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Costly Appeals, Judicial Reviews, and Lack of Resources Set to Derail Government Targets for Offshore Wind

July 13, 2023

The Irish government’s goals to produce offshore renewable energy under the Climate Action Plan 2021 and accompanying legislation are at risk due to the challenges posed by costly third-party appeals, expected judicial reviews, delays in planning consent, and concerns over capital investment in ports.

Despite the Government’s ambitious targets, the complex consenting and judicial review system, along with other potential legal and regulatory bottlenecks, threaten to add several extra years to the construction of offshore wind farms that are set to be installed in the Irish seas.

“It is evident that without immediate interventions, Ireland will fail to deliver on its 2030 targets of 5GW of Offshore Wind production and subsequent targets post-2030,” said Aidan Eames, a solicitor with international law firm Clark Hill, who have produced a report on the subject. “Our analysis is that these offshore wind farms, which cost almost €1B each, will miss their delivery dates by between four and eight years unless immediate action is taken.”

To shed light on the risks and challenges within the Irish consenting/planning area, particularly in the offshore wind sector, the Clark Hill report provides an update on the current state of affairs.

“Our report shows the potential regulatory pitfalls and delays and the need to have an in depth preview of all maritime planning applications to reduce the risk of legal challenges,” said Kirby Tarrant, Member in Charge at Clark Hill in Dublin.

The document highlights the prevalence of legal challenges and judicial review applications in upcoming and future offshore wind development projects. The outcomes of these challenges will be determined in the newly established Environmental and Planning Division of the High Court, a process that is expected to be neither straightforward nor speedy. Furthermore, the referral of certain matters or questions of law to the Supreme Court and the interpretation of EU Directives by the European Court of Justice will add to the complexity and potential delays.

One of the key recommendations set out in the Clark Hill report is the appointment of a single qualified person or agency with full overarching authority to drive and implement the necessary changes, resources, and acceleration required to meet the targets.

Another key concern highlighted in the report is the lack of resources and skills in the key state consenting agencies and government departments. An Bord Pleanála (ABP) is currently struggling with under-resourcing and massive backlogs while the new agency, Maritime Area Regulatory Agency (MARA), is still in its early establishment phase. Insufficient staffing and skill sets will hamper their ability to fulfil their obligations effectively, leading to further delays and uncertainties.

The Clark Hill report also points to the significant increase in judicial review cases in recent years. Legislative vulnerabilities and resource shortfalls further highlight this issue, making it essential to address the gaps in legislation and ensure adequate resources are allocated to the agencies involved.

Enabling infrastructure of ports has been highlighted by the bosses of the main and larger ports. At present, the Port of Belfast is the only port on the island of Ireland with the scale and capacity to store and assemble the large turbines to be deployed in offshore wind projects. There is building momentum to ensure that several Tier 1 Irish ports will be readied to provide enabling support for the turbine assembly and storage and related deep-water services for the offshore wind industry. However, all of these proposals will require planning consent (if not already achieved) and will be subject to judicial review at various stages. Experience in other jurisdictions has shown that those opposed to onshore wind generation have also targeted its enabling infrastructure, such as substation applications/grid improvements/interconnectors, battery storage parks, roads, etc. Several large wind projects have been severely delayed or abandoned as a result.

Concerns were expressed at a recent Joint Committee on Environment and Climate Action that if there is a delay in the availability of port infrastructure, that will mean the earliest offshore renewable energy project will need to turn elsewhere, potentially outside the Irish state, to service their project. The bosses of Cork, Rosslare, Shannon, and Foynes ports have warned that a delay in delivery of port infrastructure will also have a knock-on impact on the delivery up to 2030 offshore targets and broader economic implications for Ireland. Getting these ports ready for offshore wind developments requires substantial capital funding. It is reported that the investment needed to build Rosslare Europort’s offshore renewable hub is around €220m while the estimated cost for the new port infrastructure at Shannon Foynes is around €500m.

To mitigate risks and avoid unnecessary delays, the Clark Hill report emphasises the importance of correctly framing and presenting planning applications in the first instance. While it may not be possible to avoid judicial review challenges altogether, reducing risk through proper planning and consenting application preparation can help prevent setbacks and the need to restart or revisit the planning and consenting process if successfully challenged.

The overarching objective is to add value, minimise cost, reduce risk, and create more certainty for offshore wind development projects. However, the risks associated with timelines and delays are significant. Early identification of risks is crucial to minimise their impact on project delivery.

The Clark Hill report also sheds light on various planning issues and considerations, including coastal erosion, impact on marine wildlife, shipping and navigation, seabed habitats, fisheries, wave and tidal energy, distance from shore, accessibility, and potential economic benefits and impacts. Each of these factors needs to be carefully assessed during the planning application process.

There is a need for urgent action to address these challenges and pave the way for successful renewable energy infrastructure development. Failure to do so will hinder Ireland’s progress towards achieving its renewable energy targets and contribute to a prolonged cycle for offshore wind projects and potential loss of investment.

See the full report here.

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