Joint Committee on Environment, Culture and the Gaeltacht debate -
Tuesday, 19 Nov 2013

Heads of Maritime Area and Foreshore (Amendment) Bill 2013: Discussion (Resumed)

Aquamarine Power, ESB, MRIA and Vattenfall

Chairman

I welcome Mr. Peter Coyle, chairman of the Marine Renewables Industry Association, MRIA; Mr. Brendan Barry, emerging technologies manager of the ESB; Mr. Harvey Appelbe, ocean energy manager, UK and Ireland, Vattenfall; Mr. Neil Davidson, public affairs manager, Aquamarine Power; and Dr. Anne Marie O'Hagan, technical adviser to the MRIA. I thank the witnesses for their attendance here today.

I wish to advise the witnesses that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if a witness is directed by the committee to cease giving evidence in regard to a particular matter and continues to do so, the witness is entitled thereafter only to a qualified privilege in respect of his or her evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Their opening statements or any other documentation they have this afternoon may be published on the committee website after the meeting.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.

I call on Mr. Coyle to address our meeting.

Mr. Peter Coyle

I thank the Chairman and members of the committee for inviting the MRIA to appear before the committee and engage with it on this Bill. We represent all of the wave and tidal energy interests on the island of Ireland. We are a very unusual body because we represent North and South; the Irish Government and the Northern Ireland Executive are represented on our council in an observer capacity.

The first thing for us to appreciate is the extraordinary gift given to us by nature with the world's most energy intensive waves occurring off the west coast. We also have extensive wind resources on land and offshore but we do not deal with that industry. The bulk of our tidal resource is off the north east coast, County Antrim, where 400 MW, which represents 7% of the total installed capacity in the Republic of Ireland, to generate electricity has been consented by the Crown estate in two separate projects. Three of the four promoters involved transact from the Republic, including Bord Gáis. These potentially job rich developments would not be possible in this jurisdiction because the enabling legal framework has not existed. What is there is totally unsuitable and the framework will not exist until this Bill becomes law.

A study commissioned by the Sustainable Energy Authority of Ireland in the Republic, and Invest Northern Ireland in the North, suggested that as many as 60,000 new jobs could be created in this industry by 2030. Even at this early stage of the industry's emergence 250 people are employed on the island of Orkney in Scotland, where the European marine energy test centre is located. There is effectively full employment there between oil, gas and particularly ocean energy in recent times.

We welcome the Bill because we see it as one key to unlocking the job potential of ocean energy. One of our key messages is that, following due parliamentary process and scrutiny, it is vital that this Bill be given priority and pass into law in 2014. This is so for all sorts of reasons, first, to give the world a positive signal that Ireland is open for business in this industry. It has been regarded as closed for business because of the lack of enabling legislation and other factors. Various projects are waiting in the wings to go ahead once the Bill becomes law. Timescales in the energy industry are very long so delays have a huge effect.

What does all of this mean for the environment? We support a plan-led approach in this area. We do not want to see random developments. The approach taken by this Bill, and the view of our association, is that everything should progress in keeping with Our Ocean Wealth, the policy document published by the Government a year or so ago. This provides an overarching policy document and framework for the marine. There has been no significant environmental impact arising from wave and tidal experimental devices in the water in Scotland, which is the leading wave and tidal location even though it has a lesser wave resource than Ireland because it has given top political priority to winning the jobs prize, and it is an enormous prize, in ocean energy. Numerous devices have been in use for many years off Scotland.

Several array projects have been given consent after thorough investigation but we are not complacent. This is a new technology. It is in the sea and the environment is a very sensitive issue so every project must be thoroughly investigated. The purpose of a robust consenting system is to allow the most rigorous investigations to be made in a consistent manner, overseen by an appropriate authority. We believe that this Bill provides that. To give a practical example of environmental impact, the first ocean energy device to be connected to the grid three years ago was SeaGen in Strangford Lough. If any of the committee members have visited Strangford they will have seen it sitting out there in the middle of the Lough. It is not the prettiest sight in the world but it is an early experimental device. Almost all modern tidal devices are beneath the surface. One cannot actually see them. This device is monitored morning, noon and night, 365 days a year, by independent observers and there is no known impact on wildlife although there is quite a large seal population in the area. In visual terms, most wave energy devices could be located 10 km offshore, over the horizon, while those located near the shore will be either at the surface or beneath the surface and will not be visible.

We are very encouraged by the detail revealed so far in the Bill about the criteria which would enable, or not, applicants to proceed and put developments for ocean energy into the sea, for example, it requires that applicants must demonstrate their financial strength and their technical capacity to deliver projects, and so on, all of which is important to avoid land grabs. We have strongly advocated that marine renewables projects should be treated as strategic infrastructure and this is addressed in the Bill. Wave and tidal energy is capital intensive. It meets consumer needs from sustainable resources. It is in line with EU policy and will give us energy security. Ireland is one of the least energy secure countries in western Europe despite her extraordinary natural resources. The MRIA believes that the only practical and appropriate way forward is to treat all marine renewables projects as strategic and that An Bord Pleanála is the only body with the authority and ability to develop and attract appropriate resources and to act as the consenting authority. Overall, we think this is a vital Bill and urge upon the Oireachtas the need to give it priority. I know that it is very dry and technical legislation but it is of critical importance to developing this industry and to job creation. We believe that the Department of the Environment, Community and Local Government has done a good job on this Bill so far and commend it to the committee.

Chairman

I thank Mr. Coyle. I now call on Senator Keane to speak.

Senator Cáit Keane

I thank Mr. Coyle and welcome him here today. This is one of the most important meetings this committee has held, although the witnesses might not think so because only two of us are here. It is all being recorded and their submissions will be read by other people involved in the committee. The whole map of Ireland shows our footprint. We have so much wealth in our resources that how we keep and use them is very important. Five years ago I was very excited about marine technology but my excitement has waned somewhat because it is taking so long. I would like to hear from Mr. Coyle about a company called Wavebob. I do not know the company but because I am from the west I kept an eye on it. Is it in Scotland now? I have lost track. We need to learn more. We hear a lot about wind energy and what it can do and new advances but I thought it would be more advanced at this point.

The witnesses are here today as an association and I want to compliment the Marine Renewables Industry Association, which is an all-Ireland body. Water does not have boundaries and, hopefully, neither do we. On the day of the announcement that the President is going to England, it is great to see an all-Ireland association before the committee.

In addition to wind energy, the north-east coast around Antrim and all of the west coast have high potential for wave energy. I would like to learn more on how advanced this is. It is all right to promote it but I would like to know if this is still all a matter of science and research. It was said there was one project at Strangford and I believe there may be potential for tidal power at Drogheda. I would like to see this progressing more quickly.

I am delighted the Marine Renewables Industry Association is pleased with what is contained in the heads of the Bill at present. We will obviously have to listen to all of the input to make it a better Bill, which is what the committees are all about. I thank the witnesses. As I said, my excitement has waned somewhat in regard to tidal energy. Perhaps it will be renewed today and I look forward to hearing the rest of the discussion.

Mr. Peter Coyle

I am glad we have three leading world experts on this area. I will ask Mr. Harvey Appelbe from Vattenfall to comment.

Mr. Harvey Appelbe

The first point is that it has taken and will take a long time for this technology to get to the stage where it will be a product like wind. However, we should differentiate between what is happening in Scotland, where there is a lot of activity. There is a test site there with 11 berths jammed full of machines, huge employment and huge activity. If we were in Scotland, we would be talking about the fact that there is so much going on. It is not happening in Ireland in large part because of the absence of a consenting system. There are not the test sites and it is not possible for large companies like Vattenfall to invest in Ireland to make this happen. Until this Bill goes through, there is no future for that and it is not possible to build projects.

Mr. Brendan Barry

It is true there is a lot happening in Scotland and there are devices there which are actually in the water and producing megawatts onto the system. The ESB is developing a demonstration project on the west coast of Ireland and this should be ready for 2018, subject to the technology making the right progress over the next couple of years. That will be a small demonstration project but is very important for the industry to take off in Ireland. It is intended to prove that the technology works in the Atlantic environment and will demonstrate to the public the environmental credentials of the devices and their limited impacts, which is very important.

In terms of projects such as the WestWave project, this Bill is very important because those projects do not make any sense to investors like the ESB or other utilities unless they see a bigger commercial market further down the road. This Bill is putting the infrastructure in place to allow that to happen, so we can have visibility of how the marine leasing will be done and know there will be an efficient consenting system. These are very important signals for investors and they mean the demonstration project we are undertaking can happen. A lot is happening at the moment. We are in the planning phase for that project and, as I said, there are devices in Scotland that are currently producing megawatts.

Mr. Neil Davidson

If I could just add a little colour to that, I work for Aquamarine Power, which is a wave energy company. We have developed a technology called Oyster, which is a near-shore device that is essentially a flap that moves backwards and forwards in the near-shore wave. We are a Scottish company but we have a very large amount of Irish DNA within the company, from chief executive down.

It was said there are small amounts of development, which is correct, but we have definitely moved out of the test tank to the stage where, as Mr. Appelbe said, 11 full-scale devices are being tested in Orkney. To give an idea of the economic impact that can make, our company has spent more than £5 million directly in the Orkney economy, which is an economy of 20,000 people as it is quite a remote island. We work with more than 40 local businesses on the island, upskilling dive teams and so on. There is a very strong economic jobs story for local communities, even at the prototype stage.

The importance of this Bill is the opportunity for Ireland. As we move from single devices to first projects, such as WestWave, the one thing Scotland does not have, which Ireland does have, is grid connections. Some 90% of the wave projects in Scotland are based on Scottish islands and none of those islands has sufficient grid connections and may not have them until much later on in this decade. The WestWave project may, in fact, be Europe's first pre-commercial wave project, so there is a real opportunity here for Ireland to leapfrog what has happened in Scotland, given that Scotland does not have the grid connectivity.

As Mr. Appelbe and Mr. Coyle said, one of the most important foundations of that is a clear consenting and licensing process. Without the consenting and licensing process, companies do not have the ability to invest in EIAs and all of that kind of thing in order to develop the first devices. It is a real opportunity for Ireland.

Deputy Marcella Corcoran Kennedy

I thank the witnesses for attending. Can they give a little more detail on the type of marine energy experiments being carried out? Where do they see marine energy in the Irish energy mix? We obviously have to get away from the use of fossil fuels and, while many people would have seen wind as a way forward, there is now quite a lot of negativity around whether it is able to generate sufficient quantities of energy for our own future energy security. Where do they see the types of technologies they are working on fitting in to the overall energy mix of the country?

Mr. Harvey Appelbe

To be clear, we have either wave energy, where there is a machine on the surface capturing the motion of the waves, or we have tidal stream technology, where there is a turbine, similar to a wind turbine but under the water, and it only captures energy from the movement, caused by the moon and the sun, of water in and out of inlets. This is only possible in very constrained areas. In the case of Ireland, there are masses and masses of wave energy all the way down the west. This is because of the massive reach all the way across the Atlantic, where hundreds of miles of wind have been blowing to the point where huge waves are arriving on the west coast. There is also a lot of area, so there is very little constraint.

It is possible - we would certainly say it is theoretically possible - to produce more energy from Ireland's wave energy than Ireland consumes. However, that is not practical because wave energy is not available all of the time and it would also take an awful lot of investment and infrastructure. Therefore, we do not know how much wave energy could be commercially included in the energy mix but it would certainly be a very significant commercial component and would certainly make a very large contribution to the energy security of Ireland if it were commercialised.

Mr. Brendan Barry

There is going to be no single solution, no silver bullet. The EU policy target of 2050 for decarbonisation will probably require a mix of onshore wind, offshore wind, some solar PV and some ocean, that is, wave and tidal. It is a mix of all of those. The challenges with some of those technologies is that they are intermittent and weather dependent. There are benefits in having a mix of those in a portfolio of renewables. When one is strong, for example, the sun, others might not be, but on balance they can complement one another. We would expect to see a mix in the portfolio. As soon as ocean energy is competitive with those other renewable technologies, it will take its share of that, although what that share is depends on how economic it is.

The point about constraints is important in that some of the other technologies are constrained. For example, there is only so much onshore wind one can have, there are only so many suitable locations where the water is shallow enough for offshore wind and solar PV would be constrained by the number of land options, whereas ocean energy gives a much less constrained potential option in the mix. It has very good prospects. Getting the signals right through the Bill, getting the demonstration projects up and running, and proving the costs and then getting them down will be key.

Senator Cáit Keane

It reminds me of the saying that it is all right in practice but does it work in theory. Mr. Appelbe said "if it were commercialised", which is the main question.

When or how near is it to being commercialised? I know that many of the sites in Orkney are test sites. First it was tests for wave, then tidal, then there was a new methodology of doing the wave test and the tidal test, but it is all research. How near is Ireland to those kinds of developments? If we had the Bill ready in three weeks, can anybody come forward with the licence, the wherewithal and the know-how needed to proceed?

Mr. Harvey Appelbe

I like to manage expectations. Vattenfall has already tried to come in here. We set up a company in the expectation that we could start these projects. We have already invested quite a lot and wasted the money, because we were waiting for too long and could not get anything done. A lot of investment already goes into Scotland and we have tried to invest in Ireland. That is not to say that we are nearly at the stage equivalent to onshore wind. In our opinion, it will take decades before it is at that level, but it will take an awful lot of economic activity to get there. All of that economic activity could benefit Ireland, as long as it happens in Ireland. However, I would manage expectations as it will take some decades before it is competitive with onshore wind.

Senator Cáit Keane

Basically it is about research and technology and the spin-off from that, which I think is a good investment. We have seen that it works in every other area and Ireland has been noted on different fields in research and technology. We have the raw material with the wind and the waves.

Mr. Brendan Barry

Much investment has to take place, with a lot of pilot programmes, demonstrations and so on, but those things will not happen unless investors see a route to a market later on. Various aspects, such as this Bill, put in place one of the key ingredients - although not the only one - where investors can see that there is a fit-for-purpose efficient, consenting regime in Ireland, that there are plans for a leasing so they can see where their devices will go and therefore, can see why it is worth investing in the technology at that transition stage. This is one key ingredient that we need to see.

