Infrastructure Planning Blog

This week’s entry looks at developments in the field of data centres and an onshore wind farm section 35 direction.

What will the first Data Centre DCO look like?

As part of its consultation on the NPPF updates earlier this year, the Government announced that it was strengthening the NPPF support for data centres, and also announced that "there is the potential for data centres, gigafactories and laboratories to be prescribed as a type of business and commercial NSIP and be directed into the NSIP consenting regime through section 35 direction". Currently, the Infrastructure Planning (Business or Commercial Projects) Regulations 2013 do not embrace data centres.

Since then, earlier this month, the Government has affirmed that it will bring forward a "forthcoming National Policy Statement for data centres will set out environmental criteria – including water supply considerations – for data centre proposals that are taken forward as Nationally Significant Infrastructure Projects".

In parallel, the Department for Science, Innovation and Technology is bringing forward proposals for AI Growth Zones. Interestingly, there is a bit of a difference of opinion on the H2Teesside project that the proposals there clash with a potential AI Growth Zone. You can read the correspondence here.

What would the first data centre DCO look like? Well, it's likely that it would take the form of two NSIPs in one DCO application, with potential co-located power-generation. That may be convenient because the promoter(s) would save costs on promoting a combined project through one application, rather than two. Given the thresholds for energy generating stations are 50MW (from 31 December 2025, this will be 100MW for onshore wind and solar), there may be a need for compulsory acquisition to deliver the scheme, and a local authority/plan may not endorse the development, you can see why a joined up application might arise.

Since the Government's intention is that data centres be directed into the NSIP regime by being a business and commercial project of national significance, that potential DCO would have to deal with two National Policy Statements. Again, that's not uncommon, but it's worth noting that unless the forthcoming NPS for Data Centres says something express on the matter, there may be a little soul searching on which is to be the "primary" NPS (see section 6 here for an example of how multiple NPSs applying to the same application has been considered where there are different NSIP components).

It's hoped that data centres would benefit from a similar "critical national priority" (CNP) designation to encourage that development (and ensure alignment with the overall policy framework given the likelihood of co-located energy applications). Note that the NPPF change does give strong support for data centres, but not as strong as CNP in that it states at paragraph 86 that local planning authorities should "pay particular regard to facilitating development to meet the needs of a modern economy, including by identifying suitable locations for uses such as laboratories, gigafactories, data centres, digital infrastructure, freight and logistics" - i.e., not as strong as it could be.

One of the key issues affecting data centres is water. Water is primarily needed to cool data centres because the numerous servers and IT equipment generate substantial heat that must be dissipated to prevent overheating and maintain stable operating temperatures. It is conceivable, then, that water supply may be included as associated development. For AI Growth Zones, there is a requirement for applications to specify "(1) the volume of water required; (2) the availability of that volume and the timeline of delivery; and (3) any wider infrastructure requirements or constraints" so it's likely that the new NPS would apply similar tests.

When wouldn't you look to apply for a DCO? Well, if you have a supportive local authority, you don't need any compulsory acquisition of land and you have power generation sorted out, you may well just go down the conventional town and country planning route. Another route is a potential Local Development Order (LDO) for a large swathe of land, but that may not be possible given the environmental assessment requirements would require a level of maturity in design that may not be available. LDOs can also take anywhere from 1-2 years to secure.

On 26 August, the House of Commons Library published a research briefing on planning for data centres, which can be found here. It is well worth a read.

Wind in the Willows

DESNZ have granted a section 35 direction for the Hope Moor Onshore Wind project. The documents can be found here. My colleagues at TLT were involved in obtaining this direction for the new onshore wind project in the North East of England. This is only the second direction to be granted for an onshore wind project, with the looming return of onshore wind development to the NSIP regime in England, at a threshold change of 100MW, coming into force from 31 December. The initial concerns that there would not by any onshore wind DCO projects is not turning out to be true.

One interesting point to note is that the request that section 42 and 47 of the Planning Act 2008 (i.e., the statutory consultation requirements) be ‘deemed to be complied with’ (a power the Secretary of State has under section 35ZA of the 2008 Act) was not accepted on the basis that it was a ‘current’ requirement (which, of course, would always be the case where section 35ZA(3)(b) is concerned). For those interested, and though we are biased, the compelling reasons for the disapplication are set out in sections 6.2 to 6.4 of the supporting statement. This leaned heavily on the proposed repeal of statutory consultation under the Planning and Infrastructure Bill.

Finally, the Morgan Offshore Wind Project is due to be decided by the Secretary of State today. We will cover that in next week’s entry. The H2Teesside (mentioned above) decision had been due yesterday but the Secretary of State has now decided to re-set the deadline (date TBC) and issue a request for information (see here), to which responses must be provided by 11 September.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2025. Specific advice should be sought for specific cases. For more information see our terms & conditions.