CMS Real Estate Data Centre Consenting in Czech Republic

No, there is no such obligation. It is possible to voluntarily enter into a public law agreement with the Building Authority, which then effectively replaces the zoning decision. However, all the parties to the public law agreement (including any person being a party to the zoning proceedings) must give their consent with the public law agreement and public law agreements cannot be used for projects that require a binding EIA opinion.

The new Building Code (expected to be effective as of July 2024) changes the principles of the public law agreements – newly called “planning agreements”. It is envisaged that developers and local authorities will be able to enter into planning agreements for cooperation in the implementation of the project being approved. Typically, the developers will undertake to provide certain investment in public infrastructure and public facilities surrounding the project (e.g., access roads, utility connections) or other financial contributions to the local authorities, while the local authorities will undertake not to change the zoning plan, to approve the project and to allow the project to be connected to the municipal infrastructure.

Data centres need to be developed in zoning plan areas designated as “production and storage areas” or similar areas that allow for industrial development.

The applicant must either (i) own all the land plots on which the data centre project is located or (ii) have another private law title (other than the right of ownership) to use the land (e.g., a right to build or an easement). If the applicant does not own all of the land it will also need, in addition to private law title, the consent of the owner of the land to build the project for the purposes of permitting proceedings.

It is also important to note that, under Czech law, a building being constructed on a land plot ultimately becomes part of the land plot and is therefore owned by the land plot owner (unless there are other rights prohibiting such amalgamation).

The standard permitting process is divided into three phases – (i) zoning permit, which approves the location of the project, (ii) construction permit and (iii) use permit.

To obtain each of the permits the applicant must submit an application to the relevant Building Authority, together with the project documentation, binding consents of the authorities concerned (e.g., health and hygiene authorities, firefighters, State Land Fund, owners of infrastructure, municipalities, etc.), neighbours’ consents, etc.

In the Czech Republic, the permitting process is very complex and can take several years. The permitting process can be contested by various agents potentially affected by the project, who are entitled to raise objections and seek administrative and judicial remedies. However, one of the aims of the new Building Code is to speed up the process.

Yes, this is one of key requirements for obtaining a zoning permit. If the data centre project can be connected to the existing infrastructure, then the applicant for the zoning permit must obtain statements from the owners of the infrastructure on the connection of the project to the existing infrastructure. If the data centre project requires the modification of the existing infrastructure or the construction of new infrastructure, the applicant must enter into agreements with the respective infrastructure owners (e.g., future grid connection agreements with distribution system operators).

Data centres can be developed in areas designated in the zoning plans as “production and storage areas” or similar areas that allow for industrial development.

However, even if the zoning plan allows for industrial development, there are other aspects that must be considered by the Building Authority when issuing permits for a data centre, such as criteria for the extent of the built-up area and greenery area, safety aspects, distance and height of buildings, etc.

Depending on its size, location and anticipated environmental impact, the procurement of a data centre may necessitate screening and/or a full Environmental Impact Assessment (an “EIA”). Each development must 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 and possibly further emissions, waste, or air impact assessments.

In addition, depending on the specific location of each project, other binding approvals from environmental authorities may be required as part of the planning process (e.g., approvals for projects that may change the character of the landscape, approval for exemption of land from the Agricultural Land Fund, etc.).

Biodiversity is one of the aspects protected under the Czech laws on protection of nature, with which any development must be compliant. However, there are no specific requirements on the biodiversity net gain for the development yet.