Data centres are a critical infrastructure for the digital economy, making possible the storage, processing, and transmission of vast amounts of data at the highest levels of security and technical efficiency. The dynamic rise of sectors such as e-commerce, video streaming, cloud computing, or AI, with their enormous data processing needs, is fuelling increasing demand for the construction of data centres, which have become the fastest-growing part of the real estate sector. In Poland, estimates are that data centre capacity will grow steadily by more than 10% per annum over the coming years. The construction of a modern data centre requires a number of legal considerations to be taken into account, both at the planning and implementation stages. Adding to the complexity are growing ESG demands. The objective of this article is to highlight the most important legal aspects pertaining to the construction of data centres in Poland.
As in other sectors of the real estate market, location is key to the success of a data centre project. The choice of location for a data centre is determined by factors including its purpose (end-users), demand for utility services, environmental or sustainability considerations, and security issues.
Depending on their purpose (category of end-users), data centres can be divided into two main types: a private data centre is used by a single large entity (e.g. a bank, a telecommunications company, or a public institution), and is tailored to its specific IT requirements; a shared or colocation data centre offers rental space (racks or entire rooms) for clients to keep their servers and other IT hardware in, and its technical parameters and equipment are usually standardised. Colocation centres, and private data centres of certain large institutions, tend to be located in the cities in which their clients are based or their employees live – or in close proximity to them (i.e., not more than a few dozen kilometres away) to ensure quick access and satisfactory data transfer speed. But for many other data centre projects, a remote rural location is not a problem, and can even be an advantage.
With respect to utility services, a data centre requires, above all, a reliable and abundant supply of electricity, and a stable broadband internet connection through fibre optic cable. Redundancy is preferred in both cases, i.e. having multiple sources and connections, ideally from several independent providers, so as to safeguard against disruption and ensure uninterrupted operations. Obviously, reliable access to other utilities, notably water (which data centres use, among other things, to cool themselves) is important, too.
Data centres’ electricity demands are very high – more than 10 times greater than those of warehouses of comparable size (dozens of times greater in some cases). This is such a characteristic feature of data centres that data centre size is customarily defined, not in terms of usable area or servers’ capacity, but in terms of electrical power, expressed in megawatts. A typical data centre has a capacity of between 1 MW and tens of MW, but the largest ones, so-called hyperscales, reach dozens or even hundreds of MW.
Data centre projects are facing growing ESG demands. As of September 2024, under the European Commission Delegated Regulation (EU) 2024/1364 on the establishment of an EU-wide rating scheme for data centres, operators of data centres are required to report key performance indicators, including data on energy consumption, levels of heat emitted, cooling systems, or data traffic. And in October 2023, Directive (EU) 2023/1791 of the European Parliament and of the Council on energy efficiency came into effect which, among other things, calls on Member States to require the collection and publication by data centre operators of data which are relevant for the energy performance, water footprint, and demand-side flexibility of data centres, such as energy consumption (and how much of it comes from renewable sources), reuse of waste heat, or the usage of freshwater. (The Directive is yet to be transposed into Polish law.) Then there are the expectations of data centre clients themselves, who are also paying increasing attention to the sustainability of the facilities they use, whether due to national legislation or internal rules and procedures. For these reasons, at least some of the energy consumed by a data centre should preferably come from renewable sources, such as solar or wind. It is also worth putting solutions in place for the reuse of waste heat from the data centre, which could be used to heat, not only the facility itself but also neighbouring residential or public buildings in the winter.
The security of a location is a very important factor. Data centres should be located in places that are free from threats of various kinds. This means, first of all, places that are not prone to natural disasters, such as floods, fires, landslides, or mining damages. It is also advisable to locate data centres a certain distance away from dense residential areas, so as to avoid potential conflicts with the local community.
A typical data centre occupies an area of between 1 hectare up to several hectares, but hyperscales can require more than 10 hectares of land. In choosing the location for a data centre, it is worth taking into account the option of expanding it in the future. Expanding a data centre is easier than expanding a factory or warehouse, because data centres do not require large parking spaces or loading bays.
