CMS Real Estate Data Centre Consenting in Scotland

This isn’t always required, but it is increasingly common for a local authority to require a planning agreement. In Scotland, these agreements are generally entered into under section 75 of the Town and Country Planning (Scotland) Act 1997 (as amended). Agreements can require ‘one-off’ obligations (such as contribution payments to infrastructure requirements) or have ongoing restrictions or requirements.

In Scotland, the Town and Country Planning (Use Classes) (Scotland) Order 1997 categorises the different types of property and land into classes. Datacentres generally fall within Class 6 – Storage and Distribution. However, this does not accommodate the various other uses of datacentres, such as facilitating services for clients, including remote multiple-user access. Datacentres may be authorised under mixed classes, or Class 6 with ancillary usage, and may also fall into the ‘sui generis’ (a class of its own) category.

Like the English system, it is not a requirement of the Scottish planning system to own the land on which applications are made. However, to implement the consent, an applicant will need to have the appropriate land rights.

1. Understanding of policy
2. Pre-Application discussions with local planning authority
3. Submission of application documents & ancillary documents to the local planning authority for planning permission
4. Local authority gives notice to each local authority Councillor, MSP or MP representing the district to which the application relates

The timescales for a consent in Scotland will vary depending on the scale of the development but will generally be either 2 or 4 months after validation of the application.  However, local planning authorities are increasingly struggling with resourcing which has meant that determination timescales are often extended.

Like the English system, it is not unusual in the Scottish planning system for certain elements of a planning application to be left to a later application stage.  If this is the case, 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 roads 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 constructed or occupied.

Not typically – Local Development Plans will ‘allocate’ land for certain uses, but this isn’t binding. Rather, it simply shows what a local authority considers the best use of land to be. 

Datacentres are a relatively new class of development in Scotland and, as such, they have not featured extensively in local development plans to date.  Under the Fourth National Planning Framework (NPF4), ‘green datacentres’ have been designated a national/major development. This new designation gives more weight in favour of ‘green datacentres’ getting consent, but it will also make the process more administratively complex.

At a local policy level, however, datacentres are often not specifically mentioned. This gives rise to a lack of clarity as to use classes and means that there are no specific designations for datacentre construction.

With Scotland’s ‘environment-first’ planning policy, it is likely that the procurement of a datacentre, especially one of larger scale, will require statutory assessments such as an Environmental Impact Assessment (EIA) or Strategic Environmental Assessment (SEA). The EIA assesses the likely significant effects (both positive and negative) of the development, whilst the SEA ensures that any public development plan is sustainable. Consultation authorities are likely to include NatureScot and the Scottish Environment Protection Agency (SEPA).

Fundamentally, each development will be considered on its own merits to ascertain whether an EIA or SEA will be required. Nonetheless, it will invariably include visual, noise and water impact assessments as a starting point. It may also require additional assessments in areas such as downstream carbon impacts due to the datacentre’s energy usage.

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.

Yes, biodiversity conservation is important in Scotland’s national planning policy and is gaining in importance. Unlike England, Scotland is not proposing to have a nationally set minimum level of biodiversity enhancement. Under NPF4, the appropriate level of biodiversity enhancement would be a matter for the discretion of the local planning authority. We are expecting local authorities to set their own policies, which means that there may be varying commitments in different local jurisdictions.

Under NPF4, development proposals (including national or major developments, such as green datacentres) will only be supported where it can be demonstrated that the proposal will conserve, restore and enhance biodiversity, including nature networks so they are in a demonstrably better state than without intervention.