Mr. Neil Davidson

It is correct to state that we are at the research and development stage, but it is "big R&D", with full scale devices in the water. These things cost over €10 million per device, with three or four devices going into the water. As Mr. Barry stated, we need a long-term view so that as well as building the devices, there is somewhere to put them, operate them and generate electricity. If the Bill was passed in 2014, a leasing round could be opened and leases could be awarded by 2016, followed by two years of EIA. Even if the Parliament moved quickly and legislated now, it could still be 2018 or 2019 before a site might be ready for somebody to put the technology. There is this parallel process of developing technology and the processes alongside it, such as the EIA systems, the consenting, the leasing, the market mechanisms and so on, so that when the technology is ready, the market is ready. If we wait until the technology is developed, it could be another five years after that, so there is a need to act.

Senator Hildegarde Naughton

The witnesses mentioned that research and development was a major part of things. Being from the west, with the Marine Institute in Galway, we all value the importance of wind and wave energy. Are there any other countries where we can examine what has been done in respect of the timeframe, in order to find out what is possible here, even in regard to the commercial aspect of energy generation?

Mr. Peter Coyle

It is worth mentioning the Scottish position. Scotland has a lesser wave resource than here and nature has determined that, not man. Scotland has done big things in this area already because the political will has been behind it and because they have the capacity to grant consent for projects. We will not have that capacity until this Bill is passed into law.

Mr. Harvey Appelbe

The US has been trying to get this together, but has not really done so. We keep mentioning Scotland because they really have given their political backing to this, and it has paid off for them. It is all new. It is all about research and development. There are no commercial projects anywhere on the globe. Nobody has cracked this technology yet. The French are beginning to organise themselves to attempt to take the lead away from Scotland and from the UK. Both of those countries lack Ireland's wave resource. If we can organise ourselves, we can become the default location. If any project is done economically, I believe that it will be more economic here because the wave resource is that much better. As long as we are prepared to attract the business in here, it should always be to our advantage because of our rich resources.

Senator Cáit Keane

Are there any manufacturing jobs which might be realised if this went ahead?

Mr. Peter Coyle

The leading tidal energy company in the world, OpenHydro, is located in County Louth and it employs over 100 people. It fabricates enormous test devices, even though they are at a test level.

Mr. Brendan Barry

We are an island nation. We have the best resource in the world. Ireland and Scotland contain half of Europe's wave resource, so it is very fitting that Ireland should be a leader in this field. The economics of this will come right in countries like Ireland before anywhere else, so it makes perfect sense for us to get these enabling pieces of legislation and get on with trying to get the industry up and running here and creating the employment benefits and energy benefits, such as security of supply, that will come in due course.

Mr. Peter Coyle

Perhaps Mr. Davidson can speak about the amount of investment in aquamarine power, which is extraordinary for a company at this stage.

Mr. Neil Davidson

There has been investment by the Scottish Government, but our two major investors are SSE, which is a utility company, and ABB, which is a Swiss-based power and automation company. We have raised £70 million to date as a company. We work with 40 local businesses in Orkney and irrespective of where our devices are being manufactured, that requirement for local people to operate boats, undertake EIA work and so on comes with where the devices are sited, and not where the company is owned, so I think those jobs would flow if this developed here. We undertook an independent study of our 40 MW wave farm off the west coast of Lewis in the Western Isles, which is the world's first fully consented wave farm site. Our independent study showed that during the installation phase of the device, 200 jobs would be created locally for a 40 MW farm, with 20 to 30 jobs ongoing in operations and maintenance. There is a definite local aspect to employment at wind farms.

Deputy Marcella Corcoran Kennedy

Has our education system the capacity to produce the qualified people that would be required for this? My other question is about energy storage. Is there any current research and development on how to store the energy generated by ocean energy?

Mr. Peter Coyle

I will leave the storage question to my colleagues, but I would like to respond to the question about education. We are very well placed in the education area. We are producing the skills at the top end.

For example, this year University College Cork has led five universities in Ireland, including Queens University Belfast, in developing and implementing a masters degree in engineering science focused on ocean energy. It is unlikely that any of the graduates from that course this year or for some years to come will necessarily get jobs in ocean energy, but they will get jobs in Scotland, France and other places and they will return here. They are the big investment in the future.

At the lower end of the scale, when talking about fabrication jobs and so forth, we do not have the shipbuilding tradition that Scotland has, so it remains to be seen whether we can generate the skills when they are required, but we are some time away from that. Certainly for the next number of years there will not be any great difficulty in generating the skilled people we require at all levels. It should also be borne in mind that there are very significant research and development facilities here. There are significant facilities in Queens University Belfast and Portaferry. We have the quarter scale wave and tidal energy test device centre in Galway Bay, the Marine Institute facilities, IMERC in Cork and in two weeks the builders arrive to start constructing the new Beaufort laboratory, which is costing €16 million. It will house what I consider to be the most advanced wave and tidal energy test facilities in the world. There are great research and development facilities in place or coming on stream and we have made various provisions for educational skills, so we are fine for the present. However, my colleagues might have something further to say about that or about storage.

Mr. Brendan Barry

On the storage, one must look to where the industry is going in the next ten or 15 years with this mix of renewables we have talked about and their intermittency. What we see for the future is a mixture of the renewables, the interconnection we have already and possibly more of that. We already have storage in the ESB facility at Turlough Hill. There could be a little more of that. However, we are moving beyond that to the customer playing a more active role in the market. In other words, focusing on the demand and having more flexible demand will have to be a feature, with the customer playing a more active role in how and when they use electricity. It could be things such as the use of electric vehicles and picking the right times to charge those vehicles and so forth. That will be a feature. Storage will also be a part of the mix. I do not think there is any single solution. It is a mixture of those types of solutions that will allow this level of renewables. Our 2020 target is to reach 40% from renewables. What that means for the Irish electricity system is that there will be times when over 75% of demand will be met by wind. That is a very big challenge. It is being worked on at present through various programmes to ensure it can happen over the next number of years.

It is a challenge. We are well aware that when ocean energy takes off in the 2020s, it must be on top of what is there already in terms of onshore wind. It can only work in the context of interconnection, export, storage and the customer playing a much more active role. That will be facilitated through new technologies and so forth in due course, whereby the customer will be able to play a more active role in helping to smooth demand to match the available generation from renewable sources.

Senator Cáit Keane

Is there a map? When people talk about wind energy at present they talk about putting it out to sea. They want to get rid of the masts from the land and put them out in the sea. Masts can work anywhere, unlike a wave or tidal energy device. If one were staking a claim on part of the ocean as the best place for tidal or wind energy, would one make a map of Ireland and the ocean? Is that done?

Mr. Harvey Appelbe

Yes.

Senator Cáit Keane

It would be to ensure one was not putting the wind energy in the wrong place.

Mr. Harvey Appelbe

There are a couple of answers to that. It is certainly possible to take into account the strength of the resource, particularly tidal and wave energy, which is very localised, the grid and the geographical features that make for the best place. We have done that as an industry. We have identified to the policy makers what we consider the best places for development to be organised. The Bill takes into account the idea of a plan-led approach so there is some organisation. Over and above that, the second dimension is what is called the human effect. There are obviously other sea users, for fishing and so forth, and they must be taken into account. Together, those must be combined into a special plan. Ireland, as an entity, must organise its thoughts about the marine environment and produce a marine special plan so this type of development can exist in those places that are most appropriate.

Senator Cáit Keane

Would that be one of the recommendations, that Ireland must develop a marine-specific plan that is mapped for all of the interests, be it fishing, tidal power and so forth? Does that have to be done in conjunction with or written into the Bill?

Dr. Anne Marie O'Hagan

I work on marine spatial planning. Generally, all the uses of the sea would be mapped and, depending on the use, the responsible authority could zone that area for further development or not, as the case may be. However, we have not done that yet in Ireland.

Senator Cáit Keane

Politicians have heard of rezoning. Must one rezone the sea as well for the different types of development? I am thinking out loud but should there be a recommendation that the Bill provide that a rezoning package would have to be drawn up by legislators, similar to how we do the development plan and renew it every five years?

Dr. Anne Marie O'Hagan

That is the approach some countries have taken, but others have decided not to take that approach. As marine spatial planning is quite a new concept, it is difficult to decide which is the best approach. However, from a developer's perspective, anything that gives them more certainty is what is required.

Chairman

We will have to conclude.

Deputy Marcella Corcoran Kennedy

I have a final question about the storage. How does one generate the energy in the sea and get it to Turlough Hill to be stored? How is that managed?

Mr. Brendan Barry

The energy that would be generated from the west coast of Ireland would feed into the national grid and in that sense it will make its way to Turlough Hill. Turlough Hill is already part of the market and the market mechanisms are already there to allow that to happen. The infrastructure is already in place. The key element as we move forward is whether we need more storage, whether we need local storage, more exports, more interconnectivity and so forth.

Chairman

Thank you for your interaction with the committee. I apologise for our delaying proceedings. Your interaction has been very informative and helpful to the committee.

We will suspend the sitting to allow the next witnesses take their seats.

Sitting suspended at 1.08 p.m. and resumed at 1.10 p.m.

Office of Public Works

Chairman

We will continue our discussion on the outline heads of the maritime area and foreshore (amendment) Bill 2013. I welcome Mr. Tony Smyth and Mr. Liam Basquille from the Office of Public Works and thank them for their attendance.

I wish to advise them of a procedural notice with regard to giving evidence. I draw the witnesses' attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are asked to respect the parliamentary practice in regard to referring to officials outside the House and so forth. Members are also asked to respect that parliamentary practice. I invite Mr. Smyth to address the committee.

Mr. Tony Smyth

I thank the Chairman and the members for this opportunity to comment on the outline heads of the maritime area and foreshore (amendment) Bill. We welcome the broad aim of the proposed legislation to rationalise and streamline the consent and planning process in regard to marine development. The OPW's main interest in the proposed legislation concerns the possible implications it may have for our work in the construction of flood relief schemes in coastal towns and cities where defences against tidal influences on rivers are generally necessary and where issues of foreshore consent may arise.

We set out briefly in our submission the OPW's involvement in coastal protection measures and flood relief scheme development which may impact on foreshores where they comprise reaches of rivers that are subject to tidal influence. I do not propose to read that submission into the committee record except to stress the role of local authorities in the Coast Protection Act as the initiating authority.

As I indicated, the main interest of the OPW with regard to the new proposals concerns the possible impact they may have on the progression of major flood relief projects in coastal areas and, in particular, any potential for duplication or delays that may arise out of the consent process set out in the Bill. As we outlined in our submission, while flood relief works carried out under the Arterial Drainage Act are classified as exempt development for planning purposes, the OPW is required under those Acts to follow a comprehensive public consultation process as well as statutory consultation with all relevant Departments and bodies prior to seeking the approval of the Minister for Public Expenditure and Reform for the works. Also, under the Arterial Drainage Acts, the OPW is the competent authority for the environmental impact assessments and appropriate assessments, and any proposals for development or works under those Acts require screening and, if necessary, a full assessment.

The proposed foreshore (amendment) Bill would appear to require that any development on the foreshore which would require an environmental impact assessment, EIA, or an appropriate assessment, AA, would be subject to approval by An Bord Pleanála. It is noted that the procedure for such an application will be similar to that which operates in regard to the Planning and Development (Strategic Infrastructure) Act. However, the terrestrial elements of a flood relief scheme development could not be examined in isolation from the aquatic elements, and vice versa, and therefore the work involved in the AA or the EIA would necessary be duplicated. Such duplication would run counter to the objective of the Bill which is to achieve a more streamlined and efficient consent system. The OPW would have a concern therefore that the operation of the new consent process for the foreshore developments involving an application to An Bord Pleanála would not result in unnecessary duplication of work in regard to the EIA and AA requirements or in delays to the progression of flood relief works.

Having regard to the exempt status of the flood relief works, the detailed and substantial consultation process to which the works are subjected under the Arterial Drainage Acts and the OPW's designation as competent authority for EIAs and AAs under those Acts, it would be the OPW's expectation that the proposed new consent process will not operate in such a way as to create any unintended obstacles to the efficient progression of such works. The OPW will be consulting the Department of the Environment, Community and Local Government in regard to this matter over the coming weeks.

The OPW has less concern in regard to the impact of the proposed new legislation on coastal or erosion protection works, which, as explained in our submission, are generally carried out by local authorities. It is noted in this regard that, under head 19 of the general scheme, it is proposed that the Minister for the Environment, Community and Local Government will have powers to make regulations to exempt certain activities from the requirements to obtain consent. One of those listed activities is emergency works related to sea defences and it will be expected that most coastal or erosion protection works carried out by local authorities might fall into that category.

In summary, the OPW welcomes the broad thrust of the aims proposed in the new legislation but has some concerns in regard to the potential for duplication or delay in how the new consent process will operate in regard to flood relief works carried out under the Arterial Drainage Acts. As I said, we will consult the Department of the Environment, Community and Local Government on ways to minimise and, if possible, eliminate such potential delays or disruption.

I would be happy to answer any questions members may have and to help the committee in any way we can.

Chairman

I call Deputy Corcoran Kennedy.

Deputy Marcella Corcoran Kennedy

In terms of coastal erosion, how is the OPW measuring the erosion levels and the rate at which erosion is occurring year on year?

Mr. Tony Smyth

We have a comprehensive Irish coastal protection strategy study that is nearing completion, as set out in our submission. In that respect, we have examined aerial photography going back over a number of decades to see where the coastline was, say, in the 1970s, where it was in 1990s, wherever records are available, and where it is now. From that we try to judge the rate at which coasts are being eroded and make a projection forward to 2050 and 2100 as to where the coastline might be and we designate areas in that context, in the same way as under the planning guidelines we have set out areas that would be at risk from river flooding. These would be areas at risk from coastal erosion, and avoiding development in those areas for the future would be the main thrust in that respect. It is based on what happened in the past and projections into the future. Obviously projecting into the future is fraught with uncertainty.

Deputy Marcella Corcoran Kennedy

Which areas are most under threat?

Mr. Tony Smyth

I would have to come back to the Deputy on that but some places around the Wexford coast and some places in Kerry are the two areas that come to mind. There would also be smaller places around the coast, but the broad thrust in that respect would be primarily those two areas.

