating stations can be developed. While 420 turbines have been licensed, just seven are in operation. Development has been limited as a result of issues such as turbine availability, grid connectivity and economic factors such as pricing. Such issues are well beyond the remit of the Department of Agriculture, Fisheries and Food. It is important to explain that issues other than licensing are having a clear impact. Members are aware that proposals to construct wind farms have generated substantial public debate in Ireland and elsewhere. Specific public concerns tend to focus on the visual impact of the windmills and the need for an appeals mechanism for foreshore licence applications.
It is clear that the legislative framework in this area is somewhat old. It needs to be reviewed in the context of the changing foreshore development circumstances which are arising. The 2005-07 statement of strategy of the former Department of Communications, Marine and Natural Resources, which was responsible for the foreshore at that time, indicated that procedures would be developed to enhance co-ordination and co-operation between the wide range of public bodies responsible for the management of the coastal zone. This aspect of the strategy was drawn up in response to increasing demands and pressures on coastal areas and their resources. The review will provide a modern, effective and integrated legal framework for the future management of the State's foreshore estate. The preparation of the various proposals will take account, inter alia, of the principles in the EU recommendation on integrated coastal zone management, the outcome of the EU maritime Green Paper and the EU marine strategy directive.
In April 2007, the Department invited tenders from suitably qualified parties to undertake a strategic review of the legislative framework, structures and procedures in place to manage the State-owned foreshore. The objective of the review, which will be informed by best international practice, is to outline the options for putting in place a modernised legislative framework. It will consider how improved coastal zone management systems and procedures can meet the medium-term to long-term requirements of this sector. This process is not unique to Ireland. Many other European countries are undertaking similar processes. The questions being posed in this jurisdiction, which relate to the level and range of foreshore activity, are also being posed in a variety of member states. Like such countries, we are considering how foreshore developments can be managed in the best interests of the State and the parties who wish to undertake such developments.
A number of tenders were received in May 2007. While they were being evaluated, the Government decided, in July 2007, to transfer certain coastal management functions to the Department of the Environment, Heritage and Local Government. The transfer will take place in two phases. The first phase involves functions capable of being transferred without legislative change. The second phase involves functions which require primary legislation if they are to be transferred. In accordance with the Government decision of July 2007, responsibility for foreshore consents in respect of port companies and harbour authorities governed by the Harbours Acts 1946, 1996 and 2000, any other harbour or harbour related developments intended for commercial trade, all energy developments including oil, gas, wave, wind and tidal energy developments, and aggregate and mineral extraction developments on the foreshore will transfer to the Department of the Environment, Heritage and Local Government.
In the interests of efficiency and effectiveness, it is considered appropriate that the proposed review of the Foreshore Acts, which is about to commence, should await the completion of the transfer of the relevant elements of the foreshore functions to the Department of the Environment, Heritage and Local Government. This is especially important in view of the fact that both Departments will have responsibility, after the transfer, for different aspects of foreshore management. At a previous meeting of this committee, the Department of the Environment, Heritage and Local Government outlined the work it is doing in anticipation of the transfer. The two Departments have been working together to effect the transfer of the various functions. It has become clear that the Department of the Environment, Heritage and Local Government will not be in a position to assume the functions being given to it until staff have been identified, trained and put in situ to take those functions from the Department of Agriculture , Fisheries and Food. That work is being done by the two Departments. Existing staff have been identified in Wexford. They have been taken from the areas in which they were working and are being trained to take over these foreshore functions so that there can be a responsible and seamless transfer to the Department of the Environment, Heritage and Local Government.
It is anticipated that both Departments will work together to proceed with a review of foreshore legislation and processes in order to provide a modern, effective and integrated legal framework for the management of the State's foreshore estate in the future. The Department of Agriculture, Fisheries and Food is also putting in place arrangements to assign staff to transfer to the Department of the Environment, Heritage and Local Government in Wexford. This will enable the functions to transfer seamlessly when the primary legislation is enacted, although we should not anticipate the actions of the Oireachtas.
I thank Dr. Beamish for his presentation. Why is there a delay in carrying out this examination which went out to tender some time ago? That has nothing to do with the transfer of functions.
Dr. Cecil Beamish
The Government decided these functions will be integrated into the Department of the Environment, Heritage and Local Government. My colleague Mr. Mark Griffin from that Department recently outlined some of the anticipated developments once the functions have been transferred to it and the complexities involved have been examined.
The functions, however, cannot be transferred to the Department until primary legislation is enacted — that legislation is being prepared — and until staff are in place to handle it. There is no point in having a transfer when there is no one in situ. It is important that the timing for the transfer will enable a seamless transfer to occur——
I am sorry for interrupting. While I appreciate that, tenders were sought from suitably qualified parties to undertake a strategic review of this case but it never happened.
Dr. Cecil Beamish
It did not happen because the tenders went out in April 2007 and were received in May 2007. Almost at the same time and before the tenders were evaluated, the Government had made decisions on a reallocation of functions.
Was there a question of who would take responsibility?
