Millington v. The Green Belt...

Way back in September 2021, I poured scorn on what I thought was an outrageous piece of sophistry by Vineyard Farms in their planning application for their luxury winery on green belt land at Upper Bush near Cuxton.

Central to the applicant’s case throughout the planning process has been the claim that the proposed 16,000m2 £30 million tourist, hospitality and manufacturing facility comprising of an above-ground restaurant, café, visitor’s centre, wine-tasting area and shop, designed to serve an initial 65,000 visitors a year, combined with a subterranean (and therefore not visible) wine factory having a capacity to produce up to 10m bottles of wines a year, is a mere “agricultural building”.

This argument is important to them, possibly because it’s the only one they have.

National planning guidelines state that:

“A local planning authority should regard the construction of new buildings as inappropriate in the Green Belt”.

…and that:

“When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations”.

However, they go on to state:

“Exceptions to this are…buildings for agriculture and forestry…”

This exception allows the applicants to bypass considerations of satisfying the “very special circumstances” that set a very high bar in terms of green belt development, one that even this design would probably not otherwise clear.

To “lay” people such as ourselves, it would seem that such a large facility, with its tourist elements so prominently placed on view in such a protected and environmentally-sensitive landscape, could hardly be considered to be an “agricultural building”.

It seems laughable. Indeed, Medway Council's planning officers should have thrown it all out at the pre-application stage and saved everyone (especially themselves) a load of unnecessary grief.

It all seems rather at odds with Gravesham Borough Council's unwillingness to support Meopham Vineyard's application to build a similar but much more modest winery overlooking Happy Valley in Meopham.

Nevertheless, a legal precedent exists that would appear to justify such a thing, one which has been extensively quoted by the applicant since pre-application days.

Just a farm shop, guv'nor, honest, just like wot you'd get on any other farm...

And when a guy like Mr. Sasha White KC (Vineyard Farms’ advocate and one of the leading legal planning experts in the UK) is telling you that this is indeed the case, then suddenly you have to take it very, very seriously indeed.

This legal precedent initially arose (perhaps somewhat ironically) out of a dispute around traffic. David Millington ran (and still runs, I think) the Wroxeter Roman Vineyard, which is located near Wroxeter, not far to the east of Shrewsbury in Shropshire.

Compared to the Vineyard Farms operation it is tiny, with a mere 12 acres under vines. To help his little vineyard along, Mr. Millington and his family started providing visitors with snacks and drinks in addition to making and selling his wine on site.

His little winery, a typical example of an agricultural “crinkly tin” shed, backs on to a few houses and it seems that the local residents started to object to the traffic that began to visit Mr. Millington’s increasingly popular venue.

Initially, the local authority tried to block Mr. Millington making, and then selling, his wines and eventually (as these things can do when you have the money to follow it through) it wound up going all the way up to, and then beyond, the Secretary of State, to be debated in the High Court by some of the most senior judges in the land.

The upshot was that Millington v. The Secretary of State (1999) established that:

“...the making and selling of wine from grapes grown on the premises (associated vineyard), including tours and tastings, are classified as ‘ancillary agricultural activities’ where the growing of grapes is the primary use. Therefore, winemaking is classified as an agricultural activity (and)… associated vineyard shops and other ancillary businesses on-site are just that; ancillary.” (see reference 1).

This precedent was evidenced in the applicant’s pre-application Planning Statement. It was uncritically accepted by Medway Council’s Planning department until after the planning committee meeting of 8 December 2021, when the planners finally stopped copying Vineyard Farms' homework and got some independent advice. This told them exactly what the scheme's objectors had been telling them for three months, i.e. that the applicant’s proposals constituted “inappropriate development”.

I suspect that by then, Medway Council’s planners, who had been passionate advocates of the Vineyard Farms’ billionaire Xanadu since pre-app days, were now in too deep to back away.

Thus, the planning officers still recommended that the Planning Committee should approve the scheme at the March 2022 meeting, something that the elected councillors of the committee declined to do.

