- Do you have to enter into a form of agreement with the local authority/municipality when applying for consent for a data centre in your jurisdiction?
- What is the planning/consenting designation or use class which datacentres fit into in your jurisdiction?
- Does the applicant have to own all of the land for the datacentre to apply for the consent?
- What are the steps that need to be taken to secure data centre consent in your jurisdiction? How long does each steps in the process typically take?
- Do arrangements for access to utilities, energy and/or power need to be made to as part of the consenting process?
- Are there clear land plans or zones in place which automatically authorise data centres or is the application process more complicated in your jurisdiction?
- What are the environmental considerations that need to be taken when obtaining data centre consent?
- Is biodiversity an important consideration when it comes to data centre consenting in your jurisdiction?
jurisdiction
1. Do you have to enter into a form of agreement with the local authority/municipality when applying for consent for a data centre in your jurisdiction?
In Germany, there is no legal obligation to enter into an agreement with the local authority when applying for consent for a data centre.
The establishment of a data centre must comply with planning law under the Building Code (“BauGB”). In general, this requires the adoption of a new development plan (“Bebauungsplan”) or the amendment of an existing development plan. In this context, municipalities practically always demand that the developer enters into a planning agreement (“städtebaulicher Vertrag”) with the municipality. Typically, the developer takes over planning costs and other costs of the municipality associated with the development. Other regulations in such agreements cover construction or reimbursement of costs for adaption of public infrastructure, compensation for impact on nature and landscape, specific measures for the protection of environment and neighbours and the obligations to complete the development and employ a minimum number of personnel.
One special type of development plan is the project-related development plan (“vorhabenbezogener Bebauungsplan”) requiring a concept for the specific development as well as road access and supply (“Vorhaben- und Erschließungsplan”). The developer must enter into an implementation agreement (“Durchführungsvertrag”) with the local municipality under which it undertakes to complete the project within a certain period of time.
Furthermore, under recent energy efficiency law, data centre developers might be obliged to enter into an agreement with the municipality on a concept and an investment plan for the waste heat supply (see environmental considerations below).
2. What is the planning/consenting designation or use class which datacentres fit into in your jurisdiction?
Data centres are a relatively new emerging asset class, so they are not specifically addressed in German planning or building law. They are buildings that require a building permit under state building law to be constructed, modified or repurposed. Emergency generators are typical elements of a data centre. If the thermal output of the generators at one site is 50 megawatts or more, the installation and operation of these generators requires a permit under immission control law.
Under zoning law, a data centre can be classified as a commercial or industrial enterprise (“Gewerbebetrieb”). Depending on the specific provisions of the applicable development plan, a data centre may be permissible in an industrial area (“Industriegebiet”). It may be permissible in a business area (“Gewerbegebiet”) even if the emergency generators exceed the threshold of 50 megawatts because they are operated only on rare occasions, e.g. in case of a blackout or for testing. If there is no development plan in place, the data centre could also be permissible if it fits in with the characteristic features of its immediate environment.
3. Does the applicant have to own all of the land for the datacentre to apply for the consent?
The building permit is generally granted irrespective of the ownership of the building site and private rights of third parties. From a private law perspective data centres can be established on the basis of ownership, a leasehold (“Erbbaurecht”) or a lease agreement.
4. What are the steps that need to be taken to secure data centre consent in your jurisdiction? How long does each steps in the process typically take?
A building permit is required for the data centre itself. The procedure for granting the building permit is governed by the applicable state building act. The developer must submit an application for a building permit accompanied by all relevant documents required for the assessment of the project to the local building authority. The building permit is granted if the planned installation complies with public law.
The duration of a building permit application procedure may vary. Even though in most federal states the building permit is to be granted within six months, the procedure may take longer depending on the workload of those responsible. Often the deadlines are extended because the authorities find that the documentation provided by the applicant is insufficient or incomplete.
The data centre itself does not require an emission control permit. However, such a permit may be required for specific facilities, in particular for emergency power generators of large data centres. The duration of the application procedure for an emission control permit also varies. Under applicable law, the permit is to be granted within seven months after the application has been filed. Authorities may take another three months.
Depending on the data centre's detailed operation and its location, further permits may be required. For example, permits under water law, e.g. for fuel tanks of the emergency generators.
5. Do arrangements for access to utilities, energy and/or power need to be made to as part of the consenting process?
According to German planning law, building projects will only be approved if road access and utilities supply (“Erschließung”) are secured. According to case law, when the permit is granted, it must be reasonable to expect that the necessary development facilities will be functionally ready when the building project is completed. Development generally includes the adequate connection of a property to the public road network, the supply of electricity and water and the connection to the sewage system. The construction of this infrastructure may be part of the projects and, in such case, would typically be subject to a planning or implementation agreement with the municipality.
6. Are there clear land plans or zones in place which automatically authorise data centres or is the application process more complicated in your jurisdiction?
There are no specific legal land plans or zones that automatically authorise data centres. Their establishment requires a permit based on a case-by-case decision. Municipalities may adopt political concept papers outlining where data centres could or should be located. These concepts may be the basis for development plans allowing such facilities under planning law. A permit would still be necessary.
7. What are the environmental considerations that need to be taken when obtaining data centre consent?
In order to obtain a building permit, the data centre must not conflict with any public regulations and therefore not oppose environmental, monument conservation, nature conservation and species protection regulations. In principle, buildings must be constructed in a way that prevents harmful effects on the environment. An environmental impact assessment (EIA) may also need to be carried out in accordance with the Environmental Impact Assessment Act ("UVPG"). Depending on the building site and scale of the project, aspects of water conservation and waste management may also play a role.
Some state building laws also contain environmental or sustainability regulations, such as the obligation to install photovoltaic systems on (new) buildings.
In the future, data centres will also have to comply with requirements for climate neutrality, energy efficiency, the avoidance and use of waste heat, the introduction of energy and environmental management systems and the coverage of its electricity demand with renewable energy. Namely, the Energy Efficiency Act requires the avoidance of waste heat and recovery of (unavoidable) waste heat using the best available techniques if possible and reasonable. In addition, this act contains specific mandatory minimum energy efficiency rates and minimum percentages for waste heat reuse for data centres that begin operation on or after 1 July 2026. The minimum requirement for waste heat recovery (10%, 15% or 20% depending on starting date of operation) does not apply if the developer enters into an agreement with the municipality on development of a district heat network that enables the required waste heat recovery including an investment plan, sharing of costs for connection pipes and the price for delivering heat.
8. Is biodiversity an important consideration when it comes to data centre consenting in your jurisdiction?
There are no specific requirements for data centres in Germany with regard to biodiversity. However, as described above, the project must also comply with nature conservation regulations. In relation to the building site, general planning conditions may include some biodiversity requirements. In some cases an (additional) EIA may be required, namely if the emergency generators exceed a thermal output of 50 megawatts and a general preliminary assessment by the authorities consider an EIA necessary because the operation of the generators may have a detrimental effect on the environment.
