A chat about winemaking and vineyards to sate the drier world of planning and developmentShed…

I was saddened to hear that a gentleman named Mr David Millington had died in 2020.

I had never met Mr Millington, but I had talked about him with clients on many occasions and cited him in numerous planning applications during my tussles with Planning Officers.

For those of you who don’t know who he was (and if you’re a Planning Consultant, it’s straight to the Headmaster’s Office for you), Mr Millington was an Agricultural Consultant who, after a business trip to California in 1991, returned home to plant a vineyard at Wroxeter. Quite a courageous move thirty years ago.

Much as I would like to spend my days talking about wine, I am the first to admit that I know next to nothing about it. Thankfully I know a lot more about planning, which, at least goes some way to providing me with the means to drink the stuff…

Aside from being a remarkable vineyard owner, wine producer and really a pioneer in the English Wine Industry, Mr Millington’s tenacity gifted us all with clarification on what is and isn’t considered agriculture in the context of vineyards and other operations which might be undertaken on the farm.

So, let us open a bottle, toast the memory of our good friend Mr Millington, and have a chat about vineyards and wine making in the context of the sadly rather dry world of planning and development.

Is a vineyard ‘agriculture’?

Section 336 (1) of the Town and Country Planning Act gives the definition of “agriculture” as including;

“horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and “agricultural” shall be construed accordingly;”

The growing of grapes is there unequivocally therefore considered ‘agriculture.’

And the relevance of this?

Agriculture is expressly stated as not constituting development under Paragraph (e) of S55(2) Town and Country Planning Act 1990:

“The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land”… “The use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used.”

Excellent news. That means that I can take full advantage of the GPDO…

It most certainly does! As a vineyard is an agricultural use, you can make use of The General Permitted Development Order, more particularly Part 6, Classes A & B of the General Permitted Development Order, with Class A referring to agricultural units of greater than 5ha and Class B referring to units of less than 5ha.

Fundamentally, if your vineyard sits on a unit of greater than 5ha, the GPDO allows development for ‘the works for the erection, extension or alteration of a building, or any excavation or engineering operations which are reasonably necessary for the purposes of agriculture within that unit.’ This will however be subject to Prior Approval with the Local Authority.

This covers the erection of buildings up to 1000m2 (think machinery and equipment stores) and other associated operational development reasonably required for the purposes of agriculture, such as hardstandings, trellising, irrigation, culverts, tracks etc. Subject to a, supposedly, more straightforward Prior Notification with the Local Authority.

Conversely, if your vineyard comprises a unit of less than 5ha, regrettably while the GPDO makes no such provision for buildings, there is still a lot that can be done.

Well I’m sure that’s all very interesting but I fail to see the relevance of the late Mr Millington to this…

Mr Millington started a vineyard in 1991. In 1996 he started making his own wine on site. On part of his vineyard stood a modern agricultural building roughly 5m to the eaves – so, fairly large and the sort of thing wholly acceptable under the GPDO as mentioned above.

Mr and Mrs Millington then started to invite members of the public to come along and visit so that they might inspect the wine making process, and perhaps buy wine. They also gave visitors the opportunity to sample the wine and have a light snack – they could also take a tour of the vineyard. These are all the sorts of activities which we might consider part and parcel of contemporary English vineyards.

The problem was that as the vineyard increased in popularity, so did its alleged effects on neighbours and traffic safety.

The Local Authority (being typically anti-Bacchanalian) served an enforcement notice on the basis that the Millingtons had materially changed the use of the land upon which the building sat from agriculture, to mixed use commercial / industrial.

As part of the Enforcement Notice, The Millingtons were required to cease selling wine, cease selling light refreshments and cease permitting visits.

The rotten swine!

Indeed. The thing is, agriculture is expressly stated as not constituting development as discussed above – so, how could the Local Authority issue an Enforcement Notice for unauthorised development, where there hadn’t been any?

In agricultural terms, since agriculture is not development, an arable farmer can change his farm to a dairy unit if he likes and despite that fact that this might result in all sorts of detriment to the environment, roads and local environment it cannot be stopped by an enforcement notice as no development has taken place…

But I see that Wroxeter Roman Vineyard is still going strong (with 173 ‘Excellent’ reviews on Trip Advisor!), so what happened?

Well, Mr Millington made an Appeal to the Secretary of State.