Dr. Cecil Beamish
No, it was a little more complicated. The then Department of Communications, Marine and Natural Resources was the body which initially tendered for this. The remaining marine functions in that Department were transferred to the Department of Agriculture, Fisheries and Food on the basis they would be managed by that Department pending the legislative changes which would allow elements of those functions to be transferred to the Department of the Environment, Heritage and Local Government.
The Department of Agriculture, Fisheries and Food is effectively holding those functions, pending the legislation being enacted and the putting in place of the persons to carry out those functions on behalf of the Department of the Environment, Heritage and Local Government. That has been agreed between the two Departments.
For any country it is not a simple task to deal with a modern and integrated framework for overall coastal zone management. It is likely to lead to significant legislative reform. The Department of the Environment, Heritage and Local Government should be in a position to control that with regard to the aspects which are resiling with that Department. That is how the review situation arose.
The committee's problem is that various parties have informed it that up to €6 billion is waiting to be invested in wind energy projects. Then there are those who are concerned with the effects of wind farms on the visual environment and other aspects. The committee is trying to produce a proposal for the Government regarding a total review of the whole planning process.
For example, the existing Act provides for development which extends as far as 12 nautical miles. Some wind farm developments will be beyond that distance. Developments in turbine technology will allow for wind farms farther from the coast which suggests to me the foreshore Acts will not come into play. Before amending foreshore legislation, it is necessary to have a new look at how planning applications for these types of development will be handled.
When I was the Minister for the Marine, I recall people talking about wind energy but it was never on the table. The Foreshore Act 1933, or even the 1992 amending legislation, did not anticipate people putting turbines in the middle of the sea. This is a new scenario.
Missing from what Dr. Beamish has said - and a matter of which he would personally be aware - is the role the Marine Institute could play in this. The Marine Institute seems to have been lost in this area. It has scientifically examined the seabed around the coastline and, therefore, should be involved in the planning process.
Everything, however, has come to a halt because of the Government's decision to transfer activities from one Department to another. I am afraid we will lose this investment opportunity in the meantime. It may be a matter that Dr. Beamish cannot deal with personally but the committee must ignore the fact that there are difficulties of transferring functions from one Department to another.
When they are eventually transferred, the Department of the Environment, Heritage and Local Government will not be dealing with many aspects of the planning process for foreshore wind farms. Dr. Beamish must see that the committee is coming to this with a fresh approach. It does not see itself tied into the existing Foreshore Acts.
There has been no wave or tidal energy development and only seven turbines put in place. If the committee wants to have a good discussion and seek the Department's help, it must be approached on the basis that this is a scene with new thinking. I understand Dr. Beamish is putting the facts before the committee. The committee, however, is examining it from the perspective of which Department or body is best qualified to handle it. The committee is examining which are the best bodies to determine which areas are zoned and licensed. Currently, it depends on the individual applicants to carry out these studies. They are not being informed of the areas zoned for development.
Dr. Beamish stated that if the developer determines that the site is suitable he subsequently applies for a lease to construct the wind farm, but if the site is unsuitable then the deposit is refunded. It seems to be left to the developer to do all of this. Surely we should be telling investors where the areas are zoned for this type of development, instead of leaving it to a developer to carry out such studies.
Dr. Cecil Beamish
I do not know if I can respond to all the points, but I would like to respond to some. The Marine Institute is an agency of our Department. We are acutely aware of the work of the Marine Institute. We provide its funding, we agree its programmes and we understand the work it has done on offshore energy. It is doing its work by agreement with the parent Department. It is not a question of the Marine Institute being forgotten.
The Marine Institute also provides much of the expertise on the marine licence vetting committee. Its members are actively involved as advisers on that committee. They have also been doing work with our Department and with the Department of Energy, Communications, and Natural Resources on how to assist the promotion of the development of offshore energy. All of that is positive and our Department is aligned with it. However, the Marine Institute is not a planning or regulatory or consent authority. It is a scientific research and advisory body. The committee visited the institute and its members will know that it does very impressive work as an integrated research body in the marine sphere. Its strength lies in that area.
When this process moves to the Department of the Environment, Heritage and Local Government, what will happen the Marine Institute?
Dr. Cecil Beamish
The Marine Institute is a statutorily independent body, so it is just an agency of the Department. It currently works for many different Departments. It does work for the Department of Communications, Energy and Natural Resources, the Department of the Environment, Heritage and Local Government, the Department of Transport and for our Department. There is no difficulty with that, because the integrated knowledge that is required for the marine sphere will always be multi-disciplinary and will service a range of Departments. Therefore, the changes proposed here do not alter anything. They simply represent service provision to a different Department.
The Chairman also made the point that the world is changing dramatically due to the energy situation. The technologies are changing and we talked about the work the Marine Institute and many other bodies are doing. The sphere of ocean energy and renewable energy in general is developing as we speak. The future is something completely new. Many aspects of the State's involvement with private industry will evolve. The Chairman also stated that things are being held up by virtue of a change, but that is more of a perception than a reality. Civil servants can currently administer the legal framework given to us by the Oireachtas. That is what we are doing at the moment.