In the subsequent formal rejection notification (written by Medway’s planning officers) green belt considerations were not cited as a reason for rejecting the applicant’s proposals, possibly because Medway Council didn’t fancy now challenging the High Court precedent it had previously accepted as valid.

The "Rule 6 parties" (i.e. Cuxton Parish Council and their supporters) were subsequently advised by the Planning Inspectorate not to formally contest green belt issues at the inquiry, as this may leave them liable for a cost award against them. Pay up or shut up is how major planning applications seem to be decided these days.

On the opening day of the planning inquiry the Vineyard Farms advocate, Mr. Sasha White KC, spelt out that in his legal opinion, a ruling applied to a family-run business operating out of a shed was equally applicable to a Lord Foster £30m pleasure dome, 16,000m2 in total floor area and requiring a staff of 80 to run it.

As “lay” people, we are obviously in no position whatsoever to question Mr. Sasha White KC’s expert opinion on this matter. I certainly wouldn’t dare to. Jesus, that guy would have me on toast...

Nevertheless, I have to repeat that it just seems incredible that a principle applied (not unreasonably) to a small family winery operating out of a modest tin shed is now being used to justify the building of a £30m restaurant, café and hospitality complex with an above-ground area of approximately 4500m2 (and where 80% its projected 82 staff are involved in hospitality activities rather than bottled wine production) on protected green belt land.

Farmyard animals settling down for the evening in their "agricultural building..."

Towards the end of the formal transcript of the Millington case, Lord Justice Schiemann was recorded as making the following observation, however:

“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 with which we are concerned is a perfectly normal activity for a farmer engaged in growing wine grapes or apples…” (my emphasis).

This seems to imply that some consideration does indeed need to be given to the scale of winery operation in the context of the above judgement. i.e. what is “perfectly normal” for a vineyard of a dozen or so acres working out of a tin shed may not be for one of, say, 1200 acres and a winery with a total floor area of 1.6 hectares in green belt land.

As stated earlier, the winery that was the subject of the above dispute is the Wroxeter Roman Vineyard, which is located in the Shropshire Hills AONB but is obviously not designated green belt land.

Aerial views that compare the scale of the Wroxeter Roman Vineyard to that of the appeal scheme are shown below.

Google maps screen grab of the Wroxeter vineyard area. The winery building is just visible at centre

.

Google maps screen grab of the VF winery, same scale.

From Google maps, it can be estimated that the size of the Wroxeter winery building is approximately 370m2. At approximately 4500m2, the visible part of the appeal scheme is an order of magnitude greater than the winery that was the subject of the above judgement.

In terms of scale, I really suspect that Mr. Sasha White KC is pushing the envelope on this one. Not that I’d dare tell him that to his face, of course.

It has been said that, given that the manufacturing part of the appeal scheme comprises 85% of the building’s operational space and is below the ground line, the winery can be compared to an iceberg. In terms of its visible impact, all that can be seen are the hospitality areas.

And as the Titanic found out, it’s the bit you can see that really has the impact.

It’s not just the scale of operation that casts doubt over the applicability of the Millington judgement to the VF winery. There are additional green belt sensitivities to consider. The Wroxeter winery is not sited in green belt land. 

As stated earlier, NPPF green belt development criteria set a “high bar” of “very special circumstances” to permit new developments within green belt land. If the appeal scheme was not considered to be an agricultural building, it is unlikely that it would meet the “very special circumstances” criteria.

While “Gross Value Added” (GVA) estimates provided by the applicant’s clever-clever accounting agents look superficially impressive, when assessed against the overall local economic activity, they are trivial.

Provision of perhaps 150 largely low-skilled jobs of a low-end type (hospitality or agricultural) that employers are already struggling to fill, and in areas of low unemployment like Cuxton, Cobham or Luddesdown, hardly suggest “very special circumstances”.

Similarly, the VF winery is looking (so it says) to bring in 65,000 visitors a year. Medway annual tourism figures are around 4.5 million. An overall increase to Medway’s tourist visitor numbers of 1.4% hardly seems significant.

