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Since our previous article on the evolution of planning consent for data centres, there has been a major development in how large‑scale data centre projects may be consented in England.
In January 2026 new regulations were made, which formally brought data centres within the scope of the Nationally Significant Infrastructure Projects (NSIP) regime in England.
What has changed?
Until recently, even the largest hyperscale data centres were required to obtain planning permission under the Town and Country Planning Act 1990, with decisions made by local planning authorities. This often resulted in lengthy determination periods, heightened political sensitivity at local level and, in some cases, recovered appeal decisions determined by the Secretary of State.
Developers of data centre projects may now request that their scheme is "opted in" to the NSIP regime by way of a direction from the Secretary of State (under section 35 of the Planning Act 2008), where the project is considered to be of 'national significance' and it meets the other requirements in section 35 of that Act.
Opt‑in rather than mandatory NSIP consent
Data centres are not automatically consented as NSIPs; instead, the NSIP regime operates on an opt‑in basis for developers. A data centre project may be directed into the NSIP regime where the Secretary of State considers it to be of national significance and satisfied that the statutory tests under section 35 of the Planning Act 2008 are met.
Where a section 35 direction is granted, the project must then be authorised by a Development Consent Order (DCO). The application will be examined by the Planning Inspectorate and determined by the Secretary of State within the statutory NSIP timetable, rather than being determined by local planning authorities under the Town and Country Planning Act 1990 route or subsequently by the Secretary of State either on appeal or a call in decision.
What does the NSIP route offer?
For developers of large, complex and strategically important data centres, the ability to access the NSIP regime is a material shift offering practical advantages, such as:
- A single consolidated consent as a DCO can incorporate powers and approvals that would otherwise require multiple separate consents;
- Greater certainty over process and timescales, with the NSIP regime operating to fixed statutory timetables for examination and decision‑making;
- A nationally‑focused assessment of need and impacts aligned with national policy objectives; and
- National decision‑making by the Secretary of State rather than at local political level.
These features reflect the government's broader objective of facilitating the delivery of digital infrastructure and supporting AI-driven growth through a more streamlined planning system, particularly in light of the government's designation of data centres as Critical National Infrastructure in September 2024, putting them on an equal footing with essential services such as water, energy and emergency services.
Key uncertainties remain
While the new regulations are now in force, some important questions remain unanswered. Notably, the new regulations do not specify any thresholds (for example, by floorspace, capacity or energy use) for when a data centre will be regarded as "nationally significant".
The explanatory memorandum accompanying the new regulations explains that, a previous Written Statement (which supported the 2013 Regulations), gives some indicators such as the project being of substantial size, or exceeding a particular floorspace, or contributing to economic growth as potential factors in the Secretary of State's consideration of a qualifying request.
The government has confirmed that these questions will be addressed through a new National Policy Statement (NPS) for data centres, to be prepared by the Department for Science, Innovation and Technology. The new NPS is expected to set out the policy framework for decision‑making, including parameters and factors relevant to national significance.
A consultation on the draft new NPS statement is anticipated and expected, but has not yet commenced.
Looking ahead
The formal inclusion of data centres within the NSIP regime marks a significant shift in the consenting landscape and reflects their growing importance as Critical National Infrastructure.
For promoters of large‑scale schemes such gigafactories and laboratories, and now also data centres, the ability to opt into the NSIP process may offer a more strategic route to consent, albeit with increased upfront complexity and scrutiny.
As the policy framework continues to develop, particularly once the new national policy statement for data centres is published, careful consideration will be required as to whether the NSIP or the traditional Town and Country Planning Act 1990 route is the most appropriate consenting strategy.
At this stage, there are no known data centre projects that have been formally directed into the NSIP regime under the new regulations – so watch this space; early schemes are likely to play an important role in shaping how the regime is applied in practice.
Our team
At Womble Bond Dickinson, we have extensive experience advising on DCOs and other infrastructure planning matters, particularly for power generation or energy intensive projects like data centres. If you are considering a data centre development – particularly one that may qualify as a NSIP – we would be pleased to discuss how a DCO could benefit your project and help you navigate the evolving planning landscape.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
