Agricultural land — Agriculture — Wine produced from grapes grown on land — Whether winemaking an activity for purposes of agriculture — Section 55(2)(e) of the Town and Country Planning Act 1990
In 1991 the appellant
planted a vineyard on his farm. In 1993 he applied for a certificate of lawful
use in respect of an incidental activity, namely the sale of wine produced on
the farm. That application was refused by the second respondent council,
although, on appeal, the Secretary of State quashed the council’s decision and
granted a certificate that excluded the sale of wine. The council served on the
owner an enforcement notice alleging a breach of planning control in respect of
a change of use of land from agricultural holding to use of land, inter alia,
for recreational purposes, including the sale of wine. Following an appeal by
the owner to the Secretary of State against a decision by the council to refuse
planning permission for consent, inter alia, to permit the sale of wine
and the reception of fee-paying visitors, the Secretary of State granted
planning permission only for the making and storage of wine produced from
grapes grown on the holding. The Secretary of State also upheld the enforcement
notice directed against selling wine and refreshments and against permitting
fee-paying visitors. The owner’s appeal against the enforcement notice and his
application to quash the Secretary of State’s decision relating to the
certificate of lawful use were dismissed by the High Court. The owner appealed
the part of this decision relating to the enforcement notice and the decision
to refuse to quash the certificate of lawful use. The Secretary of State
appealed the court’s decision to remit the planning permissions appeal,
although not the order itself. The principal issue on appeal was whether the
use of land for the processing of a crop (grapes), so as to produce an
identifiably different product (wine) after it has been removed from the soil,
is a use of the land for the purposes of agriculture.
enforcement notice were allowed; the Secretary of State’s decision relating to
the certificate was quashed and the enforcement notice was remitted to him. The
appeal by the Secretary of State was dismissed.
The proper approach
to the principal issue was to consider whether what the owner was doing was,
having regard to ordinary and reasonable practice, to be regarded as: (i)
ordinarily incidental to the growing of grapes for wine; (ii)
the general term, agriculture; (iii) ancillary to normal farming activities;
(iv) reasonably necessary to make the product marketable or disposable to
profit; or (v) whether it has come to the stage where the operations cannot
reasonably be said to be consequential on
decision is for the Secretary of State, an instinctive view is that the making
of wine is a perfectly normal activity for a farmer engaged in growing wine
grapes: see p136C-D.
Cases referred to in
the judgment.
Farleyer Estate v Secretary of State for Scotland [1992] 2 PLR 123
Gill v Secretary of State for the Environment [1985] JPL 710
Lake v Lake [1955] P 336; [1955] 3 WLR 145; [1955] 2 All ER 538,
CA
Midlothian Assessor v Buccleuch Estates Ltd [1962] RA 257; 1962 SC 453; [1962]
RVR 799
Modern
Continental Construction Co v Buildings
Inspector of Natick 674 NE 2d 247
Perth &
Kinross Assessor v Scottish Milk Marketing Board
[1963] RA 24; 1963 SC 95
Salvatore Cumbo v Secretary of State for the Environment [1992] JPL 366
W&JB
Eastwood Ltd v Herrod (VO) [1971] AC 160, HL
Wealden District
Council v Secretary of State for the Environment
(1988) 56 P&CR 286; [1988] 1 EGLR 187; [1988] 08 EG 112; [1988] 1 PLR
87; [1988] JPL 268, CA
Williams v Minister of Housing and Local Government (1967) 65 LGR 495;
18 P&CR 514; [1967] EGD 525; 203 EG 688, DC
Wood v Secretary of State for the Environment [1973] 1 WLR 707;
[1973] 2 All ER 404; (1973) 25 P&CR 303
Appeals against the
decision of Judge Rich QC
This was the hearing
of three appeals against the decision of Judge Rich
of the High Court. The owner, David Bryan Millington, appealed against the
decisions of Judge Rich QC [1999] 1 PLR 36 to refuse to quash a certificate of
lawful use issued by the Secretary of State, and his decision to dismiss the
owner’s appeal against an enforcement notice issued by the second respondents,
Shrewsbury and Atcham Borough Council. The Secretary of State appealed against
the reasons of Judge Rich
appeal against the decision of the second respondents to grant planning
permission.
and Gregory Jones (instructed by Manby & Steward, of Telford) appeared for
the owner.
(instructed by the Treasury Solicitor) represented the Secretary of State for
the Environment, Transport and the Regions.
respondents, Shrewsbury and Atcham Borough Council, did not appear and were not
represented.
judgments were delivered.
SCHIEMANN LJ: This appeal raises an important question under the planning
legislation for farmers, namely whether the Secretary of State for the
Environment is right in his contention that the use of land for the processing
of a crop so as to produce an identifiably different product after it has been
removed from the soil cannot, as a matter of law, be the use of land for the
purposes of agriculture. In my judgment, he is not. The question is important,
because the use of land for the purposes of agriculture does not require
planning permission.
The question comes
before us in these circumstances. Nearly 2,000 years ago the ancient Romans
founded the city of Uriconium near what is now Shrewsbury in Shropshire. The
14th Legion was there, and, naturally, they had vineyards and made wine. But
the centuries passed. The Mercians came and burned and sacked the city. The
vineyards were destroyed. All that remains now of the old city are various
traces that students and archaeologists can study.
