By Michelle Thomas and Mark Varian
1. Current Legislation
1.1 Shallow Geothermal Systems
In practice, shallow geothermal systems have been developed in Ireland for years without any specific licences being obtained. For example, no current legislation covers the completion of boreholes for the purpose of groundwater or site investigation as these boreholes are classified as exempt developments in the General Planning and Development Regulation 2001.
Also, a certain amount of flexibility exists within the current planning regime such as the Planning Development Regulations 2007 which provides an exemption for certain domestic heat pumps from Part 1 of Schedule 2 of the Planning and Development Regulations 2001. Similarly, the Planning and Development Regulations 2008 amends Schedule 2 of the Planning and Development Regulations 2001 with regard to the installation of heat pumps in industrial buildings or business premises.
1.2 Deep Geothermal Systems
The current legislative framework which governs deep geothermal systems in Ireland is primarily enshrined in the Mineral Developments Acts 1940 - 1999. Mineral exploration in Ireland requires a Prospecting Licence that gives the holder the right to explore for specified minerals over a certain area.
A Prospecting Licence typically covers some 35 sq.km and is normally issued for six years, with the option of renewal if the holder has met the requirements. Some three-quarters of the country is covered by delineated licence areas. A prospecting licence holder has an exclusive right to explore the licenced area together with a right of access for exploration.
However, a prospecting licence holder does not have the right to develop or extract any minerals found within a Prospecting Licence Area without being granted a State Mining Licence or State Mining Lease. Where the minerals in question are privately owned, a State Mining Licence is required in order to develop the resource. If the minerals are State owned, a State Mining Lease is necessary.
There are also a number of onerous obligations on licence holders under the Mineral Developments Acts 1940 - 1999, these include the:-
- protection of aquifers and groundwater generally;
- protection of the environment and preservation of amenities;
- waste management;
- safety of persons and animals;
- provision of reports, plans, maps as required;
- notification of claims, disputes etc;
- insurance; and
- compensation in respect of damage caused.
It is also arguable that deep geothermal development also comes under the planning law regime as a major infrastructural project which would make a material change of use of land under the Planning and Development (Strategic Infrastructure) Act 2006.
2. Proposed Legislation
Following consultations with a working group of experts in the geothermal energy field and representatives from the Geothermal Association of Ireland, the Government approved the Heads of the Geothermal Energy Development Bill 2010 (the "GED Bill") on 13 July 2010.
The purpose of the GED Bill was to allow for a stand alone piece of legislation which would encourage the production of deep geothermal systems in Ireland. This Bill was also drafted as a means of separating the licencing system which exists for the extraction of minerals (as covered by Mineral Development Acts 1940-1999) from the licencing system which is required for the geothermal production of energy in Ireland.
Although the GED Bill was sent to the Attorney General to be formally drafted last year, it seems that no further action was taken between July 2010 and the dissolution of the 30th Dáil on 1 February 2011. As such, the GED Bill currently exists in a state of legal limbo as it is impossible to tell whether it will be adopted by the incoming Government and then enacted in due course.
2.1 Main Heads of Terms
Provisions of note included in the Heads of Terms of the GED Bill include:-
- the giving effect to the assertion of State ownership of geothermal energy under Article 10.1 of the Constitution by vesting such ownership in the Minister for Communications, Energy and Natural Resources;
- the exploration licenses for exploration of geothermal resources similar to that for minerals;
- the production licences to allow the private sector to develop geothermal resources, including provision for necessary ancillary rights such as drilling into third party lands;
- provisions to allow the Minister to specify categories of geothermal development that can proceed without a licence in order to avoid over-regulation of the rapidly developing heat pump sector for both houses and commercial buildings.
If you require any further information or advice, please contact:
Michelle Thomas, Partner
Head of clean energy and sustainability
Tel: 0845 498 7553
[email protected]
Mark Varian, Partner
Eversheds O'Donnell Sweeney
Tel: +353 1 6644341
[email protected]
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