In 2008, we have leases on 420 turbines. Applications have been submitted for licences to explore various sites and the change in the number of applications this year reflects all that is happening in the energy world. There are also applications for further leases. It has been possible until now to deal with the 420 turbines which are licensed under the framework. Of course it can be modernised and renewed, and this will be necessary. It has been possible to deal with that. There are some issues that have been raised due to the multiplicity of applications that have been sent in. That is similar to the issues raised in grid connectivity and in other areas due to the multiplicity of providers interested. It is not unique to licensing, and it will slow down the rate at which it occurs. We can see that as seven of the 420 turbines are functioning at this stage, but it is not a licensing constraint holding them up.
The Chairman also made a point about individual applicants. These are new technologies in some cases, and relatively new in the case of wind. Like other aspects of exploration and development which happen in the marine sphere, such as oil and gas exploration, the applicant explores the site, gathers the data, finds out if it is viable and then proceeds with the development. This situation is similar, as it deals with the development of an offshore electricity generating station. Information is provided by licensing the activity that the applicant is doing.
The public information provided by the Marine Institute and Met Éireann is available to the applicant. There is also site-specific information which the applicant needs to gather to know whether it is viable to proceed with the development. If the developer does not proceed, information is still generated from the exercise which is of communal benefit to the State, which develops a knowledge of that part of the seabed. The partnership between the private developer and the State agencies assist that development, but the State will not have all the detail needed by a developer for a specific site.
I thank Dr. Beamish for the detailed paper he provided, as it explains many issues. However, I want to re-iterate the Chairman's frustration at the delay in this. The Government made its decision a year ago, and we are still no further down the line for the end user. Dr. Beamish said that staff had to be identified and trained but can he give us any idea on when the formal transfer will take place? The transfer of functions happens all the time, especially after elections. Surely there should be more efficient procedures in place at this stage to handle that process. It is 2008. If it took a year to transfer functions in a private company, heads would roll. The committee should consider writing to the Minister about this, because it is causing enormous frustration in this committee and in local authorities, whose managers are incredibly frustrated with delays. They do not know which Department they must talk to about decisions on the foreshore area.
The consultation process is somewhat cumbersome and was designed for a different era. Data which is available is often sought. Is any thought being given to a more streamlined process? Dúchas will often submit an application for a foreshore licence, as an area may have some historic background. That information is available for everybody to see, but it seems to add another six weeks or two months to the application process. Through this marine licence vetting committee, is there any way we can gather all the information on each individual application in one centre so this kind of delay can be bypassed?
Will the witnesses deal with the deposit issue? Reference was made to a refundable deposit of €100,000. The submission stated: "If the developer does not explore the site appropriately, or if the site proves suitable and the developer decides not to proceed to the lease stage, the deposit is retained by the Department". Are there reasons outside his or her control that the developer would not proceed to the lease stage or would those issues be highlighted during the exploration stage? If there are areas outside the developer's control, is there some sort of appeal mechanism so the developer can get back the €100,000, or a portion of it, if he or she has done everything necessary but, because of some external factor, his or her application was frustrated?
With regard to the marine licence vetting committee as it is currently structured, how many people are on it, what groups do they represent and how often do they meet? How is it intended to be structured in the future? How many officials and staff will be dealing with the foreshore licence and lease issue in the new structure?
Much of what I have to say deals with similar issues. I thank Dr. Beamish for his presentation, which was most interesting and thorough. To my mind, he has lifted the lid on a major problem we find in the Civil Service, namely, the malfunction or dysfunction of elements within it.
It is the business of Government to facilitate commerce and industry and to develop the economy. It is the function of the Civil Service to assist and facilitate this and to implement the decisions of Government. Dr. Beamish's outline of how this process has been stalled in the moving of one function from one Department to another - as Deputy Calleary has pointed out, this happens all the time when new Administrations come in - is an example of what is wrong with the public service. As we have been dealing with many such matters in this committee, I have no doubt people will observe this in terms of how long it takes to get the show on the road and to make commerce work in this area. This is stifling commerce, which we cannot afford at this point in the economic cycle. We need to ascertain how quickly a function can be transferred from one Department and become operational in another, which would be extremely illustrative for the taxpayer.
One point that alarmed me slightly in Dr. Beamish's explanation was his statement that one of the problems is the training up of staff. I do not completely accept this. This function must be carried out currently so somebody is trained to do it. It is not a question of identifying what staff are suitable - they are presumably doing this job in any event. Adaptability in the public service is something we have come to expect. It is only a question of staff moving over, which is not a big deal. Will Dr. Beamish confirm this? It is not as if nobody is currently doing this job. They must be doing it because it is one of the functions that have been identified.
The presentation is heavily focused on wind farms and the extraction of materials. To what extent does the critical infrastructure legislation apply to those seeking licences to extract minerals or build turbines on the foreshore?