Chairman

I call Deputy Kitt, the Leas-Cheann Comhairle, to give him his full title.

Deputy Michael P. Kitt

I thank Mr. Smyth for his remarks. I have two questions. First, has the OPW any function in regard to oyster farming? I am thinking of Clarinbridge in County Galway, in particular, and other areas around the coast. Would consultation take place in regard to what oyster farmers try to do? When a flood scheme is proposed for an area, whether it be a turlough or an area where there is oyster farming, there is an issue as to how a drainage scheme will be dealt with in that regard.

My second question relates to a major issue of discussion in my area and in the midlands, namely, the River Shannon, in the context of our dealing with the various flood relief programmes. How does that fit in with coastal policy and coastal erosion?

Mr. Tony Smyth

In respect of any flood relief scheme we would propose, we would have to carry out a full environmental impact assessment, and that would include examining the various sensitivities on any river, including, perhaps, oysters or pearl mussels, if they were an environmental issue. We do not have a role in the fishing industry or anything to do with it, but any impact of a flood scheme would not want to damage other industries. In the process of trying to fix one problem, we would not want to cause another one.

We have some coastal embankments in the Shannon Estuary. In regard to the flooding around Limerick and Shannon town centre, there are maintained embankments in that area. I am not conscious that there is an erosion problem as such in the Shannon Estuary, but there are some maintained embankments, some that we maintain and some that are maintained by the Shannon Development authority or the councils in that area. I would have to check that as I am not fully sure of that.

Deputy Michael P. Kitt

There has to be a sharing in some way, as Mr. Smyth will appreciate.

I asked this question of An Bord Pleanála given that a different Department deals with the granting of foreshore licences other than local authorities and the Department of the Environment, Community and Local Government and An Bord Pleanála. Would the OPW have any role in looking at these separate licences for the foreshore? For example, is there a role for the OPW when a sewerage scheme is being proposed for a town or village?

Mr. Tony Smyth

Not directly but what we have done is prepare flood maps and coastal flood maps which might influence the decision in respect of the location of such a plant so as not to locate it in an area that was at risk of flooding. We would have a role in the flood risk area. That would be by way of information given to the planning authority. We would not have a direct role in the decision making regarding the planning application.

Deputy Michael P. Kitt

What I would be concerned about is the delay in granting foreshore licences. There has been talk for years of having one body dealing with the granting of foreshore licences and the sanctioning of sewerage schemes. As I said here previously, if one happens to be living in a coastal town or village, one could be waiting a long time for a sewerage scheme if one has to wait for another agency or Department to deal with the foreshore licence application. I am trying to see whether there is a way of speeding up and expediting an application for a foreshore licence? Does the OPW have any role in that?

Mr. Tony Smyth

Not directly. We would make information available to planning authorities in respect of the flood risks but we do not have a role in deciding on the foreshore licence.

Chairman

I am from a coastal area like other colleagues. I know the OPW has no direct involvement in planning applications. In respect of the foreshore, the Department of Agriculture, Food and the Marine has a role, the OPW has a role, albeit a peripheral one - no pun intended - the local authorities have a substantial role and An Bord Pleanála now has the supreme role in terms of critical infrastructure. After the implementation of the legislation, does Mr. Smyth envisage that this process will be more manageable and streamlined from the OPW's perspective?

Mr. Tony Smyth

Under the Planning and Development Acts, when we bring forward a flood relief scheme, there is a process under the Arterial Drainage Acts for a statutory consultation period and a process for dealing with the comments people make to us relating to the proposals we are making for a flood relief scheme. Due to the fact that this has been there since the implementation of the first Arterial Drainage Act in 1945, arterial drainage schemes and flood relief schemes are exempt development under the Planning and Development Acts. Normally, when we are bringing that forward, we bring it through except where we overlap at the coastal end. I am not conscious that we have had to do a coastal one. Carrick-on-Suir was a tidal scheme. It was the one where we had to apply for a foreshore licence as well. If that was exempt so that the process for us was streamlined from bringing forward a flood relief scheme by way of exemption in the same way as it is exempt in planning, it would certainly streamline the process for bringing forward flood defence schemes in coastal towns.

Deputy Marcella Corcoran Kennedy

Who is also on the national hydrometric working group that was set up with the EPA? What type of information is being gathered on the marine?

Mr. Tony Smyth

I would have to check the detail of it and come back to the Deputy. We run a data set of about 350 gauges mainly on rivers for flood relief and flood information. The EPA runs a similar-sized network primarily for water quality. It is to ensure that the process whereby we gather information is streamlined and that we are not duplicating any work. That has been ongoing for quite a number of decades but this co-ordination committee will streamline that. I understand that the Marine Institute has installed a number of gauges. I am not sure whether they have the same level of maintenance as those gauges or whether it has the resources to do that. It is an attempt to streamline that gathering of the basic information by the State agencies involved in it. The main agencies involved are the OPW and the EPA with the Marine Institute. I think the ESB would be peripheral but it does not have very many gauges and Waterways Ireland would have some gauges but, again, the main drivers would be the EPA and the OPW as the main data set owners.

Chairman

I thank Mr. Smyth and Mr. Basquille for their attendance here and interaction with us. We will now suspend to allow our next set of witnesses to take their seats.

Sitting suspended at 1.25 p.m. and resumed at 1.32 p.m.

Coastwatch Europe

Chairman

We will continue our discussion of the outline heads of the Bill. I welcome Ms Karin Dubsky and Mr. John Wilde Crosbie who are here on behalf of Coastwatch Europe.

I advise the witnesses that, by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to this committee. If they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given. They are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing ruling of the Chair to the effect that they should not comment on, criticise or make charges against a person outside the Houses or any official by name or in such a way as to make him or her identifiable.

Any opening statement or documentation provided by witnesses may be published on the committee's website after the meeting. I invite Ms Dubsky to make her opening presentation.

Ms Karin Dubsky

I apologise if my presentation is a little haphazard because I have been ill over the weekend. We also thought our presentation was to be at 2.30 p.m., so one of our members will come in later with some material for the committee.

The Bill is comprehensive in that it covers many aspects. However, it is standing on its own without the framework of coastal zone management. In our view it is time to do the impossible. If a coastal zone management framework is not in place, the demands on local authorities, in particular, will be very great. Many of the functions which are with the Department of the Environment, Community and Local Government or the Department of Agriculture, Food and the Marine, will be transferred to local authorities, in particular, the functions relating to the inter-tidal, nearshore area. I work a lot with local authorities which are the regional co-ordinators for the coastwatch survey. I know the capabilities and in-house expertise of the local authorities. I fear they are being given a very great amount of extra responsibility. To do this work well requires extra staff. Will it be possible for them to get expert staff who are qualified in marine matters? So far as I am aware, only one local authority has a person with good marine knowledge.

Coastwatch Europe has one over-arching request. This Bill has two aims: first, to align the foreshore consensus into the planning system, and second, to provide a coherent mechanism to facilitate and manage development activity in the exclusive economic zone, EEZ. Coastwatch Europe urges the committee to add a third aim, to ensure the Aarhus Convention on access to information, public participation and decision-making will be fully integrated into the foreshore area. At present, Ireland has made significant strides in implementing the Aarhus Convention. We were very late but we took it on board in the environmental area. However, it peters out at the shore, as it were. Coastwatch Europe has scrutinised the Bill for its compliance with the Aarhus Convention and we believe the Bill as drafted will still be seriously lacking in several areas with regard to access to information, public participation and access to justice, mainly because it omits the fisheries and agriculture sectors. That omission means Ireland will not be compliant with the Aarhus Convention. That is the main reason and there are other areas, in particular with regard to erosion control. Coastwatch Europe urges the committee to consider that the marine environment is ten times bigger than our land area. It is our commons in that it belongs to all of us. If Ireland could present a new foreshore Act which is a model of public participation and access to justice, this will be noticed abroad.

There are two other areas where we believe something could be done and which are detailed in our written submission. The first area is ownership. There is a morass of contradictory information or none at all about who owns what on the foreshore. This new Bill should be the means of providing clarity about the estimated several thousand bits of foreshore which belong to individuals. Otherwise it will be very difficult to have coherent management. We know from experience that whenever anything unforeseen happens on the shore, everyone scurries to their books to try to find out whether anybody owns anything. Days can be lost in this search and if the activity on the foreshore is illegal, this delay is serious.

The Bill contains some key proposals which should be explored in more detail to ascertain the cost implications and the need to amend other legislation. For example, environmental impact statements and appropriate assessments are to be carried out by An Bord Pleanála. If a local authority with a coastal zone like that of my county of Wexford or like Donegal, with a lot of Natura 2000 sites, is asked to extend its five year development plan to include the low water mark, it will not have control over the Natura 2000 sites - anything to do with planning must go to An Bord Pleanála - and also no control over anything with regard to aquaculture. The local authorities are in a very difficult position because they can only control so much. All of the activities they do not control will need access to shore. Somebody needs to drive to shore or to walk to shore and this will have an impact on the shore. It would be extremely useful to have a collaboration framework - coastal zone management - or some form of management unit to bring everything together. It could be established as a new task force. The Minister has set up two task forces to deal with the marine and with Food Harvest 2020 and our ocean wealth. If he were to set up a third task force on coastal zone management and coherent protection and management of the coastal zone between the different actors, that could be a way of having the Bill within that framework.

I wish to make some brief points on climate change. The foreshore Bill should take climate change much more into account than it does. I was in Belfast where the Northern Irish authorities are looking at their shoreline management adjustments for climate change. We might be able to do quite a lot of work on a cross-Border basis.

I also wish to highlight that the foreshore end of the cross-Border issues is a hairy area. Quarries are operating North and South without licences. Aquaculture companies are also operating without licences. Donegal County Council has applied for a compulsory purchase order, CPO - perhaps it has gone through - regarding the Lough Foyle foreshore, which the North believes belongs to it. However, the application went to our Department of the Environment, Community and Local Government. The cross-Border area needs particular attention.

I will leave it there. My comments were meant to give members an idea of the overall scope. We also performed an audit, as there were a few small, unintentional errors in the Bill. They can be examined easily.

Deputy Marcella Corcoran Kennedy

I thank Ms Dubsky. Did Coastwatch Europe submit a presentation to us? I have been looking, but I cannot find anything.

Ms Karin Dubsky

I am sorry. I submitted it late. I have the flu and I did not even know whether I would be able to attend. I only submitted my presentation approximately one and a half hours ago.

Deputy Marcella Corcoran Kennedy

That is not a problem.

Ms Karin Dubsky

We sent the headings on Friday.

Deputy Marcella Corcoran Kennedy

I am interested in the suggestion that the Minister should establish an extra group on coastal zone management. Who should be members?

Ms Karin Dubsky

It should be based on the model of coastal zone management committees abroad, in that all major stakeholders would be represented, including those that are usually least represented. For example, traditional inshore fishermen are hardly ever heard. The committee should also include environmental NGOs, local authorities and the main bodies, for example, the Sea-Fisheries Protection Authority, Inland Fisheries Ireland, IFI, the Marine Institute, etc., so that all of those with a responsibility in the zone are informed of one another.

Deputy Marcella Corcoran Kennedy

Has Coastwatch Europe developed any kind of policy on tidal or wind energy generation?

Ms Karin Dubsky

We do not have an agreed Coastwatch Europe policy yet. There are many differences between regional groups. My personal opinion is that it is crucial that we develop these types of generation. We cannot say "No" to everything and we need energy. We have significant resources, but this work needs to be done careful, with as much monitoring and information as possible. We welcomed and worked with the developer on the Arklow bank turbines. We were pleased that the developer made the adjustments that we suggested. The developer also changed its landfall. However, since the bank was set up, no information has been provided. Those seven turbines could supply information on water temperature, wind, biodiversity, etc. It should be a win-win situation. People should not just get something to create energy without it collecting and providing information also.

Deputy Marcella Corcoran Kennedy

What are the problems with the way the Aarhus Convention is being interpreted and effected?

Ms Karin Dubsky

I will provide an example. The worst area is aquaculture. We have a European Court of Justice judgment against us. Time is ticking. We need to sort this problem out so as to be fair to people and the environment. We do not have exact figures, but we estimate that approximately 500 aquaculture farms are running without licences in the coastal zone.

Chairman

How many?

Ms Karin Dubsky

More than 500. We do not know because we cannot extract the exact figures. These farms had licences that have since expired. My colleague, Mr. John Wilde Crosbie, is a barrister and has taken a court case on this matter. Perhaps he will be able to elaborate on the details of this situation. Basically, people are functioning without licences but as though they had licences. This means that there is no democracy. For several years, they have continued to operate on the foreshore. One cannot control anything because they do not have licences. One cannot refer to a breach of a licence. Under a change in the fisheries Act, they are allowed to operate in Natura 2000 sites as though they had licences. This is an example of where there is no access to justice or public information.

The Department is trying to improve this situation. In recent months, it considered Castlemaine Harbour and the Minister supplied more than 40 licences in one go. We examined the cumulative impact of these. Each licence was checked separately by the Marine Licence Vetting Committee, MLVC, which has never published a report of any kind and the members of which are selected by the Minister. We were told that cumulative impacts had not been taken into account. This was in breach of the environmental impact assessment, EIA, directive and we appealed to the Aquaculture Licensing Appeals Board, ALAB. When we asked for the conditions applying to the licences that the Minister had just granted, we were told that we could not get them. An ALAB appeal is costly and we can only afford one or two. This situation is as bad as if someone was given planning permission on land and someone else was not allowed to see the conditions applying. If the committee wishes to know the legal specifics, my colleague will provide them.

Chairman

We will ask him to elaborate at this juncture.

Mr. John Wilde Crosbie

I know about Lough Swilly in particular, where a 12-year licence was awarded in approximately 1990. It expired, but the operation continued for three years without any licence. In 2006, the then Minister amended the Fisheries (Amendment) Act 1997 to provide that, if one had an application for a licence pending, one could continue to fish under one's older licence. This is what happened in Lough Swilly. The people who are seeding and dredging implanted oysters, which displace the natural oysters that local fishermen used to dredge, have been operating without a licence for longer than they did with their original licence.

