Need for Reform

Regulatory Failure

During the past decade there has been widespread acknowledgement of regulatory and legislative failure in Ireland’s land-based planning system. This resulted in major problems such as developer-led planning, over zoning of lands, building on flood plains, sub-standard construction etc.

Similar legislative and regulatory inadequacies, compounded by a massive democratic deficit, underlie government management of construction and development in our coastal zone. The results of this planning shambles have not yet come to light publicly because the offshore developments permitted have not yet been constructed. However, government are clearly aware of these legacy issues and their implications for Ireland's east coast near-shore zone.

The central issue is that the Irish Government failed to update inadequate and outdated legislation (Foreshore Act 1933) governing construction at sea, prior to awarding foreshore leases for construction of two of the biggest offshore wind farms in the world, 10/12km of the coastline of County Wicklow (520MW Arklow Bank Wind Park, 2002; 1100MW Codling Wind Park, 2005).

Developers proposing these projects benefited from this regulatory failure by obtaining valuable foreshore leases for large scale development without proper public scrutiny, and then by selling on the leases to international power companies at a price based on the size of the developments permitted.

The problem is not that developers made a very significant profit from these transactions. The problem lies in the failure of the Government to ensure that Ireland’s valuable coastal zone is protected by modern, “fit for purpose” legislation and strategic planning. This situation has not yet been addressed.

In addition to the two offshore wind farms consented under The Foreshore Act 1933, foreshore lease applications for four other extensive developments in our in-shore zone are advancing through the permitting system under this outdated legislation i.e. 330MW Oriel Wind Farm (Dundalk Bay); 100 MW Sceirde Wind Farm (Galway Bay); 520 MW Dublin Array Wind Farm (South Dublin/North Wicklow); 1000MW Codling Wind Park 2 (North Wicklow). Presumably if these foreshore leases are granted, developers will once again profit significantly from Ireland’s lack of strategic planning.

In addition to these applications for foreshore leases for construction, applications for foreshore licences for initial exploration in relation to 13 other developments were submitted in the first six months of 2008, mostly off Wicklow and Wexford. This rush of applications followed the announcement by Eamon Ryan, Minister for the Marine, of significant financial supports for offshore renewable energy generation in February 2008.

KEY FAILURES

Two of the biggest offshore wind farms in the world have been approved 10/12km off Wicklow’s coast under an outdated permitting system which was clearly not “fit for purpose”. These developments, totalling 1620MW will involve hundreds of giant turbines covering an area of 125km².

Key regulatory failures are set out below:

1. DEMOCRACY

The windfarms were approved:

  • On the sole authority of the Minister for the Marine. (Minister Frank Fahy - Arklow and Minister Noel Dempsey - Codling).
  • Under outdated legislation, The Foreshore Act 1933, long earmarked for reform.
  • In a low key manner entirely inappropriate to the size and potential impact of development.
  • In seas which belong to the Irish people
  • With no public tender
  • With incomplete assessment by the Department of the Marine's Environmental Consultants. (Arklow)
  • On the recommendation of the non-statutory Marine License Vetting Committee who assessed the developer’s EIS (Codling)
  • With no statutory involvement of local authorities
  • No public right of appeal against the Minister’s decision to an independent planning appeals board
  • In contravention of the Consolidated Environmental Impact Assessment Directive 85/337/EEC and its requirements re public access to proper review procedures
  • With minimal public participation and brief, one-month consultations.

2. NATIONAL PLANNING

  • No National Plan for development of offshore renewable energy
  • The process was entirely developer-led
  • Developers were allowed to pick out sites in a manner described (April 2007) by The Marine Institute as “1st come 1st served”
  • No competitive tender
  • No Strategic Environmental Assessment (SEA) by Government to select possible sites and assess cumulative impacts (in contravention of the EU SEA Directive 2001/42/EC transposed into Irish law in 2004.)
  • No Marine Spatial Planning to balance competing interests in the seas and ensure sustainable development
  • No Integrated Coastal Zone Management to manage the land/sea divide
  • No planning application to local authorities for attendant extensive shore-based development e.g. substations, grid upgrades etc. ('Project Splitting').

3. BIODIVERSITY PROTECTION

  • Leases were awarded before the survey and designation process for protection of marine sites under Natura 2000 was completed by the Irish authorities.
  • Leases awarded on shallow sandbanks, an important marine habitat listed for protection under Annex 1 of the EU Habitats Directive.

4. COST BENEFIT ANALYSIS

  • No cost/ benefit analysis of the impacts of these unprecedented developments (social, economic and environmental (e.g.on CO2 emissions)
  • No assessment of the economic and environmental costs of connection/grid upgrade or impact on electricity price competitiveness.

5. LANDSCAPE PROTECTION

  • No independent, professional assessment of landscape impact of developments on the character and quality of the Wicklow coastline, designated as an Area of Outstanding Natural Beauty.
  • No statutory involvement of local authorities in the permitting process and therefore no responsibility on planners in local authorities to assess visual impacts of developments on coastal landscapes and 'views and prospects' listed for protection in County Development Plans. (Note: Local Authorities’ jurisdiction is deemed to end at the high tide mark)
  • The Marine License Vetting Committee, which assesses the developers’ Environmental Impact Statement and makes recommendations to the Minister, is chaired by The Marine Institute and composed of technical and scientific experts. It did not have a landscape professional as a member. (This was a serious gap in proper assessment given that landscape impacts of offshore wind farms in the near shore zone are a matter of great public concern internationally).
  • No Government Department or organisation, local or national, appears to have had responsibility for protection of Ireland’s seascapes (views out to sea/ along coastline ) an integral part of coastal landscapes;

6. GOVERNMENT REGULATIONS

  • The Irish government failed to enforce its own regulations set out in, Offshore Electricity Generating Stations – Note for Intending Developers 2001.
  • No planning permission appears to have been sought for the extensive onshore works (substations, grid extensions and reinforcements, etc) necessary for the offshore development. (The Note states: “Lease applications must be accompanied by an EIS and copy of planning permission for shore-based works.”)
  • Both leases granted off the Wicklow coastline are for periods of 99 years. (The Note states: “The maximum period of a lease will ordinarily be 60 years.”)
  • Leases granted off the Wicklow coastline have been sold on by the original promoters contrary to explicit official policy. (The Note states. “Foreshore Leases may not be assigned until construction has been completed and generation has taken place successfully for a period of at least two years”)

CCA COMMENT:

These regulatory shortcomings represent a very serious failure by the Irish Government to properly and openly manage the coastal zone in the national interest.