I am interested in the question of the overlap in licences. Doubtless the granting of permissions and licences is complex. The presentation suggests there has been a large increase in the number of applications being made, which will only increase. I find it hard to visualise or understand the question of overlap. If a licence is granted for a certain stretch in a three-dimensional area, is the purpose of the licence detailed or is that area the licensees' own space from which they can extract whatever they want? How does it work?
I am concerned with the question of easy transfer. It is a poor excuse. I do not mean to sound threatening in saying this as it is a function of the Dáil and Seanad to observe and watch, and to make sure the public service and Departments are doing their job correctly on behalf of the taxpayer. While I do not want to say, "Be warned", we will be looking cautiously and carefully at how this progresses because it is a major growth industry for Ireland and we can ill afford to allow the continuance of delays. I accept there is primary legislation but, nonetheless, the Civil Service can make preparations behind the scenes.
I welcome Dr. Beamish to the committee. The 1933 Act is an all-encompassing and simple Act. At present, events such as the Laytown races and infrastructure such as 200 wind turbines are dealt with under the same legislation. This is an untenable situation. The plans are lodged with one's local Garda station. This involves the wrong agencies and is covered by simplistic legislation which is dangerously incapable of dealing with the demands being placed on it in recent years.
We have had reviews. A relatively comprehensive draft coastal zone management strategy was published ten years ago. I wonder why it gathers dust today. It is a comprehensive, inch-thick strategy yet it is unused. I cannot understand why relatively little appears to have happened over the past ten years, whatever about the previous 75.
In the second last paragraph of the presentation, Dr. Beamish states that a transfer is awaited and in the last paragraph he states that the Department is "putting in place arrangements". Can he tell us the timelines in this regard? Is the elephant in the room decentralisation? Will Dr. Beamish answer this? We have a right to know what are the obstacles. In the absence of modern legislation, the public is hamstrung and the facilities for public consultation are inappropriate and not good enough. The marine licence vetting committee, capable as it is, does not have the range of expertise that is required, such as visual assessment of these massive proposals for our coastline. We need to see movement.
In comparing the last and the second last paragraph of the presentation, I am worried we are in a catch-22 situation. Dr. Beamish states the review of the Acts should await the completion of the transfer. Then, in the next paragraph, he states arrangements are being put in place to transfer seamlessly when the legislation is enacted. It is self-referential. The proof of the pudding is that nothing has happened. Ten years on from a comprehensive study, I do not see movement. I am deeply frustrated by this.
It is not that far from the situation that obtained during the Famine when people starved while the rivers teemed with fish. Although the wind blows day in and day out, we only have seven turbines. While connection to the grid and the price that is to be paid obviously constitute significant obstacles, we are dealing with 75 year old legislation at a time of great emphasis on energy security and we must have movement in this regard. I was deeply depressed by the last two paragraphs of Dr. Beamish's statement, which seem to imply the law will not be changed until the staff are transferred and the staff will not be transferred until the law is changed. I seek an explanation in this regard. To be specific, is decentralisation the elephant in the room in this respect?
Dr. Cecil Beamish
I will try to cover the points raised. As for foreshore development, these days everyone hears a lot about the public service. However, the number of civil servants dealing with all issues pertaining to foreshore management has not changed for many years and may be less than it once was. However, during the years when the economy was growing strongly, there was significant expansion in activity on the foreshore. While offshore wind is under discussion today, many other activities also are being developed on the foreshore. Consequently, there has been a substantial increase in the workload across the foreshore area in recent years although the same quantum of civil servants deal with it.
Exactly how many civil servants?
Dr. Cecil Beamish
I would like to give that in a moment. It has not changed anyway.
I refer to the issues pertaining to the transfer of wind-related functions. In cases in which a single piece of legislation exists that can be transferred from Department A to Department B, this can be done by way of a transfer order and is a relatively straightforward process. However, when the change determined by the Government requires a separation of an existing legislative framework, this cannot be done by a simple transfer order because it must come back before the Houses of the Oireachtas, which constituted the initial legislation. Such legislation cannot be changed by virtue of a Government decision and primary legislation is required. Some aspects of coastal management that the Government has determined are to go to the Department of the Environment, Heritage and Local Government can be effected by transfer order. Others, such as those under discussion today, require primary legislation.
As for the receiving Department, while it is easy to state the transfer should be done in such a fashion, the receiving Department must be in a position to carry out the functions on receipt. The staffing number which the receiving Department perceived it needed was significantly larger in aggregate than the staffing that was available. While no additional staff are available in the Department of Agriculture, Fisheries and Food, this staffing had to be taken from other areas and moved to the areas of coastal management that are moving to the Department of the Environment, Heritage and Local Government. It was necessary to assign staff to such areas and to train them to take over the functions that are going, in part, to the Department of the Environment, Heritage and Local Government. This process has been ongoing and had to be agreed with the Department of the Environment, Heritage and Local Government, which was not in a position to take these functions until now because it perceived that it lacked the resources to continue to deliver on those functions.