Mr Millington is a
farmer. He owns a site of some 9ha, which embraces part of the old city. On
about one-third of that site he started planting vines in 1991 and started
making wine on the site from his own grapes in 1996. On part of that third of the
site stands a modern building of agricultural appearance about 5m high to the
eaves. Mr Millington called his vineyard the Wroxeter Roman Vineyard. He and
his wife started to invite members of the public to come along and visit the
site so that they might inspect the wine‑making process and, perhaps, buy
the wine. To make all this more attractive the Millingtons gave them the
opportunity to sample the wine and to have a light snack. They could then, if
so inclined, go on to visit his vineyard and the Roman remains. The public came
in some numbers in their cars and in coaches. This displeased some of the
neighbours and brought with it traffic problems. It was suggested to the local
planning authority (the LPA) that they should use their powers under the planning
Acts to stop him from, in effect, turning his site into a centre of attraction.
The LPA were
sympathetic to this approach and served him with an enforcement notice relating
to that part of the site on which the vines were planted and on which stood a
building in which the wine was stored, and in or near which stood the equipment
necessary for turning grapes into wine and also tables for serving members of
the public. The power to serve such a notice is contained in section 172(1) of
the Town and Country Planning Act 1990 (the Act), which provides that:
(1) The local
planning authority may issue a notice… where it appears to them–
(a) that there has
been a breach of planning control; and
(b) that it is
expedient to issue the notice…
The Act provides in
section 171A that:
(a) carrying out
development without the required planning permission… constitutes a breach of
planning control.
Development is
defined in section 55(1) of the Act as:
the carrying out of
building, engineering, mining or other operations in, on, over or under land,
or the making of any material change in the use of buildings or other land.
However, subsection
(2) of that section provides that:
The following
operations or uses of land shall not be taken for the purposes of this Act to
involve development of the land —
(e) the use of any
land for the purposes of agriculture… and the use for any
It will readily be
seen that in so far as what Mr Millington was doing fell within the expression:
the use of any land
for the purposes of agriculture… and the use for any of those purposes of any
building occupied together with land so used.
then it was not open
to the LPA to treat it as development, however annoying for the neighbours the
activity might prove. Thus, an arable farmer can change to become a dairy
farmer, notwithstanding that this change might produce all sorts of effects on
the environment and on the neighbouring roads. He cannot be stopped by
enforcement notice. This is the consequence of the decision taken at the time
of the initial planning legislation many decades ago, in effect to exempt
agricultural changes of use from development control.
The enforcement
notice alleged the following breach of planning control:
change of use of
Wroxeter Roman vineyard from agricultural holding to use of the land for
agriculture and
— the words
‘agriculture and’ were added by the Secretary of State on appeal —
(a) sales of wine
(b) sales of light refreshments (c) visits by fee paying members of the public
and organised groups including coach parties.
The reason for
issuing the notice was given as:
the… use… of the
land for the sale of light refreshments and wine and the use of the land for
visits by fee paying members of the public and organised groups, including
coach parties, leads to noise and general disturbance detrimental to the
amenities of the neighbouring properties.
Mr Millington was
required by the notice to:
(i) Cease selling
wine
(ii) Cease selling
light refreshments
(iii) Cease
permitting visits by fee paying members of the public and organised groups
including coach parties.
Mr Millington
appealed against the enforcement notice to the Secretary of State. An inquiry
was held. That inquiry dealt not only with the enforcement notice but also with
an application for planning permission that had been made by Mr Millington and
his wife, and, third, with an application by him for a certificate of lawful existing
use or development (CLEUD). The inspector made a report. The Secretary of State
dismissed the appeal in relation to the enforcement notice. However, he granted
planning permission for the use of an existing agricultural building to provide
facilities for the making of wine from grapes grown on the agricultural
holding. The Millingtons were expressly permitted by the Secretary of State to
make and store wine, but the same decision letter
they were permitted to make.
As to the CLEUD, the
Secretary of State allowed the appeal in part in as much as he certified that
‘agricultural use and a use incidental to the agricultural use including the
sale of eggs and lavender (the agricultural use includes viticulture, grazing,
the breeding of sheep, and lavender cultivation)’ did not involve development.
The Millingtons
appealed all three decisions to the High Court and Judge Rich QC (sitting as a
High Court judge) heard those appeals. His decision is reported at [1999] 1 PLR
36.
1. The enforcement
notice. Mr Richard Drabble QC, who appeared for the Secretary of State,
accepted before the judge that the enforcement notice went too far in
prohibiting all sales of eggs and lavender, and therefore accepted that the
decision fell to be remitted to the Secretary of State with his opinion that it
should be amended so as to permit visits by members of the public and organised
coach parties for the purpose of buying eggs and lavender. This the judge did.
However, the judge stated in his judgment that there was nothing legally wrong
in the prohibition on the selling of wine and light refreshments. Mr Charles
George QC, who appears for the Millingtons, appeals to this court in relation
to that statement by the judge.
2. The CLEUD.
The judge refused to quash the decision in relation to the certificate. Mr
Millington appeals. It is common ground that the decision on that appeal
follows the decision on the enforcement notice appeal.
3. The planning permission.
The judge quashed the grant of planning permission so as to enable the
Secretary of State to reconsider the imposition of conditions. The Secretary of
State appeals to this court against the judge’s order, albeit that he does not
ask this court to make any different order. This comes about because he takes
issue with the reasoning that apparently led the judge to make that order.
There was some discussion as to whether this court had jurisdiction to consider
an appeal when the appellant was not seeking to disturb the order made by the
judge below. However, as it seems to me, the rule in Lake v Lake
[1955] P 336, that a successful party cannot appeal an order in his
favour that the court has no power to alter, has no application to the present
situation. The Secretary of State was an unsuccessful party so far as
the planning appeal was concerned. The Secretary of State has a right to appeal
against the decision to quash his refusal of the planning application. The fact
that he is content that the order of the judge remain undisturbed does not, as
a matter of jurisdiction, prevent this court hearing his appeal. But the court
is, of course, entitled to refuse to allow time for argument in favour of what
is, in effect, a consent order that the appeal be dismissed.
