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Seanad Éireann debate -
Friday, 17 Dec 2021

Vol. 281 No. 10

Maritime Area Planning Bill 2021: Report and Final Stages

Cuirim fáilte roimh an Aire Stáit. Before we commence, I remind Senators that they may speak only once per amendment on Report Stage, except the proposer of the amendment who may reply to the discussion on it. Also on Report Stage, each non-Government amendment must be seconded.

Amendment No. 1 in the names of Senators Boyhan and Craughwell is out of order because it was previously rejected by a committee of the whole of the Seanad.

Amendment No. 1 not moved.

I move amendment No. 2:

In page 52, lines 27 and 28, to delete “or a local authority”.

I second the amendment.

I welcome the Minister of State. We have had a meaningful and good debate on this Bill, which touches on a number of areas. To recap, I wish to set the context because this is an important engagement in the Seanad and, while the Cathaoirleach and I know what that context is, people outside looking in or who will be doing so in future might not. The Bill seeks to regulate the maritime area:

... by means of a National Marine Planning Framework, maritime area consents for the occupation of the maritime area for the purposes of maritime usages that will be undertaken for undefined or relatively long periods of time (including any such usages which also require development permission under the Planning and Development Act 2000) and licences for the occupation of the maritime area for maritime usages that are minor or that will be undertaken for relatively short periods of time, to establish a body corporate, the Maritime Area Regulatory Authority [as the Minister of State well knows, it is not a planning authority, and this point is key to my amendment], to grant, revoke and suspend such consents and licences, take administrative responsibility for foreshore authorisations and generally oversee the enforcement of this Act in so far as it relates to such consents and licences, to amend the Planning and Development Act 2000 to provide for how that Act will treat applications for development permission which must have a maritime area consent before being made ...

That is important.

I wish to be fair to everyone, so I remind Senators to please stick to the amendments.

This sets the context for my amendment. I thank Senators Craughwell and Keogan for supporting it.

The Minister of State will be well aware of the important role of local government and our councillors. We recently had a debate that was guillotined. I do not intend to go through all of it because it is on the record but the Minister of State, whom I am glad is in attendance, is fully committed to the importance of councillors, as am I. I never apologise for advocating strongly in the House for local authority members and, indeed, local authorities. I do so again today. That is why I have tabled this amendment.

I am seeking to delete the phrase "or a local authority". I have no difficulty with Oireachtas Members or MEPs not being included in the proposed maritime area regulatory authority, MARA, but I have a difficulty with councillors being excluded. Let us be clear, in that this is primary legislation, so any suggestion that the Minister might look at doing something in future will not wash with me. This Bill has been a long time coming and deliberately sets out to exclude local authorities. It reads: "a member of ... a local authority shall, while he or she is so entitled or such a member, be disqualified for membership of the Board (M) or a committee of the Board (M)." There is no ambiguity; the Bill excludes them. This was thought up by the draftspeople, the people in the Department and, indeed, the Minister. Ultimately, this legislation crossed the Minister's desk. What I am seeking to do is afford recognition.

Yesterday, the Association of Irish Local Government, AILG, held a large meeting in Cavan. Afterwards, I spoke with its president, Mr. Nicholas Crossan, who lives in Buncrana and is an active person. County Donegal has a long shoreline. Indeed, there is a long shoreline all around this country. Mr. Crossan asked me whether I would contact the number of colleagues from Fianna Fáil, Fine Gael, the Green Party and Independents who attended the meeting, which I did. I singled out Wexford, Waterford, Louth, Galway, Clare and Cork. I spoke to councillors from those counties and teased out some of the issues. They are emphatic in their belief that they have a meaningful role. I agree with them. I was a director of the Dún Laoghaire Harbour Company for ten years. I played an active role in it, as did all parties. There was cross-representation, with four or five of us representing all the political groups.

Through this amendment, I am seeking not just to talk about my commitment to city and county councillors but to include in this primary legislation the requirement that local authorities and local authority members be allowed to be part of MARA.

The suggestion is that we would allow local authorities and local authority members to be part of the board of MARA. The exact same amendment was tabled by two Government Senators. It was good enough then, and I hope it is good enough today. However, that amendment was not resubmitted. When I say exact, it related to the support of councillors. To be fair to every Member on all sides of the House who spoke, they all spoke of the significance and importance of local authority members being involved. I do not think there is any dispute about our commitment to having councillors involved, but do we have the bottle to stand up today and support this amendment? I ask all Senators across the House to stand in solidarity with the city and county councillors who elect them, and from whom they seek a mandate, and to support them in this hour.

I thank Senator Boyhan for his Churchillian oration. This is a matter I raised on Second Stage with the Minister, Deputy Darragh O'Brien. It applies very specifically to this legislation, but it is the general principle of the exclusion of councillors from certain State boards. The case I made then, and to the Minister of State, Deputy Noonan, on Committee Stage, is that it is not about a councillor being appointed just because he or she is a councillor, it is where the person has relevant expertise and all other things being equal that he or she should not be excluded from consideration for appointment to the board because of the fact that he or she is a councillor.