In the interest of responsible public administration, such functions must continue to be delivered pending the effect of the transfer. Consequently, it is not that nothing has been happening, as the functions have continued to be delivered in a holding capacity by the Department of Agriculture, Fisheries and Food. Moreover, an additional 18 people have been identified in the Department of Agriculture, Fisheries and Food and are being assigned to these functions. The staff in question cannot be assigned to the Department of the Environment, Heritage and Local Government until the legislative responsibility transfers to that Minister, which only can happen after the enactment of the relevant legislation. One cannot anticipate this as it will require an Act of the Oireachtas.
Although this is a developing situation, it does not mean that work is not ongoing on all these cases. Clearly, the existing framework has leased the 420 turbines and the 1,620 MW of licensed wind energy that can develop on those leases. The other leases are either relatively new applications that are being processed or, in one case, further information is awaited from the promoter. It is not that anything has stopped. The 41 applications are licence applications from people who are seeking licences for particular areas to explore the suitability and possibility of developing leases in those areas. They are not applications for leases at this point. They are simply exploratory licence applications to consider those areas. New issues have arisen in respect of some of these areas. This is due to the interest in moving into this field that now has emerged. I identified some of those issues, such as overlap, which did not exist until now and have not arisen as such. We are responding to such issues and are achieving legal clarity.
I am aware that during the previous meeting between the joint committee and the Department of the Environment, Heritage and Local Government, the focus was on the consent aspect. While the consent aspect is part of it, the efficient management of State property to the best interest of the State also is an element that must be carried out while delivering this function and sight is being lost of this point a little. The State must use such resources in the best interest of the State in the long term. Once such installations are in situ, they are relatively long term in nature and, consequently, people must be confident about them when deciding to site them on public property. As for the perception that nothing is happening, the position is evolving regarding the amendment of legislation to move such functions into the Department of the Environment, Heritage and Local Government. The latter has indicated to members some of the ways in which it envisages changes then taking place. However, this is not blocking things at present and work is ongoing. There is a misperception in this regard. I agree there has been a rush of interest and various people now are interested in exploring sites, which explains the numbers.
Deputy Calleary asked a question regarding the deposit. We accept that when we wrote the guidelines on this subject in 2001, the issue at that time was wind. Offshore wind generation was beginning to emerge as a possibility and the guidelines were intended to assist and to be encouraging to its development. Some now would consider the deposit of €100,000 to be a small deposit in terms of the scale of some of the developments. In any event, such a deposit is refundable if a developer who has a licence finds the site is not a viable basis on which to proceed to apply for a lease. It is refundable in that sense. If it is viable to proceed and the developer does not do so, the deposit is non-refundable and there is merit in that. In the past 12 or 18 months or so, the very rapid development in terms of wave and tidal energy, as well as the continuing changes and developments in respect of wind energy, mean that we are re-examining the guidelines that were in place. Senator O'Malley noted these are mainly focused on wind, which is true. That was the focus as it was the only technology that looked viable in 2001. We are considering changes to those guidelines at present, some of which will require weighty legal advice in respect of how that will happen. Deputy Cuffe asked about timelines. On average, the leasing process for a large offshore generating station takes approximately 18 months.
My chief concern is the timelines for the transfer of staff. My deep frustration is the transfer of functions and legislation. The last two paragraphs of Dr. Beamish's statement seem to imply that the legislation awaits the transfer while the transfer awaits the legislation. I may be confused. Does this relate to the transfer of staff and, if so, will the transfer of functions require primary legislation or a ministerial order? In the first few months of the Government, certain functions were transferred by ministerial order. Are we awaiting primary legislation to effect the transfer of functions rather than a review of the legislation?
Dr. Cecil Beamish
I will finish my point before returning to this matter. The processing of a lease application is approximately on par with what our international colleagues are doing in respect of similarly sized projects.
I apologise for the Deputy's confusion on the transfer matter, as we are obviously not explaining it as clearly as possible. There are two elements. The Government decides where to put the function, but primary legislation is required to effect the change. The Government cannot sign an order that involves the separation of a statutory framework set by the Oireachtas. There is case law in this regard. Therefore, the Oireachtas must amend the legal framework to effect the desire outlined in the Government's decision.
The legislation has not been enacted and is not before the Houses. Rather, it is being drafted. It will separate the functions, which are currently in an all-encompassing legal framework under the foreshore legislation. A Bill must be introduced in the Oireachtas and enacted before something can become a legal function of the Minister for the Environment, Heritage and Local Government.
Should the Minister, Deputy Gormley, be the one to act rather than the Minister for Agriculture, Fisheries and Food?
Dr. Cecil Beamish
Some marine functions, which formed part of the then Department of Communications, Marine and Natural Resources, were transferred to the Department of Transport approximately 18 months in advance. The remaining functions were transferred to the Minister for Agriculture, Fisheries and Food, which was technically possible under a transfer order. The subsequent——
The receiving Department would drive the legislation.