Planning problem
The underlying
planning problem is a simple one. The LPA have no objection to the growing or
making of the wine on the Millingtons’ land as such. What they object to is the
effect on neighbours and on traffic safety of attracting large numbers of the
public by vehicle to that land. The
Access to the site is
from a road known as Brookside, over which Mr
way for vehicles. That road is of substandard width. The inspector concluded in
para 24.9 of his report that ‘the limitations of Brookside in its present form
are such that the continuation of the disputed use would have adverse
consequences for highway safety’. He thought that widening it was highly
desirable. However, he recognised that this would involve the incorporation of
additional land belonging to the Raby estate and that ‘the prospects of this
being achieved seem remote’.
Brookside debouches
on to Eyton Road. There are proposals for improving that junction, which the
inspector considered would mean that adequate sightlines would be achieved.
However, absent more improvements to the width of Brookside than were envisaged
in the junction improvement proposals, the inspector considered that coach
traffic in and out of Brookside in particular would continue to pose a traffic
hazard that was unacceptable.
So much for road
safety. As to environmental damage from traffic to and from the Roman Vineyard,
he considered that there would be annoyance at weekends, Bank Holidays and
evenings. He did not consider that this alone would justify refusal of
permission, but did consider it a further disadvantage, which added to his
concerns about highway safety.
Legal problems
While a number of
legal problems were the subject of submission before us, the important
question, on which there is no clear authority, is whether the Secretary of
State is right in his contention that where land is used for the creation of a
new product from produce grown on that land the land is therefore no longer
being used for the purposes of agriculture and is thus exempt from planning
control. If that be not the correct legal test to establish whether land is
being used for the purposes of agriculture, what is the correct test? Before
attempting to grapple with this problem I propose to set out the approach of
the inspector, the Secretary of State and the judge.
Inspector’s
decision
21.6 It seems to me
that unlike vine cultivation, wine making involves a process whereby the grape,
or the juice extracted therefrom, is converted into wine.
— The unchallenged
evidence by the appellant at the inquiry, as recorded by the inspector, was that
the process of wine-making involved collecting grapes in buckets, taking them
to the winery where they are tipped into a machine that separated the grapes
from the bunches, transferring the grapes to a press, and putting the juice
into a settling tank where fermentation started almost immediately. Sulphur was
added to arrest fermentation. It might be necessary to add sugar and yeast.
It may be that much
of this is achieved by a natural process, fermentation.
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’ as set out in both the… Use Classes Order
1987 and the… General Permitted Development Order 1995. 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…
21.8 …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.
Secretary of
State’s decision
Para 7 Having due
regard to the provisions of Section 336 of the 1990 Act, the Town and Country
Planning (Use Classes) Order 19871 and the Town and Country Planning
(General Permitted Development) Order 19952 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, 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 in paragraphs 21.7 to 21.8 of 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.
1SI 1987/764
2SI 1995/418
Enforcement
notice appeal
This is the appeal of
most consequence to the appellant. If he is immune from enforcement action he
does not need either a CLEUD or a planning permission, which may well be hedged
around with conditions.
It is common ground
that the judge was right to quash the enforcement notice. The Secretary of
State is, however, entitled under section 289(5)(a) of the Act and Ord 94 r
13(7) of the Rules of the Supreme Court to the opinion of the court. Before
giving my opinion on the substantive question in this appeal, which I
identified at the beginning of this judgment, I should indicate a number of
reasons why the Secretary of State’s decision in relation to that notice was
legally erroneous, whatever may be the answer to the substantive question.
1. The reason given
by the judge: the notice should not inhibit the
Secretary of State accepts that the growing of lavender and the feeding of hens
for the purposes of laying eggs are agricultural activities; (ii) he accepts
that produce from the farm can be sold to the public on that farm; and (iii)
because he accepts that he has no powers to restrain the way in which the
public is invited to visit the farm for the purchase of lavender or eggs.
2. Since planning
permission was granted by the Secretary of State for the making and storage of
wine, it is inconsistent and cannot be expedient to restrain completely the
sale of that wine. This is now conceded by Mr
argument as to what techniques of partial restraint are legally open to the
Secretary of State in order to secure that the sales do not give rise to
environmentally unacceptable consequences, and we have not been asked to opine
on the matter in abstract terms.
3. The reasoning
process of the Secretary of State is at fault, in as much as he appears to
subscribe to the view that if an activity falls within one use class of the Use
Classes Order, then it cannot be part of an agricultural use of land as defined
in the Act. It is impermissible to interpret a definition section of an Act in
the light of a definition contained in a statutory instrument made under that
Act. In any event, the mere fact that an activity falls within one definition
does not have as its logical consequence the fact that it cannot fall within
another definition.
In the circumstances,
I do not find it necessary to consider the correctness of a reasons challenge
made by Mr George in relation to that element of the enforcement notice that
dealt with refreshments or his argument to the effect that the inspector having
apparently found that it was only the coaches that caused problems, there was
no clear reason for the extent of the prohibition on visits. These are matters
that can be better dealt with by the Secretary of State when the matter has
been remitted to him.
Use Classes Order
point
Before dealing with
the substantive question, I mention one other submission by Mr George. He
submitted that the Secretary of State was not entitled to find that the use of
the land before the establishment of the vineyard was not a recreational use
within Class D2 of the Use Classes Order. The relevant passages in the
inspector’s report are as follows.
21.11 The evidence
suggests to me that prior to the establishment of the vineyard, people visited
the land either to buy produce or to view the ancient earthworks, the Fosse.
The former appears to have been fairly low-key. In my view it would either have
been ancillary to the agricultural use of the land, or possibly de minimis.
