CMS Real Estate Data Centre Consenting in England and Wales

In England, local planning authorities may require that applicants for planning permission enter into an agreement pursuant to s.106 Town and Country Planning Act 1990. The purpose of this agreement is to make the application acceptable in planning terms, this is usually facilitated via obligations and financial contributions to alleviate the perceived impacts on local public services caused by the application. Such agreements may also serve to regulate how the development is used. In the case of development of the scale of a datacentre, it is normal for s.106 agreements to be required.

Data centres do not neatly fall into any of the existing UK planning use classes. This can create technical complications for data centre applications and acquisitions. The most common use classes use to categorise data centres are: B8 (Storage and distribution) and Sui generis (‘a class of its own’ for uses that fall outside of the definition for all other use classes). Recent Government comments have indicated the future possibility of data centres opting into the Nationally Significant Infrastructure Projects (NSIP) regime. NSIP designation would take the planning decisions away from local authorities and consent would instead be obtained from the relevant Secretary of State.

It is not a requirement of the English planning system to own the land on which applications are made. There are however different certification requirements at the point of application that apply where the applicant owns all of the land (certificate A), where the applicant does not own all of the land but knows who does (certificate B) and where the applicant does not own all of the land and does not know who does (certificate C).

The requirements for the certificates are more onerous in descending order (A-C). It should also be noted that if a s.106 agreement is required, the applicant must usually have some kind of land interest and local authorities will usually require a party with a controlling land interest to be a party to such an agreement.

1. Understanding of policy
2. Pre-application discussions with the local planning authority
3. Submission of application documents & ancillary documents to the local planning authority for planning permission

It is not unusual in the English planning system for certain elements of a planning application to be left to a later application stage.

In this instance, an outline application is submitted and then certain matters are left for the reserved matters approval stage.

There will also potentially be a need for utilities and highways agreements for any new development to be reserved by way of a condition, but they are not required to obtain planning permission. Such a condition could require that these agreements are in place before the development can be occupied.

Following the election of a Labour Government, proposed amendments to the English National Planning Policy Framework (NPPF) went under consultation. The proposals included references to data centres explicitly, with the underlining message being that planning policies should be more active in the identification of data centres sites and more supportive in their creation. Changes have not yet been implemented and so currently data centres are often not specifically mentioned in local policy; it is anticipated that local policies will however be subject to change in this regard to ensure alignment with the NPPF.

Depending on its size, location and anticipated environmental impact, the procurement of a datacentre may necessitate screening and/or a full environmental impact assessment (an “EIA”). Each development needs to be considered on its own merits to ascertain whether an EIA will be required but, as a starting point, it will invariably include visual, noise and water impact assessments. It may also require assessments in areas such as downstream carbon impacts due to the datacentre’s energy usage.

Meeting additional regulatory requirements is likely to add further time and expense to the application processes if the issues are not tackled early and built into development appraisals. Where an EIA is required, it must be submitted with the planning application. This involves significant up-front work and typically necessitates legal review to ensure compliance and robustness.

It should also be noted that the need for an EIA may additionally attract attention from wider statutory consultees. It should be noted that the EIA regime is subject to change in the UK, and is subject to a current consultation as a result. However, for now, it remains in force and has potentially far-reaching impacts

Biodiversity net gain is required by authorities in England as part of a planning application submission and it is common for data centre applications to be required to evidence that there will be a net gain in terms of biodiversity through their application. Where biodiversity harm cannot be avoided through an application, they are required to be mitigated. Biodiversity net gain provisions, contained within the Environment Act 2021, came into force in February 2024 and require the vast majority of new development to deliver at least a 10% increase in its biodiversity value.