It is also worth checking the availability of tax and other incentives for investors in the area.
From a legal standpoint, of paramount importance is the compatibility of the proposed data centre project with the local general master plan (where the commune has adopted one) or with the local spatial development plan (henceforth MPZP), both in terms of the planning-zone designation of the site, and in terms of the project’s planned solutions regarding the use of utilities or communication. In areas without an MPZP, data centres can be built on the basis of decisions on development conditions (henceforth WZ) until the end of 2025.
Neither the Spatial Planning and Development Act of 27 March 2003 (henceforth SPDA) nor its executive regulations contain provisions pertaining specifically to data centres. The same is true of the vast majority of MPZPs (adopted or in preparation).
In particular, data centres are not mentioned in the catalogue of planning-zone designations of a master plan, laid down in Article 13c of SPDA; nor are they mentioned in Annex 1 to “Regulation of the Minister of Development and Technology of 8 December 2023 on the draft master plan of a commune, documentation of planning works carried out as part of this plan, and issuance of excerpts and map extracts from the plan,” which elaborates the characteristics of the respective planning-zone designations. Data centres also do not appear in Article 15 of SPDA, which sets forth the obligatory and optional elements to be included in a master plan, nor in Annex 1 to “Regulation of the Minister of Development and Technology of 17 December 2021 on the required scope of the draft local spatial development plan,” which lays down symbols, names, and graphical representations of designations to be used in a draft local spatial development plan.
Thus, data centres are not recognised as a distinct type of construction or category of land use subject to specific regulation. The draft local plans that are currently being developed are unlikely to explicitly ban or permit the location of data centres in specific areas. Furthermore, there have been no judicial decisions dealing specifically with location of data centres.
This means that in many cases, whether a data centre project is compatible with the master plan or MPZP can be subject to controversy, because it is not clear which planning-zone designation data centres fall under. Similarly, in the case of data centre projects seeking approval under WZ (where there is no MPZP), it is not clear what kind of existing construction makes the location of a data centre nearby possible under the principle of “good neighbourliness“.
From a functional and technical standpoint, data centres bear the closest similarity to warehouses. However, they can also exhibit some features of public or office buildings. Thus, in the absence of explicit provisions in a master plan or MPZP, data centres can be treated either as “industrial development” (a category that also includes warehouses) or as “service development” (which includes i.a. office buildings), depending on circumstances. It appears that classification as service development is especially justified in the case of colocation centres serving multiple customers. On the other hand, it would be hard to justify the treatment of data centres as pure industrial plants that can only be located in areas designated for manufacturing. Here, one might usefully invoke the view of the Supreme Administrative Court (NSA), expressed in i.a. two rulings dealing with tax matters (II FSK 2382/20 of 8 March 2023 and II FSK 1123/21 of 5 June 2024), according to which a data centre is a group of networked servers that does not constitute an industrial plant, because the servers are used, not to manufacture goods but to store and manage computer software and data.
Such an interpretation – that data centres can be located both on sites designated for industrial/warehouse development and on sites designated for service development – is also consistent with the existing practice of building permitting authorities.
In the not-too-distant-future, however, the adoption by Polish lawmakers of specific regulations – and restrictions – regarding the location of data centres is probable, in the same way that happened e.g. with large-format retail stores. That is because of data centres’ heavy environmental and social impacts: they are energy- and water-hungry, affecting availability and prices of these utilities for local communities; and they may produce large amounts of heat and noise. Restrictions of this kind are already being adopted in some European countries where a lot of data centres have been built, e.g. in the Netherlands.
Another legal aspect to consider is whether the construction of a data centre of the proposed scale on a given site would constitute a project with a significant impact on the environment, in which case the project owner would have to secure a “decision on environmental conditions of approval” (or environmental decision for short) prior to applying for a WZ and/or for a building permit. To obtain an environmental decision, the project owner may be required to prepare an environmental impact assessment report and undergo a public consultation. But even if they are not, the need to obtain an environmental decision always delays project start, and there is also a risk that the environmental protection authority might block the project, or impose difficult-to-meet or costly additional requirements.