Under a provision in the 1997 Act, the Minister would determine an application for a licence within four months. If that was not possible, the Minister would give reasons and extend the period. However, this section was never brought into force. Instead, the then Minister introduced an amendment to the Act in 2006 allowing the applicant for a licence renewal to operate as if he or she possessed a licence. The judge in the case referred to the possibility that the Statute of Limitations would allow the person to gain permanent rights in the area after a period of 20 years or so on, given the fact that his or her activity was currently unlicensed.

For this reason, Ms Dubsky suggests in her written submission that, when the new legislation is enacted as opposed to brought into force, time limits should be applied to commencement sections, which allow the Minister to approach Acts in a piecemeal fashion. In this way, if the Minister had not implemented the full Act within a certain period, he or she would need to explain to the Oireachtas the failure to do so. The Oireachtas passes an Act that must be used in its entirety to make sense, yet the Minister may pick and choose what he wants to use. He can leave out sections that balance the rights of everyone concerned and only use those sections preferred by him or whatever industry he favours at the time.

In that context, it bears upon the commencement section as well as on the importance of including control of aquaculture in the new Bill.

Deputy Marcella Corcoran Kennedy

Of the 500 companies which are operating without licences, did they all have licences previously or are there new operators in there now?

Ms Karin Dubsky

There are some. Lough Foyle operators, for example, on the Republic's side - or what might be the Republic's side - have no licences. They are just operating. Most of the others had licences, but those licences ran out.

As regards the timescale involved, native oysters in Ireland have been used for over 4,500 years. We know that from the shell levels. In most cases, aquaculture licences for the Japanese oyster, which is now becoming invasive, have been issued for ten or a maximum of 15 years. Given that timescale, we are having a lot of impact in a short time.

Deputy Marcella Corcoran Kennedy

I thank Ms Dubsky.

Deputy Richard Boyd Barrett

I thank Ms Dubsky for her presentation. I will take up the last point first, which is very interesting. Is Mr. Crosbie saying that the Bill essentially gives the Minister too much discretion to fully enforce provisions in the legislation, which are good but which the Minister is not bound to implement?

Mr. John Wilde Crosbie

Yes. That is a perennial issue with all legislation, but it has come to our attention particularly concerning the aquaculture licences. We fear that the same thing might happen with this Bill if the commencement section is not qualified in some way, at least to make the Minister accountable to the Oireachtas. In situations where the Minister might have decided that certain provisions could be left out, they could be enacted but would not be brought into force.

Deputy Richard Boyd Barrett

Coastwatch Europe has a sympathetic ear on that matter. Mr. Crosbie should send us the amendments. Similarly, I worry about the forestry Bill where there is a lot of discretion because things are not specifically tied down.

Apart from the general problem of a lack of democratic accountability because people are not operating under rules, is Mr. Crosbie also saying that a real problem is emerging cornering the displacement of native oysters?

Mr. John Wilde Crosbie

Yes.

Ms Karin Dubsky

Yes.

Deputy Richard Boyd Barrett

Do the witnesses want to elaborate on that? Obviously it is bad that native oysters are being displaced.

Ms Karin Dubsky

It is a good example of something which might be covered in the Bill but we have no idea whose responsibility it would be. A new EU regulation has just been passed on invasive alien species. Under the Foreshore Act as it stands, the fisheries and aquaculture sectors will remain with the Department of Agriculture, Food and the Marine. The Minister can decide to license the growing of Japanese oysters anywhere and it is virtually impossible to appeal. For example, there has never been an oral hearing by the aquaculture licences appeals board.

Deputy Richard Boyd Barrett

Apart from Coastwatch, are other people expressing concern about this?

Ms Karin Dubsky

Yes, absolutely. Two fishermen have recently been made bankrupt. We represented them in the Supreme Court to try to stop this because they are losing their livelihoods. They are traditional native oyster fishermen from Donegal. Ireland has incredible shellfish riches, so we should be highlighting these native species which could back up tourism also. At the moment we do not have any policy on which species to grow, so if there are applications to grow Japanese oysters the Minister can choose to grow the gigas ones. When the gigas oyster becomes feral and invasive - as it has done in Lough Foyle, for example - it is nobody's responsibility. It is not clear in this Bill who would be responsible to halt this, clean up the mess and control feral oysters which are now taking over the native oysters' habitat.

Chairman

Ms Dubsky referred earlier to Castlemaine and Cromane pier. She mentioned 40 licences but were they for mussel farming?

Ms Karin Dubsky

It was a mixture of three species: mussel, clam and oyster.

Chairman

Was there an issue about prohibiting mussel farming in Cromane a number of years ago? To the best of my recollection that restriction was subsequently lifted, was it not?

Ms Karin Dubsky

That is right. That was an issue of in- or out-of-season mussel seed taking. There was a closed season during which if one took the mussel seed too early one might suffer much loss. However, there is a lot more to the Castlemaine story. At the time it concerned the former Minister, Mr. Carey, and there was illegal seed taking before the season opened.

Chairman

That would obviously have implications for growing, harvesting and future production.

Ms Karin Dubsky

Yes, but it had no implications for the people who did the illegal fishing.

Chairman

Would there have been a fairly strong economic argument by local fishermen who were dependent on mussel farming at Cromane pier, to get back to the previous level?

Ms Karin Dubsky

Yes. It was an example of a few people, mainly with Dutch backing, making a lot of money. A lot of the smaller, traditional fishermen found it difficult.

Chairman

I understand. Basically, major players were taking the majority of a limited stock - for want of a better term - and leaving very little for smaller operators in the area.

Ms Karin Dubsky

Exactly, and going out ahead of time.

Chairman

Yes, when they should not have been doing it.

Deputy Richard Boyd Barrett

I thank Ms Dubsky for that interesting information. As regards coastal zone management, developing renewables and other energy, oil rigs were also an issue. Ms Dubsky said we should not be against everything and we have to develop renewables in particular. I suspect she might have a slightly different attitude to oil rigs.

Ms Karin Dubsky

Yes.

Deputy Richard Boyd Barrett

As Ms Dubsky knows, I am involved in the Save Our Seafront campaign. To cover both we should apply the exclusion zone that seems to exist in most other European countries. In that way, the foreshore area is excluded from major developments be they wind farms or oil rigs. What does Ms Dubsky say to that?

Ms Karin Dubsky

Under the new definition, the foreshore would go right out to the exclusive economic zone. If that is excluded, it would mean one would not have it anyway.

Mr. John Wilde Crosbie

It only goes out to the 12-mile limit.

Ms Karin Dubsky

No. In the proposed new Bill it goes all the way out. One has to be extra careful. I would not put out an exclusion zone of so many metres. However, I would put in place - and it is what we have to do by law anyway - a network of marine protected areas first, before putting in oil rigs and other material, so it would be in the right order.

Deputy Richard Boyd Barrett

Can I get some clarification on the definition of the foreshore because there seems to be a slight difference of opinion? I thought the foreshore was 22 or 24 kilometres.

Mr. John Wilde Crosbie

It is the 12-mile limit.

Ms Karin Dubsky

It is the 12-mile limit and the proposal in this Bill is to extend it to the exclusive economic zone.

Mr. John Wilde Crosbie

No, I do not think so.

Ms Karin Dubsky

We will have to differ then and look at it again.

Mr. John Wilde Crosbie

Yes.

Deputy Richard Boyd Barrett

My understanding is that there were the low and high water marks, and then a bigger zone.

Ms Karin Dubsky

Yes.

Deputy Richard Boyd Barrett

It does not do away with the notion of the foreshore.

Ms Karin Dubsky

No, it just changes the definition of "foreshore" and it also brings in this nearshore zone which is the inter-tidal area.

Deputy Richard Boyd Barrett

I agree with the witnesses on coastal zone management.

Mr. John Wilde Crosbie

The foreshore's location is not the issue. The real issue is what area the local authority controls.

This is vital in terms of allowing people to participate in their local planning process. The process envisaged for the larger zones to be under the control of An Bord Pleanála and, therefore, outside the remit of the local council. In this regard, an inshore zone is defined in the Bill as what a lawyer would term the old common law foreshore, which is the high and low watermark.

Deputy Richard Boyd Barrett

Why in the witnesses' opinion do countries such as Germany, Britain, Norway and others set a distance from the coast inside which these things are not permitted? Do the witnesses not think they have good reasons for doing this?

Ms Karin Dubsky

It depends. For example, that is not the situation in Germany. It first sets the marine areas for temporary protection, in terms of closure to spawning, and then the permanent special protection areas, SPAs, and special areas of conservation, SACs. It then decides on the best fit. For example, in terms of the SPA and SAC, it does not set a particular distance.

The Irish strategic environmental assessment, SEA, on offshore energy is lying in a dusty cupboard somewhere. I was involved in the group which drafted it, which work was completed approximately two and a half years ago. It should be utilised. Ireland has not yet fulfilled its arrangements under the marine strategy framework directive and other law to produce a coherent network of marine protected areas. It is important this is done before decisions on the different uses are made.

Deputy Richard Boyd Barrett

The strategic environmental assessment, SEA, looked generally at the potential environmental impact of developing energy resources in the offshore. An issue arose in relation to oil rigs that could potentially arise in relation to the Dublin Array project. It was suggested in the context of the oil rig that the SEA covered the requirement for an environmental impact assessment, which we thought was preposterous because what is needed is an impact assessment of what the oil rig might do.

Ms Karin Dubsky

Yes.

Deputy Richard Boyd Barrett

Is there any danger in terms of this Bill that we are doing away with the need for specific projects to be properly assessed environmentally?

Ms Karin Dubsky

I did not get that sense from the Bill. I am concerned that An Bord Pleanála will have an enormous amount of additional work to do. Unless it obtains marine staff to do this, either a massive backlog will build up or there will be a great deal of inconsistent work just to get things moving. An Bord Pleanála does not currently have any implementation or enforcement role or powers. It is unclear to me who in some of the cases will implement and enforce the decisions made by An Bord Pleanála in relation to the inshore zone. This needs to be teased out a little more.

Mr. John Wilde Crosbie

As stated, one of the better provisions of this legislation is that outline planning permissions will not apply in this zone, such that people will not be able to obtain outline planning permission and then, the devil being in the detail, do lots of things permitted under that outline planning permission. We are concerned that the role of the county council under this legislation is somewhat restricted as compared with what is provided under the previous Act. Under that Act, a development which adjoins a county council's functional area requires planning permission. This area has been extended by the definition of the "inshore zone". We do not know the reason the inshore zone definition is restricted to bays and estuaries. For example, if one is in Dublin Bay approaching Dalkey Island the inshore zone comes within the remit of the county council but when one turns the corner one approaches the common law foreshore which is no longer an inshore zone because the definition does not take into account the two watermarks once one leaves the bay.

It would be much better perhaps if the county councils' functional area were not defined in terms of tides. We are now entering a time of rising sea levels, which means the tide limits will change dramatically not only in terms of ownership of the land but in terms of the functional area of the county council, which is defined by reference to the inshore zone, which is tied entirely to tides which are going to change. It would be worthwhile doing something in this area. I regret I have not had time to read the Bill in great detail. It seems to me our planning laws generally are tied too much to the concept of land, its use and development. This Bill provides an opportunity to move away from this and to define the use of water. While the Bill refers to "on or over the seabed", it does not state, "in the water on or over sea beds".

An issue arose recently in London in a case entitled Tower Hamlets v. CityJet, which indicates that the technology of ships now plays a big part in terms of how issues need to be addressed. CityJet have large ships which contain helicopter decks and are self-positioning, with engines pointing in all directions. They brought these ships up into the middle of the Thames River and allowed helicopters, which had picked up people from CityJet flights wishing to travel up town, to land on them, in respect of which Tower Hamlets said it needed planning permission. CityJet's response was that it did not because it was not using land, which it was not. The House of Lords then twisted the words of the relevant legislation in terms of the meaning of "land", which meant CityJet required planning permission to continue what it was doing. This draws attention to the fact that the technology of ships now is such that one no longer needs to tether them to the sea bed. Currently, one can place a ship in the exclusive economic zone, where it can remain in place with engines running, thus not making use of land anywhere. For this reason, there is a need to consider inclusion of a definition of "water" as well as of "land".

An issue that has come to light and is the subject of a case before the Supreme Court in relation to Balbriggan Harbour, which comes under the remit of Fingal County Council, is the use of estuaries for house boats. Because of the manner in which the functional area of the county council is defined in this Bill, a connection is required in terms of what is defined as an inshore zone. It is possible for anyone wishing to do so to anchor in the mud a house boat or a boat which one declares is a house boat but is not but in which one proposes to live as such. Provided that boat stays afloat at all times, it can remain anchored there without planning permission. It is an issue that needs to be addressed.

Deputy Marcella Corcoran Kennedy

I note that the name of the organisation which the witnesses represent is Coastwatch Europe. What other European country should Ireland be aspiring to in terms of what we are doing here? Who is getting it right?

Ms Karin Dubsky

Many countries have various things right. For example, a few years ago the Spanish introduced a fine shore Act, set wise setbacks and undertook a costing of erosion and coastal planning owing to climate change. It then decided it was going the wrong route and that it would have to commit a huge amount of its annual budget to contain the erosion controls.

Therefore, they decided that any state-owned foreshore and seashore and land behind would be kept as state-owned and not to be built on for anything which could be eroded and which was high value. From that point of view that would be an example on that part. In regard to Scandinavian countries, Germany would be very good on public participation. There is also the UK Marine Act and the marine Bill in Northern Ireland. The head of its marine unit is speaking just now at the Red Cow Moran Hotel about marine protected areas. We would do well to listen to them speak on their marine protected areas. There is also resource protection. We opened our mussel sea fishing in protected sites in Ireland for the first time, all over the Irish Sea coast, while Northern Ireland decided to keep them closed. On one island, there are open fisheries where the boats from Northern Ireland can go to the South, they can rip out our mussel sea beds while in the North they are protected.

Chairman

I thank Ms Dubsky and Mr. Wilde Crosbie for their interaction with the committee and their particular insight. In essence the point they made was the obsession we have with land, not the obsession with the practice of local authorities' planning and land. I think of my local authority in terms of our land use and transportation studies. Some years ago Cork County Council had a very good initiative on our marine strategy. It was exceptional in terms of the other local authorities. It had a visionary and water-based policy, given that we are an island nation. I thank the witnesses for their insightful interaction, which is appreciated. They are free to go.