The Minister of State, Deputy Peter Burke, is a very strong advocate of getting good people into local government. It is increasingly difficult when we get people who have professional expertise or extensive life experience who could serve on a board but because they are a councillor, they are excluded.

I raised the matter with the Minister on Second Stage and he agreed with me. His comment was interesting. I spoke with him separately afterwards. Senator Fitzpatrick and I then tabled amendments and, purely coincidentally after that, Senator Boyhan tabled very similar amendments. I am happy if there is a commitment to look at the role of councillors on State boards, as the exclusion does not just apply to this legislation.

The concern I expressed on Committee Stage is that councillors are specifically excluded, but that a nominee of the county and city chief executives will be appointed to the board of MARA. From that perspective, in terms of the balance, it is only fair that we should not exclude councillors. It does have a general implication, because in nearly every piece of legislation that comes through these Houses, local authority members are excluded, which is wrong. I agree with Senator Boyhan that it makes sense for particular reasons for Members of the Oireachtas and the European Parliament not to sit on State boards, but I wonder why that is the case if somebody has a particular level of expertise and he or she applies for the job and is seen as the best candidate but because he or she happens to be a councillor, he or she is excluded. That is wrong. I hope in the Minister of State will be very clear in setting the direction of travel in that area, because this is not just about MARA, we are trying to remove a similar proposal on the media commission that is coming up. It applies across all State boards. I hope the Minister of State will give us a very clear indication in his response that the general principle will be addressed.

I have seconded Senator Boyhan's amendment. I am heartened by the support given to it by Senator Malcolm Byrne. I have spoken to a number of independent councillors in his area and in Senator Currie's area, who are adamant that councillors should be part of this board. I welcome the support. Too often, councillors are left out of strategically important infrastructural boards around the country and it is important that we start to look at the expertise we have within local government and utilise it.

I thank Senators for their contributions. This amendment seeks to ensure that elected members of a local authority are eligible for appointment as members of the board or a committee of the board of Mara. It is the Government's intention that MARA will become a centre of excellence for maritime usages. I am committed to ensuring the success of the new agency.

On Committee Stage in the Dáil, we moved a number of amendments to address concerns raised on Second Stage. These amendments rebalanced the proposed composition of the MARA board to ensure a broader scope of representation and to facilitate the appointment of a range of members to the MARA board. Also on Committee Stage in the Dáil, Deputies were advised that to ensure confidence in the governance arrangements for MARA, a governance review of the establishment provisions was to be undertaken. The review focused on the code of practice for the governance of State bodies to ensure that the establishment of MARA applies a best-practice approach in order to achieve the highest possible standards of corporate governance.

As Senators are aware, the code of practice for the governance of State bodies covers such matters as the role of the board and chief executive, codes of conduct, ethics in public office and the body's relationship with the Oireachtas, Ministers and its parent Department, as well as business and financial reporting requirements. The review found that the Bill successfully addressed the key governance requirements for a State regulatory body. It noted that the Bill provides a robust framework for the new authority, clearly delineating its corporate status, functions and structure, and defining an appropriate set of relationships internally and externally.

The review was completed in advance of Report Stage in the Dáil, and a number of minor amendments were proposed and accepted on Report Stage, which reflected the best-practice recommendations arising from the review. These included the terms of office of board members, placing the board as a decision maker with regard to the employment of a chief executive officer, and reducing the time for the production of corporate strategies from five years to three years.

I am fully satisfied that the Maritime Area Planning Bill 2021 provides a best practice approach to the governance of MARA from the day of establishment. While there may be requirements in the future to review the composition and corporate structure of MARA, that review should only happen once MARA has become operational and has had the opportunity to show what it can achieve. Following the governance review, I have assurances that MARA, as currently provided for in the text, is wholly sound and balanced. I will not accept any amendments that seek to trouble this balance.

I would like to add that there is nothing in this legislation that prevents an elected member of a local authority from applying for the position of chief executive or for membership of the board of MARA. If he or she were selected and decided to serve with MARA, then he or she could not hold his or her elected position concurrently. This is exactly the same situation as that which pertains to a Member of Seanad Éireann, an elected Deputy or a Member of the European Parliament.

I fully appreciate the intention behind the amendment and the reasoning highlighted by the Senator that the matter raised relates not only to this legislation. I note that this very issue was raised only last week in this House during the Second Stage debate on the Companies (Corporate Enforcement Authority) Bill. It may be more appropriate for the Senator to seek a holistic review of these standard provisions.

