MARAtime forecast
The establishment of the Maritime Area Regulatory Authority in July 2023 is a key element of the new legislative and regulatory framework that has brought about a significant reform of marine governance in Ireland. John C Healy plumbs the depths
The Maritime Area Regulatory Authority (MARA) was established under the Maritime Area Planning Act 2001, which introduced a new development-management and licensing regime for Ireland’s maritime area.
This replaced the previous regime for the regulation of the foreshore through foreshore leases, licences, and consents issued under the Foreshore Act 1933.
The MAP Act also introduced a new planning regime for development in the maritime area, which was introduced in part XXI of the Planning and Development Act 2000.
The abyss
In June 2019, the Government published a marine-planning policy statement that recognised the need for a fully integrated marine-planning system across all aspects of marine forward planning, marine-development management, and marine-planning enforcement.
This policy also referenced the need for the State to introduce marine spatial planning due to its obligations under the Maritime Spatial Planning Directive. As a result, Ireland’s first maritime spatial plan – the National Marine Planning Framework (NMPF) – was published in June 2021.
The NMPF sits next to the National Planning Framework and sets out the Government’s long-term planning objectives and priorities for the maritime area. It contains overarching marine-planning policies that apply to all maritime usages and development.
These policies are grouped under three pillars: environmental policies (ocean health), economic policies (a thriving maritime economy), and social policies (engagement with the sea).
The NMPF also contains 16 sector-specific marine-planning policies, including sectors such as energy, fisheries, ports, telecommunications, and wastewater treatment.
All public bodies, including MARA, must carry out their functions in a manner that secures the objectives of the NMPF.
20,000 leagues
The extent of the State’s maritime area is given legislative effect in the MAP Act. It comprises an area that is ten times greater than Ireland’s land mass, extending up to 200 nautical miles westward from the mainland.
The maritime area extends from the high water of ordinary or medium tides to the outer limit of the continental shelf, and it contains the State’s territorial sea and tidal rivers, the exclusive economic zone, and the continental shelf.
These concepts are derived from the Maritime Jurisdiction Act 2021, which gives effect to certain provisions of UN Convention on the Law of the Sea.
The State’s territorial sea extends 12 nautical miles from the coastline and is regarded as sovereign territory. The exclusive economic zone extends from the outer limit of the boundary of the territorial sea to 200 nautical miles from the coast, and the State has exclusive rights within this area for the exploration and use of marine resources, including energy production from water and wind.
The continental shelf is an extension of the territorial seabed and subsoil, and also extends to an area approximately 200 nautical miles from the coast.
The Poseidon adventure
A central policy of the NMPF is the identification of designated maritime area plans (DMAPs) to provide for spatial designation for future activity within the maritime area.
This policy was given legislative effect in the MAP Act, which provides for a systematic, planled approach to development within the maritime area through the adoption of DMAPs.
DMAPs must be consistent with the policy objectives contained in the NMPF. DMAPs identify areas within the maritime area for particular development, and detail the manner in which the development may be carried out within these areas.
DMAPs can be prepared by the Minister for the Environment, Communications and Climate Change for a variety of activities in the maritime area, and the minister may also designate other ministers and public bodies as competent authorities for the preparation of DMAPs.
On 10 October 2024, the Oireachtas approved the South Coast DMAP for offshore renewable energy in the Irish part of the Celtic Sea, located off the south-eastern coast of Ireland.
This is the first DMAP adopted under the MAP Act, and it identifies four areas within which proposed future offshore wind projects may be located.
Ocean’s 11
MARA’s functions are set out in section 44 of the MAP Act, and include:
- Assessing and determining applications for maritime area consents (MACs) within the maritime area,
- Assessing and determining applications for maritime usage licences (MULs) for certain prescribed activities,
- Managing the existing foreshore estate (foreshore leases, licences, and consents),
- Compliance and enforcement within the maritime area, and
- Promoting cooperation between the regulators of the maritime area.
In performing any of its functions, MARA must have regard to the NMPF, relevant Government policy, and the need for cooperation between users of the same or adjacent parts of the maritime area.
One of MARA’s main functions is to consider applications for MACs from third parties. A MAC is a State consent to occupy the maritime area to carry out a maritime usage. A maritime usage constitutes any activity, operation, works or development within the maritime area.
A MAC must be obtained before a person can apply for a planning permission within the maritime area. A MAC is also required to occupy the maritime area where a planning permission is not required for a maritime usage.
MARA may decide to grant or partgrant a MAC or refuse an application for a MAC. In making such a determination, MARA is obliged to have regard to various criteria set out in schedule 5 of the MAP Act, which includes an assessment whether the person has the technical and financial capacity to carry out the proposed maritime usage.
Prior to any final determination on a MAC application, MARA must issue a ‘minded to determine’ to the applicant, detailing its proposed determination on the MAC application, with reasons.
An applicant has an opportunity to make a submission to MARA on the proposed determination, and MARA must take this submission into account before making a final determination on the application. There is no appeal to MARA’s final determination on a MAC application.
MARA must make a determination on a MAC application within 90 days after MARA determines that the applicant has complied with all the requirements for application, to the extent that it is practicable for MARA to meet the 90-day deadline.
A holder of a MAC can apply to MARA to amend a MAC or assign the MAC to a third party. A MAC can also terminate by operation of law where a MAC holder experiences an insolvency event.
The MAP Act contains a saver to the termination of a MAC in such circumstances by permitting the holder to assign the MAC to a third party.
A MAC is not required to carry out a maritime usage in the following cases:
- Where the person is the owner of the maritime area,
- Where the person holds a foreshore lease that contains a covenant requiring the person to carry out the proposed maritime usage,
- Where the person holds a foreshore licence that authorises the proposed maritime usage.