Sitting suspended at 2.13 p.m. and resumed at 3.45 p.m.

Department of Arts, Heritage and the Gaeltacht

Chairman

We will continue our discussion on the outline heads of the maritime area and foreshore (amendment) Bill 2013. I welcome Mr. Peter Carvill, assistant principal officer, designations, legislation and EU compliance; Dr. Eamonn Kelly, wildlife inspector; and Mr. Johnny Gorman on behalf of the National Parks and Wildlife Service. I thank them for their attendance.

By virtue of section 17(2)(l ) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. If witnesses are directed by the committee to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter only to a qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.

I wish to advise that the opening statement and any other documentation the witnesses present to the committee this afternoon may be published on our website when the meeting has adjourned. I invite Mr. Carvill to address the committee.

Mr. Peter Carvill

I thank the Chairman. I thank the committee for its kind invitation to the Department of Arts, Heritage and the Gaeltacht to contribute to its work on the proposed maritime area and foreshore (amendment) Bill. My name is Peter Carvill and I am from the legislation and EU compliance unit in the national parks and wildlife area of the Department. I am accompanied by my colleague, Dr. Eamonn Kelly, who advises on science and biodiversity matters, including nature, and also by my colleague Mr. Johnny Gorman.

The Department of Arts, Heritage and the Gaeltacht has engaged with our colleagues in the Department of the Environment, Community and Local Government in the preparation of these heads and will continue to do so as the drafting process advances. The principal focus of our engagement is helping to ensure that the proposed legislation is consistent with obligations under the EU and national law relating to nature protection sites and to certain vulnerable species of animals and birds that occur in marine areas.

The birds directive and the habitats directive oblige Ireland to protect endangered habitats and species. This is achieved through the designation and conservation of specific sites.

Ireland has 153 special protection areas, SPAs, for the protection of birds and 429 special areas of conservation, SACs, for the protection of endangered habitats and species of animals. Some 100 SPAs and 150 SACs are either totally or partially within the marine area.

As members of the committee can see from the maps provided, considerable stretches of Ireland’s coastline are included within such sites. Development is not prohibited within these sites and many of them host multiple activities. Any public authority considering whether to adopt or give consent to a plan or project affecting such areas is, however, bound by the requirements of the habitats directive, in particular Article 6. These requirements include that proposals for development or for activities that could have a significant effect on the site be subject of a detailed ecological assessment called an appropriate assessment. The outcome of such an assessment prescribes whether the project may proceed. A project that could have an “adverse impact on the integrity of a site”, to use the words of the directive, cannot be consented to unless strict criteria allowing derogation can be met.

Responsibility for compliance with the habitats and birds directives devolves on all agencies of the State in the development and implementation of their policies as well as in the exercise of their statutory powers and functions. Our discussions with the Department of the Environment, Community and Local Government will focus on how these requirements of EU law will be met in regard to consents to be given under this legislative scheme.

Certain species, such as cetaceans, namely, whales, dolphins and porpoises, and otters are also afforded strict protection by EU law wherever they occur. The Minister for Arts, Heritage and the Gaeltacht is responsible for the administration of this system of strict protection, but the impact of proposals for development in the marine environment which could affect these marine species is also considered in environmental impact assessments, under the EIA directive.

Ireland has been found to have fallen short of the requirements of the habitats and birds directives in a number of cases brought by the European Commission to the European Court of Justice. Most recently, in 2007, two separate cases found failures in transposition and implementation of both directives, including how the State dealt with consents affecting protected areas. As a result of those judgments, the European Communities (Birds and Natural Habitats) Regulations 2011 and changes to the planning and development Acts were made. The Irish Authorities and the European Commission are continuing to work together to address all aspects of these cases to allow for their closure.

A lack of compliance with EU legal requirements can lead to infringement cases against the State and can also provide an avenue for judicial review of consents. Such litigation can result in great cost and delay, that may arise for a plan or project before the legal process is completed. This can also impact entire sectors and undermine confidence in consent regimes.

Arising from those experiences, the Department of Arts, Heritage and the Gaeltacht is eager to ensure Ireland’s legislative framework will facilitate informed policy and decision-making processes that will give certainty to all parties. Robust legislation will help to avoid litigation and economic constraint. We are actively engaged with our colleagues in the Department of the Environment, Community and Local Government to assist them in ensuring this legislation will meet those requirements.

Dr Kelly and I are happy to take any questions the committee may have.

Chairman

I thank Mr. Carvill for his presentation. We all know the State has suffered the consequences for its traditional failures to transpose EU directives or to infringe on the rules and regulations of the EU in various ways. We have sullied our reputation internationally. That would not have gone down well with the people who represent us in Brussels. What is more, it is a lengthy and expensive process. Mr. Carvill may argue that the political will did not exist to do the job of work. In terms of potential litigation and the associated costs, what are the potential savings from the implementation of this legislation on habitats? Could Mr. Carvill give examples of the costs involved in recent times as a result of our failure to apply the EU directives and contrast that with the cost of implementation in this area?

Mr. Peter Carvill

One well known case is the Galway city outer bypass. This case ultimately went through the Supreme Court to the European Court. That was a judicial review of a decision by An Bord Pleanála. I do not have the figures on the actual cost, but it gives rise to lengthy delays and the cost and complexity of legislation, which will absorb resources in various Departments and agencies such as An Bord Pleanála, which are dealing with those cases. It is one of the reasons we have worked on framing new regulations. We revoked the European Communities (Natural Habitats) Regulations 1997, which were in a number of respects found to be inadequate. Rather than trying to amend the regulations, we started from scratch and did a completely new set of regulations without undoing the work that had been done under previous regulations. That gives a degree of legal clarity which I think is helpful. One could say we have all been on a learning curve, and from our contacts with other member states regarding these particular directives, I do not think we are unique in that respect. Other member states have had difficulties with these directives because they are stretching in terms of protecting nature. They are making demands which perhaps we and other member states have not been used to applying in terms of the protection of habitats and species.

Chairman

Mr. Carvill referred to ongoing interaction with colleagues in the Department of Environment, Community and Local Government. How often does this happen and at what level does the interaction take place?

Mr. Peter Carvill

The interaction goes to the highest level. As the Chairman will be aware, the National Parks and Wildlife Service was part of the then Department of the Environment and much of the legislative work that was done on the Planning Acts and on the European Communities (Birds and Natural Habitats) Regulations 2011 was done in the Department of the Environment, Community and Local Government. Much of the drafting of the 2011 regulations was done by the Department before the parks and wildlife section was transferred to the new Department of Arts, Heritage and the Gaeltacht. The very strong links that existed and which were built up when we were in the same Department remain. The contacts at all levels in the Department have been sustained and there is a very good working relationship between the two Departments.

Deputy Marcella Corcoran Kennedy

I apologise for being late. Everybody has an interest in the waters around our coasts and we have listened to the submissions. The challenge is to get it right and to try to accommodate everybody's needs in terms of generating energy, managing habitats and ensuring the least amount of damage is done.

How will the Bill impact on the work of the National Parks and Wildlife Service? How will it impact on the contact between the service and various players who require permission to develop something? Will the legislation strengthen the role of the NPWS or will it weaken the service?

Mr. Peter Carvill

One of the important things to realise about the habitats directive and the way the Department and Minister would see it, and in fact the legislation provides for this, is that each authority that gives consents, under any legislation that has land use impacts or, in this case, impacts on the marine environment, is the competent authority. They are the people who are entrusted with the task of assuring themselves the provision will not have a negative impact on the environment. We act as statutory consultees and as such advise them, but they are the people who make the decisions. Have I answered the Deputy's question?

Deputy Marcella Corcoran Kennedy

Yes. I thank Mr. Carvill.

Deputy Paudie Coffey

My question is similar to Deputy Corcoran Kennedy's and has been answered. I wish to give a good example of developing aquaculture around our shores whereby various Departments examine the possibility of exploiting the sector from an economic perspective. Mr. Carvill has clarified that the service does not play a role in decision-making and provides guidance, advice or expertise to the deciding authorities. Is that correct?

Mr. Peter Carvill

That would be the case. They consult us. We may have views on something that is put to us for consultation. I made the point that it is the authority that gives consent, approval or a licence which has the responsibility to ensure it is satisfied in terms of compliance, particularly with Article 6 of the habitats directive.

Deputy Paudie Coffey

I thank Mr. Carvill.

Senator Cáit Keane

I apologise for not being present to hear the presentation. When one considers the National Parks and Wildlife Service, it is automatic for one to think of wildlife on land. We are dealing with wildlife in the sea. Is there a separate unit in the NPWS to deal with wildlife in the sea? Does its wildlife unit deal only with wildlife on land? Is its wildlife unit divided into separate units? Does it include one for the marine sector? When drawing up the Bill would the service advise that a matter has not been examined in the marine sector? Does it advise in cases where licences are granted that it must be ensured X does not take place? Does it give priority to scarce habitats or ones that are nearly extinct?

Mr. Peter Carvill

The National Parks and Wildlife Service comprises administrative staff who deal with the legal and administrative aspects, and I am one of those people. We have experts who specialise in different fields such as biology, ecology, etc. They advise the Minister and provide advice and comments when we, the statutory consultee, are asked for a view that would have an input into the process. Dr. Kelly is one of our people and his brief includes the marine sector. He is one of the experts who advises on the biological, ecological and environmental dimensions.

Senator Cáit Keane

I wish to refer to land. For instance, the service would not propose putting a road through the Burren. Is that right?

Mr. Peter Carvill

Yes.

Senator Cáit Keane

I wish to relate that to the marine sector. The service would not propose installing a tidal wave device in, for example, Killary Harbour. Is that right?

Mr. Peter Carvill

I ask my colleague, Dr. Kelly, to respond.

Dr. Eamonn Kelly

In answer to the first question, we have marine ecologists on staff who provide specific advice and expertise on marine habitats and species. As my colleague said, we have in excess of 100 Natura 2000 sites in the marine environment. They are either special areas of conservation, for one reason or another, or special protection areas for birds. They operate within exactly the same framework and guiding principles from either the habitats directive or the birds directive. Therefore, the same principles apply at sea as on land and the same mechanisms and advisory capacity would be brought to bear regardless of whether one works on land or at sea. I hope I have answered the Senator's question.

Senator Cáit Keane

I have seen the map of special areas of conservation on land or land sources. Is there a map for locations at sea?

Dr. Eamonn Kelly

We have provided maps with the opening statement and they are available to the committee.

Senator Cáit Keane

Yes. I have the map that shows the designated areas.

Dr. Eamonn Kelly

Two maps show the designations to date. On top of the specific areas of designation there are general requirements related to species wherever they occur. For example, we have 24 species of whales or dolphins and they are afforded protection wherever they occur. This means that protection is not limited to a specific area. We also have to fold those considerations in on top of any site-specific considerations. All these matters must be brought to the table when it comes to a specific proposal.

Senator Cáit Keane

I thank the witnesses.

Chairman

I have a question for Dr. Kelly. Obviously, with his expertise his unit has co-operated with other Departments such as the Department of the Environment, Community and Local Government. Given such expertise, how often does interaction take place between the NPWS and the Marine Institute? How important is the interaction? How important is it that his knowledge base and work is complimented by the institute's very rich - no pun intended - research and science activities? What is the depth of involvement between the service and the institute?

Dr. Eamonn Kelly

We have a fairly close working relationship. We have worked very closely with it on the birds case and the aquaculture licensing issue. As the Chairman will have heard this morning and afternoon, we have worked very closely with teams in the Marine Institute to bring that process forward. We also work quite closely with it on our offshore work. Obviously it has a research vessel and platforms. Some of the sites we brought forward or recommended to be brought forward were the result of vessel and mapping supports provided by personnel working for the Marine Institute and the Geological Survey of Ireland.

We have worked quite closely with the institute on the marine strategy framework directive that has connections with some of the provisions and heads of the Bill being discussed. I sit on the interdepartmental technical working group for the marine strategy framework directive that includes a lot of Marine Institute personnel. For a lot of the marine areas we deal with, we interact quite freely with the Marine Institute in the main but also the GSI. In other areas we work closely with Inland Fisheries Ireland, for example. I return the Chairman's pun by saying there is fluid interaction.

Chairman

Yes, it exists in terms of compliance with EU law. I refer to European policy in general. We are approaching a critical time of the year for quotas and the Fisheries Council will meet in December. I know the service's work does not deal with quotas per se. In terms of species, endangered species, stocks and depletions, can the service play a role in setting limits or sharing information on the rate of stock depletion or identify species that need to be conserved and protected?

Dr. Eamonn Kelly

We do not work on commercial species. That is a matter for the Marine Institute and the Department of Agriculture, Food and the Marine. They advise on commercial stock management. We do not deal with fisheries management per se. We manage the nature conservation elements. There will be times when biodiversity considerations must be brought to the table. If that is the case, the Marine Institute or the Department will seek specific items of information from us. They would lead the matter. We do not play a role in the management of commercial fisheries.

Chairman

I have a question for Mr. Carvill. What impact will Article 6 of the habitats directive have on the legislation?

Mr. Peter Carvill

Let us say that the requirements of the habitats directive, as set out in the European Communities (Birds and Natural Habitats) Regulations 2011, extend to all agencies of the State that are involved in giving consents, permits or licences.

Basically, what we are talking about is that where such consents or licences or permits are being given, whatever agency is empowered under the legislation to do so - it may be a local authority, the Marine Institute or the Department of the Environment, Community and Local Government - it will be required under the directive and under the birds and habitats regulations to satisfy itself that what it is agreeing to will not, on its own or in combination with other plants and projects, impact on what is called the integrity of a European site which is a special area of conservation or a special protection area.

Chairman

That concludes our questioning. I thank the witnesses for their attendance and interaction with the committee.

Mr. Peter Carvill

I thank the Chairman.

Sitting suspended at 4.11 p.m. and resumed at 4.16 p.m.

