“Home is where the wine is” – Viticulture and Agriculture Occupancy Restrictions, commonly known as “Ag Tags”
17 January 2024
In this article, we explore if the growing of grapes and the subsequent production of wine is within the definition of “agriculture” as per Town and Country Planning Act 1990 (the “Act”). And whether viticulture workers can reside in properties with “Ag Tags.” This is particularly relevant if a winery brings in temporary harvest workers and puts them up in a property with an Ag Tag, or if a vineyard rents a cottage that is bound by an Ag Tag on neighbouring land to house a worker for the harvest.
Given local planning legislation and the power extended to local authorities, these are important considerations when considering whether to diversify into viticulture to avoid those authorities raising enforcement notices.
The exact wording of each Ag Tag may differ, however the usual form requires that the occupation of the property shall be limited to a person solely or mainly employed or last employed locally in agriculture as defined in s. 336 the “Act”.
The definition of agriculture under the Act is:
“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 the farming of land for other agricultural purposes”.
Whilst viticulture is clearly not included here, case law surrounding the Act is clear that uses of land for activities which are not mentioned in the definition can be part of the use of the land for agriculture.
In particular, in Millington v Secretary of State for the Environment, Transport and the Regions [1999], the Court of Appeal held that the growing of grapes for the production of wine did constitute agricultural use. In this case, Millington grew vines for the purpose of producing wine. He then opened the site to the public and began selling the wine produced along with other refreshments. This increased traffic in the area, and, unsurprisingly, locals complained.
The local planning authority invoked powers under the Act and issued an enforcement notice alleging breach of planning laws for change of use as the use of the land for the sale of wine and refreshments and visits by the public was not use of land for agricultural purposes. The Court of Appeal disagreed, and it was held that the growing of grapes for the production of wine did constitute agricultural use of the land and was exempted from planning controls. Throughout the case, comparison was drawn to growing apples for the production of cider.
By the same definition of the cultivation and harvesting of grapes, the production of wine being within the definition of agriculture, and tours and tastings being held as ancillary agricultural activities, the conclusion is clear that the mere growing, pruning, spraying, picking etc. is within the statutory definition of agriculture. An interesting point is that the situation may be different if the scale of the production and sale on site increased or if grapes from different farms were being bought in to create blended wine as these become a more commercial enterprise that could take the production outside of a use that is incidental to agricultural activities.
Following the above, with viticulture falling within the definition of agriculture under the Act, it is quite clear that housing a worker within a property with an Ag Tag that the vineyard owns is acceptable.
The next question naturally arising is whether renting the cottage to or from a neighbouring landowner falls within the restriction. The key would be the proximity of the property to the vineyard that the employee works in. If the worker is travelling a significant distance to get to work, then the landlord may be in breach of their occupancy restriction and liable for enforcement action. Of course, some Ag Tags specify the locality or even relate to a specific farm so the precise wording should be carefully considered.
From a legal standpoint, we would consider the drafting and inclusion of restrictions of use are placed within the lease, or perhaps an indemnity, in the event that the tenant breaches the restriction and the landowner suffers costs of enforcement action. This would seek to protect the position in the event that the Ag Tag is breached.
For further information on the growing of grapes for wine production, please contact a member of the Birketts Viticulture Team.
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Harrison Barber
Sectors
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2024.