Dr. Cecil Beamish
No. The Minister for Agriculture, Fisheries and Food has legal responsibility for foreshore administration. As Deputy Cuffe stated, the proposed changes will try to cope with the separation of a host of functions that are currently in an all-encompassing framework. Moving some of the larger commercial and energy projects that require foreshore consent, planning and State management to the Department of the Environment, Heritage and Local Government will require a separation of the legislative framework under the Foreshore Acts. Only the Oireachtas can effect this and only the Minister with responsibility for the legislation can introduce it.
The Minister with current responsibility.
Dr. Cecil Beamish
Yes. It will not make a difference because both Departments are working together.
This discussion is occurring in the context of how applications are dealt with under the current legislation. We are trying to establish whether current legislation should be forgotten in favour of a new procedure to deal with applications for offshore wind farms, wave power and tidal power.
We could spend another 12 months preparing legislation to transfer a function from the Department of Agriculture, Fisheries and Food to the Department of the Environment, Heritage and Local Government. After that, someone might carry out a strategic review of the legislative framework. It has already gone out to tender. The review might claim that dealing with this issue through the Department of the Environment, Heritage and Local Government should be the last thing done. Does Dr. Beamish understand my meaning? Surely, the review should be undertaken first.
The committee will produce recommendations on how matters should be addressed, although people might ignore them. When the Foreshore Acts were introduced in 1933, no one considered this type of development. It is a relatively new issue and modern methods must be used to attract investment. We have been told that technology is moving quickly. Previously, the type of turbine available dictated how far it could be placed offshore. Now, turbines are larger and can withstand greater depths and climate conditions. What will occur if someone goes beyond the 12-mile limit, which will be conceivable?
I understand Deputy Cuffe's point, but it is a question of discovering that waiting for something to occur was a waste of time. If Departments are involved, the strategic review should be undertaken first. A planning process is in place for wind farm developments on land. An area is either zoned for certain activities or it is not. A planning authority sets conditions on permissions and developments proceed. The difference between land and sea developments is not great, the only difference being that the latter is public property. This should not pose a hindrance if there is someone to carry out a zoning process on professional grounds to identify suitable areas for development. It would be zoned as sea.
If ten people want the same site in a zoned area off the County Wexford coast, how would those applications be dealt with? As with most other processes, one would auction the site to the highest bidder. Before reaching that point, someone must carry out a zoning process. The Irish Marine Institute was able to tell the committee that the west coast is suitable for wave power whereas the east coast is suitable for wind power. If I am wrong, I will stand corrected. The institute conducted surveys of the seabed and knows from which areas power can be taken onshore, as certain locations are more suitable than others. After two or three years, the developer asked to do all of the research might ask for the fortune he or she spent back because the project would not work in that area. An industry cannot be developed in this way. The property is public land with water on top of it. Someone should zone an area for development and make another area off limits for development purposes due to, for example, shipping reasons.
It is difficult and unfair of me to put civil servants in this position but are we wasting time with this process of transferring something from one Department to another? I examined the legislative programme and the foreshore (amendment) Bill is not included in the programme for 2008. I asked in the Dáil when it would be produced and the Tánaiste told me that it would probably be brought forward in 2009. That is no way to run a railway. Are we serious about getting this industry up and running? The transfer of authority may not take place until the legislation is passed. The legislation may be introduced in 2009. If the foreshore (amendment) Bill is passed, we may discover that the Department of the Environment, Heritage and Local Government has other ideas. The matter should be listed under the heading of strategic development and dealt with by An Bord Pleanála. Would we need further legislation to transfer power to An Bord Pleanála to enable it to do so? Can someone on the Government side revert to the Minister and suggest we think again about who will carry out the zoning? Who decides what areas owned by the public should be used for commercial development of this nature, the price to be charged and to whom it should be given? We are running into a problem because a few people are looking for the same site. How does one deal with this? The only way to do so is by auction. If it is in a zoned area, the highest bidder will get the site and will have to comply with the requirements set down.
I am afraid that this useful meeting could conclude with everyone saying we must wait until the foreshore (amendment) Bill is passed before we can move. That will not solve the problem. While the information given is helpful in trying to put together a package, we know the difficulties. It is not the fault of the delegates. When the Acts were passed in 1933, nobody was thinking about offshore wind energy projects but we are in a new scenario. Much money could be invested and made by the State in allocating sites by auction according to proper procedure. We use auctions for many other purposes. Do the delegates see that we could dispense with a change of Department until someone decides that there is a better way of dealing with the matter? The emphasis is on the transfer of responsibility from one Department to another. I do not blame the delegates; this is the position as they find it. It is up to us as legislators to state this is out of date and that the position should be otherwise.
My simple theory refers to land covered by water. It should be zoned in the way land is zoned. We must decide who should carry out the zoning in the interest of the public. It should be done by professionals who know what they are talking about. I refer to the Marine Institute as one option. Having zoned the land, one would then decide who would be allowed to build on it and how the sites would be allocated. It would go to auction. Once it was decided that the plan was acceptable, one would have to decide who would deal with the appeals mechanism. I suggest it could be dealt with under the system in place for strategic infrastructure in An Bord Pleanála. The zoners, the Marine Institute, An Bord Pleanála and the planners, comprise a system for the public to have an input, lodge objections and believe they receive a fair hearing from a body such as An Bord Pleanála which must follow certain procedures. If that is the case, the transfer of responsibility from the Department of Agriculture, Fisheries and Food to the Department of the Environment, Heritage and Local Government is irrelevant. We may only discover something like this one year after transferring responsibility from one Department to the other. That is a waste of the time of departmental staff, Members and those who want to invest.