Coastal Concern Alliance

Chairman

We will continue our discussion on the outline heads of the maritime area and foreshore (amendment) Bill 2013. I welcome Ms Helen Gelletlie and Ms Valerie Freeman on behalf of the Coastal Concern Alliance and thank them for their attendance.

By virtue of section 17(2)(l ) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. If witnesses are directed by the committee to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter only to a qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. There is also a parliamentary practice of which colleagues are well aware which is that they should not comment on, criticise or make charges against a person outside the Houses or an official in such a way as to make him or her identifiable.

I invite Ms Helen Gelletlie to address the committee.

Ms Helen Gelletlie

I thank the Chair. I wish to give a short introduction on the Costal Concern Alliance. Coastal Concern Alliance is a voluntary citizens' group set up in 2006 to campaign for reform of the Foreshore Act 1933 and the introduction of a system of maritime and coastal planning to ensure that development in the coastal zone is in the public interest.

We welcome the recognition that the Foreshore Act 1933 must be reformed urgently and we recognise the considerable work which has gone into the preparation of the general scheme for a new Bill. Our comments relate to development on the foreshore, mainly to offshore wind, as we have deep concerns about the undemocratic and inappropriate manner in which large-scale developments have been permitted and progressed close to Ireland's east coast under the outdated Foreshore Act 1933, without the knowledge of the vast majority of Irish citizens. This legacy must be openly acknowledged and addressed by the Government to ensure the coastal zone is managed sustainably in the public interest into the future.

In this brief overview, I will touch on the need for reform and on how the content of the legislation addresses our key concerns. My colleague, Ms Valerie Freeman, will address the context in which the new Bill will operate and outline a few short recommendations.

The need for reform is clear. During the Celtic tiger era the speculation and inadequate regulation well documented on land was also very evident at sea. Developers took advantage of the outdated foreshore legislation, drawn up in 1933 before offshore wind farms were envisaged, and of the planning vacuum in our coastal waters to obtain foreshore leases for construction of two of the biggest offshore wind farms in the world close to the coast of south Dublin and Wicklow. The leases were awarded on the sole authority of the Minister for Agriculture, Food and the Marine with no statutory involvement of local authorities and no public right of appeal. Other EU countries have carefully controlled offshore wind development. However, in Ireland developers were allowed to pick out extensive near shore sites, on a first come first served basis, apply for a foreshore lease with no restriction on size or scale of development and, in some cases, sell on the leases before construction at a price reflecting the size of development permitted, netting very substantial profit.

At end of 2006, some 1,620 MW of offshore wind power involving 420 huge turbines had been approved 10 km to 12 km off the coast of Wicklow, more than double the amount of offshore wind then installed worldwide which was 700 MW. This raises very serious questions about the rigour of the Irish permitting process. In 2008, the Minister announced significant price support for offshore wind. This was followed by a rush of applications for foreshore development, mostly on shallow sandbanks, a protected marine habitat close to the east coast.

In summary, the concerns of Coastal Concern Alliance centre on the lack of strategic planning for our seas, the inappropriate manner in which large-scale developments have been, and continue to be assessed, and the lack of importance attached to preservation of Ireland's marine habitat wildlife and coastal landscapes. We are also very concerned about plans to export to the UK offshore wind energy generated at the expense of the Irish coastal environment.

I will refer briefly to the points we made with regard to the proposed legislation. My colleague, Ms Valerie Freeman, will address the context of the legislation, which is very important in this instance, and will give some short recommendations.

A key provision in the Bill is the involvement of An Bord Pleanála. We welcome the move to align the foreshore consent system with the land-based planning system. Under the Foreshore Act 1933, one Minister had total control over development in the coastal zone. Giving authority to An Bord Pleanála will mean that for the first time developments must be assessed by professional planners within an overall policy and planning framework. We welcome the provision for plan-led leasing rounds and a tender process. This should address the ad hoc manner in which large sites in our nearshore zone have been allocated to offshore wind developers on a first come, first served basis, with no plan and no public tender.

We question whether the development of offshore winds for export can be viewed as a strategic infrastructure. We would ask if Ireland's inshore zone should in fact be used for energy export. This needs to be debated and agreed at national level. We also draw attention to the commitment in the programme for Government that a cost benefit analysis should be carried out for all major infrastructure projects. In the case of large offshore wind in our nearshore zone, important national costs would include the impact on protected scenic views and on marine wildlife. With regard to public participation, the enhanced public participation provisions in the Aarhus Convention must be embodied in the decision-making framework. Particular attention must be devoted to ensuring the public concerned is fully informed about proposals for major development in the inshore zone. We recommend a 12 week public consultation and a mandatory oral hearing for major projects on the foreshore. Appeal procedures must be defined in the legislation and must conform with the Aarhus Convention.

To ensure conformity with democratically agreed local area development plans, statutory consultees should include all relevant local authorities who must be obliged to make submissions reflecting the impact of the development on the objectives of the local area development plan. To date, no submissions appear to have been made by planning departments of counties adjoining inshore areas where large-scale developments have been proposed and permitted.

We need to protect the scenic and amenity quality of Ireland's coastline in line with the objectives of the local area development plan and the forthcoming national landscape strategy. This concern is not reflected in the heads of the Bill and must be embodied in the final legislation.

My colleague, Ms Valerie Freeman, will address the vital issue of the policy context in which the proposed legislation will operate.

Ms Valerie Freeman

I will discuss the policy context under three headings: the policy framework on which the Bill should be based, the policy framework on which the Bill should not be based, and I will discuss some of the recommendations that our group, Coastal Concern Alliance, considers important.

Coastal Concern Alliance believes the framework to support the new Bill should be based on a maritime spatial plan and integrated coastal zone management. All EU environmental law is based on the precautionary principle. We believe our new maritime legislation must be progressed with reference to that principle. It must also be progressed in the public interest. There was always a responsibility on whoever was granting permission for leases to do it in the public interest, and this was something that was emphasised in the consultation period on the Bill. That is a really important point.

A directive on a framework for maritime spatial planning, MSP, and integrated coastal zone management, ICZM, proposed by the European Commission in March of this year reads:

In order to ensure the appropriate apportionment of maritime space among relevant uses and the coordinated management of coastal zones, a framework should be put in place that consists at least in the establishment and implementation by member states of Maritime Spatial Plans and integrated coastal zone management.

Article 8 sets out "Conservation, restoration and management of coastal ecosystems and coastal landscapes" as a minimum requirement for integrated coastal zone management. In line with this recommendation, Coastal Concern Alliance recommends that a buffer zone of at least 12 nautical miles be adopted in this country, as has been done in other European counties, for all significant developments in our coastal zone.

In 2012, according to the European Wind Energy Association, the average distance from shore of wind farms under construction in Europe was 26 km, which contrasts with the average of 12 km in Ireland. Applications are in the pipeline for the development of turbines that are approximately 185 m tall some 5 km from the shore in two locations, Dundalk Bay and Galway Bay.

We do not believe the framework to support the Bill should be based on the draft offshore renewable energy development plan, which is a clear example of retrospective planning and should not be adopted. In 2010, after a decade of unfettered speculative activity in Irish waters, the Department of the Environment, Community and Local Government moved to comply with the EU strategic environmental assessment directive by producing this plan and commissioning the strategic environmental assessment of its impacts. With regard to wind, the plan served to rubber-stamp the extensive offshore development permitted and progressed with no plan, no strategic environmental assessment and no cost benefit analysis during the period from 2002 to 2009. We have provided the secretariat with copies of the submission we made on that, which will provide more detail. The strategic environmental assessment is done for this kind of plan to inform leasing decisions.

We draw attention to the inclusion in the strategic environmental assessment and environmental report of a statement by the Minister stating that the EU strategic environmental assessment directive should not influence leasing or licensing applications which were in the pipeline. This is clearly in direct contravention of the objective of the Bill and undermines the integrity of the strategic environmental assessment and the environmental report. The result of this is that developments that were in the pipeline are inexplicably classed in the environmental report as existing renewable infrastructure. I am not sure how familiar members are with the offshore renewable energy development plan but three scenarios are considered: high, medium and low development. The high development scenario refers to the development of 4,500 MW of offshore wind along Ireland's coastline. If this plan were to go ahead and form the basis for the maritime area and foreshore (amendment) Bill 2013, the outline heads of which we are discussing, it would effectively mean that 4,500 MW equates to 900 turbines of 5 MW. Under this draft offshore renewable energy development plan, 840 of those 900 turbines would be deemed to exist and would not be subject to any strategic environmental assessment. That is the extent to which this is really important.

The second statement in the EU strategic environment assessment directive to which I wish to draw attention is that member states should ensure environmental reports are of sufficient quality to meet the requirements of the directive. We do not believe the environmental report for this offshore renewable energy development plan is of a sufficient standard. The environmental report itself states that data information and knowledge gaps have been identified as a key limitation to this SEA. They can affect the level of confidence with which potential effects on the environment are identified and evaluated.

In addition, the assessment itself is based on a plan that focuses on the development of a relatively new and emerging industry where longer-term environmental effects are little understood.

I wish to quote from the submission of the Heritage Council, which is a statutory body that reports to and advises the Government. As regards this SEA, it stated:

The council believes that the SEA's findings, and as a result the conclusions of the draft plan, fall short of the required level of confidence and detail. Its conclusion as currently articulated is premature. The report and plan, as currently drafted, do not outline the potential impacts of a "do nothing" scenario, which is one of the things they are required to do under the SEA directive.

The Heritage Council expressed serious concerns about the inadequacy of the landscape and seascape assessments presented in the report. It asked whether the baseline data were credible, reliable or fit for purpose. The council said the landscape character assessments used in the SEA to provide the baseline for the seascape assessments are out of date. Therefore, the observations of the Heritage Council are in line with serious concerns expressed by our group and others. We believe they provide ample evidence against the adoption of this draft plan as any kind of framework for the new maritime legislation.

I will conclude with a few short recommendations. We believe that an investigation should be initiated into the manner in which foreshore leases for extensive offshore developments on the Codling and Arklow Banks covering 120 sq. km. of the Wicklow coastline were awarded to private developers during the Celtic tiger years, without any strategic plan, and under regulations and legislation officially acknowledged to be inadequate. None of this has been built, apart from seven turbines, so it is still not too late to do something about it.

No large-scale developments should be permitted on the foreshore until a proper system of maritime spatial planning and integrated coastal zone management based on the ecosystem approach is put in place. The draft offshore renewable energy development plan, OREDP, should not be adopted by the current Government. A full cost benefit analysis for any projects deemed to be strategic infrastructure, with landscape and wildlife impacts considered, should be carried out.

The proposed Bill should be amended to ensure proper weight is given to the protection of Ireland's coastal landscapes and seascapes, and the conservation of coastal views listed in county development plans. To this end, a 12 nautical mile buffer zone should be adopted in Ireland.

Chairman

I thank Ms Freeman. I call committee members for questions.

Deputy Paudie Coffey

I welcome the Coastal Concern Alliance delegation and thank them for their comprehensive document. They could probably have provided us with more information but the way they outlined it has made it simple for us to understand. It is helpful as we consider all the information before us.

I acknowledge the concerns raised about the management of coastal zones, the policies involved and the planning process. Ireland not only comprises the land mass but also the surrounding maritime areas. As elected representatives, we face conflicting challenges in developing national policy. As regards climate change, many NGOs are putting pressure on politicians to set targets to reduce carbon emissions in energy production. There will be consequences if we do not address that matter.

Coastal Concern Alliance is concerned about the targets that have been set for Ireland. Perhaps the witnesses can expand further on that point. Why do they believe our targets should not be as ambitious as they are, which is to have renewable energy at 40% by 2020?

We need to reduce our carbon footprint and face climate change challenges, yet on the other hand our generating stations are over-dependent on fossil fuels. Our island is on the periphery of the main Euro zone, which means we are exposed from an energy security viewpoint. We must develop alternative energy sources, including wind energy. I am not saying that such project developments should be uncontrolled, far from it. Coastal Concern Alliance's feedback is welcome. The witnesses said we should have maritime spatial planning as well as a transparent system whereby applications are thoroughly assessed.

There is a debate currently about wind farms in the midlands where there is severe opposition to them. There is also strong opposition to EirGrid's network proposals and offshore wind farms. It is difficult to find a system that is acceptable to the public because no matter what is proposed, everything is objected to. Coastal Concern Alliance is a responsible body with genuine concerns and is not just objecting for the sake of it. We need to hear from such groups why offshore wind farms are not acceptable. A buffer zone of 12 nautical miles was mentioned, so I presume the alliance would have no objection if it was beyond that, providing that the proper assessments, including feasibility and cost benefit analyses, are made.

I have listened carefully to what the Coastal Concern Alliance's representatives said. We face challenges and are currently importing 800 MW of power, at peak, per day from the United Kingdom. If there was another oil or gas crisis, I do not know how our economy would survive. Decisions will have to be made regarding energy security and how best we can survive as an economy while reducing carbon emissions at the same time. It is a challenge for us all. Perhaps the witnesses could elaborate on how they think targets reductions should be set.

Ms Helen Gelletlie

I will deal with one point. I do not think we said our targets should be reduced.

Ms Valerie Freeman

We did not specifically say that.

Deputy Paudie Coffey

Perhaps the witnesses can clarify that. On page five of the presentation it states that the 40% target has been widely queried by independent national bodies.

Ms Valerie Freeman

That is in our response to the offshore renewable energy development plan.

Deputy Paudie Coffey

Does Ms Freeman agree with that statement that the 40% target has been widely queried? Does she believe it should be queried or that it should not be set at that? Why is that item in the document on page five?

Ms Valerie Freeman

I am not a climate change or energy expert. I am coming at this from a planning perspective and have seen what was not happening but should have been. The Deputy is absolutely right, however, to say we are balancing many different things. A former EU environment commissioner stated:

[O]ur climate mitigation policies should not come at the expense of biodiversity. We have very important targets to achieve renewable energy but we need to be careful about how and where they can be developed.

That is the critical thing we are talking about. The Deputy has raised many important questions. The 40% target is out of line with targets in other European countries as far as I know. It is an Irish target that was set.

Deputy Paudie Coffey

Does Ms Freeman essentially want a re-evaluation of that 40% target?