As Minister of State with responsibility for local government, I am overseeing reform of the role of local elected members in the context of the Moorhead report. I have listened to the opinions of colleagues and I wholeheartedly agree that local authority elected members do exceptional work in their localities. In that spirit, I commit to looking at the role of elected members, and have done so, in terms of their involvement in State boards as part of the reform programme, which I have outlined many times in this House, and as recently as two weeks ago. However, I am satisfied that the provisions as they stand in this Bill are robust and appropriate in that context. The Senators may wish to consider the amendment in the light of my comments.

First, I do not doubt the Minister of State's commitment to local government. He has done significant work on councillors' remuneration and supports. I acknowledge that. I will not go into all of the detail. As the Minister of State accepts, there is a lot more work to do.

It was suggested that my amendments are, by coincidence, similar to other amendments. I would not like it to be suggested that the Seanad Office, the Bills Office or anyone else would divulge or let anyone know the contents of other amendments.

There was a deadline of 11 o'clock that day. An email was sent the night before. I do not suggest anyone in the House would know the contents of amendments in advance of their publication or would be engaging in the exchanging of information in respect of the amendment. I tabled this amendment. It is heartening that the same amendment was tabled by two Senators from across the House who are in the Chamber now. It was the exact same, so there should be no difficulty. What difference does it make? I wanted to put that on record because it is important in the context of the integrity and the functioning of this House and how it manages amendments that have been tabled. I was not aware of the content of the amendment until the cream list was published and I was delighted to see the amendments were the same. I acknowledge the significant work the Bills Office does in preparing amendments. The staff do exceptional work, with great integrity and professionalism, and I send out a clear message of support to them.

I cannot accept the Minister of State's response, with all due respect to him. I like him as a person and think he is an exceptionally good Minister of State, but it is not enough for him just to suggest a review may be carried out in future. Today is the day. This is the primary legislation. I appreciate the difficulties he has and the fact the Dáil cannot be recalled. I accept people are anxious to get the Bill to the Áras an Uachtaráin to be signed but there is no rush. This can happen in two, three or four weeks. There is no deadline for getting this over the line. Let us get it right. I set out to engage with sitting county councillors throughout the country, which I think I do reasonably well, and to ask them for their views. I circulated the pre-legislative scrutiny report, some of which was not included in this legislation, although that is in the past. We are here today, in the final stage of this process. I tabled a second amendment but, unfortunately, we ran out of time. Was I wise? That amendment was not in the name of any other Senator, so it is not the exact same as the amendment we were talking about earlier. Moreover, only five amendments have been submitted for today and none of them has come from the Government's side.

It is important we have this opportunity, in the context of what is our major function in this House, to polish up and improve legislation, as the Tánaiste said when he visited here in the past year or two. This is our opportunity. The Government needs to big enough, strong enough and brave enough to support a good amendment when it sees it. If we are advocating for local government and city and county councils, we must stand with them and make their points.

Local authorities and their members should be entitled both to be members of MARA and to be a city or county councillor. Indeed, I was once both a county councillor and a member of a harbour company board, and I think we did a pretty good job. Senator Ward talked about the functions and the success of that harbour company in Dún Laoghaire. The legislation will disqualify elected councillors from membership of the board or committee of MARA and that is wrong. We can talk all we like about supporting them, making them stronger and having reviews such that they will be the kernel of everything, but we have the power today to make that decision.

I will push the amendment because I have set out from the beginning to ensure this would be debated. I believe strongly in it and think it should be pursued. People should stand up and be counted. They can either side with elected members and ensure they will have a meaningful role in MARA, or they cannot. I thank the Minister of State for his time and his comprehensive response.

Amendment put:
The Seanad divided: Tá, 6; Níl, 21.

  • Boyhan, Victor.
  • Higgins, Alice-Mary.
  • Keogan, Sharon.
  • Moynihan, Rebecca.
  • Wall, Mark.
  • Warfield, Fintan.

Níl

  • Ahearn, Garret.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Chambers, Lisa.
  • Conway, Martin.
  • Cummins, John.
  • Daly, Paul.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Fitzpatrick, Mary.
  • Kyne, Seán.
  • McGahon, John.
  • McGreehan, Erin.
  • Murphy, Eugene.
  • O'Loughlin, Fiona.
  • O'Reilly, Joe.
  • O'Reilly, Pauline.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Sharon Keogan and Victor Boyhan; Níl, Senators Lisa Chambers and Seán Kyne..
Amendment declared lost.
Senator Lorraine Clifford-Lee has advised the Cathaoirleach that she has entered into a voting pairing arrangement with Senator Eileen Flynn for the duration of Senator Flynn’s maternity leave and accordingly has not voted in this division.

Amendment No. 3 is out of order.

Amendment No. 3 not moved.

I move amendment No. 4:

In page 97, between lines 15 and 16, to insert the following:

Locus Standi in environmental MAC cases and in proceedings to which Part 2 applies

110. For the avoidance of doubt where the applicant for judicial review under this Chapter, or under Part 2, is—

(a) a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection, and

(b) has, during the period of one month preceding the date of the application, pursued those aims or objectives,

it shall have locus standi to pursue the judicial review and be deemed to have sufficient interest.”.

