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PlanningStreet News Bulletins
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Planning Victory at Appeal - 'If at first you don't succeed...'
A client in County Tipperary came to us having been turned down four times for planning permission for a small farmhouse on his own land, despite there being numerous farm buildings already present. He needed the house as the alternative was a 60km commute three or four times a day to tend to his sheep and cows - tiring for him and not a sustainable solution.
Using expert advice, we succeeded at the first attempt in overturning the refusal at appeal. A victory for common sense, resulting in a happy farmer and happy animals.
We can advise before proceeding on your chances of success - our success rate is excellent.
Developments in Marine Spatial Planning in Ireland - Update November 2019
Nov. 2019 saw publication of the MPPS and draft NMPF...
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Development of Ireland’s Marine Spatial Planning system is taking place in five main areas: 1. Legislation (e.g. Marine Planning and Development Management Bill) 2. High Level Policy (e.g. MPPS - Marine Planning Policy Statement) 3. Marine Spatial Plan (NMPF :National Marine Planning Framework) 4. Guidance 5. Consents Regime Part 6 of this note summarises prospects for aquaculture based on the emerging policy context discussed. 1. Legislation The legal basis of marine spatial planning in Ireland relates to both European and Irish Legislation, presently including the Marine Spatial Planning Directive (Directive 2014/89/EU) (MSPD), and the Planning and Development (Amendment) Act 2018. |
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The ‘Marine Planning and Development Management Bill’ (hereinafter referred to as ‘The Bill’), which is currently being drafted, is intended to strengthen and add detail to the basis for much of the new marine planning system, including a statement of high-level policy (MPPS), a spatial Plan (NMPF), and a new comprehensive system of consents/ licences (for the latter see section 5 below).
However, in what appears as first to be a surprising anomaly, the consent regime for aquaculture has been excluded from the bill, with DAFM retaining power over this licencing method, at least for the time being. It is tempting to speculate that, given the central objective of marine planning to bring in a single consents system, the change reflects an interdepartmental power struggle, rather than logic. However, three points can be made:
i. DAFM will still have to have regard to the MPPS (published November 2019) and the NMPF (the Marine Spatial Plan).
ii. There is scope to bring aquaculture into the new consents scheme in due course, as the DHPLG website states that this exclusion is; ‘Pending the introduction of the National Marine Planning Framework’ 1.
The DHPLG also states: ‘Consents granted under existing regimes will be managed by the relevant policy Minister as assigned in the Bill under existing legislation until expiry, termination, assignment or any material change is proposed, at which time an application will have to be made under the new regime’ 2.
iii. The existing licence scheme may well be a better bet for aquaculture operators, as what is proposed in the Bill for a unified consent scheme is considerably more complex (see section 5).
1. https://www.housing.gov.ie/planning/marine-spatial-planning/foreshore/marine-planning-and-development-management-bill
2. ‘Overview of the Marine Planning and Development Management Bill General Scheme’ DHPLG
However, in what appears as first to be a surprising anomaly, the consent regime for aquaculture has been excluded from the bill, with DAFM retaining power over this licencing method, at least for the time being. It is tempting to speculate that, given the central objective of marine planning to bring in a single consents system, the change reflects an interdepartmental power struggle, rather than logic. However, three points can be made:
i. DAFM will still have to have regard to the MPPS (published November 2019) and the NMPF (the Marine Spatial Plan).
ii. There is scope to bring aquaculture into the new consents scheme in due course, as the DHPLG website states that this exclusion is; ‘Pending the introduction of the National Marine Planning Framework’ 1.
The DHPLG also states: ‘Consents granted under existing regimes will be managed by the relevant policy Minister as assigned in the Bill under existing legislation until expiry, termination, assignment or any material change is proposed, at which time an application will have to be made under the new regime’ 2.
iii. The existing licence scheme may well be a better bet for aquaculture operators, as what is proposed in the Bill for a unified consent scheme is considerably more complex (see section 5).
1. https://www.housing.gov.ie/planning/marine-spatial-planning/foreshore/marine-planning-and-development-management-bill
2. ‘Overview of the Marine Planning and Development Management Bill General Scheme’ DHPLG
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2. High level Policy (e.g. MPPS)
In November 2019, the Government (DHPLG), following consultation published the Marine Planning Policy Statement. The MPPS is a high-level statement of policy for the marine environment, rather than a tool that will be used for decision makers. Essentially it is a road map for the future development of marine planning in Ireland. The MPPS takes forward the general approach outlined in HOOW (2012). It:
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In terms of aquaculture, the MPPS confirms support for ‘the maintenance and sustainable development of our seafood industry, particularly in recognition of our strong fishing heritage and its contribution to vibrant, accessible sustainable coastal and island communities’.