21.12 To my mind
visits to view the Fosse in the pre-vineyard days were probably unrelated to
the agricultural use of the land. It is not inconceivable that such visits may
have had a recreational component, but having heard that a good number of the
visitors were archaeologists and students, the main purpose of the visits was
probably out of academic interest. Other visits appear to have been made by
friends and acquaintances of the appellant’s family, but it seems to me that
the likely purpose for them was probably
of part of ancient monument on the land and the particular interest shown
therein by visitors as a recreational use falling within Class D2 of the
present Use Classes Order.
The Secretary of
State said as to this in para 7:
With regard to
public visits to the site it is agreed with the inspector that it is neither
the actual act of visiting nor the means of transport by which visits are made
that constitute development but the key factor is the activity that gives rise
to visits. It is agreed with him for the reasons he gives, that, as a matter of
fact and degree, visits for organised tours of the vineyard, including the
provision of light refreshments and the opportunity to sample and/or purchase
wine, are mainly recreational in nature and the Secretary of State concludes
that this would fall under Class D2 of the Use Classes Order. It is further
agreed with the inspector that this activity is of a different character to
visits solely to visit the Fosse and/or those made in association with trips to
purchase wine from the site and represents a material change of use from the
agricultural use of land.
The relevant parts of
the Use Classes Order are:
3.–(1) Subject to
the provisions of this Order, where a building or other land is used for a
purpose of any class specified in the Schedule, the use of that building or
that other land for any other purpose of the same class shall not be taken to
involve development of the land.
Class D1.
Non-residential institutions.
Any use not including
a residential use —
…
(c) for the
provision of education,
(d) for the display
of works of art…
(e) as a museum,
(f) as a public
library or public reading room,
(g) as a public hall
or exhibition hall,…
Class D2. Assembly
and leisure.
Use as —
(a) a cinema,
(b) a concert hall,
(c) a bingo hall or
casino,
(d) a dance hall,
(e) a swimming bath,
skating rink, gymnasium or area for other indoor or outdoor sports or
recreations, not involving motorised vehicles or firearms.
Mr George, relying on
Australian and American decisions, submitted that ‘Recreations’ in that context
must be given a sufficiently wide context to embrace any pleasant occupation,
including the obtaining of historical, geographical or topographical
information by members of the public, and that, for instance, a public library
can be a source of recreation. If that submission be right, the list under D2
would be unnecessary. It would suffice to refer to ‘use of any area for indoor
or outdoor recreations’. I consider that the Secretary of State was perfectly
justified in finding that, in the context of the use of the word in the Use
Classes Order, what had gone on in the days before the vineyard was established
did not amount to use
concluding that the post-vineyard visits fall within the concept of recreation
in the Use Classes Order it is not necessary for us to determine. I record my
doubts.
Substantive
question
It will be recalled
that section 55(2) of Act provides that:
The following
operations or uses of land shall not be taken for the purposes of this Act to
involve development of land —
(e) the use of any
land for the purposes of agriculture… and the use for any of those purposes of
any building occupied together with land so used.
Agriculture is
defined in section 336 of the Act, which reads:
‘agriculture’
includes 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 farming of land for other agriculture purposes, and ‘agricultural’
shall be construed accordingly…
Planning cases
The case law under
the Act and its predecessors indicates, and Mr
of land for a number of activities that are not mentioned in the definition can
be part of the use of the land for agriculture. The following citations, in
which I have used the section numbers of the current Act, illustrate the point.
I have italicised some phrases in the cited judgments to which I draw attention
later on in my own judgment.
In Williams v Minister
of Housing and Local Government (1967) 18 P&CR 514, DC an enforcement
notice was served in relation to the use of a timber building situated on
nursery land as a retail shop. It had been used for selling produce produced on
the land, but the owner sought also to sell produce grown on other people’s
land. It was against this extension that it was sought to enforce. The
minister’s view, 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, was held to be correct. This case was followed in Wood v Secretary
of State for the Environment [1973] 1 WLR 707, DC and many other cases.
Wealden District
Council v Secretary of State for the Environment
[1988] JPL 2681 was a case where the council took enforcement action
to secure the removal of a caravan placed upon agriculture land for the purpose
of providing a weatherproof place for the storage and mixing of cattle food and
to provide shelter for Mr Day. The inspector quashed the enforcement notice on
the grounds that as the caravan was used for animal feed
stationing the caravan was not a material change. Ralph Gibson LJ (at p272:
had sympathy with the
contention of the Wealden District Council that it was both surprising and a
reasonable ground of concern if the occupier of agriculture land was free under
planning law to station at any point upon his land one or more caravans,
intended to serve the same purposes as farm buildings, regardless of the harm
which the planning authority reasonably considered would be caused by the
presence and appearance of the caravan in the place where they were stationed.
Nevertheless he agreed with Kennedy J that such reflections upon apparent gaps
in the extent of the planning control could not affect the proper construction
of section… [22(2)(e)] because, the meaning of the words there used in the context
of the Act as a whole was clear…
The effect of
section… [22(2)(e)] operated where there was ‘use of any land for the purposes
of agriculture.’ The word ‘agriculture’ was defined by section… [336] as
including a list of agriculture activities among which were for example, fruit
growing and the breeding and keeping of livestock. No reliance was placed by Mr
Burrell [counsel for the council] upon any argument to the effect that section…
[22(2)(e)] could only apply to use of land for the purposes of one of the
listed agricultural activities and not to use for the purposes of activities
ancillary or incidental to those listed agriculture activities. He was right
not to rely upon any such arguments. The definition was an inclusionary
definition. Construed in its context there was ‘use of land for the purposes of
agriculture’ where the land was used for activities in direct furtherance of
agricultural activity…
the stationing of
the caravan on the land was without doubt for the purposes of agriculture… A
typical caravan… was said Mr Burrell, designed for human habitation as a
residence, and therefore the stationing of it on land could not be ordinarily
incidental to a primary agricultural use.