Ms Valerie Freeman

Yes. We believe that wind power and CO2 savings need to be assessed in a proper cost benefit analysis. We are not just talking about a monetary cost.

Sir Donald Millar, the former chairman of Scottish Power, spoke about the economics of wind power to the UK climate change committee. He was coming from an engineering perspective but knows the energy sector. He said:

The assumption that each MWh of electricity generated from wind saves the equivalent in CO2 emissions from fossil fuel power stations would not be supported by any engineer with experience of operating power plant. The considerably lower efficiency of the back up thermal plant running at part loads, together with the additional losses from frequent deloading and reloading as the wind strength varies, all consume additional fuel. The jury is still out on the exact implications of this but there is accumulating evidence from an analysis of actual system operations both in the USA and more recently for the Irish Grid that high wind penetrations save little or negligible emissions of CO2 and can in some circumstances actually lead to increases.

Ms Helen Gelletlie

On the Deputy's point in regard to meeting our targets, the Minister, Deputy Rabbitte, stated in the Dáil on 12 December that Ireland will meet its targets for renewable energy from wind farms on land without recourse to offshore wind, which he described as "more than twice as expensive". As such, in the Minister's view we do not need offshore wind to meet our renewable targets. He also said that he and the Government now view these wind farms as an export opportunity.

Deputy Paudie Coffey

Does Coastal Concern Alliance have any issue with on-land wind farms?

Ms Valerie Freeman

We have no issue at all with wind farms.

Ms Helen Gelletlie

The lack of planning is an issue, in particular with regard to offshore wind. We got involved in this because we saw that developers were getting planning permission for massive wind farms in the coastal zone, including along the coast of Wicklow.

Deputy Paudie Coffey

They had a free hand.

Ms Helen Gelletlie

There were no restrictions on them. They could select sites in the near shore zone on a first come first served basis, with no public tender or restriction. In two instances, they simply applied to the Minister for Agriculture, Food and the Marine for a foreshore lease for construction and they were granted. Permission in respect of construction of 200 turbines on the Codling Bank and Arklow Bank was granted on the sole authority of the Minister for Agriculture, Food and the Marine. We are not against wind farms. Appropriately sited, we would be in favour of them.

Chairman

I thank the witnesses for that clarification. The next speaker is Deputy Marcella Corcoran Kennedy, followed by Senator Cáit Keane.

Deputy Marcella Corcoran Kennedy

Is Coastal Concern Alliance interested specifically in wind only or has it examined the impact of other ocean energy generation?

Ms Helen Gelletlie

We got involved because we saw what was happening with regard to offshore wind. We have not examined the impact of other ocean energy generation as we would not have the resources to do so. We are aware of it and, on the surface it, it sounds like a very good idea. If it is appropriately assessed and sited it will be a wonderful idea, as would wind energy provision, if appropriately assessed and sited. It should not be permitted in the manner which it has been up to now, with no strategic plan for its use.

Deputy Marcella Corcoran Kennedy

Thank you.

Senator Cáit Keane

I welcome the witnesses to the meeting. In terms of the photograph provided, while I presume the witnesses would say it is spoiled by the wind farms, others might see it as a therapeutic analysis of the wind moving in the sea.

There is no comparison between what was envisaged during drafting of the Foreshore Act 1933 and what is envisaged now given the rapid movement of science and technology. The need for update of this legislation is acknowledged. The witnesses are saying that the almost 1,620 MW already developed has been developed on an ad hoc basis. They also say that this was done because of the rigour of the Irish planning process. The witnesses who appeared before the committee prior to Coastal Concern Alliance were critical of the lack of progress in respect of marine tidal and wave energy. In their view, as wind farms are taking precedence, tidal wave generation is not being advanced. While one group said progress had been made in this area another said none had been made.

It will be necessary to look at the cumulative impact of tidal, wave and wind energy taking into account land conservation and wildlife. The 40% target has been set. The witnesses have asked that in this regard an analysis be done with other EU countries, which is not a bad idea. While we have much data in this area we do not have baseline data of the marine, which the witnesses and other people, including myself, have asked for. While there is much expertise in this area, it is spread throughout many universities. While we do have maps, we do not have baseline data of the marine base. The facilities required to gather this data from the bottom of the sea are available and can often be seen on trawlers. I do not think there is any excuse for our not having that data, although finance is clearly an issue. Given that the environment is of such importance, this type of baseline data should be available at the click of a button. We should also ensure that commercial sector operatives also play a part in the provision of this data.

Reference was made earlier by the witnesses to non-compliance with an EU directive. If it is a mandatory directive, Ireland will have to comply with it and provide for it in legislation. One of the recommendations of Coastal Concern Alliance is that Ireland do so immediately. I will undertake to do some research on that directive. Currently, once the Minister under the 1933 Act grants the licence that is the end of the matter. The witnesses stated that EU legislation states that there should be an appeals process in this regard. The first thing we must do is find out if that is mandatory.

Ms Valerie Freeman

It is.

Senator Cáit Keane

That means the matter could be taken up with the courts. Coastal Concern Alliance would welcome the establishment of an appeals process that does not require having to go through the courts. These are all issues that the committee will need to examine further.

Ms Valerie Freeman

In regard to the appeals process, one of the requirements is that it should not be prohibitively expensive. Currently, the only way to appeal a procedure or substantive legality of a decision is to take the matter to the High Court, which is prohibitively expensive. This would not serve the purpose. I do not know how this will be worked out. It is another issue in regard to the strategic infrastructure designation. Under land based planning, An Bord Pleanála is the appeals body, which works well. If An Bord Pleanála is to be the granting body, this leaves us without a body to whom one can make an appeal. This is an issue that will have to be addressed. The various issues relating to the strategic environmental assessment directive to which I referred and which were also addressed by the Heritage Council are mandatory requirements and need to be addressed.

Ms Helen Gelletlie

The strategic environmental assessment requires that an SEA be carried out of any plan or programme which is likely to have an effect on the environment. In terms of Codling Bank, which is a huge development beside another huge development and in respect of which an SEA should have been carried out, there was no plan because the developers felt they did not have to carry out a strategic environmental assessment. One cannot carry out an SEA of a plan if no plan exists with the result that all of these developments take place in an ad hoc manner.

Chairman

I thank Ms Freeman and Ms Gelletlie for their attendance this afternoon and for their interaction which will assist the committee in making its informed decisions on the wider implications of the Bill. We will suspend now for a few minutes to allow the next set of witnesses to take their seats.

Sitting suspended at 4.50 p.m. and resumed at 4.55 p.m.

Department of the Environment, Community and Local Government

Chairman

We continue our discussion on the outline heads of the maritime area and foreshore (amendment) Bill. I welcome from the Department of the Environment, Community and Local Government, Ms Lorraine O'Donoghue, principal officer in the marine planning and foreshore section; Ms Marian O'Driscoll, assistant principal officer in the planning section; and Mr. Aidan Brennan, assistant principal officer in the water quality section. I also welcome from the Department of Communications, Energy and Natural Resources, Ms Bernie Comey, assistant principal officer in the electricity and gas regulation division. I thank all the witnesses for their attendance.

While I know the witnesses are well acquainted with the procedure in terms of defamation, I will read it out for the record. By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they are to give this committee. If witnesses are asked to cease giving evidence in relation to a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. The witnesses' opening statement and any accompanying documentation they submit to us may be published on the website after the meeting.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or any official by name in such a way as to make him or her identifiable.

I call Ms O'Donoghue.

Ms Lorraine O'Donoghue

I thank the Chairman and members of the committee for inviting us to present on a body of work that has been ongoing in the Department for some time. In July, the Government approved the heads of the maritime area and foreshore (amendment) Bill, which were recently published. Drafting of the Bill will get under way shortly. The Bill has three main aims: to align the foreshore consent system with the planning system; to provide for a single environmental impact assessment for projects; and to provide a coherent mechanism to facilitate and manage development in the exclusive economic zone, EEZ, and on the continental shelf, such as oil and gas projects and offshore renewable energy.

It is proposed to define in law an Irish maritime area, which would encompass the foreshore, the EEZ and the continental shelf. It is intended that the maritime area will be established for assessment, licensing and forward planning purposes. As I understand there was some discussion of it earlier, I wish to confirm that there is no intention to redefine the foreshore as it stands at the moment.

Within that maritime area, in broad terms, it is intended to provide for a streamlined development consent process to include both the onshore and offshore elements of strategic infrastructure projects. An Bord Pleanála will be the consent authority. This change will reduce duplication in the consent process and involve a single environmental impact assessment, EIA, thereby reducing the cost for applicants.

It is proposed to newly define the nearshore area as the area between the high and low water marks, which is sometimes referred to as the intertidal zone. Responsibility for consenting to development in the nearshore area will be assigned to coastal local authorities, apart from developments requiring either an EIA or appropriate assessment, which will remain under the direct competency of An Bord Pleanála.

It is proposed to include provisions in the Bill to enable project proponents to seek a maritime option at an early stage, subject to certain qualifying criteria, depending on the nature and location of the proposal. Obtaining such an option will in effect allow project proponents to reserve a portion of the maritime area for a limited period while they apply for the necessary development consents. The legislation will be framed in such a way as to ensure no additional rights, such as property rights or other rights, for example to the seabed, are conveyed on holders of options. This provision is important to give certainty to project promoters that if they secure the necessary financial backing and development consents, they will be able to proceed with their projects.

Currently, the State does not have a statutory basis to regulate stand-alone offshore gas storage activities, irrespective of whether such activities are located at depleted gas wells or offshore geological features. The legislative proposals will provide a licensing regime to remedy this which will be administered by the Department of Communications, Energy and Natural Resources.

It is also proposed to bring forward several amendments to the Dumping at Sea Acts to provide for a more efficient permit system under the Environmental Protection Agency. Most of the proposed amendments are administrative and technical in nature. What is more significant is that the proposed changes will remove the duplication that exists in the licensing of dredging and dumping operations. Maintenance dredging, required to maintain navigation channels, will be exempted from the requirement to secure a foreshore licence. This means only a single consent from the EPA, the dumping at sea permit, will be required. This change, while sensible from an administrative point of view in terms of efficiencies, will be of particular benefit to the national ports.

That is an overview of the proposals. We will be happy to take questions, but before I move on I wish to address some of the issues discussed earlier today and last week.

A number of calls have been made for a plan-led approach to consenting in the maritime area. It is difficult to disagree with these calls, and the desirability of such an approach is something of which the Department is acutely aware. In parallel to the work taking place on the legislation under discussion, the issue of marine spatial planning from a national perspective has been under active consideration by a task force chaired by the Marine Institute, under the auspices of the marine co-ordination group, which, in turn, is chaired by the Minister for Agriculture, Food and the Marine. The report of the task force will be presented to Government for consideration in the short term but the reality is that the development of a marine spatial planning, MSP, framework in Ireland will take some time.

The Department is also mindful of developments at European level. A draft directive on maritime spatial planning and coastal zone management was published earlier this year and has been under discussion among EU member states ever since. As things stand, the draft directive takes the form of a framework directive and, therefore, is not overly prescriptive on how maritime spatial planning should be undertaken, save to say that it should be undertaken. The intention is to future-proof the legislation in order that it will recognise future MSP and in order that the consent system should have regard to any plan when it is put in place. Several elements of an MSP framework are in place. The national ports policy and the draft offshore renewable energy development plan are two such elements.

Some of the witnesses who have appeared before the committee in recent times have noted that the mainstay of the foreshore consent process dates from 1933. I emphasise that the process has been updated and revised several times, mainly to take account of developments in European environmental legislation. The consent process requires modernisation in the short term to boost activity in the marine economy.

While I do not accept that the foreshore process is an insurmountable barrier to projects, it is often regarded as a barrier and it can be a lengthy process for certain projects. In this regard I wish to highlight the prioritisation system that is operated in the Department. Essentially, applications for strategic infrastructure and projects with potential to create employment are prioritised within the system, as are time-bound applications, for example, in circumstances where a lease or licence is needed to avail of funding. Smaller-scale developments such as those involving slipway construction or storm water pipes are second tier priorities. Second and lower tier priorities can take longer to deal with and, regrettably, delays in the process can occur. The issuing of leases and licences for the types of activities and developments undertaken is a serious matter. Let us remember that the foreshore as currently defined is a valuable State resource that requires careful management and is worth, on average, €2 million to the Exchequer annually.

As part of the process of developing the general scheme of the Bill, my colleagues and I have consulted a wide range of interested parties. At the moment, we are in the middle of a series of engagements with coastal local authorities. We are carrying out these on a regional basis and discussing with them how the new system will operate in practice. We are also in regular contact with other Departments which have a particular interest in this legislation. As the detailed drafting of the Bill proceeds, I expect that the proposals will be finessed. We will be happy to take any comments or questions the committee may have.

Deputy Paudie Coffey

I thank Ms O'Donoghue for the presentation, which was informative and which will help the committee as we consider the Bill. I can speak from experience with regard to local authorities trying to acquire a foreshore licence where a sewerage scheme was being developed. I come from Waterford and Ms O'Donoghue is probably aware of the seven villages sewerage scheme. I was a member of the local authority at the time. Ms O'Donoghue can correct me if I am wrong but the amount of bureaucracy and the difficulty in acquiring a foreshore licence for what seemed to be a logical development to improve water quality in towns and villages throughout County Waterford was extraordinary. The difficulties in acquiring the foreshore licence stalled much of the development for many years. Will the new Bill address many of the problems that may have been faced in that scenario? For example, for the foreshore licence to be acquired, approval was required from the Department of the Environment, Community and Local Government and the Department of Agriculture, Food and the Marine. There was cross-cutting bureaucracy between Departments. Perhaps I am being somewhat unfair - Ms O'Donoghue can correct me if I am wrong - but that is how it seemed to me as a local authority member at the time. Will the new Bill address that type of scenario and allow developments that are in the public interest to proceed at a more logical rate?

Ms O'Donoghue referred to dredging exemptions and navigational channels and suggested it would be good for ports. Are the larger harbours in the country included? Are there any exemptions for them? I know Dunmore East in Waterford rather well. It badly needs to be dredged and that has been acknowledged by everyone, including the Government. It is simply a matter of finding the funding. Would Dunmore East be exempt if dredging in the harbour area has to be carried out?