The MPPS includes an increased commitment to community involvement in planning but there are no concrete proposals to bring this about. The existing arrangements in the aquaculture licencing system, whereby public consultation is triggered before proposals can be formalised (i.e. before comments from statutory consultees have been received) is unchanged.
The MPPS includes an increased commitment to community involvement in planning but there are no concrete proposals to bring this about. The existing arrangements in the aquaculture licencing system, whereby public consultation is triggered before proposals can be formalised (i.e. before comments from statutory consultees have been received) is unchanged.
3. National Marine Planning Framework (the Marine Spatial Plan)
Following initial consultation earlier this year, a revised draft of the NMPF was published in November. The NMPF is the marine spatial plan for Ireland and includes:
The NMPF has taken account of some of the representations made by the aquaculture industry and it is encouraging to see that the NMPF will include:
1. Maps *
2. Strategic Marine Activity Zones to be included (allowed for in part 3 of the Bill)
3. Planning for strategic growth
4. Later Regional Plan and possible topic or sector-based plans
However, the policies are still not tied tightly to specific policy maps. For example, Aquaculture Policy 1 gives aquaculture priority in ‘aquaculture production areas’ but there is no accompanying map showing precisely where these are. There is a map showing licenced sites near the end of the document, but these are not defined specifically as ‘aquaculture production areas’, so the policy would be hard to enforce as it stands. What is needed is a comprehensive policy map showing exactly where polices apply and giving clear definitions. Draft policies that affect aquaculture are:
Aquaculture Policy 1
Proposals for aquaculture development that demonstrate use of innovative approaches and/or contribute to diversification of species being grown in a given locality, particularly proposals applying a multi-trophic approach, should be supported.
Aquaculture Policy 2
Non-aquaculture proposals in aquaculture production areas must demonstrate consideration of and compatibility with aquaculture production. Where compatibility is not possible, proposals must demonstrate that they will, in order of preference:
a) avoid;
b) minimise;
c) mitigate significant adverse impacts on aquaculture. If it is not possible to mitigate significant adverse impacts, proposals should state the case for
proceeding
Policy 1 is aimed at improving sustainability and will be useful to operators considering combining kelp and mussel growing (for example).
Policy 2 gives priority to aquaculture over other uses in certain (if ill-defined) areas and is to be broadly welcomed.
*The Bill speaks about a ‘common spatial data platform which will provide up to date information and spatial representations of applications and granted consents'. This seems to imply a GIS (computer -based) interactive system which will give an up-to-date picture of zoning and consents and is to be welcomed.
Following initial consultation earlier this year, a revised draft of the NMPF was published in November. The NMPF is the marine spatial plan for Ireland and includes:
- General marine policies
- Activity-specific marine planning policies
- Basic guidance for public authorities in terms of applying policies;
- Climate Change adaptation and mitigation;
- Maps.
The NMPF has taken account of some of the representations made by the aquaculture industry and it is encouraging to see that the NMPF will include:
1. Maps *
2. Strategic Marine Activity Zones to be included (allowed for in part 3 of the Bill)
3. Planning for strategic growth
4. Later Regional Plan and possible topic or sector-based plans
However, the policies are still not tied tightly to specific policy maps. For example, Aquaculture Policy 1 gives aquaculture priority in ‘aquaculture production areas’ but there is no accompanying map showing precisely where these are. There is a map showing licenced sites near the end of the document, but these are not defined specifically as ‘aquaculture production areas’, so the policy would be hard to enforce as it stands. What is needed is a comprehensive policy map showing exactly where polices apply and giving clear definitions. Draft policies that affect aquaculture are:
Aquaculture Policy 1
Proposals for aquaculture development that demonstrate use of innovative approaches and/or contribute to diversification of species being grown in a given locality, particularly proposals applying a multi-trophic approach, should be supported.
Aquaculture Policy 2
Non-aquaculture proposals in aquaculture production areas must demonstrate consideration of and compatibility with aquaculture production. Where compatibility is not possible, proposals must demonstrate that they will, in order of preference:
a) avoid;
b) minimise;
c) mitigate significant adverse impacts on aquaculture. If it is not possible to mitigate significant adverse impacts, proposals should state the case for
proceeding
Policy 1 is aimed at improving sustainability and will be useful to operators considering combining kelp and mussel growing (for example).
Policy 2 gives priority to aquaculture over other uses in certain (if ill-defined) areas and is to be broadly welcomed.