I second the amendment.

The amendment covers similar ground to amendment No. 3, which was ruled out of order. In that amendment, we attempted to suggest some solutions but they would affect the cost, which is why they were ruled out of order.

The problem being identified is linked. There are serious concerns in respect of the Bill. Although we heard from the Minister on Committee Stage about all the engagement with environmental groups and the various established actors, environmental NGOs and others, that does not seem to stand up in the context of the Bill because those organisations have been expressing serious concerns. There was discussion on that Stage in respect of the relationship to the maritime area and there was a question regarding the word "usages", but it cannot be simply extractive. Similarly, the relationship with civil society and environmental NGOs is not simply a one-sided relationship where the Ministers are happy they have consulted and then go ahead with the legislation. There is a deep and important role and power that is rightly distributed among citizens and environmental NGOs, which have their own responsibilities and role in the context of good planning. There is a concern that this legislation is diluting that role and seeking to dilute that power. There are several ways in which it does so.

I refer to the issue of locus standi. The amendment deals clearly with this issue. It refers to "a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection, and has, during the period of one month preceding the date of the application, pursued those aims or objectives" because some such bodies will be very long-established organisations and others will be groups of citizens who come together out of concern for their local environment and they should have locus standi to pursue judicial review. Section 110(b) as proposed in the amendment is of particular importance in the context of ensuring that groups of local concerned actors, possibly comprising people who may work together on just one area, who decide to take on an environmental issue that is really important to them and their place are not at risk of being deemed as having insufficient interest or not being allowed to pursue judicial review in respect of an MAC in particular. This point about who can take action is crucially related to the concerns that have been expressed. As I stated, I understand members of the environmental pillar have written to the Department urging still at this late stage that proper consideration be given and proper measures put in place to ensure we have those meaningful checks and balances that are so crucial and part of our democracy, along with the Legislature and the Executive, in the context of rights through the courts and the role of civil society. There are many serious questions in respect of judicial review, among which is the question of who takes the case.

On a related issue, many questions arise in respect of section 133 of the Bill. First, why is the section in the Bill? It looks like a version of section 50B that already exists under the planning legislation. Surely the obvious thing would be for section 50B to still apply, even though it has some flaws. That section is what most environmental NGOs and other actors would expect to use to challenge a decision in respect of a maritime area consent based on environmental concerns, yet there is this kind of parallel version of it inserted into the Bill which subtly changes the language and removes certain areas in the context of this judicial review role. What is really concerning is that there is already provision in respect of environmental decision-making and we know the State has obligations under the Aarhus Convention in terms of environmental decision-making so it is important for the Minister to clarify his understanding in this regard. These are questions to which I need answers today. Decisions relating to maritime area consents clearly have potential environmental implications because they relate to activities and consents in terms of certain usages and activities within maritime areas. It is maritime area consent. It has environmental implications. I ask the Minister to confirm that he understands that. I am also seeking an explanation for the decision to insert section 133 in the Bill in respect of judicial review rather than simply applying section 50B, which is law that already exists.

This all relates to the issue of people who are trying to take judicial review cases. I refer to a really odd and worrying concern. Section 133(7) contains a list of the relevant directives, with reference to the habitats directive among others, but there is a notable omission. Section 50B, which is equivalent to section 133, contains reference to the integrated pollution prevention and control directive which, of course, has now been supplanted at European level by the industrial emissions directive. That is crucial because this is about emissions. It relates to any kind of significant activity. Of course, the current direction of travel is to monitor emissions more and pay more attention to them and their implications. To remove that directive as one of the areas where an environmental judicial review might be taken or a judicial review based on environmental concerns strikes an odd note. It is a strange decision. It may have implications in the context of liquified natural gas, LNG, if an environmental NGO or concerned group of citizens, for example, wished to take a judicial review on foot of concerns relating to the environmental implications of emissions from something like LNG. It may even have implications down the line in terms of data centres, given that we know the maritime planning of that, although it might be a different planning process. I am very concerned in respect of the maritime area consent piece. I know the Minister will say there are later places in the planning process around these but maritime area consent is still allowing for activities that relate to this issue. We have seen, even in the context of the climate action Bill, that where an initial activity has been taking place, that is regarded as giving some kind of future tantamount expectation.

I am really concerned that as the Bill is set out right now, it will be difficult first for environmental NGOs or local groups of concerned citizens who care about their environment to be properly recognised as having locus standi in the context of judicial review. I am concerned about them being able to properly take judicial review in respect of those issues on the same basis they would be able to bring proceedings under section 50B at the moment. Will environmental NGOs and others would be able to take a judicial review under section 50B against a maritime area consent? Will that section still apply? Can he confirm such organisations will not be told they need to use section 133?

