On 16 February 2022, the Netherlands' Ministry of the Interior (Ministerie van Binnenlandse zaken en koninkrijksrelaties) made a preliminary decision on government regulations for hyperscale data centres. According to the decision, it is prohibited to change the use of grounds and buildings in such way that a hyperscale data centre can be established until new national conditions for establishing hyperscale data centres have been determined.
This 'preliminary decision' was taken to prevent new hyperscale data centres from being established at locations that may not meet the new conditions now being drafted (i.e. the prohibition stands during the period required to draw up the new policy and the instruction rules and allow them to take effect). The consequence of the decision is that applications for permission to build a hyperscale data centre submitted after the entry into force of the preliminary decision must be suspended.
One of the main reasons for the decision was that the national government decided control must be exercised over the locations where new hyperscale data centres may be established due to the large power consumption of these centres. (Note the failed attempt to realise a hyperscale data centre in Zeewolde).
The decision is only applicable to a hyperscale data centre, which is a computer or data centre supporting data traffic or data storage ten hectares or more in size with electrical power equal to or greater than 70 megawatts. A collection of buildings having this function and functioning together as a single entity is also defined as a hyperscale data centre.
The decision is applicable throughout the Netherlands with the exception of the municipalities of Hollands Kroon and Het Hogeland. These locations have been designated in the National Environmental Vision as preferred areas for the establishment of hyperscale data centres. Current initiatives in these municipalities will be taken into account when the new policy is drafted.
Legal basis
The Spatial Planning Act (Wet ruimtelijke ordening) establishes the legal framework for the decision by providing that, if national interests require an intervention on the national level to ensure good spatial planning, rules regarding the content of zoning plans and other spatial decisions at a decentralised level can be set by or under a General administrative order (Algemene maatregel van bestuur). The process of drafting a General administrative order on the national level that contains rules for local (i.e. municipal) zoning plans may take up to nine months. This is considered sufficient time for the Ministry to prepare a General administrative order on the content of zoning plans and other spatial decisions (e.g. permits to deviate from the zoning plan) at a decentralised level for the construction of hyperscale data centres.
Also, unless another term is set in the General administrative order, the municipal councils must in turn adopt a change of local zoning plans within one year after the effective date of the General administrative order.
No objections or appeals can be lodged against this Decision.
Draft conditions for establishing a hyperscale DC
On 10 June 2022, the Minister for Housing and Spatial Planning announced that the government has now agreed to a draft decree for strict regulation of hyperscale data centres. The government sent the draft decree to the Senate and the House of Representatives where it is still in process.
The draft decree stipulates that municipalities may not allow new hyperscale data centres in a zoning or environmental plan. They must also amend their zoning or environment plans accordingly unless the area in question is exempted from the ban in the decree.
The two areas exempted from the ban on allowing hyperscale data centres in a zoning or environmental plan are the same areas already mentioned in the Minister’s preliminary decision: in the province of Groningen, part of the municipality of Het Hogeland, formerly the municipality of Eemsmond; and in the province of Noord-Holland, the locations Agriport A7 and B1, which the municipality of Hollands Kroon intends to earmark for expansion of hyperscale data centres among other things. These areas are located on the boundaries of the Netherlands where there is sufficient space and hyperscale data centres currently operating. According to the government, sufficient green power is also available in these areas due to their location near land-based renewable energy sources (e.g. wind at sea).
The definition of a hyperscale data centre in the draft decree does not differ from the February preliminary decision. A hyperscale data centre is a data centre with a size of more than 10 ha and an electrical connection capacity of 70 MW or more. In the explanatory notes to the draft decree, it has been clarified that the criterion relating to the size of 10 ha refers only to the ground surface of structures or buildings. Under the draft decree, a hyperscale data centre also means a collection of buildings with this function, size (more than 10 ha) and energy consumption (70 MW or more), which function together as a single entity. A cluster of various separate small-scale data centres that operate independently therefore does not fall under the definition of a hyperscale data centre.
Consequences for the Dutch market
If the draft decree is adopted, the establishment of new hyperscale data centres will be prohibited in the Netherlands, with the exception of two locations: the part of the municipality of Het Hogeland in the province of Groningen formerly called Eemsmond; and sites Agriport A7 and B1 in the province of Noord-Holland that the municipality of Hollands Kroon intends to earmark for hyperscale data centres.
On 16 November, the Netherlands' Ministry of the Interior (Ministerie van Binnenlandse zaken en koninkrijksrelaties) formally extended the preliminary decision on government regulations for hyperscale data centres
For more information on operating data centres in the Netherlands and how this decision could affect your Dutch business, contact your CMS client partner or local CMS experts:
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