Foreshore and Dumping at Sea (Amendment) Act 2009

PART 1 Preliminary and General

1. Short title, construction, collective citation and commencement.

1.— (1) This Act may be cited as the Foreshore and Dumping at Sea (Amendment) Act 2009.

(2) The Foreshore Acts 1933 to 2005, section 35 of the Foyle and Carlingford Fisheries Act 2007, and this Act (other than subsections (3) and (5),Part 3andSchedule 2) may be cited together as the Foreshore Acts 1933 to 2009 and shall be construed together as one.

(3) The Dumping at Sea Acts 1996 to 2006, Part 3, this section (other than subsections (2) and (4)) and Schedule 2 may be cited together as the Dumping at Sea Acts 1996 to 2009 and shall be construed together as one.

(4) Part 2 and Schedule 1 come into operation one month after the passing of this Act.

(5) Part 3 and Schedule 2 come into operation 2 months after the passing of this Act.

PART 2 Foreshore

Chapter 1 Definitions (Part 2)

2. Definitions.

2.— In this Part—

“Act of 1933” means the Foreshore Act 1933;

“Act of 1992” means the Foreshore (Amendment) Act 1992;

“commencement date” means the date on which this Part and Schedule 1 come into operation under section 1(4).

Chapter 2 Transfer and vesting of, and additional, foreshore functions

3. Transfer and vesting of certain foreshore functions.

3.— (1) Such of the functions, immediately before the commencement date, of the Minister for Agriculture, Fisheries and Food under the Foreshore Acts 1933 to 2005 to which this Part and Schedule 1 relate are, on that date, transferred to the Minister for the Environment, Heritage and Local Government in accordance with and to the extent provided for by this Part and that Schedule and those provisions have effect for the purpose of vesting in the Minister for the Environment, Heritage and Local Government the functions so transferred.

(2) The administration and business in connection with the performance of any functions transferred to the Minister for the Environment, Heritage and Local Government from the Minister for Agriculture, Fisheries and Food by subsection (1) are, on the commencement date, transferred to the Department of the Environment, Heritage and Local Government.

4. Vesting of additional foreshore functions in Minister for the Environment, Heritage and Local Government, etc.

4.— (1) The functions of the Minister for the Environment, Heritage and Local Government and the Minister for Agriculture, Fisheries and Food under the Foreshore Acts 1933 to 2009 and to which section 1B (inserted by section 6) of the Act of 1933 relates may be vested in the same Minister of the Government pursuant to an order under section 6(1) of the Ministers and Secretaries (Amendment) Act 1939.

(2) In relation to the functions of the Minister for the Environment, Heritage and Local Government under the Foreshore Acts 1933 to 2009, any function vested in another Minister of the Government by or under any provision of any other Act, where that function relates or corresponds to functions of the Minister for the Environment, Heritage and Local Government under the Foreshore Acts 1933 to 2009, may be transferred under section 6(1) of the Ministers and Secretaries (Amendment) Act 1939 to the Minister for the Environment, Heritage and Local Government and, for that purpose, such order may also—

(a) in respect of provisions containing the function which so relates or corresponds, transfer to any Minister of the Government some or all of the function which does not so relate or correspond,

(b) transfer the functions concerned to the Minister for the Environment, Heritage and Local Government notwithstanding any requirement relating to the consent or approval of or consultation with that Minister would be required as part of the exercise by that other Minister of the function concerned before such transfer,

(c) transfer to the Department of State concerned the administration and business in connection with the exercise, performance or execution of any functions transferred by section 6(1) of the Ministers and Secretaries (Amendment) Act 1939> and to which paragraph (a) or (b) relate.

Chapter 3 Amendments to Foreshore Acts 1933 to 2005

5. Amendment of section 1 (definitions) of Act of 1933.

5.— Section 1 of the Act of 1933 is amended—

(a) by deleting the definition of “the Minister”, and

(b) by deleting so much of that section as occurs after the interpretation given to the word “term” and inserting the following:

“the word ‘ aquaculture ’ has the same meaning as it has for the purposes of the Fisheries (Amendment) Act 1997;

the word ‘development’ means the carrying out of any works on, in, over or under the foreshore or the making of any material change in the use of any structures on the foreshore;

the expression ‘fishery harbour centre’ means any area defined by an order for the time being in force under section 2 of the Fishery Harbour Centres Act 1968 and declared by such order to be a fishery harbour centre;

the word ‘harbour’ means—

(a) a harbour, functions in respect of which are conferred on a company (within the meaning of the Harbours Act 1996) by or under that Act, and

(b) the harbour of a harbour authority within the meaning of the Harbours Act 1946,

and references to ‘port’ shall be construed accordingly.”.

6. Meaning assigned to “appropriate Minister” and references to foreshore, etc.

6.— (1) The Act of 1933 is amended by inserting the following after section 1A (inserted by section 60(b) of the Maritime Safety Act 2005):

“Meaning assigned to ‘appropriate Minister’ inForeshore Acts 1933 to 2009.