The “Act on Access to Information on the Environment and its Protection, Public Participation in Environmental Protection, and the Environmental Impact Assessment of 3 October 2008” (henceforth AAIE) makes a distinction between two types of projects that require an environmental decision: (a) projects that may have a significant impact on the environment; (b) projects that always have a significant impact on the environment. The criteria qualification of a project to one these types are set forth in the “Regulation of the Council of Ministers of 10 September 2019 on investments that may have a significant impact on the environment” (henceforth Regulation).
Analysis of the Regulation suggests that data centre projects do not qualify as projects that always have a significant impact on the environment; but that in many cases, data centres will be treated as projects that may have a significant impact on the environment.
Two provisions of the Regulation are directly relevant here. The catalogue of projects that may have a significant impact on the environment includes, among others: (a) an industrial or warehouse development whose total proposed built-up area, together with supporting infrastructure, is at least 1 hectare, or 0.5 hectares for projects located in or adjacent to nature protected areas, such as national parks, Nature 2000 sites, etc. (§ 3 paragraph 1 item 54). This means that certain smaller or multi-storey data centres located away from protected areas may not require an environmental decision; (b) a service development other than a shopping centre whose total built-up area, together with supporting infrastructure, is a least 2 hectares, if the site is not covered by an MPZP, or 4 hectares if the site is covered by an MPZP; except where the proposed project is in a nature protected area, in which case the values are 0.5 hectares and 2 hectares, respectively (§ 3 paragraph 1 item 54). This means that the treatment of a data centre as a service development enables the construction of much larger projects without the need to obtain an environmental decision compared to treatment as industrial/warehouse development.
One might also mention § 3 paragraph 1 item 58 of Regulation, under which car parks with a total built-up area of at least 1 hectare (or 0.5 hectares in nature protected areas) should be treated as projects that may have a significant impact on the environment. But, as noted, in most cases data centres do not require large car parks.
The final legal issue we will consider is this: which category of building structure – out of those listed in Annex to the Construction Law of 7 July 1994 (henceforth CL) – do data centres fall under? Assignment to a particular category has implications for the construction process and, most importantly, for the legal commencement of use: some categories of structures require an occupancy permit to be obtained, while for others, notification and absence of objection of the construction supervision authority is sufficient (Article 55 paragraph 1 item 1 of CL). The category that a structure belongs to is stated in the building permit. In applying for a building permit, the applicant indicates the category, which the permitting authority should verify. The official designation in the building permit will bind the competent construction supervision authority regarding commencement of use.
Here too, more than one approach is possible. The most natural category for a typical data centre seems to be no. XVIII: “industrial buildings, such as factories, power plants, assembly plants, slaughterhouses, and warehouse buildings (storage buildings, cold storage buildings, depots, sheds)”. However, in the case of some colocation centres, XVII might also be considered: “retail, gastronomic and service buildings, such as shops, shopping centres, department stores, trade halls, restaurants, bars, casinos, disco clubs, workshops, etc.” The key difference is that service buildings require an occupancy permit to be issued, whereas a warehouse building is allowed for use if the competent authority does not raise an objection within 14 days of being notified of construction completion. From this perspective, using the (more natural) category XVIII appears more expedient. In practice, however, some project owners prefer to apply for an occupancy permit even where not required to do so (applying Article 55 paragraph 2 of CL), in order to receive an official certification that the building was built in accordance with the design and is fit for use.
The construction of data centres in Poland is subject to numerous requirements arising from spatial-planning, environmental-protection, and construction regulations, as well as from growing ESG obligations and expectations. At the moment, key legal acts do not recognise data centres as a distinct category of structure requiring specific regulation. This means that investors have certain freedom in the choice of location, and can design the facility in such a way as to avoid having to obtain an environmental decision, for example. However, this is likely to change in the future, as the data centre sector in Poland expands and as EU regulation of data centres increases. Sector-specific laws can be expected to be adopted that will impose further requirements and restrictions on the construction and operation of data centres in Poland. This should persuade investors to step up their activities at this current stage, while restrictions are still limited and demand for data centres remains high.