It was concluded in the Appeal by the Inspector that;

“It seems to me that unlike vine cultivation, wine making involves a process whereby the grape, or the juice extracted there from, is converted into wine. It may be that much of this is achieved by a natural process, fermentation. Nevertheless, even if the addition of items such as sulphur and sugar is discounted, my view is that the manner in which the harvested product is altered, together with the subsequent bottling of the produce, falls within the definition of “industrial process.”

“Likewise, because this intermediate process is involved, I do not consider that the sale of wine, even that produced from grapes grown on the holding, can be regarded as ancillary to the agricultural use of the land.”

The Inspector went on to say that:

“Despite the relatively small scale of some of the equipment used at the premises I do not consider wine making is ancillary to the agricultural use of the appeals site. As I see it, the process is neither subsidiary or subservient to the growing of grapes here. On the contrary, it appears to me that the making of wine is the very purpose for which the grapes, which are a significant component of the agricultural enterprise on the holding, are grown. If anything, therefore, it could be said that the agricultural element, or the grape growing at least, is ancillary to the wine production. In the light of this, it follows on that I do not consider that the sale of bottled wine is ancillary to agricultural use either.”

The Secretary of State agreed:

“It is agreed with the Inspector for the reasons he gives, that the manner in which the harvested product is altered, together with the subsequent bottling of the produce, falls within the definition of an industrial process and, as such, is not considered to be an agricultural activity as claimed. As to whether the wine production is ancillary to the agricultural use of land, it is also agreed with the Inspector, for the reasons he gives his report, that whilst the growing of items such as grapes and lavender constitutes agriculture for the purposes of the Act, the wine making process is neither subsidiary nor subservient to the growing of grapes. It follows that the sale of bottled wine is also considered not to be ancillary to the agricultural use.”

(For my own part, and stepping to one side for a second to refill my glass, this illustrates the perennial problem in planning of people who may have never worked in farming, talking about farming. ‘Farming’ involves so many processes that make sellable commodities from raw materials. Look at any element on the farm in isolation and you can probably call it a commercial or industrial operation. Everything in agriculture needs to be considered in the context of the wider operation).
Anyway, where were we? Ah, yes. Not content with this outcome, Mr Millington took the case to the Court of Appeal, where Lord Justice Schiemann helpfully distilled the problem and worked it out for us…

Firstly he drilled down to the two fundamental problems:

The Planning Problem

The underlying problem turned out that the LPA had no real objection to the growing or making of the wine on the Millington’s land, they objected to the effect on residential neighbours and on traffic safety. The substantive question therefore was, were the LPA able to stop the activities at Wroxeter from happening?

The Legal Problem

Schiemann then considered whether the SoS was right in his assertion that where land is used for the creation of a new product from produce grown on that land, the land is therefore no longer used for the purposes of agriculture and thus exempt from planning control.

Schiemann considered the case in Williams v Minister of Housing and Local Government (1967) where it was held that use for agriculture necessarily includes the selling of products grown on the land, but that the selling of products grown elsewhere was not included in that definition. He also considered Farleyer Estates v Secretary of State for Scotland (1992) which reference the alleged unauthorised use of land as a timber stacking area for forestry operations some 1500m away. In that instance it was held that “There would be little point in cultivating or managing forests unless the fruits of the operation in the sense of the felled timber were to be taken away from the plantation for commercial purposes.”

On the other hand, in Gill v Secretary of State for the Environment (1985), it was held that, while the keeping and rearing of 1,800 foxes in various structures for their eventual slaughter was agricultural, there eventual slaughter was not agricultural. The slaughter of the odd animal on the farm can be considered ancillary or de minimis to normal farming, but the slaughter of substantial numbers of beasts throughout the year was held not to be within the definition of agriculture.

Similarly, Salvatore Cumbo v SoS for the Environment (1992) discussed whether a cheese-making enterprise was an agricultural use. Sir Frank Layfield QC held that “Ancillary activities [were] secondary uses that were undertaken in support of primary farming.” Cheese making was mixed-farming and manufacture.

In a ratings case, Perth & Kinross Assessor v Scottish Milk Marketing Board (1963), buildings on a farm which were used for bull housing were held to be agricultural. The next door shed which handled their semen was held not to be agricultural, with Lord Sorn stating that “I think the rate payers use these buildings, not in their capacity as farmers, but in their capacity as handlers and purveyors of semen and for that branch of their business….” Lord Sorn further considered that; “If a farmer set up a butcher shop on his farm to sell his fat stock as meat no one would suggest that it should be derated, for the shop would be used for an independent purpose distinct from the farming operations.”