It was assumed in
that submission that the degree of connection, between the land use in question
and the primary agricultural use, was accurately expressed by the phrase
‘ordinarily incidental’ if the land use was held to be ‘for the purposes of
agriculture’ within section… [22(2)(e)]… [Ralph Gibson LJ] would assume that this
was so but he did not find it necessary to decide in this case whether the
connection expressed by the meaning contained in that phrase would in every
case be necessary for this purpose… There was nothing in the nature of the
typical residential caravan… which rendered the use of such a caravan incapable
of being properly regarded as ordinarily incidental to the agricultural use of
land, that was to say as an ordinary piece of equipment for stationing upon
land and for use when so stationed for the purpose of agriculture.
1[1988] 1 PLR 87
Farleyer Estate v Secretary of State for Scotland [1992] 2 PLR 123 was a case
before the Inner House. The court was concerned with an enforcement notice that
alleged unauthorised use of land as a timber storage and transfer area. The
land so used was 1,500 metres from forestry plantations. The relevant section
of the Town and Country Planning (Scotland) Act 1972 was in the same terms as
its English equivalent. The appellant argued that it was concerned with ‘the
use of land for the purposes of forestry’, and that development was therefore
not involved. This was rejected by the reporter on the grounds that the land
against which the enforcement notice
regard it as ‘an operation or use ancillary to forestry and I consider it
rather to be a use of industrial character’. The court said as follows at
p126G:
the cultivating of
forests and the management of growing timber would include the felling of trees
and the extraction of the timber from plantations. 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. Accordingly, we are satisfied that the extraction of
timber is included in the general term ‘forestry’…
In the light of the
findings which the reporter has made in the present case, it is plain that, if
timber were to be extracted from these plantations, there was no alternative to
the movement of timber on the road through the village and that the use of the
subjects described in the enforcement notice for stockpiling timber extracted
from the forest and transferring it on to the lorries was functionally
essential to the running of these plantations commercially. That being so, we
are satisfied that at the material time the subjects referred to in the
enforcement notice were being used for the purposes of forestry… In our opinion
it does not matter that the subjects referred to in the enforcement notice were
situated some 1,500m from the plantations; what is important is not the fact
that the subjects were physically divorced from the plantation but the use to
which the subjects were being put.
Two first instance
decisions were drawn to our attention, each by a judge very well versed in this
area of the law. In Gill v Secretary of State for the Environment
[1985] JPL 710 Glidewell J had to consider the validity of a condition on a
planning permission that required that ‘no slaughtering of any animal shall
take place on the land…’. At the time of the inspector’s decision some 1,800
foxes were being kept in various structures on the land. The Secretary of State
granted permission for those buildings and enclosures that were reasonably
required for the accommodation of the animals being kept on land subject to,
amongst others, the above condition. Glidewell J said at p715 after citing the
definition of agriculture:
The definition itself
did not say anything about slaughtering… [Counsel for the Secretary of State]
said that the words ‘the breeding and keeping of livestock’ meant precisely
what they said; if you slaughter an animal, you are not breeding it or keeping
it, indeed you are doing the exact opposite. On the other hand,… [counsel for
the appellant] said that if you breed and keep an animal such as a fox in order
to produce its skin or fur, that necessarily in the end involves its slaughter
in order to remove its skin. That of course logically was correct. Therefore,
he said either the definition itself, by inference, includes the slaughter of
the animal or, if not, slaughter was ancillary and thus, albeit the primary use
of the land for agriculture did not include for (sic) slaughter,
slaughter was an ancillary use that could be carried on without any express
planning permission…
[Glidewell J]
thought that the slaughtering wholesale, that was to say, in any large numbers,
of animals kept on the land for the purposes of producing skins or fur was not
within the definition of agriculture… It might be that the occasional killing
of animals kept on a farm was either de minimis or could reasonably be
considered to be ancillary to normal farming activities. He was certainly not
to be understood as saying that a farmer who had pigs, sheep,
not behaving within the normal use of his land and was doing something which
could be subject to an enforcement notice. But, that was not what was in issue
here. What was in issue here and what the Secretary of State was clearly
dealing with was the possibility of very large numbers of these creatures being
bred, reared and brought up for months, years or whatever it was until they
reached full maturity and then slaughtered, which could mean substantial
numbers being slaughtered during the course of any one year. That would not be
within the definition of ‘agriculture’ in section…[360].
In Salvatore Cumbo
v Secretary of State for the Environment [1992] JPL 366 an enforcement
notice was before the court. One of the issues in the case was whether the
establishment of a cheese-making business on a farm was an agricultural use.
The person seeking to establish it had a well-established food distribution
business. The inspector held that he was satisfied that an operation that
required most of the liquid milk production from the site would be outside the
realms of a wholly agricultural use, and would be in the nature of a mixed
farming and manufacturing use for which planning permission would be necessary.
Sir Frank Layfield QC, sitting as a deputy High Court judge cited the definition
of agriculture, and continued at p369:
That definition,
broad though it was, did not on the face of it, include processing and was
addressed to the growing of crops, the rearing and grazing of livestock and
activities in direct support of farming on the land. The expressions did not
point to the introduction of processing on any significant scale. Ancillary
activities he took to be secondary uses that were undertaken in support of
primary farming uses as described in that section of the Act.
He (the Deputy Judge)
did not, therefore, accept that the Inspector was wrong when he concluded… that
the institution of a cheese-making process would require planning permission.