1B.— (1) In the Foreshore Acts 1933 to 2009 ‘appropriate Minister’ means—

(a) in relation to a function exercisable in respect of harbour or port related development (other than development of a fishery harbour centre) including expansion or relocation of such port or harbour, or development intended for commercial trade, the Minister for the Environment, Heritage and Local Government,

(b) in relation to a function (in addition to a function to which paragraph (a)relates) exercisable—

(i) in respect of the use of a natural resource (other than sea-fish or the product of aquaculture) located under, on or above the foreshore for commercial, research or other use by using the natural resource as a means of—

(I) generating electricity,

(II) making or using any other form of energy,

(ii) extracting a natural resource (other than sea-fish, or the product of aquaculture) located under, on or above the foreshore, or

(iii) relating to waste disposal or treatment or water quality,

and any use that is ancillary to matters to which this paragraph relates, the Minister for the Environment, Heritage and Local Government,

(c) in relation to a fishery harbour centre, the Minister for Agriculture, Fisheries and Food,

(d) in relation to a function (other than a function to which paragraph (a) or (b)relates)—

(i) in respect of an activity which is wholly or primarily for the use, development or support of aquaculture, including aquaculture in a harbour or port,

(ii) in respect of an activity which is wholly or primarily for the use, development or support of sea-fishing including the processing and sale of sea-fish and manufacture of products derived from sea-fish, or

(iii) otherwise exercisable under the Foreshore Acts 1933 to 2009,

the Minister for Agriculture, Fisheries and Food.

(2) In subsection (1)(a) ‘commercial trade’ means any activity under, on, or above the foreshore which is not wholly or primarily for the use, development or support of sea-fishing or aquaculture.

References to foreshore inForeshore Acts 1933 to 2009.

1C.— References in the Foreshore Acts 1933 to 2009to foreshore belonging to the State shall be construed as references to foreshore which for the time being belongs to the State, including foreshore so belonging whether by virtue of Article 10.2 of the Constitution or otherwise.”.

(2) (a) In so far as it relates to section 1B (inserted by subsection (1)) of the Act of 1933, Part 1 of Schedule 1 applies for the purposes of supplementing that section, and accordingly the Act of 1933 is amended in the manner set out in that Part.

(b) In so far as it relates to section 1C (inserted by subsection (1)) of the Act of 1933, Part 2 of Schedule 1 applies for the purposes of supplementing that section, and accordingly the Act of 1933 is amended in the manner set out in that Part.

7. Amendment of section 2 (power for Minister to make leases of foreshore) of Act of 1933.

7.— Section 2 of the Act of 1933 is amended—

(a) by inserting the following after subsection (1):

“(1A) Where the Minister for Agriculture, Fisheries and Food or the Minister for the Environment, Heritage and Local Government (being the appropriate Minister) is considering making a lease in accordance with this section, then the Minister so considering shall consult with the other Minister on the matter before deciding on whether or not to make the lease.”,

and

(b) by substituting the following for subsection (3):

“(3) Notwithstanding anything contained in this section, no lease reserving a rent or other annual payment exceeding €63,250 a year shall be made under this section without the sanction of the Minister for Finance.”.

8. Amendment of section 3 (power for Minister to grant licences of foreshore) of Act of 1933.

8.— Section 3 of the Act of 1933 is amended—

(a) by inserting the following after subsection (1A) (inserted by section 35 of the Foyle and Carlingford Fisheries Act 2007):

“(1B) Where the Minister for Agriculture, Fisheries and Food or the Minister for the Environment, Heritage and Local Government is considering granting a licence under this section (being the appropriate Minister), then the Minister so considering shall consult with the other Minister on the matter before granting the licence.”,

and

(b) by substituting the following for subsection (4):

“(4) Notwithstanding anything contained in this section, no licence requiring payment by the licensee of a rent or other annual payment exceeding €63,250 a year shall be granted under this section without the sanction of the Minister for Finance.”.

9. Amendment of references to “Justice” in Act of 1933.

9.— In addition to the amendments provided for by section 6(2) and Parts 1and 2 of Schedule 1,section 12(1) is further amended—

(a) by substituting “judge of the District Court” for “Justice of the District Court”, and

(b) in paragraph (b), by substituting “such judge” for “such Justice”.

10. Amendment of section 13A (environmental impact assessment of certain proposals relating to the foreshore) of Act of 1933.

10.— Section 13A (as amended by the European Communities (Foreshore) Regulations 2009 (S.I. No. 404 of 2009)) is amended by substituting the following for paragraphs (a) and (b) of subsection (4):

“(4) (a) The appropriate Minister may—

(i) where that Minister is satisfied that exceptional circumstances so warrant, and

(ii) where the appropriate Minister is the Minister for Agriculture, Fisheries and Food, after consultation with the Minister for the Environment, Heritage and Local Government,

exempt a relevant application or a proposed relevant application from the requirement of subsection (1) of this section.

