On 8 January 2026, the ‘Infrastructure Planning (Business or Commercial Projects) (Amendment) Regulations 2026’ (the “Regulations”) were made by Parliament. These Regulations bring nationally significant data centres within the Nationally Significant Infrastructure Projects (NSIP) regime and follow the Government’s July 2024 consultation on reforms to the National Planning Policy Framework (NPPF), which sought views on the application of the NSIP regime to data centres and other commercial projects. For further background on these changes, please see our previous publication on this topic.
Prior System & Effect of Changes
Previously, data centres were not recognised under the NSIP regime. Instead, developers could only apply for planning consent directly to a Local Planning Authority (“LPA”) under the Town and Country Planning Act 1990. Under this regime, even the largest hyperscale data centre applications were considered by councillors of LPAs. Ultimately, this approach has led to a number of recovered appeals of data centre applications where applications had initially been refused in the first instance.
Under the new Regulations, developers of nationally significant data centres may request that their projects be determined by ministers as a business or commercial project under the NSIP regime, rather than by LPAs, through a direction made pursuant to section 35 of the Planning Act 2008. This provides developers with an option to use the NSIP regime, as opposed to a mandatory requirement for all such data centres to be consented as NSIPs.
If a Section 35 Direction is granted by the Secretary of State, developers will need to submit a development consent order (“DCO") application to obtain consent for their projects. However, the Regulations do not specify a size threshold for data centres to qualify under the NSIP regime, leaving this to be clarified in future policy guidance.
Commentary
Until such time as further clarification is provided on what constitutes a nationally significant data centre, significant uncertainty remains as to which data centres would be granted a section 35 direction by the Government. While the Government’s 2013 Policy Statement provides an indication as to which business or commercial projects will be considered nationally significant, there is yet to be any specific policy guidance for data centres.
A new national policy statement (NPS) for data centres is anticipated to address this uncertainty. As discussed within our previous Law Now article on AI Growth Zones, the Department for Science, Innovation and Technology (DSIT) confirmed that it would consult on the draft NPS by February 2026. However, no consultation has yet been launched.
The forthcoming NPS is expected to set out the criteria for granting section 35 directions and for the determination of DCO applications for data centres. The criteria will be critical in guiding developers on whether their projects are likely to be considered nationally significant and whether their DCO applications are likely to succeed, given the established practice that DCO applications are determined against the content of the specific NPS to which they apply.
While the Regulations are a significant step forwards for data centre consenting, the full effect will only be established once the NPS comes into effect. The impact of these reforms will depend on the content of the forthcoming NPS and its guidance on the assessment and approval of data centre projects under the NSIP regime.