*The Bill speaks about a ‘common spatial data platform which will provide up to date information and spatial representations of applications and granted consents'. This seems to imply a GIS (computer -based) interactive system which will give an up-to-date picture of zoning and consents and is to be welcomed.
4. Guidance
It has been confirmed (under Part 1 of the Bill) that guidance (analogous to Planning Practice Guidance, or PPG, in the UK) will be provided for use by decision makers in interpreting the MPPS and NMPF.
5. Consents Regime
The consents regime (eventually to apply to all marine development) as set out in Part 4 of the Bill, will consist of 3 parts:
1. Application for a 'Planning Interest'
Anyone wanting to carry out development will have to apply for a planning interest. This process assesses the abilities of the developer to complete the project and is intended to act as a gate into the planning process and not a development consent.
2. Development Consent
Subject to being granted a planning interest, prospective developers can then apply for a development consent through the planning permission system.
3. Maritime Area Consent
If planning permission is granted, developers can apply for a Maritime Area Consent which will deal with financial terms and certain contractual matters and obligations.
Given that a central aim of the new system was to streamline the consents regime, it is perplexing as to why the Government has chosen to opt for a complex, three-stage process. This seems likely to increase delays and the financial burden on anyone wanting to operate in the marine environment.
However, it may be that this system is applied selectively or that it is aimed primarily at large scale developments of physical infrastructure rather than at carrying out operations (such as aquaculture of fishing), the latter having relatively little hard infrastructure and being more use based.
It has been confirmed (under Part 1 of the Bill) that guidance (analogous to Planning Practice Guidance, or PPG, in the UK) will be provided for use by decision makers in interpreting the MPPS and NMPF.
5. Consents Regime
The consents regime (eventually to apply to all marine development) as set out in Part 4 of the Bill, will consist of 3 parts:
1. Application for a 'Planning Interest'
Anyone wanting to carry out development will have to apply for a planning interest. This process assesses the abilities of the developer to complete the project and is intended to act as a gate into the planning process and not a development consent.
2. Development Consent
Subject to being granted a planning interest, prospective developers can then apply for a development consent through the planning permission system.
3. Maritime Area Consent
If planning permission is granted, developers can apply for a Maritime Area Consent which will deal with financial terms and certain contractual matters and obligations.
Given that a central aim of the new system was to streamline the consents regime, it is perplexing as to why the Government has chosen to opt for a complex, three-stage process. This seems likely to increase delays and the financial burden on anyone wanting to operate in the marine environment.
However, it may be that this system is applied selectively or that it is aimed primarily at large scale developments of physical infrastructure rather than at carrying out operations (such as aquaculture of fishing), the latter having relatively little hard infrastructure and being more use based.
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6.0 CONCLUSION: The Prospects for Aquaculture MPPS The Marine Planning Policy Statement (MPPS) is more or less as expected and will likely be little used by aquaculture operators. It provides a high-level statement of intent for the Irish Government but has little detail. It does however reiterate the desire for an expansion of marine outputs, including aquaculture, as set out by HOOW. NMPF Draft legislation retains aquaculture within the developing spatial planning system for Ireland, but excludes it from the emerging consents system. This means that policies will exist which govern aquaculture and its interaction with other uses. The draft policies in the National Marine Planning Framework (NMPF) are encouraging because they tend to give aquaculture priority in certain areas. The real difficulty is that this is not properly defined spatially on maps. This is a serious omission and will make the Plan very difficult to enforce. Without this there can be no clarity or improvement in outlook. A comprehensive Policy Map is needed. |
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Licencing / Consents
In terms of licencing, retaining the existing licencing system may actually be preferable to implementing the complex 3 tier approach that will be required for other marine development. There is however a possibility that aquaculture could be brought into the unified licencing system in time.
The main downside to the retained licencing system (aside from the notorious delays) is that this will still have no statutory facility for pre-application discussion and refinement before applications have to be subject to community engagement.
The fact that licencing for aquaculture will remain separate for the time being does not exempt DAFM from having regard to NMPF policy when making decisions - policy is therefore highly relevant to aquaculture operators.
In terms of licencing, retaining the existing licencing system may actually be preferable to implementing the complex 3 tier approach that will be required for other marine development. There is however a possibility that aquaculture could be brought into the unified licencing system in time.
The main downside to the retained licencing system (aside from the notorious delays) is that this will still have no statutory facility for pre-application discussion and refinement before applications have to be subject to community engagement.
The fact that licencing for aquaculture will remain separate for the time being does not exempt DAFM from having regard to NMPF policy when making decisions - policy is therefore highly relevant to aquaculture operators.