He had held that that use would be in ‘the nature of mixed farming and
manufacture.’ It was plain that the evidence put before him afforded material
on which he could have reached that conclusion.
Rating cases
Similar problems have
been encountered in the field of rating law. In considering the cases it may be
important to bear in mind that the relevant definitions are somewhat different
from those in the Planning Act. They incorporate the phrase that the buildings
under consideration must be ‘used solely in connection with agricultural
operations’. I shall cite three cases — two from Scotland and one English case
from the House of Lords.
The earliest is Perth
& Kinross Assessor v Scottish Milk Marketing Board 1963 SC 95.
That was a case before the Scottish Lands Valuation Appeal Court. That court
was concerned with a cattle-breeding centre for the purposes of extracting
semen from bulls kept there. The centre comprised vast fields and buildings.
The buildings fell into two categories those into which the bulls went and
those concerned with processing the semen. The court held that the latter were
not ‘used as solely in connection with agricultural operations’. Lord Sorn said
at p103:
It seems to me that
these buildings cannot be treated as agricultural buildings within the meaning
of the definition. In the use which the Milk Board make of these buildings,
they have, I consider, passed from the sphere of their farming activity into
the sphere of their business which consists of handling and purveying semen. It
is for that branch of the Milk Board’s activities that these buildings are
being used, and, if that is what they are being used for, it puts an end to any
suggestion that they can be described as being solely used in connection with
agricultural operations at Newlands. Of course, there is a link between the use
that is made of these buildings and the farming operations at Newlands, because
the semen comes from the bulls which are kept there, but that is not enough.
Let me take an illustration. Suppose that a farmer who fattened livestock were
to set up a butcher’s shop in his farm, and were to supply it exclusively with
animals fattened on the farm. He could argue that the shop (in a sense) was
solely used in connection with agricultural operations on the farm, and yet no
one would suggest that the shop should be derated as a agricultural building.
The reason would be that the building was truly being used for an independent
purpose distinct from the farming operations… I think the Milk Board 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. The product of
the farm is semen, but, once the product has been obtained, it seems to me that
what is done to it in the laboratory, and the office work that takes place in
connection with it, has nothing to do with farming and is the first stage in
the other branch of the Milk Board’s business. If that is the correct answer to
the question, ‘What are these buildings used for?’ it excludes the notion that
the question could be answered by saying that the buildings are used solely in
connection with agricultural operations at Newlands.
The other members of
the court agreed.
The other Scottish
case is Midlothian Assessor v Buccleuch Estates Ltd [1962]
RVR 799. Under this heading are reported a clutch of rating cases decided by
the Lands Valuation Appeal Court in Scotland. The question that was common to
them all was whether the building with which each was concerned came within the
definition of agricultural buildings in section 7 of the Valuation and Rating
(Scotland) Act 1956. If so, they should not be entered in the roll.
Agricultural buildings is defined in the following terms:
‘Agricultural
buildings’ means buildings (other than dwelling-houses) occupied together with
agricultural lands and heritages, or being or forming part of a market garden,
and in either case used solely in connection with agricultural operations
thereon.
Analysis of these
cases is somewhat complicated by the fact that each judge delivered a judgment
and they are not unanimous. In the result, the majority held that where a
building is used also in connection with agricultural operation on lands other
than those being rated, it could not be said that the building was being used
‘solely in connection with agricultural operations thereon’. Section 7(2) of
the 1956 Act defined agricultural lands as meaning ‘any lands and heritages
used for agricultural or pastoral purposes only or as woodlands… but does not
include any buildings thereon other than agricultural buildings’.
Lord Patrick said at p800:
The benefit of
exclusion from the Valuation Roll is not conferred on all buildings (other than
dwelling-houses) which are associated with agriculture. It is conferred on them
only if they are associated with agricultural lands and heritages (1) by being
situated on them, (2) by being occupied together with them, (3) by being used
solely in connection with agricultural operations on them. Thus, there is
excluded from the category of agricultural lands and heritages buildings not situated
on agricultural lands and heritages.
He held in the Midlothian
case that the sawmill in question was not situated on woodlands, and was
thereby excluded from the definition of agricultural lands and heritages with
which subsection (2) opens. He took the same view in relation to a sawmill in
the Lanark case1. As I read his judgment, Lord Kilbrandon
agreed with him on this point. Lord Sorn dissented. None of this is of interest
in the present case. However, counsel for the appellants in the present case relied
on a dictum by Lord Patrick in the Midlothian case at p800:
I would agree that
agriculture and pasturage do not cease when the crops are grown or beasts
raised, but may properly include operations reasonably necessary to make the
product marketable or disposable to profit. Similarly forestry, use of lands as
woodlands, does not cease when the timber is grown, but may well include
operations necessary to render the timber marketable as timber or disposable to
profitable use as timber. The buildings where such operations are carried on,
if otherwise satisfying these requirements of the definition of agricultural
buildings, would be entitled to be excluded from the Roll. But the first of
these requirements is that the buildings shall be situated on the woodlands,
and the sawmill in the present case fails to pass that test.
In the Lanark
case the court was concerned with a sawmill that included a joiner’s shop. So
far as the joiner’s shop was concerned, Lord Patrick held that it was not used
‘solely in connection with agricultural operations on the woodlands’, and
therefore it must enter the roll. In that conclusion, both the other judges
agreed. That was a matter of fact of no present relevance. So far as the rest
of the mill was concerned, Lord Kilpatrick held that it was not situated on
woodlands, and therefore had to be entered on the roll. Lord Kilbrandon
disagreed with him, and held that the sawmill was situated on the agricultural
lands and heritages. He, however, held it was not used ‘solely in connection
with agricultural operations thereon’, since ‘it is used in connection with the
operations on every woodland on the estate’. With that conclusion Lord Patrick
agreed. As a decision, the case is of little help in the present case, in as
much as the decision turned not on whether the sawing was in connection with
agricultural operations but rather on whether the sawing was solely in
connection with agricultural operations on the relevant woodlands.
