CMS Real Estate Data Centre Consenting in Norway

Any large construction or land utilization in Norway must be in accordance with the Planning and Building Act with associated regulations and zoning plans.. The land utilization must be in accordance with the general municipal master plan and other prevailing zoning plans. The municipality may require a zoning plan for the land even though the area is zoned correctly in the master municipal plan.

Everyone may propose a zoning plan, but it is a legal requirement that the plan is construed by experts. The municipality council approves the zoning plan after a political process. If the zoning plan is approved, it sets the legal framework for the future land utilization within its geographic area. A request for a building permit which is in accordance with a plan must be approved.

However, the municipality may obligate private entities to enter into a so-called development agreement with the municipality. There is a legal framework in place outlining what such agreements may deal with, and which limits the municipalities authority.

Either in the zoning plan itself or in the development agreement, the municipality may set more concrete requirements which must be fulfilled for the construction to be started, progressed or receive the certificate of completion. A certification of completion is required in order to legally use the construction.

The area usually needs to be designated for industry or energy-intensive industry in the municipal master plan. Larger constructions require a zoning plan as well for the concrete area. Such a plan may require several designations. Primarily, the area must be designated for industry or energy-intensive industry. The area usually (when requiring construction of high voltage energy facilities) also needs to be partly designated for high voltage energy facilities. Accordingly, the area is usually designated for a combined use classification consisting mainly of industrial purposes, and partly of high voltage energy facilities.

No, everyone is free to apply for a consent, cf. the plan- and buildings Act clause 12-3 (2). However, it is impractical that anyone would receive a consent if they were not the owner or at least had a right to use the land.

1. Understanding the legal landscape and current political policy both at municipal, regional and national level,
2. Research of which areas have available grid and power capacity, with advantageous grid tariffs (i.e., location close to the energy production),
3. Pre-application discussions with local authorities, and other stakeholders, and with the Norwegian Energy Regulatory Authority (“RME”),
4. Submit proposal for new zoning plans if required by current zoning plans towards authorities or submit application for building permit. Initiate consent procedure towards RME if required (se No. 5 below),

Access to utilities is not part of the Planning and Building Act.. However, high voltage facilities and direct access to regional and/or the transmission grid will require a concession from the RME. If the data centre requires upgrades of the grid, the grid owner may require an investment contribution. Accordingly, an important part of the planning process is to research where there is available grid and power capacity.

Norway has seen a rush of national and international actors wanting to establish data centres. Both RME and the grid owners have been subject to the rush, which have led to longer processing time. To deal with this, the RME has set up guidelines outlining what needs to be in place before an application for concession for grid access. These are:

1. The area must be designated for industry at a minimum or other suitable purpose in the master municipality plan, or be designated for the said purpose,
2. the grid owner must have assessed if grid access is operationally justifiable or requires investments in the regional or transmission grid to deal with the data centeres’ power consumption,
3. RME may, if the grid access requires large investments in the regional or transmission grid, require the applications to be dealt with simultaneously.

If an area is designated for both industry or energy-intensive industry and high energy facilities, the zoning plan may be deemed to automatically authorise a data centre. However, this is normally not the case, and a planning procedure must be initiated and completed. If such a designation is already in place, a building permit must be required.  Concession(s) from the RME must also obtained.

When assessing a zoning plan proposal, the municipality is obligated to make a wide assessment of all interests, hereunder the interests of protection of farmland and natural diversity. Natural diversity is also protected through a separate act, called the Natural Diversity Act.

If the master municipal plan designates the area for natural farming, natural spaces or wildlife, that designation will be binding. The municipality will not, as a clear general rule, be able to zone a concrete plot within this area to industrial purposes. There is a possibility for dispensation, which is very narrow. Private, regional and national actors would be able to appeal such a dispensation, if granted. The practical consequence of the area being zoned to natural farming, spaces or wildlife is that the application would have to work towards a change in the master municipal plan. If the area is preserved through the Natural Diversity Act, the possibilities for utilization of the area for data centre purposes is very limited/impossible.

If the area is designated for industry in the master municipal zoning plan, biodiversity is still a part of the considerations which must be taken by the municipality in the zoning process. However, the weight of such considerations would have to be subject to a concrete assessment.