Am I making sense? Do committee members disagree? We know what the difficulty is for the delegates - to have the legislation passed, assuming that this is the way to go. Is that the net point? What happens outside the 12-mile limit?
Dr. Cecil Beamish
I will deal with what happens outside the 12 mile limit first. Under international law, the territorial seas extend 12 miles, of which the State has ownership and control. Outside this limit, the seas are governed by the terms of the Continental Shelf Act. We have exclusive ownership of the economic zone on the continental shelf. Until now, there have been no floating energy installations - wind, wave or tidal - outside the 12-mile zone. However, as the Chairman states, the technology is evolving. Much like an oil or gas development, it will need to transit the energy by cable or otherwise through the foreshore onto land. That will become subject to a series of consent processes in the same way as do other oil and gas projects outside the 12-mile zone.
Who licenses somebody outside the 12-mile limit?
Dr. Cecil Beamish
The Department of Communications, Energy and Natural Resources would do so in the case of an energy installation under the energy Acts. I should be cautious in that it would be outside our remit in respect of the foreshore. It is a question better put to the Department of Communications, Energy and Natural Resources. Where the Department licenses energy extraction activity in the exclusively owned economic zone outside the foreshore, a foreshore permit is still required for the transit.
There is confusion between two matters. The way in which all countries manage their territorial seas, in respect of a variety of activities, requires significant modernisation across the board and not just because of offshore electricity generating stations, to which we refer.
A member referred to aggregate extraction. Aggregate extraction from the seabed is a significant factor in a number of European countries. It is projected that it will become a significant factor in Ireland, given the various difficulties in land-based sourcing. Just like the role of the Department and the Marine Institute in mapping the energy environment offshore, we facilitated the imagine project, under the INTERREG programme, to explore the areas most suited to aggregate extraction.
I refer to zoning. The model laid out by the Chairman is a replica based on what we know of land-based planning. There are two important distinctions to be made when this is transferred to the sea. The first is that it is a three-dimensional environment which the land based is not. People have interest in the sea bed and under it, interest in the water column and on top of the water column. The three-dimensional thinking must be factored into the planning process. What is done on the sea bed or on top of the water may affect what other people can do in the area. It can have effects on other users in the other dimension.
Only with the authority of the owners, namely, the State.
Dr. Cecil Beamish
Only with the authority of the State but it is a more complex environment in this sense.
A multiplicity of zoning authorisations already exist in that we have special areas of conservation, birds areas, designated sites for the dumping of dredge spoil, natural heritage areas at sea, shipping lanes, access routes for low-flying emergency helicopters, interconnector pipes and cables and communication cables. It is not a blank canvas.
A lot of this applies to land also.
Dr. Cecil Beamish
It does. All I am stating is that a variety of spatial designations has grown in various ways. The Department of Defence uses certain areas for their activities. All of this is factored in to the permits framework. We do not have a published map with zones but these elements are factored in. Many countries which have tried to simply transfer terrestrial zoning to the sea have found it a complex process. It is abundantly clear to the committee and to everybody else who deals with this that it is becoming a multi-user sphere with significant players and investments.
The discussion which took place overemphasised the relatively straightforward aspect of the Government decision that the consent and property management aspects of these types of energy projects will transfer to the Department of the Environment, Heritage and Local Government. This is one element and a piece of reorganisation of responsibility which requires legislation. In itself, it will not provide a modern management framework which the committee may wish to see developed. The Department of the Environment, Heritage and Local Government is considering these matters, as Mr. Mark Griffin outlined in his testimony, and we are working with them on it. Our Department is also considering the aspects we are trying to evolve to modernise the process as it progresses.
While we are not in any way against an all-encompassing review, we must be careful. If such a review had been done two or three years ago, the technology, environment and interest in offshore energy would have been radically different. If the zoning had been done on the basis of the technology and interest which existed three years ago, it is likely we would have found ourselves with a framework which may not have been well suited to the rapidly developing technologies as they are emerging now. The committee has been examining tidal energy and we are conscious the framework we established in 2001 was an offshore wind framework with the technology that existed. However, tidal energy has a different visual impact and the areas suitable for tidal energy can be different from those suitable for wind energy.
I apologise for harping on about this. The Marine Institute keeps itself constantly updated on what is happening to our seabed and has a fair idea of what is under the seas to the limits of our responsibility. Of course technology always changes and will update faster than I or anybody can imagine. We must have somebody with the professional expertise to be able to adapt quickly to these changes. I do not think Departments are geared for this type of rapid change because of the structures they must go through.