1Assessor for the County of Lanark v MacDonald
Lockhart, reported with
Midlothian
Assessor v Buccleuch Estates Ltd 1962 SC 453
W&JB Eastwood
Ltd v Herrod (VO) [1971] AC 160, HL was an
English
2(2) of the Rating and Valuation (Apportionment) Act 1928, which was as
follows:
‘Agricultural
Buildings’ means buildings (other than dwelling houses) occupied together with
agricultural land or being or forming part of a market garden, and in either
case used solely in connection with agricultural operations thereon
The House of Lords
was considering a series of buildings in which there was intensive rearing of
hundreds of thousands of broiler chickens and their killing, cleaning, freezing
and packing for the market. Lord Reid pointed out at p168B:
It does not matter
whether the uses which are made of the buildings are in themselves agricultural
operations. What does matter is whether those uses are solely ‘in connection
with’ agricultural operations on the agricultural land…
Ordinary usage of
the English language suggests that the buildings must be subsidiary or
ancillary to the agricultural operations…
He continued at
p169D:
The whole object of
producing a crop on the agricultural land is to market it in one form or
another, and I think that anything done in the farm buildings, including
storage and treatment, must be held to be done in connection with the
agricultural operations on the land.
But here again there
must be a limit. Everything is saleable at a price, so even storage for a time
or very simple treatment is not strictly necessary. 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. I agree with Lord Hunter when he said in Midlothian…
‘I would agree that
agricultural and pasturage do not cease when the crops are grown or beast
raised, but may properly include operations reasonably necessary to make the
product marketable or disposable to profit.’
But I also agree
with Lord Sorn when he said in Perth and Kinross Assessor v Scottish
Milk Marketing Board, 1963 SC 95 that if a farmer set up a butcher’s 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.
Lord Morris of Borth-y-Gest
said at p174B:
it is next necessary
to consider the uses to which the respective buildings are put so that it can
be decided whether such uses are in connection with the agricultural operations
on the land and are solely in connection with them. On the undisputed facts I
consider that the answer must be in the negative.
Lord Guest said at
p179C:
Lord Sorn… [in Perth
& Kinross Assessor]… instanced the case of the butcher’s shop used for
marketing the carcasses of animals bred or fed on the farm which he said,
rightly in my view, would be an independent business.
An American case
Our attention was
also drawn to Modern Continental Construction Co v Buildings
Inspector of Natick 674 NE 2d 247 (Mass App Ct 1997). The question in that
case was whether a proposed slaughterhouse conflicted with a zoning bye-law.
The relevant statute provided:
No zoning… bye-law
shall… prohibit… the use, expansion, or reconstruction of existing structures…
for the primary purpose of agriculture…
The Appeals Court of
Massachusetts stated at p248:
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.
Ministerial
decisions
Finally, our
attention was drawn to a number of ministerial planning decisions in which the
Secretary of State held that the sale of produce grown on a holding is
considered to be ancillary to the use of the land for agriculture, but the
adaptation for sale of that produce on the holding was not regarded as
ancillary to the use of the land for agriculture. Thus, the sale of dressed
poultry and meat was not regarded as being ancillary to the use of the land for
agriculture, but regarded as amounting to a separate use for retail sales.
appeal
The crux of the
judgment is contained in the following passage at p45D, which immediately
follows a citation from Lord Reid in the Eastwood case:
one must return to
the specific words of the definition in order to identify whether winemaking is
a use for the purposes of agriculture as being part of the process of taking
the crop. The definition is said to include the fruit growing… that would
indicate there is at least doubt whether, without the specific inclusion, all
fruit growing, which, as I understand, is for the most part is not dependant on
cultivation of the soil, is or would be agriculture.
Counsel for the
appellant used the word ‘viticulture’ to carry with it the concept that
cropping the grape would include its pressing and fermentation. But 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 of the fruit. I do not think that winemaking can,
therefore, be said to be ‘for the purposes of agriculture’ as defined in the
Town and Country Planning Act 1990, nor is it merely incidental or ancillary 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.
That approach by the
judge has a certain logical force. It turns on the fact that fruit-growing is
separately mentioned in the definition of agriculture. It has as its logical
consequence, however, that if the farmer uses machinery for turning carrots
into carrot juice this would not amount to development. Probably the same would
apply to turning tomatoes into tomato juice, although there is, I suppose, room
for argument that tomato-growing could be described as fruit-growing. I can
conceive of no planning or public purpose that would be served by the making of
such distinctions, and none was advanced to us. Indeed, Mr Drabble did not make
the distinction between fruit and vegetables the foundation stone of his argument.
Conclusions on
the enforcement notice
He put forward the
following foundation stone. He submitted that the crucial distinction was
between an activity on the farm that led to the creation of a new product and
one that merely amounted to handling, packaging and selling the original
product of the farm. He accepted that it would be going too far to submit that
any processing of the original product amounted to the creation of a new
product. However, he submitted that when the grapes were crushed so as to
produce juice a new product was manifestly created, and that the use of the
land for the creation of that new product could not be described as use of the
land for the purposes of agriculture. The transformation of the grape juice
into wine strengthened his argument but was not essential to it. He accepted
that it would not always be expedient to serve an enforcement notice in respect
of that activity, but rightly submitted that this was a separate question from
the question of whether the activity amounted to development.