Dead calm
The MAP Act requires a MUL to be obtained from MARA for certain prescribed activities in the maritime area. These activities include marine environmental surveys, site investigations, certain dredging, and seaweed harvesting.
Where a MUL is required, there is no requirement to obtain a MAC or a planning permission. MARA has to carry out environmental assessments in respect of MUL applications.
If an environmental impact assessment is required in respect of a proposed MUL activity, MARA is not entitled to grant a MUL, and an application for a MAC and a planning permission is required instead.
MARA must also assess any proposed MUL activity as a competent authority under the European Communities (Birds and Natural Habitats) Regulations 2011.
This involves undertaking an assessment process under these regulations to determine whether the activity can be carried out without adversely affecting the integrity of a ‘Natura 2000’ site.
MARA must also have regard to the State’s obligations under various environmental European directives when considering a MUL application. MARA may decide to grant, part grant, or refuse an application for a MUL.
The ‘minded to determine’ procedure also operates in the same manner as detailed for the MAC process, as set out above.
MARA must make a determination on a MUL application within 30 days after it determines that the applicant has complied with all the requirements for the application, to the extent that it is practicable for MARA to meet the 30-day deadline.
A holder of a MUL can apply to MARA to amend a MUL or assign the MUL to a third party. MARA operates a prioritisation scoring system for MAC and MUL applications that prioritises applications that have a strategic national or European importance, and where applications relate to the State’s national and regulatory priorities.
The cruel sea
MARA has been given responsibility to administer all existing foreshore authorisations (foreshore leases, licences, and consents), save for foreshore licences for aquaculture activity, which remain with the Minister for Agriculture, Food and the Marine.
MARA steps into the shoes of the Minister for Housing, Local Government and Heritage (or any other minister who has granted a foreshore authorisation) in respect of any existing foreshore authorisations.
The only statutory power remaining with the Minister for Housing, Local Government and Heritage in respect of foreshore authorisations is to complete any applications for foreshore authorisations received by the minister before 17 July 2023 (the date on which MARA was established).
MARA does not have any power to grant new foreshore authorisations. Instead, MARA’s function is to manage the existing foreshore authorisations until they expire or until they are surrendered in favour of a MAC or a MUL.
Where a holder of a foreshore authorisation wishes to amend a foreshore authorisation or continue to occupy the maritime area for the same maritime usage beyond the term of the foreshore authorisation, the holder may surrender the foreshore authorisation and apply for a MAC or a MUL to continue the maritime usage.
This process also applies where a holder of a foreshore authorisation wishes to discontinue occupying the maritime area under the foreshore authorisation in favour of a third party who wishes to occupy the maritime area for the same maritime usage.
In this case, the holder of the authorisation and the third party can make a joint application to surrender the foreshore authorisation and apply to MARA for a MAC or a MUL.
Sharknado 3
The MAP Act contains a pathway for a person to regularise any existing unauthorised maritime usage. A person may apply for a MAC or a MUL in relation to an unauthorised maritime usage within five years of 17 July 2023.
In such case, MARA must assess the application as an existing maritime usage as opposed to a proposed maritime usage.
Where a person fails to apply for a MAC or a MUL to regularise an unauthorised maritime usage, MARA may take enforcement proceedings to deal with the unauthorised maritime usage.
MARA has a compliance and enforcement function under the MAP Act, which permits MARA to take enforcement action against the holders of MACs or MULs for contraventions of MACs, MULs, or maritime development permissions (‘authorisations’).
The act granted MARA a variety of enforcement powers to deal with contraventions of authorisations. Fair procedures have been built into the operation of these powers to afford a person the opportunity to make representations to MARA at various stages of the enforcement process.
Where MARA suspects that a person may have contravened an authorisation, it may appoint an authorised officer to carry out an investigation. Where the investigation concludes that a contravention has been committed, MARA may impose a minor or major sanction, depending upon the gravity of the contravention.
A minor sanction may involve the issuance of advice, a caution, a warning, a reprimand, or any combination of these measures.
A major sanction may be imposed in certain circumstances and can involve the revocation or suspension of a MAC or a MUL, a financial penalty, the reimbursement of the cost of the investigation, or any combination of these measures. The imposition of a major sanction must be confirmed by the High Court.
Separately, MARA may issue an enforcement notice upon a person who has contravened an authorisation. Where the contravention is not rectified, MARA may apply to the Circuit Court for an order compelling the person to comply with the enforcement notice.
MARA has the power to issue a special enforcement notice where the contravention is of sufficient gravity to warrant the revocation of a MAC or a MUL.
Where the person does not comply with the special enforcement notice, MARA may issue a notice revoking the MAC or MUL. Any such revocation must be confirmed by the High Court if the person does not accept MARA’s decision to revoke the MAC or MUL.
MARA has a further compliance and enforcement function under part VIII of the Planning and Development Act 2000 to deal with unauthorised development in the maritime area.
MARA may issue enforcement notices and take prosecutions or injunctions in respect of breaches of a planning permission or unauthorised development without a planning permission.
This function relates to unauthorised development in the outer maritime area, which incorporates the entire maritime area, except for an area three nautical miles from the coastline, known as the ‘nearshore area’.
Coastal local authorities have been designated with the function to deal with unauthorised development within the nearshore area.
John C Healy is a deputy assistant chief state solicitor and former head of the MARA Section in the Chief State Solicitor’s Office
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John C Healy
John C Healy is a deputy assistant chief state solicitor and former head of the MARA Section in the Chief State Solicitor’s Office