Other planning guidelines talk about the “need” for a facility that justifies the sacrifice of green belt AONB.

Wine is hardly an essential and there are plenty of other suppliers in the UK in terms of meeting any national “need” anyway. Having planted 700 acres of vines in such a hurry, VF definitely need a manufacturing base, but why at the Upper Bush AONB? 

Because they want their visitors to enjoy the view out of their restaurant window across the Bush Valley, that’s why. That’s hardly a “need” in terms of national or local requirements. 

Other local vineyards, such as Meopham or Chapel Down, are quite happy to manufacture away from point of harvest. Why can’t Vineyard Farms?

Another factor is that the Millington precedent was established over 20 years ago. The world has changed much since then. Perception of the value of unspoiled green belt AONB land (and indeed, protection of the environment in general), especially in a crowded and highly-developed area such as North Kent, has become much sharpened, and particularly as a result of Covid lockdowns.

The use of an elderly legal precedent to justify what is essentially the construction of a viticultural theme park in precious green belt land seems inappropriate by the standards of today.

There are implications for green belt in general as well. Approval of this scheme could set a precedent that would open up all green belt/AONB land to other such developments. If one billionaire tax-exile is allowed to build a vanity winery on green belt land, then they’ll all want one. Is this a good thing?

Mr. Sasha White KC is arguing the case for upholding the Millington precedent because he is being paid to by his client. He is advancing that argument because he considers it to be a strong one, for sure, but that doesn’t necessarily make it right.

Unfortunately, the local community was unable to afford to engage the legal services required to argue otherwise at this inquiry. The threat of having costs awarded against them also helped to silence any formal community argument against green belt development.  Even then, can the issue really be resolved at this planning inquiry?

Given this question of the exact applicability of the Millington precedent to the vast scale of the appeal scheme and its criticality in this appeal, it may need a legal debate that is perhaps outside the scope of this inquiry.

It’s hard to see quite what is going on in the background to all this. Neither Medway Council nor Vineyard Farms wanted green belt issues on the agenda, for obvious reasons. It was the Planning Inspectorate that raised them for discussion.

Vineyard Farms simply have too many highly-paid and highly-polished subject matter experts arguing for them on their behalf for them not to win their appeal under normal circumstances. But this is an extraordinary development, and one that may set a potentially disastrous precedent for green belt/AONB landscapes across the whole of the UK.

Ultimately this will go before the Secretary of State, Michael Gove, for final approval. One would hope that he might refer this case to m’learned friends, in order to debate the assertion of Mr. Sasha White KC that in the eyes of the law, a small tin shed serving 12 acres of vines is just the same as a £30m 16,000m2 luxury vinicultural theme park set in 900 acres of a green belt AONB.

Let's see...

References:

1)    South Downs Local Plan, Viticulture Technical Advice Note, April 2021, p10, 3.6.

https://www.southdowns.gov.uk/wp-content/uploads/2021/04/SDNPA-Viticulture-Technical-Advice-Note-TAN.pdf

Winery public inquiry - some observations from the second day...

The second day of the public inquiry was hosted in the main hall (pictured above) of the Corn Exchange, Rochester on Friday 24th March.

Use of main hall seemed like a nice idea compared to the stuffy room of yesterday, but it soon became apparent that the acoustics were terrible, it being impossible to hear anyone speaking from more than a few feet away. The council staff couldn’t have been more helpful, but unfortunately their two available radio microphones didn't seem to work unless you virtually swallowed them, and even then not that well.

The morning was taken up with a “round table” discussion of traffic issues affecting Cuxton, and how the advent of the winery might make things worse.

This was always going to be a hiding to nothing, and not just because of the acoustics. Indeed, part of the reason Medway Council did not cite traffic as a reason for refusing the original application is that the various transport guidelines are so broad that attempting to defend a planning refusal on traffic grounds alone is virtually impossible from a legal perspective.