In Assessor for Midlothian v Buccleuch Estates Ltd (1962), Lord Patrick considered that “I would agree that agriculture and pasturage do not cease when the crops are grown or beef raised, but may properly include operations reasonably necessary to make the product marketable or disposable to profit.”

In W&JB Eastwood v Herrod (Valuation Officer (1971), Lord Reid quantified Lord Patrick’s statement by saying: “One must have regard to ordinary and reasonable practice. But there comes a stage when further operations cannot reasonably be said to be consequential on the agricultural operations of producing the crop.”

“…The vineyard comes within the definition of use for agricultural purposes because it consists of fruit growing. The further processing of fruit is not the growing and cropping fruits. I do not think that wine-making can, therefore, be said to be “for the purposes of agriculture”… nor is it merely incidental to such purposes… Disposing of a crop by sale may well be said to be ancillary to the producing and the harvesting of the crop. Creating a new product for sale in a different form is not ancillary to the operation of growing fruit.”

Sensing that none of this was getting him anywhere, Schiemann also interestingly considered an American case, from The Appeals Court of Massachusetts…

“We think it reasonable to regard the slaughter of animals as a normal and customary part of preparing them for market. It then follows from the acceptably broad definitions of the word “agriculture” that a slaughter house used for the butchery of animals raised on the premises is primarily agricultural in purpose. …. The fact that an activity such as slaughtering, can become an industrial or business use when removed from an agricultural setting does not mean that activity cannot be primarily agricultural in purpose when it has a reasonable or necessary relation to agricultural activity being conducted on the locus.”

I’m going to need another glass… I’ve lost track – this is like being a piece vulcanised rubber which is being thwocked backward and forward between two people wielding pieces of stretched cats-gut.

Bare with, this’ll be over soon…

Schiemann recognised the QC appearing for the Local Authority’s position that there was a crucial distinction between an activity on the farm which led to the creation of a new product, and one which merely amounted to handling, packaging and selling the original product, and that it would be going too far to submit that any processing of an original product amounted to the creation of a new product. However, he also accepted that when grapes were crushed so as to produce juice, a new product was manifestly created and that the use of land for the creation of a new product was not agriculture.

Thankfully Schiemann recognised that that to make the distinction between development and non-development turn on whether a new product is being created is ‘pregnant with difficulty.’ He posed the question; “Is a new product being created when grapes are put out to dry in order to become raisins; when the honey in honeycomb is separated from the wax; when the chaff is separated from the corn; when silage is being made?”

Schiemann concluded that “The proper approach to the root question in this case is … to consider whether what the Millingtons were doing can, having regard to ordinary and reasonable practice, be regarded as ordinarily incidental to the growing of grapes for wine, included in the general term agriculture, ancillary to normal farming activities, reasonably necessary to make the product marketable or disposable to profit, or whether it has come to the stage where the operations cannot reasonably be said to be consequential on the agricultural operations of producing the crop.”

Schiemann concluded that this question faithfully echoed the intention of Parliament in excluding agricultural uses from normal development control. “My own instinctive view on the arguments which we have heard is that the making of wine or cider or apple juice on the scale which we are concerned is a perfectly normal activity for a farmer engaged in growing wine grapes or apples.”

In conclusion, the proper approach to this question is therefore whether what a farmer is doing can, having regard to ordinary and reasonable practice;

Be regarded as ordinarily incidental to the growing of grapes
Be included in the general term agriculture
Be regarded as ancillary to normal farming activities
Be regarded as reasonably necessary to make the product marketable or disposable for profit or
Be said to have come to the stage where operations cannot reasonably be consequential on the agricultural operations of producing the crop.

So it’s really question of scale?

It seems so yes – what is and what isn’t reasonably consequential and incidental to the main job of the farm.

So I can do what I like…? Great!

Not so fast Jilly Goolden! You’ll still the LPA’s blessing to put the buildings up don’t forget. The Late Mr Millington has helped us enormously, but as with everything in planning, every case must be treated on its own merits. Tours, tastings, wine making and sales from the cellar door may be considered agricultural, but only insofar as long as they are reasonably incidental to the growing of grapes.
Investment capital (planting materials and labour) required for the setting up of a new vineyard (not including purchasing the land) is estimated as £21,000 to £30,000 per hectare. If you’re planning on doing anything at scale, it always pays to have the Local Authority on side.

I think I need to lie down…