I and, I suspect, all other Senators present would like an explanation in respect of why the industrial emissions directive is not considered to be important from an environmental perspective in this legislation.

I am conscious of time and the Order of Business for today as agreed, so I will be brief. It is important that we try to get these amendments dealt with. I will not add to the remarks of Senator Higgins. She has articulated it very well, which is important. I refer to locus standi and judicial reviews. The planning and development Bill 2019 will be coming back to the joint Oireachtas committee in January for pre-legislative scrutiny and review and we will be dealing with a whole range of judicial reviews. I do not want the message to go out that this Government is against judicial reviews. That is not the case. There have been controversies relating to agriculture, fisheries and a litany of other things but we must remember that citizens have constitutional rights.

There is a separation of powers and people should have a right to a fair judicial review process. I want a fair, but robust, judicial process.

The message coming from Government is that it is against anyone who objects to anything. That is not the intention, but that is the message. Today is not the day to be talking about agriculture in Waterford and Kilkenny and all those sorts of issues. They will be dealt with through the courts, and appropriately. I think we will be surprised, but let us not pre-empt what will happen there.

We need to stand firmly. I acknowledge the Irish Environmental Network. People think its members are a bit wacky and a bit crazy, but they are not. They have engaged well. Indeed, they are funded by the Department. It is interesting that on the one hand we have issues with some of these environmental groups, but on the other hand they are being funded by Government. That is healthy. That is not a criticism. It shows a sense of our own maturity about systems.

In terms of the locus standi, the proposal is that where the applicant is a body or organisation other than a State authority, a public authority or governmental body or agency, that its aims or objectives relate to the promotion of environmental protection, and that it has, during the period of one month preceding the date of the application, pursued those aims or objectives, it shall have locus standi to pursue the judicial review and be deemed to have sufficient interest.

I am familiar with many of the Green Party councillors throughout this country. Indeed, there were six or seven in my own county. Many were politicised through the environmental movement. They were not politicians first. They were not in political parties. They engaged in this process and they came through. Indeed, one or two of them are sitting at the Cabinet table. I have great hopes for them, particularly in the next legislation next year to which I referred.

We need a judicial review that is fair and robust to all sides and all parties, and that is an important point to make.

In concluding, I thank the Irish Environmental Network, An Taisce and many activists, especially in the Green Party, who cut their teeth on environmental issues in local communities, who feed in, and some of whom are now at the table of Government but are in every facet of this organisation which is the Oireachtas. They will keep a fairly vigilant eye to things.

This amendment is worthy of support. Indeed, I would go as far as to encourage my colleague in this case to call a vote on this amendment.

This is an amendment we had submitted previously and I thank Senators Boyhan and Higgins for putting it forward now.

A legal challenge in a judicial review is not on the substance of the planning application. It is not returning to whether it is a good or a bad application. It is being appealed on a point of law or a point of process. If the environmental impact assessment directive requires certain assessment studies to be done in making a decision on a planning application and they have not been done, then the proper process has not been adhered to. On those grounds, a judicial review will happen.

There are many environmental judicial reviews. They are not necessarily trying to stop a development. They are trying to ensure the environmental implications are clearly understood so they can be fully mitigated.

There are many judicial reviews at present but we cannot reduce people's access to justice. People access the courts because environmental legislation is not properly transposed or is not properly adhered to and, because of this, we get fined by the European Court of Justice. The key is not to restrict access to justice. It is to make better planning decisions and to better transpose the law.

The court will often make someone liable for costs. We had amendments on that that have been ruled out of order.

In terms of this amendment, locus standi is who has the right to take a judicial review. The same arguments apply here as would have for the previous amendment. We are signatories to the Aarhus Convention, ensuring people have a good quality environment. To ensure that, they need good quality access to good quality information. Having access to information means they have the right to challenge if they think something is damaging the environment. The exclusion of maritime area consents from being considered as environmental decisions and, therefore, subject to judicial review is a mistake, and they should be included.

I stated on Committee Stage that everyone in this House supports good environmental practices, and in this case having protected marine life, but at the same time we have to acknowledge and be honest that delays occur as a result of challenges. It was indicated on Committee Stage by the Member on my left that he was already aware this legislation which we were still in the process of discussing would be challenged in the courts before we even concluded our business as Oireachtas Members, which was disappointing to hear.

That is not accurate.

That is accurate. I suggest the Senator check the record.

The main point I am making is nobody is suggesting we restrict people's right to be able to take challenges. However, we need to be honest and upfront with the public as to the consequences of such challenges. We can all speak about meeting our targets in terms of wind energy, etc., but we cannot get to those targets if applications are caught up in process and in the courts. I have no issue with anybody challenging anything once he or she is upfront and honest as to the consequences of those challenges.

I thank the Members for their contributions. This amendment is entirely unacceptable to the Government. It seeks to establish the maritime area consent, MAC, as an environmental assessment tool. That is not what a MAC is.

