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Energy Update: New Planning Process for Data Centres

31 August 2018

Section 49 of the Planning and Development (Amendment) Act 2018 provides that certain data centre planning applications can be made directly to the Strategic Infrastructure Division of An Bord Pleanála.

It amends the Seventh Schedule to the Planning and Development Act 2000 by inserting the following:

Communications and Data Infrastructure

5. Development comprising the following:

A facility consisting of one or more than one structure, the combined gross floor space of which exceeds 10,000 square metres, used primarily for the storage, management and dissemination of data, and the provision of associated electricity connections infrastructure.

What does that mean?

The Planning and Development Act 2000, as amended provides for a special planning application process for Strategic Infrastructure Development (SID). This procedure allows for the local planning authority to be bypassed entirely and for the planning application to be made directly to An Bord Pleanála, the Irish State planning appeals board. SID status is afforded to developments which are considered of strategic importance to the State. They most commonly consist of energy infrastructure, transport infrastructure, large housing developments and environmental infrastructure projects.

Data centres consisting of one or more than one structure, the combined gross floor space of which exceeds 10,000 square metres will have SID status.

As Apple’s data centre in Athenry did not have SID status, its application for planning permission had to be made to the relevant local planning authority, Galway County Council. Apple made its application to Galway County Council in April 2015. A decision was made by Galway County Council in September 2015 to grant planning permission subject to conditions for the data centre. This decision was appealed to the Board who granted planning permission in August 2016. As the data centre required a connection to the transmission system for its electricity requirements, a separate application for the transmission connection to the data centre had to be made to directly to An Bord Pleanála. This is because electricity transmission infrastructure has SID status. As a result the applications for planning permission had to be made in accordance with two separate statutory processes under the Planning and Development Act 2000, as amended.

What are the benefits of having SID status?

Section 49 of the Planning and Development (Amendment) Act 2018 has not yet commenced. Once it is commenced a number of benefits will accrue to applicable data centres.

Firstly, the planning process is speeded up by bypassing the local planning authority. Previously, as was the case for the application for the Apple Data Centre in Athenry, these applications had to be made to the relevant local authority, which could then be appealed to the Board.

In accordance with the Practice Direction made by the President of the High Court, in February 2018, all applications for consent to launch a judicial review of permissions or decisions concerning strategic infrastructure developments must only be made to an assigned judge in the Commercial Court.

Where an applicant is granted permission to launch a judicial review, the judge will provide the parties with all necessary additional directions with a view to ensuring a fair, just and expeditious hearing of the matter. 

Conclusion

By affording data centres consisting of one or more than one structure, the combined gross floor space of which exceeds 10,000 square metres, SID status, section 49 of the Planning and Development (Amendment) Act 2018 entitles developers of these data centres to make an application for planning permission directly to An Bord Pleanála and avoid the relevant local planning authority.

Any applications for the consent of the High Court to launch a judicial review of permissions or decisions of An Bord Pleanála concerning these data centres can only be made to an assigned judge in the Commercial Court. In the event consent is granted by the High Court to launch judicial review, directions to ensure a fair and efficient hearing will be given.

Data centres of this size are large users of power and will generally have a demand greater than 20MVA and will require a connection to the transmission system in order to meet their energy needs. This means a planning approval for a connection to the electricity transmission system may be required and if so an application directly to An Bord Pleanála for this transmission infrastructure may also be required. The alignment of both the connection and data centre planning processes will be most welcome for these large electricity demand customers.

For more information relating to the planning applications of data centres and other strategic infrastructure developments, contact a member of our Planning & Environment team. 


The content of this article is provided for information purposes only and does not constitute legal or other advice.

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