Ms O'Donoghue referred to the delays with maritime spatial planning. Concern has been voiced at the committee by various groups that there is no maritime spatial planning for the water surrounding Ireland. There has been criticism that some development has taken place offshore unbridled or without proper oversight because we do not have a plan. The point has been made that the Department maintains environmental impact assessments will have to be considered and strategic environmental assessments carried out, but if there is no plan to which to refer, how relevant are they or how can they be assessed? Are we, in effect, putting the cart before the horse?

Ms O'Donoghue stated it would take some time for the plan to be developed. We are all reasonable people and we realise the work involved in a maritime spatial plan in particular will necessarily take time. Can Ms O'Donoghue explain why it would take a considerable amount of time, especially since we have at our disposal the various institutes and agencies of the State? I would have thought it should be a priority and that it should not take that long.

Deputy Michelle Mulherin

I welcome everyone and I thank Ms O'Donoghue for the presentation. As a former local authority member, I agree with much of what Deputy Coffey has had to say. Any time a foreshore licence was mentioned relating to a development we were pursuing, I felt like pulling out my hair. In the case of an inland river that is tidal, a local authority must get a foreshore licence. My town tried to get a sewerage scheme but there seemed to be inordinate delay to install a tertiary treatment plant which would have improved discharges into the river. It seemed crazy and at times there seemed to be years of delay. I hope that will be addressed.

As far as I can see we need to put in place a maritime spatial plan. It makes no sense that ad hoc decisions are being made, whether it is to the local authority or An Bord Pleanála, and that these decisions can be made without a schematic approach. Earlier, Senator Keane remarked that we have not assessed our maritime environment properly. This points to a great deal of work that needs to be done to assess our territory from an environmental point of view and from the point of view of the asset.

Something else is more particularly of concern to me. There is a proposal that decision-making in respect of development of the nearshore, which the Department has defined as between low tide and high tide, would go to the local coastal authority. I am from County Mayo. We have a massive coastline. Our coastline is predominantly made up of special areas of conservation or special protection areas. Therefore, the Department is suggesting to the local planning authority in County Mayo that because an environmental assessment or an appropriate assessment would be required to carry out development along the shoreline, it must go to An Bord Pleanála anyway.

Therefore, it has to go to An Bord Pleanála. I do not think this is right. The development, under the umbrella of a maritime spatial plan off the coastal areas, should be with the local authority. Local authorities have local knowledge and plans that do not just consider the environment, but into which local democracy and the local authority feeds. The idea that this will all be done remotely by An Bord Pleanála is anti democratic and that centralisation is not in the vein of local development that should be happening. That issue needs to be addressed. I suggest, as my local county council has suggested, that responsibility for that development and the decision making in respect of development proposals on the nearshore and foreshore should lie with the local authority, regardless of whether it is an SAC or an SPA. Of course, it must have due regard to environmental constraints and the obligation to carry out appropriate assessments. Other than that, it is by a sleight of hand that in Mayo this section will be meaningless because most of the developments will mean it must have this particular environmental consideration. Perhaps the witnesses would address that issue because this will mean something on the ground for us. The local authority there knows about the coastline. I am aware there has never been a great amount of funding whether for a harbour, pier or sewerage scheme, but it knows what it is about and it has a development plan. The power is being removed from the local authority and I do not agree with it.

Chairman

I thank Deputy Mulherin and invite Ms O'Donoghue to respond and other panel members if they wish.

Ms Lorraine O'Donoghue

In regard to speeding up the process, that is certainly the aim of the Bill. If one considers the length of time in which a local authority can deal with planning applications and compare it with the time taken by the Department to deal with a foreshore application, we hope the Bill will significantly improve that situation. However, I would point out that in the past two to three years there has been a dramatic improvement in the turnaround time in the Department, thanks to some internal reforms introduced.

The Deputy mentioned dumping at sea. I should have mentioned the harbours in the opening statement. It will apply equally to the national ports, smaller scale harbours and to any other body that may, for whatever reason, require the exemption for a dumping at sea permit.

Deputy Paudie Coffey

Exemption?

Ms Lorraine O'Donoghue

Yes. Marine spatial planning, as I said in my opening statement, is something of which we are acutely aware. MSP as a concept is relatively new. Much work has been undertaken by a number of Departments on the task force mentioned, of which I am a member. I am not the authority on marine spatial planning but I have learned much about it in the past year or so. It is extremely complex and if we are to do it, there is a need to get it right. At a minimum, two years would be required to develop a national plan with a view to regional plans being developed at regional level thereafter. That is a best estimate. Again, it is an area that Ireland is new to and we will have to continue seeking extra expertise and looking at what is happening elsewhere in the EU before those timelines become clearer.

In regard to the concept of the nearshore area and the division of the function between local authorities and An Bord Pleanála, some 80% of applications on hand relate to the nearshore area. That is just a snapshot of the applications on hand. We are in the process of meeting the local authorities on a regional basis. We were in Carrick-on-Shannon a couple of weeks ago and met Mayo, Leitrim and other local authorities in the area. More recently, we met local authorities in the southern region and a meeting is scheduled for local authorities on the eastern side of the country. The consistent message we are getting is that they are willing and have the full capacity to take on developments more so than is proposed in the general scheme. It is an issue we have undertaken to look at in consultation with some of the statutory stakeholders in the process. The message from the coastal local authorities is consistent.

Deputy Michelle Mulherin

Does that mean it is being examined by the Department and is being given due consideration?

Ms Lorraine O'Donoghue

Yes, it is under active consideration at the moment. In terms of environmental impact assessment, we see An Bord Pleanála, at least for the medium term, as the single competent authority particularly if the developments are to be defined as strategic infrastructure, that there will only be engagement with the board rather than the local authority for the aquatic or marine element and then having to engage with An Bord Pleanála if it is a strategic development on land. If we were to introduce such a system, it would defeat the purpose of what we are aiming to do in streamlining into a single EIA. For developments that require an environmental impact assessment, An Bord Pleanála will be the single consent authority. We are looking in terms of appropriate assessments and development within SACs, etc. I am not sure if I have addressed every question.

Chairman

I will return to Senator Cáit Keane and Deputy Marcella Corcoran Kennedy.

Senator Cáit Keane

Obviously, this is a very important Bill. We heard from the representatives of the Marine Renewables Industry Association this morning and the impact it made. They stated what was going out of Ireland and what could remain in Ireland if legislation was in place and certainty is necessary. In respect of companies, Ireland is losing out to Scotland at the moment. I have mentioned companies that have moved from the west to Scotland because of greater certainty in its legislation. He said that Ireland has the grid element on our side and is much stronger. They will have the wherewithal and the science but they will not be able to pass it around. I will allow Deputy Michelle Mulherin to speak on the grid element.

The planning process is old and has been updated but obviously not updated fast enough. An Bord Pleanála will be the consent authority for the structural element while the Minister will still be the licensing authority. Is that a correct interpretation? A couple of the speakers, particularly on EU legislation, said that an appeals process is not in place and obviously we will have to look at that issue. I do not know if the witnesses have an answer for me, but it must be taken note of given that it has been raised a couple of times.

In respect property rights, if one is giving away a 99-year lease on Grafton Street for a licence, will the property rights lease and term have to be written into the Bill? Much has been said about marine spatial planning and the necessity for it. That should be speeded up big time because of the fear of the unknown - I agree with Deputy Michelle Mulherin on this - regarding local area planning. Local planners will not do anything if they think it will harm the environment. If they do not know what is out there and if it is not spatially planned for them, they will take the precautionary principle and do nothing. We do not have the option of doing nothing; we have to do something and do it fast and right. The national spatial strategy planning should be done. I said at the first presentation that local councillors are always seeking to rezone land. I think every bit of the sea should be rezoned for its maritime use purpose. We should have a map to guide local planners without the necessity to have everything going to An Bord Pleanála. If it was rezoned for a particular use, and taking into consideration the environment, fishermen and the commercial aspects dealing in all types of wave wind and tidal energy people could be told that this is where they go if they want to do certain things. They have the wherewithal to do it, but we have the site and this is how it is done. If local authorities had that guidance, the technology is in place to do it. The late Eamon de Buitléar had to depend on his camera while GPS is now available.

I was thinking about what I would say on the heads of the Bill when the outcome of the court case on the rights of way in Sligo was announced last week. Every foreshore has a right of way. How will the planning process deal with a right of way established over a 12 year or 21 year process? If a planning application is made and a person has a right of way over an area, is it up in the air because the courts have thrown that out?

Deputy Marcella Corcoran Kennedy

I thank the witnesses for coming before us this afternoon. I have a number of questions in respect of the foreshore. Is it correct that the distance of 12 nautical miles from the foreshore will be retained? In respect of the exclusive economic zone, to which Ms O'Donoghue referred, where will that be in relation to the foreshore? How will we identify where it will be? Will it be continuous around the country or will it be in pockets? The Aarhus Convention was mentioned earlier. Has the Department put in place a mechanism for the public to make contributions on anything effectively under that convention? If that is the case, where can we get information on it? We also learned earlier about the fact that approximately 500 aquaculture licences exist that have not been renewed, so companies are operating but are effectively unregulated. Is the Department responsible for this area? Is the Department actively concerned about it? Does Ms O'Donoghue see that as a result of this an opportunity has been lost? Is she aware of how this occurred?

Ms Lorraine O'Donoghue

The final issue raised by the Deputy on the aquaculture licensing.is solely under the remit of the Department of Agriculture, Food and the Marine. It has nothing to do with the Department of the Environment, Community and Local Government, so I will not comment further on it.

The role of the Minister for the Environment, Community and Local Government will fundamentally change and will in future be a "landlord type role". The only reason we are retaining a function is that one body will have a coherent sense of what is happening on a national level. The foreshore and the exclusive economic zone, EEZ, are effectively State property. There is a premium attached to using it, and somebody has to oversee and regulate it and collect any rents that might be due. That will be the role of the Minister in the future. In terms of property rights, this will be covered by leases and licences. We will be framing the legislation in such a way and the issue has been flagged by the Office of the Attorney General so that permanent property rights do not accrue to somebody who has a five year foreshore licence. Obviously, with a very large-scale project with a long-term foreshore lease up to 35 or in some cases 99 years, it is a slightly different scenario. Although they may have a very long-term lease, they only hold the property as a leasehold and are not buying a freehold and the property ultimately remains in the ownership of the State.

Reference was made to the Lissadell judgment, which is quite timely in terms of the Bill and we are actively considering it at present before we move into the detailed drafting. Obviously, the Office of the Attorney General is looking at it also in terms of possible implications for access to the foreshore.

The exclusive economic zone was raised as well. I should have brought a copy of the real map of Ireland as it shows our designated continental shelf and our exclusive economic zone, which I think stretches to approximately 200 km off the west coast. Obviously, it would be a great deal narrower on the east coast but there is an agreed boundary between Ireland and the UK. That is set out under international law and is regulated at international level and negotiated under one of the UN conventions. The Department of Foreign Affairs and Trade has a very active role in terms of that. In some parts of the country it stretches out to 200 km. We do not think it is appropriate that local authorities would have a role out to 200 km and we will not be buying any boats for them to go out and assess at that distance. An Bord Pleanála will be the single authority with the competence and people in place to consider applications out in that space.

Out at that distance from shore is a very challenging environment so there are limits as to what kind of activity can take place. In terms of nearer to the shore and within the traditional foreshore, we are leaving that as it is because the outer boundary of the foreshore coincides with the outer boundary of our territorial seas, where we have full territorial rights. Beyond the 12 nautical miles in the exclusive economic zone, while we have sovereign rights, they are more limited. We cannot impede navigation, for example, and fishery rights are regulated by the European Union. There are various other elements as well.

Coming back to the issue of the level of activity that will be devolved to the local authority, it is worth bearing in mind that at present we receive 50 to 60 applications a year, so if one averages that out among the coastal local authorities, it is really only three to four applications per year. When we are considering those issue, we will have to consider how efficient it is that every local authority would require a new foreshore unit to consider matters at sea, and from where they would draw the expertise in terms of marine ecology. At present, we draw them from the marine licence vetting committee. We are also looking at whether that should remain in place. There are mixed views on that matter.

The Aarhus Convention was raised in the context of an appeals process. I know some witnesses who appeared before the committee earlier today raised it. The foreshore consent system as it stands and as it will stand is fully compliant with the Aarhus Convention. I am intimately familiar with it, having worked on it for four years before I joined the section dealing with the marine area. It is not necessarily recognised in sectoral legislation; the access to information pillar is dealt with by a particular set of regulations. The public participation pillar has been integrated into the foreshore planning and other consent systems, while the access to justice elements have been implemented by section 50, 50A, 50B of the Planning and Development (Amendment) Act 2010. We have a robust system in place to implement the Aarhus Convention. We were late in doing it but I would argue very strongly that we are fully compliant with it.

Senator Cáit Keane

I asked about the appeal under the EU directive . I believe one can appeal to a judge. If there is an appeal process, I think the appeal should not be processed by a judge but by an independent body, or some less costly appeals administrative process. Will Ms O'Donoghue comment on that?

Ms Lorraine O'Donoghue

When we introduced the changes to the foreshore consent system, anything that goes to local authorities for consideration will also have a procedure for appeals. Obviously, An Bord Pleanála's role as an appeals body will remain and will be extended. In terms of issues that go straight to An Bord Pleanála for consideration, the State's method of meeting the Aarhus requirements, which is for a substantive review procedure, is judicial review and special costs rules around environmental cases were introduced to implement that back in 2010. I would not see a departure from that in the short term. The judicial process meets the requirements of the Aarhus Convention, which is the United Nations benchmark in terms of access to justice. It has only been in place in Ireland for a couple of years, so I would not see any departure from it in the short term.

Senator Cáit Keane

It is relatively new, since 2010.

Ms Lorraine O'Donoghue

Yes.

Chairman

I thank Ms O'Donoghue and her colleagues for their participation this afternoon. That concludes our public consultation on the outline heads of the Bill and will form part of our report.

The joint committee went into private session at 5.30 p.m. and adjourned at 5.33 p.m. until 10.05 a.m. on Wednesday, 4 December 2014.