Nevertheless, Cuxton Parish Council felt they had to give it a try given the strength of feeling in the village.

It is a fact of life that councils and traffic planners aren’t that bothered about anyone’s inconvenience. If it takes you ten minutes of get out of the end of Bush Road in the morning, it matters not to them. Safety is (quite rightly) the only consideration.

We put across the argument that we felt the A228 junction with Bush Road is a dangerous one, and why.

We talked about how large lorries and HGVs cause constant problems along Bush Road, especially at school run times.

We asked why our “lived experience” of traffic in Bush Road seemed so different to the expert’s view that there wasn’t a problem, and wondered if an urban traffic model was suitable for application to Cuxton’s semi-rural location.

We mentioned that the Vineyard Farms had hinted at expansion plans that could give rise to traffic volumes way beyond those covered by their assessments.

Vineyard Farm’s transport consultant, James Bevis listened to it all quite patiently and just smiled. His message was quite simple.

Like it or not, folks, all the survey numbers say that there isn’t a traffic problem in Cuxton, at least, not when judged against national guidelines for that sort of thing. The winery traffic won’t make a jot of difference to that. All the HGVs we see in the village are nothing to do with Vineyard Farms’ existing operations at Luddesdown, apparently. And the junction isn’t classed as “dangerous” because enough people haven’t been killed to call it so.

Mr. Bevis was quite pleasant and almost apologetic about it all. Indeed, he showed that you didn’t necessarily have to be a shouty bully in order to put your client’s case across effectively.

"... but our numbers say..."

He stopped short of saying that any congestion we see in Bush Road must therefore be a hallucination upon our part, but I kind of got the impression that he would have just loved to have done.

There were one or two emotional observations from residents, which Mr. Bevis dealt with politely but firmly. Sorry, folks, it is what it is. Lorry headlights giving you problems? Buy some curtains, they work really well...

And after a couple of hours, that was that. I don’t think we made much of an impression.

One can only hope that the inspector perhaps made a note of the observation that in their submission documents, Vineyard Farms stated that they saw this application as being just the first part of an “estate-wide strategy”. This implies expansion plans not included in any transport assessment. Similarly, their Transport Assessment states that they could double wine production from 5 to 10 million bottles a year. This doubling of output was not considered in any “worst case” traffic scenario.

It was the one argument Mr. Bevis seemed a bit evasive about. I hope the inspector noted that.

The afternoon session saw us give up on the main hall and return to the stuffy room of yesterday. At least it was possible to hear everyone speak and with far fewer audience members, it was at least bearable.

The topic was one of “landscaping” and was part of the AONB defence being made by Medway Council. The council’s expert was a Mr. Etchells, who spent about 30 minutes calmly going through numerous arcane examples of how, in his opinion, Vineyard Farms had underestimated the adverse impact that the winery building would have on the appearance and tranquillity of a previously undeveloped and unspoilt AONB.

To me, his arguments all seemed pretty reasonable.

However, they seemed (to me) to make Mr. Sasha White KC quite angry (on his client’s behalf, I assume). He piled into the unfortunate Mr, Etchells, asking complex questions in machine-gun fashion and demanding “yes or no” answers. One had to admire Mr. Sasha White KC's grasp of the material and I can only assume (having had no experience of this sort of thing) that this is how top KCs normally operate. It all seemed unnecessarily aggressive, intimidating and confrontational to me.

To begin with, Mr. Etchells handled it all quite well, but the relentless onslaught from Mr. Sasha White KC clearly began to fluster him after a while. In the end, the inspector intervened and said he was quite happy to hear “qualified” answers to complex questions, and Mr. Sasha White KC subsequently dialled it down a little.

Quite what the planning inspector made of it all, I don’t know. I suppose he must be used to it.

I certainly couldn’t work out what the conclusion was. I suppose we will have to wait until the end of the inquiry.

Unfortunately and rather frustratingly for me, I tested positive for Covid over the weekend and so I shall be unable witness further proceedings. I hope others will keep me up to date.