To make the
distinction between development and non-development turn on whether a new
product is being created is pregnant with difficulty. Is a new product being
created when grapes are put out to dry in order to become raisins; when the
honey in the honeycomb is separated from the wax; when the chaff is separated
from the corn; when silage is being made?
Much of the argument
in front of us reminded me of the debates that vexed our forefathers on
transubstantiation and consubstantiation. Volumes of subtle thought have been
devoted to exploring such matters. Mr Drabble was unable to offer any advantage
following from the use of his suggested conceptual tool by the planning
inspectorate and the Secretary of State. I can see none, and would not wish to
be the first to introduce the subtleties.
It is not wholly
clear that the Secretary of State has, in his decision letter in the instant
case, adopted the approach that Mr Drabble tells us has been adopted. The
Secretary of State and his inspector appear to have relied not on the fact
of transubstantiation but rather on its manner, coupled with the fact
that the new substance is thereafter bottled. However, that may merely be the
result of infelicities of expression, and no useful purpose is served by
dwelling on such points when all agree that the matter must, in any event, be
remitted to the Secretary of State.
Mr Drabble did not
put forward any clear rationale for excluding agricultural activities from
routine planning control. So, we are in the
deemed it wise to exclude farming activities from routine planning control but
without a clear guideline as to why it did so. The proper approach to the root
question in this case is, in the words of the judges in Wealden, Farleyer,
Gill, Midlothian and Eastwood, to consider whether what
the Millingtons were doing can, having regard to ordinary and reasonable
practice, be: (i) regarded as ordinarily incidental to the growing of grapes
for wine; (ii) included in the general term agriculture; (iii) ancillary to
normal farming activities; (iv) reasonably necessary to make the product
marketable or disposable to profit; or (v) 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. These are overlapping concepts
and they involve some evaluation of facts, but I consider that they faithfully
echo the intention of parliament in excluding agricultural uses from normal
development control. This was not the approach adopted by the Secretary of
State. My own instinctive view on the arguments that we have heard is that the
making of wine or cider or apple juice on the scale with which we are concerned
is a perfectly normal activity for a farmer engaged in growing wine grapes or
apples. However, I recognise that parliament has left the ultimate decision to
the Secretary of State. I would remit the matter to him to enable him to make
that decision in the light of the judgments of this court.
In those
circumstances, it is not necessary for me to consider Mr
submissions to the effect that our membership of the European Union had as one
of its consequences that the word ‘agriculture’ in the Act had to be construed
in the way that I have suggested.
CLEUD appeal
The judge upheld the
decision of the Secretary of State. Since the Secretary of State reached his
decision on the CLEUD appeal on the basis of his decision in the enforcement notice
appeal, and since I would hold that this decision incorporated an error of law,
it follows that I also consider that his decision in relation to the CLEUD
appeal incorporated that error. In those circumstances, I would allow this
appeal, and quash the refusal of the Secretary of State to grant a certificate
in respect of the use of the land for public visits to the site and for the
sale of wine.
Planning appeal
As I have already
indicated, it is common ground that the decision of the Secretary of State
should be quashed and that the appeal from the judge doing so should be
dismissed. The Secretary of State, however, takes issue with the reasons given
by the judge for allowing the appeal to him in respect of the planning
permission.
The background to that
is as follows. The Secretary of State allowed the planning appeal to him to the
extent of granting planning permission for the making and storage of wine. He,
however, refused permission for the sale of light refreshments and wine, and
for visits by fee-paying members of the public and organised groups. The
Millingtons appealed to the judge,
activities also had he not taken the view that he was inhibited by law from
imposing a condition that would have minimised or eliminated the problems
arising from these activities. There was a scheme for works to be done to the
junction of Brookside and Eyton Road that might have overcome the traffic
difficulties which were the reason for refusal. Before the inspector was a
draft condition, which had been put forward by the LPA, that would arguably
overcome the problem. That condition required various works to be done within a
few months. The Secretary of State refused to impose that condition, because he
said that it was uncertain whether the Millingtons had it in their power to
secure the carrying out of those works because they were not secure in their
ownership of the land upon which those works would be carried out. The
Millingtons appealed to the judge on the basis that the Secretary of State had
power to impose such a condition and should have considered the planning appeal
on that basis. The judge accepted that submission, and quashed the planning
refusal on that basis. In doing so, he made various remarks as to the policy of
the Secretary of State in relation to the imposition of negative conditions, ie
conditions requiring that the development shall not be commenced until various
works have been done. The Secretary of State takes exception to those comments
by the judge.
We have not heard
full argument on these points, having indicated to the parties that we were not
prepared to do so in the context of this appeal. The judge had in front of him
argument in relation to what was a positive rather than a negative condition,
and, so, his comments in relation to negative conditions were not necessary for
his decision. We have in front of us the agreed position that the planning
permission should be quashed, because the Secretary of State was irrational in
permitting the making but not the selling of wine. Further, if I am right that
the enforcement notice ought to be quashed, then it follows that the Secretary
of State approached the question of granting planning permission on the wrong basis
as to what was the permitted use.
In those
circumstances, the planning appeal will continue in front of the Secretary of
State. The appeal against the judge’s order is dismissed. We do not regard it
as appropriate to lengthen our judgments by a consideration of a difficult
question, which has already troubled the House of Lords, and the resolution of
which was not necessary for the judge nor is it for us.
MANTELL LJ: I agree. For generations, in Somerset and elsewhere, they have
been making cider on the farm. To suggest that it is not a farming activity or
ancillary to the growing of apples would be an affront to common sense. The
Secretary of State accepts that winemaking should not receive any different
treatment. No doubt he will bear that in mind.
BUTLER-SLOSS LJ: I agree with both judgments.
Appeals of David
Millington allowed; appeal of the Secretary of State dismissed.