Dr. Cecil Beamish
The work of the committee and its recommendations will greatly assist in whatever direction the Government goes. With regard to zoning and local authority planning processes, there is democratic accountability for the decisions taken on zoning. The body taking the decision must have an holistic and overriding view of the multiplicity of interests impacted by zoning decisions.
That is where An Bord Pleanála comes in.
Dr. Cecil Beamish
If I understand correctly, in the example given by the Chairman, An Bord Pleanála deals with individual development permits within the zone framework but the zone framework is determined by somebody else. The Marine Institute is a research body. It is not a regulatory body and does not have the democratic accountability which a local authority or Department has. The zoning decisions which must be taken need to take into account a range and balance of issues with regard to the relative importance of interconnectors, energy, aggregate extraction, maritime safety, the protection of birds and marine environment.
Put it up for public display.
Dr. Cecil Beamish
The role of the Marine Institute is always advisory. It is involved through the work it does as an advisory scientific body and through the marine licence vetting committee.
I agree with the Chairman on much of the wider picture with regard to the new legislation required. I wish to return to a question asked by several Deputies on the timeline for the preparation of the primary legislation effecting the transfer of functions.
Dr. Cecil Beamish
We are aware that any Bill presented is subject to Government decisions.
We dissected this in detail previously. Of course Government decisions affect the passage of legislation through the Oireachtas. Dr. Beamish stated the legislation was being prepared. As a civil servant of considerable standing, Dr. Beamish knows whether it is a figment of someone's imagination or whether the heads of a Bill have been drafted and a fully detailed Bill to effect this transfer exists. I do not think "timelines" is a dirty word and Dr. Beamish can detach from the political process and provide us with information.
Dr. Cecil Beamish
I cannot in any way prejudge the timing or nature of any Government decision on presenting the Bill or the time the Oireachtas takes within the parliamentary timetable to consider and dispose of it. These are matters into which civil servants have no input. However, as far as the Department of Agriculture, Fisheries and Food is concerned, we are doing everything we can to bring preparation of the Bill to a point where it can be presented to Government and we are close to this.
Days, weeks, months or years? Is it a dirty word?
Dr. Cecil Beamish
No, it is not.
In the private sector, one's bread and butter and livelihood depends on stating when a project will be delivered. I am not asking Dr. Beamish to make political decisions or judgments. All I am asking for is a statement on whether the primary legislation is day, weeks, months or eons away.
Dr. Cecil Beamish
Hanging the development of ocean energy projects on whether this transfer happens within days, weeks or months over-connects the two matters.
I did not link them.
Dr. Cecil Beamish
It has been said people within the private sector who wish to proceed with this are being impacted upon.
The work is ongoing and the proposal will be brought to the Government as soon as the Parliamentary Counsel has the heads of the Bill settled. We are trying to break up a completely integrated legal framework and place the types of projects which, as the Chairman said, were not envisaged in the Foreshore Act in a separate legal framework, on which the lawyers are working. We envisage that it will be completed within a very short time, although I cannot give a definite date because it will depend on when the lawyers can finally resolve the legal issues. However, it is very close to completion.
I feel as if I have walked onto the set of "Yes Minister". I am only asking whether the transfer of functions is months, years or decades away. I am deeply frustrated by Dr. Beamish's replies. I do not know what else to say.
All I can tell the Deputy is that the Government's legislative programme indicates that the Bill is being drafted. However, there is no point in flogging a dead horse.
I have found the information supplied to us by the delegates extremely useful in terms of what we are trying to do as a committee. We will try to produce the heads of a Bill for consideration by the Government to have a totally new approach to dealing with these matters, whether they are the responsibility of the Department or the Marine Institute. It is only a suggestion but it must be examined. While the Marine Institute is primarily a research agency, there is no reason whatsoever it cannot be beefed up to deal with what is a very professional function. We need to know what is on the seabed before any area can be zoned and the Marine Institute is the ideal body to provide such information.
The assistance given by the Department today is appreciated. We now have more facts in front of us. The only way I can see this matter being progressed quickly is for the committee to produce the heads of a Bill. It would then be a matter for the Government to decide whether it wanted to accept the committee's recommendations. This is an all-party committee and I hope we can reach all-party agreement. We must ensure people's time is not wasted in the transfer being delayed unnecessarily. We must get on with the process and adopt a totally new approach to dealing with applications. Some areas off the coast will have to be zoned in a professional manner.
I thank the delegates for appearing before the committee and hope that if it needs further assistance, we can call on the departmental officials again. We are not trying to act against anybody but to modernise the current process. Perhaps this can be done more effectively through the committee than by another process. It is a matter of trying to have the development started quickly. I accept that developments have been considered by the Department but from what we have heard, people are frustrated by the length of time it can take to have decisions made because of the cumbersome methods that must be used to comply with current legislation. However, we understand the Department can only operate in accordance with the legislation, as it stands.
I thank Dr. Beamish, Mr. Quinlan and Mr. Burns for their attendance.
Dr. Cecil Beamish
I thank the Chairman.
The joint committee adjourned at 4.05 p.m. until 2.15 p.m. on Wednesday, 12 November 2008.