(b) The appropriate Minister shall, in granting an exemption under paragraph (a) of this subsection—

(i) consider whether the effects, if any, of the proposed development on the environment should be assessed in some other manner, and

(ii) make available to the public—

(I) the information obtained in any assessment carried out under subparagraph (i),

(II) the information relating to any decision to exempt a relevant application under paragraph (a), and

(III) the reasons for the decision referred to in clause (II).”.

11. Deletion of reference to Irish Land Commission in Act of 1933.

11.— In addition to the amendments provided for by section 3 (1) and Part 1 of Schedule 1, section 17(3) is further amended by deleting “the Irish Land Commission,”.

12. Regulations relating to the submission of observations by certain bodies.

12.— The Act of 1933 is amended by inserting the following after section 18:

“18A.— (1) The Minister for the Environment, Heritage and Local Government may, following consultation with the Minister for Agriculture, Fisheries and Food, by regulations under this section, prescribe—

(a) bodies for the purposes of submitting observations to the Minister for the Environment, Heritage and Local Government or the Minister for Agriculture, Fisheries and Food or to both in respect of an application—

(i) for a lease under section 2,

(ii) for a licence under section 3,

(iii) for an order under section 9,

(iv) for an approval under section 10,

(v) for a consent under section 13, or

(vi) to which sections 13A and 19A relate,

and different bodies may be prescribed in respect of applications under subparagraph (i), (ii), (iii), (iv), (v) or (vi), and

(b) periods within which a body specified in regulations under this Act—

(i) where the body is a public authority, is required (in respect of one or more classes of application as provided for by paragraph (a) of this subsection) to submit observations,

(ii) where the body is a public authority not so required or is any other body, may (in respect of one or more classes of application as so provided) submit observations,

and different periods may be prescribed in respect of different classes of application as so provided.

(2) Regulations under this section may provide for such ancillary, supplementary or consequential measures as appear to the Minister to be necessary.

(3) Regulations to which sections 13A and 19A relate may be amended or revoked under this section.

(4) In this section ‘public authority’ means—

(a) a local authority for the purposes of the Local Government Act 2001,

(b) the Environmental Protection Agency,

(c) the Commissioners of Public Works in Ireland,

(d) a harbour authority within the meaning of the Harbours Acts 1946 to 2005,

(e) a harbour company under the Harbours Acts 1996 to 2009,

(f) a company under the Companies Acts, in which all the shares are held by or on behalf of or jointly with one or more than one body to which this subsection relates.”.

13. Procedure in regard to certain relevant applications.

13.— The Act of 1933 is amended by substituting the following for section 19A (as amended by the European Communities (Foreshore) Regulations 2009):

“19A.— (1) Notwithstanding section 19 of this Act, a person who has submitted an environmental impact statement in accordance with a requirement of or under section 13A of this Act shall, as soon as may be, publish in one or more newspapers circulating in the district in which is situated the foreshore to which the relevant application relates a notice—

(a) stating that the person has made the application and indicating the location and nature of the proposal to which the application relates,

(b) stating that an environmental impact statement has been prepared in respect of the proposal,

(c) stating that the appropriate Minister is responsible for making a decision on the application and that that Minister may either grant, approve or consent to the application with or without covenants, conditions or agreements, where applicable, or refuse the application,

(d) stating whether section 19C of this Act applies to the proposal,

(e) stating that submissions, comments or questions in relation to the effects on the environment of the proposal may be made in writing to the appropriate Minister within 8 weeks from the publication of the notice, and

(f) specifying the times at which and the place where, within 8 weeks from the publication of the notice, a copy of the application, the environmental impact statement and any other relevant report or information (including copies of any submissions, comments or questions received by the appropriate Minister) may be inspected free of charge or purchased at a price to be determined by that Minister (which shall not be more than the reasonable cost of making the copy or copies concerned).

(2) The appropriate Minister shall ensure that the following information is available for inspection or for purchase by members of the public on the terms specified in the notice published in accordance with subsection (1):

(a) a copy of the application,

(b) the environmental impact statement prepared pursuant to section 13A of this Act,

(c) the views, if any, furnished by a Member State of the European Communities pursuant to section 19C of this Act,

(d) any submissions, comments or questions received by the appropriate Minister (including those received from the bodies specified in subsection (3) of this section), and

(e) any report or other information relevant to the decision.

(3) A person who has submitted an environmental impact statement in accordance with a requirement of or under section 13A of this Act shall, as soon as may be, send a copy of the relevant application and environmental impact statement to—

(a) the local authority in whose functional area the proposed development is to be located in whole or in part,

(b) where the proposed development is to be located in any area contiguous to the functional area of a local authority, to each such local authority,

(c) the National Tourism Development Authority (Fáilte Ireland),

(d) An Taisce — The National Trust for Ireland if the development is to take place on an area of special amenity value or special interest,

(e) where not the appropriate Minister for the purposes of section 13A, the Minister for the Environment, Heritage and Local Government if the development is to take place on an area of archaeological, water quality, scientific or ecological interest (or any combination of such areas), and

(f) any other Minister of Government where the appropriate Minister considers that the proposal relates to a function of that other Minister,