The State owns or controls almost the entire maritime area from the high water mark to the outer limit of the continental shelf. Anyone who wants to carry out a development or activity in the maritime area must, therefore, obtain the consent of the State to be able to occupy a part of the maritime area. The Maritime Area Planning Bill provides that, prior to development taking place in the maritime area, a developer must obtain a right from the State in the form of a maritime area consent, MAC, to occupy a particular part of the maritime area. This is confirmed in section 75 of the Bill.

The MAC concept is new and I think it would be helpful to detail what a MAC is and is not. A MAC fulfils specific functions within the overall consenting sequence. A MAC is a right to occupy a part of the maritime area, conditional on securing other necessary approvals; ensures due diligence to ensure the MAC holder can undertake the proposal; manages the relationship between the maritime area regulatory authority, MARA, and the holder through the MAC conditions; and is the gateway into planning permission. A MAC is not a lease - MAC obligations rest exclusively with the holders; permission to undertake works, development or activities – that is provided for under the Planning Act or in licensing; or an environmental decision-making process.

We have applied a single environmental assessment principle that is provided for under the Planning Act or in licensing. Section 79(5) of the Bill provides that, for the avoidance of doubt, the MARA is not required, for the purposes of determining MAC applications, to carry out an environmental impact assessment, EIA, or appropriate assessment, AA, or screening for an EIA or AA.

In developing the new regime set out in this Bill, we examined in detail the operation of the Foreshore Act and its interactions with the Planning Act. We have designed a new sequenced consent regime that separates the financial and estate management issues from the environmental and planning issues. Prospective developers will have to secure a MAC and then apply for planning permission. They will need to secure both before development can begin.

The MAC is the grant by the State of a right to occupy the maritime area. Planning permission is a development consent. They are different processes that serve different functions.

Furthermore, by reason of the provisions of sections 79(1) and (2), section 80(1) and the criteria which MARA is required to have regard to as set out in Schedule 5, it should be noted that the information to be provided by an applicant and the criteria to be considered and applied by MARA to an application for a MAC is limited to occupation-related and estate management aspects to be expected where the State is granting an occupation interest to an applicant.

There is a notable lack of reference to environmental matters and criteria, and that is intentional. The MAC is not the type of consent that should attract an environmental assessment in any form.

A MAC is conditional on obtaining development consent or planning permission for the proposed development, whatever that may be. If the developer fails to obtain the development consent, the MAC is terminated. There are therefore two related and interconnected consents being granted, one dealing with estate management issues and the other dealing with the development consent issues. The MAC deals with the estate management element. The planning permission, whether obtained from An Bord Pleanála or a coastal planning authority, deals with the development consent aspect and this includes all of the environmental aspects of the consent.

Senators should note that, at MAC stage, most applicants will still be at the point of developing their designs and plans for planning applications and will not have engaged in investment in those processes until they have some assurance that they will get a MAC from the State.

I cannot accept any proposals that seek to fundamentally change the nature of the MAC process or duplicate what exists under the current regime. We are creating a new, streamlined and efficient regime to better manage our maritime usages. The estate management and planning processes must remain distinct and separate in order for the new regime to operate effectively.

Furthermore, I have serious concerns that the proposed amendment could result in a body or organisation being established to pursue environmental protection objectives for a single month solely in order to meet the criteria of locus standi in judicial review proceedings. This is a significant deviation from existing provisions, including the provisions of the planning Acts and those proposed in section 131 of this Bill. This provision could unintentionally lead to abuses of the system and undermine the good work of existing and long-standing environmental NGOs. There is no justification for this.

We will keep all judicial review provisions under constant review, having regard to emerging requirements, case law and other amendments elsewhere, such as in any future review of the planning Acts. I will not, unfortunately, be accepting the amendment.

The concerns are greatly exacerbated now. I have huge respect for the Minister of State, Deputy Peter Burke, and we have engaged constructively on other issues but in this regard, this feels like we have had a good-cop, bad-cop piece because we had a Committee Stage debate during which we were reassured that environment, marine planning and protection and such factors were so deeply integrated into this that we did not have to be concerned. They were at the heart of the process and had been there in the thinking and development. Yet here we have a clear and concerning message that the Minister of State does not think MAC is concerned with the environment. This is just contract law, it seems then. It is about owning and controlling consent. It is estate management. We talk about the State owning and controlling all the waters but the State has responsibility for all the waters. That is another way to think about it. The State has responsibility for our marine and its protection. If marine and environmental protection is nowhere in this process, it is a travesty that the Government would go ahead with this process, giving grants, trades, estate managements, allowing for the occupation and effectively treating it like a bunch of property to be divided up, allowing people to occupy it and carry out different activities as if it is an asset, rather than the part of the planet and the oceans we are responsible for. It is a worrying frame. Many attempts in the early debates were made to tell us not to worry, these were kind of parallel and would be working together. It is clear now. We are told the estate management part of giving consents for things to happen - I am not saying I am talking about development but permissions for occupation - is coming ahead of marine protection and the designation of marine protection areas.

