- Do you have to enter into a form of agreement with the local authority/municipality when applying for consent for a data centre in your jurisdiction?
- What is the planning/consenting designation or use class which datacentres fit into in your jurisdiction?
- Does the applicant have to own all of the land for the datacentre to apply for the consent?
- What are the steps that need to be taken to secure data centre consent in your jurisdiction? How long does each steps in the process typically take?
- Do arrangements for access to utilities, energy and/or power need to be made to as part of the consenting process?
- Are there clear land plans or zones in place which automatically authorise data centres or is the application process more complicated in your jurisdiction?
- What are the environmental considerations that need to be taken when obtaining data centre consent?
- Is biodiversity an important consideration when it comes to data centre consenting in your jurisdiction?
jurisdiction
1. Do you have to enter into a form of agreement with the local authority/municipality when applying for consent for a data centre in your jurisdiction?
In cases where a zoning plan amendment for a new development is required, the law requires the municipality to adopt a development plan (which regulates cost recovery for the municipality) for larger projects. As a more practical alternative, it is possible to enter into an anterior agreement with the municipality, which usually includes a contribution to cover public costs.
2. What is the planning/consenting designation or use class which datacentres fit into in your jurisdiction?
Most data centres fall within a 'business park' designated use under a zoning plan. But not all places with the business park zoning allow data centres. In most cases, a zoning plan with a business park designated use is accompanied by a list of businesses, showing exactly which types of businesses are allowed. If a data centre is listed, a data centre is permitted, subject to any further conditions, building regulations and other restrictions in the rest of the zoning plan text. Therefore, each zoning plan must be assessed individually.
3. Does the applicant have to own all of the land for the datacentre to apply for the consent?
Ownership is not necessary, but the applicant must have a specific, own interest in the site where the data centre is envisaged in order to be able to obtain a permit (to build and if necessary to deviate from a zoning plan). This interest may for example also be evidenced by an agreement with the owner of the land. Such as a leasehold (erfpacht) or lease agreement. In any case, it must be clear that the plan can actually be realised.
4. What are the steps that need to be taken to secure data centre consent in your jurisdiction? How long does each steps in the process typically take?
- This strongly depends on whether the municipal zoning plan for the site envisaged for the data centre allows the construction and use of a data centre.
- If a data centre is allowed under the zoning plan, it is relatively easy to apply for a building permit. However, this does not mean a guarantee that the data centre can be realised, as environmental and nature protection laws also apply (see answers to questions 7 and 8).
- If a data centre is not allowed under the zoning plan, permission to deviate from the zoning plan is required. In that case, the municipality must make a consideration formfrom an urban planning point of view. Some local governments in areas that are attractive to data centre developers have developed policies, stating in which areas and under what conditions data centres are still allowed. In general, space for new developments is scarce in the Netherlands.
- Moreover, the development of hyperscale data centres - with the exception of a few specifically designated areas - is now completely banned in the Netherlands. A hyperscale data centre is one with an area of more than 10 hectares and an electrical connection capacity of 70 MW or more.
- Step 1 is to do a zoning check.
- If a data centre fits the zoning plan, step 2 is to apply for permits. The lead time for a building permit is 8 to 14 weeks. From a total installed motor capacity of 15 MW, an environmental permit is also required. This can be applied for at the same time as the building permit, in which case the decision period will be extended to 26 weeks.
- If the data centre does not fit into the zoning plan, there is a 'step 0', so to speak, because in that case discussions with the local authorities must first be held to see whether a data centre can and will be allowed in deviation from the zoning plan. This depends on the support of local administrators and the balance of interests they make. In this scenario, a spatial justification should also be prepared. Depending on the complexity, the consultation and preparation of the substantiation take at least six months but in practice often at least a year.
5. Do arrangements for access to utilities, energy and/or power need to be made to as part of the consenting process?
- Arranging access to utilities and energy is not required as part of the consenting process. However, arranging sufficient electricity supply is essential to operating a data centre.
- Arranging electricity supply consists of the following three main components: (i) the electricity connection, (ii) transport capacity, and (iii) the electricity supply agreement or power purchase agreement. The Dutch electricity grid is managed by grid operators. Grid operators have an unconditional legal duty to provide anyone requesting a connection with such connection, at the legally regulated tariffs.
- In addition to arranging the connection, it is also necessary to obtain transport capacity from the grid operator. In principle, the grid operator must make the requested transport capacity available, unless there is too little capacity in the area of the requesting person (which unfortunately applies to many areas in the Netherlands). If there is too little transport capacity available, requests are treated by the grid operator on a first-come-first-serve basis. As a result, a 'queue' exists in many areas in the Netherlands to obtain transport capacity. (Please be advised that the energy market regulator has currently drafted a proposal for a legislation amendment that would allow grid operators to prioritise certain ‘social important’ parties, when allocating transport capacity.)
- It is advisable to involve the grid operator in an early stage as completing the electricity connection and acquiring sufficient transport capacity may take a substantial amount of time.
- Lastly, it is required for the off-taker of electricity to enter into an agreement to arrange the supply of electricity from a supplier or producer. This can be arranged by entering into an electricity supply agreement (ESA), which usually has a term of a few years, or by entering into a power purchase agreement (PPA), which usually has a term of 5-20 years.
6. Are there clear land plans or zones in place which automatically authorise data centres or is the application process more complicated in your jurisdiction?
In the Netherlands a data centre must be permitted under the zoning plan. Or a permit to deviate from the zoning plan must be obtained. See answers to questions 1 and 4.
7. What are the environmental considerations that need to be taken when obtaining data centre consent?
For data centres, noise impact on the environment is a particular issue. This is caused by cooling systems and emergency power generators. Therefore, a noise study should always be carried out, involving vulnerable objects such as nearby homes. This applies in all cases, whether a data centre is already permitted under a zoning plan or not. Furthermore, data centres requiring environmental permits (with a total installed motor capacity of 15 MW and more) may only be located on a noise zoned industrial estate. No houses may be present within the noise zone, and a maximum noise limit applies on the boundary of the noise zone.
8. Is biodiversity an important consideration when it comes to data centre consenting in your jurisdiction?
Under the Nature Protection Act, the habitat of protected animal and plant species must be respected. Also, protected natural areas must not be affected because of emissions (such as nitrogen due to generator emissions). This means that prior to construction, research must be conducted into the feasibility of the plan from a nature conservation perspective. This applies in all cases, even if the construction of a data centre is permitted under the zoning plan.