People say get the legislation right so it is consistent with the law, including European law. When people say there is a danger that this is not as consistent as it should be with European law, that is a legitimate thing to point out, much as in a judicial review. The way to avoid judicial reviews is to get the process right in the first place, rather than by curtailing such reviews. If we want to be honest, we need to be responsible about the fact that avoiding environmental considerations early in any process creates problems.

I am also concerned that the Minister of State is creating hostages to fortune. We look at the Energy Charter Treaty, which half of Europe actively wants to leave. I know that treaty was there in the considerations on the climate Bill because in the Bill it was discussed why exemptions had to be given to those who had done exploration in relation to fossil fuels. They could not be excluded from extraction because of their expectations. The Minister of State has described here how the maritime area consent will encourage them to start preparing their planning. Will they say that is a reasonable expectation? Have we put in a measure to protect the State against that? I do not want us down the line to get legal advice from the Attorney General that we cannot interfere with yet another terrible project because of legal concerns created by maritime area consent without proper environmental consideration.

I fundamentally disagree with the Minister of State on this. I agree that section 79(5) is a real problem. It is one thing if he will not do the proper environmental considerations; it is another if we constrain those who try to do that good environmental work when the State falls short. Unfortunately, this does both so I need to press the amendment.

Amendment put:
The Seanad divided: Tá, 6; Níl, 23.

  • Boyhan, Victor.
  • Higgins, Alice-Mary.
  • Keogan, Sharon.
  • Moynihan, Rebecca.
  • Wall, Mark.
  • Warfield, Fintan.

Níl

  • Ahearn, Garret.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Conway, Martin.
  • Cummins, John.
  • Daly, Paul.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Fitzpatrick, Mary.
  • Kyne, Seán.
  • Martin, Vincent P.
  • McGahon, John.
  • McGreehan, Erin.
  • O'Loughlin, Fiona.
  • O'Reilly, Joe.
  • O'Reilly, Pauline.
  • Ward, Barry.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Alice-Mary Higgins and Victor Boyhan; Níl, Senators Lisa Chambers and Seán Kyne.
Amendment declared lost.
Senator Lorraine Clifford-Lee has advised the Cathaoirleach that she has entered into a voting pairing arrangement with Senator Eileen Flynn for the duration of Senator Flynn’s maternity leave and accordingly has not voted in this division.

I move amendment No. 5:

In page 97, between lines 15 and 16, to insert the following:

“PART 5

COSTS IN ENVIRONMENTAL MAC CASES UNDER PART 4 AND IN RESPECT OF JUDICIAL REVIEW UNDER PART 2 AND PART 5

CHAPTER 1

Consultation and report on Judicial Review under Part 2, 4 and 5

110. Within 6 months of the commencement of Part 2 and/or Part 4, and/or Part 5, the Minister shall—

(a) conduct a public consultation on the effect of this Act on the rights of the public to pursue Judicial Review under those parts, including but not limited to rights under Article 9 of the Aarhus Convention and the characteristics specified in Article 9(4) of the Convention, and the Articles 11 and 47 of the EU Charter of Fundamental Rights and the Constitution,

(b) within 2 months of the conclusion of the consultation referred to in paragraph (a) the Minister shall prepare a report on the operation of this Act on the rights of 2 the public to pursue Judicial Review under those Part 2, 4 or 5 where any such parts have been commenced, and lay it before both Houses of the Oireachtas, and make available on a website of the Government the responses to the public consultation in paragraph (a) above, and

(c) table a debate on the report within each house of the Oireachtas within 2 months of the laying of the report before each such House of the Oireachtas.”.

I second the amendment.

I will not speak at length to this amendment. It outlines the need for the Department to conduct a report on all those issues I have already spoken about. We do not need to go over the ground again, but I suggest that the Department may wish to conduct a report in the next two to three months to re-examine the legislation and effect of the Act on all those issues we highlighted concerning access to justice and the Aarhus Convention. I ask the Minister of State to come back to engage with us before, for example, we see new and further planning legislation go through. It is regrettable that these issues are not addressed.

I know the Minister of the State will not accept an amendment at this point, but it would be useful if he indicated that he plans to engage with these concerns. A report is something he can agree to produce without necessarily accepting the amendment. It would be very useful because there are very genuine concerns that need to be addressed.

I also second this amendment. I will not speak at much length to it, but I thank the Minister of State and his officials for their responses. This has been a very important discussion. I have had a lot of engagement on the text of this amendment as have our colleagues across the House. I support this important amendment. As Senator Higgins said, it will not be pressed but I would be interested to hear the Minister of State's response.

I thank the Senators for their contributions. The amendment implies that MAC provisions do not comply with the Aarhus Convention in that they provide for no public participation when MARA grants a MAC. I will point out that the Aarhus Convention or, more accurately, the second pillar of the Aarhus Convention, which provides for public participation, has no application to consent whereby a state is granting occupancy rights in respect of property it owns or controls. There is, therefore, no international law or obligation in EU law to provide for public participation in respect of such a consent. Public participation in occupancy consent applications in the maritime area is entirely at the discretion of the state and is not a requirement of the Aarhus Convention or of EU law.

The focus of the Aarhus Convention is the protection of the environment and to enable citizens to participate in decision-making with regard to the environment. The public participation, which is envisaged in the convention, is very much focused on the environment, on the public having the necessary information on the effects of the project or activity on the environment, and enabling the public to provide its views on the project and its effects before any decision on it is made. All these matters are being provided for in the planning or development consent decisions being made by coastal planning authorities and An Bord Pleanála under the provisions of this Bill. The State is fulfilling its obligations under the Aarhus Convention by providing for full public participation in planning applications and decisions in respect of planning applications in the maritime area. It is in that process that all the environmental information relevant to the particular development will be provided and made available to ensure the appropriate public participation required by the convention.

As I have explained, the focus of the MAC, however, is entirely different and is designed to address the State's estate management responsibilities. The Office of the Attorney General has been deeply involved throughout the development of this legislation in drafting the provisions of the Bill and, therefore, I can assure Senators that I am fully satisfied that MAC procedures laid out in it are Aarhus-compliant in the context of the overall sequence of consents envisaged by the new regime.

The Aarhus Convention applies to environmental decision-making. The MAC does not require or obtain the environmental information or environmental parameters that are necessary to enable public participation for environmental purposes. The MAC has no effect on the development consent, does not change its basic parameters and does not determine its outcome. The MAC is not the decision that permits the activity. In fact, it terminates if the development consent that provides the public participation is not obtained, that is, if planning permission is refused.

In considering what the MAC is and is not, it is abundantly clear that it is not appropriate or necessary to carry out a consultation, review or report on the effect of the legislation on the rights of the public to pursue judicial review. The Bill provides that public participation is an absolute priority in plan- and policy-making and in the assessment of all development proposals. I will take this opportunity to point out that the introduction of public participation statements contained in this Bill is a wholly new development in the planning system in Ireland and further demonstrates the commitment of the Department and the Government to the Aarhus Convention. Making a public participation statement will be a mandatory requirement in the preparation of all maritime spatial plans and DMAPs. The public participation statement will clearly detail the forms of participation opportunities and mechanisms in the development of plans. For those reasons, unfortunately, I cannot accept the amendment.

I just cannot accept the analysis that claims that people's rights on environmental decision-making under the Aarhus Convention are constrained to areas where the State would like to use those rights. It is very clear that environmental decision-making, not just planning, comes under Aarhus. It does not just kick in at a certain point. Things that affect the environment, and maritime areas are part of our shared environment and of the ecosystems we are part of, are very much of relevance and importance. In that context, again, to treat maritime areas and oceans as property in respect of maritime area consents misses a very important point. I will press the amendment.

Amendment put and declared lost.
Question put: "That the Bill be received for final consideration."
The Seanad divided: Tá, 28; Níl, 3.

  • Ahearn, Garret.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Conway, Martin.
  • Cummins, John.
  • Daly, Paul.
  • Davitt, Aidan.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Fitzpatrick, Mary.
  • Kyne, Seán.
  • Martin, Vincent P.
  • McGreehan, Erin.
  • Moynihan, Rebecca.
  • Murphy, Eugene.
  • O'Loughlin, Fiona.
  • O'Reilly, Joe.
  • O'Reilly, Pauline.
  • Ó Donnghaile, Niall.
  • Wall, Mark.
  • Ward, Barry.
  • Warfield, Fintan.
  • Wilson, Diarmuid.

Níl

  • Boyhan, Victor.
  • Higgins, Alice-Mary.
  • Keogan, Sharon.
Tellers: Tá, Senators Lisa Chambers and Seán Kyne; Níl, Senators Sharon Keogan and Victor Boyhan..
Question declared carried.
Senator Lorraine Clifford-Lee has advised the Cathaoirleach that she has entered into a voting pairing arrangement with Senator Eileen Flynn for the duration of Senator Flynn’s maternity leave and accordingly has not voted in this division.

As it is now passed 11.30 a.m. I am required to put the following question in accordance with the order of the Seanad on Thursday, 16 December 2021: "That the Bill be hereby passed."

Question put.

Will the Senators claiming a division please rise?

Senators Victor Boyhan and Sharon Keogan rose.

As fewer than five Members have risen I declare the question carried. In accordance with Standing Order 61 the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.

Question declared carried.
Sitting suspended at 11.51 a.m. and resumed at 12 noon.
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