Agriculture update

The Wine Regulations

The Wine Regulations 2011 came into force on the last working day of 2011 and make provisions to govern the UK wine industry and its associated nomenclature.

The designation, and therefore naming, of wines is divided into designations of origin, and protected geographical indication.

The two appear almost interchangeable, although there is a subtle distinction: the 'designation of origin' refers to the 'name of a region, specific place', whereas the 'protected geographical indication' means an 'indication referring to the region, specific place' etc.

Of the two, the protected designation of origin is the more prestigious and refers to 'English regional wine', rather than simply 'English wine'. In order to earn this moniker, the wine must (among many other things listed in schedule 2 to the regulations) be grown on land producing less than 8,000 litres per acre and grown at or below 220 metres above sea level. It must also have a minimum alcohol content of six per cent before enrichment and ten per cent after enrichment.

If the winemaker obtains more than 8,000 litres per hectare, fails to meet the minimum six per cent natural alcohol content or in some other way falls short of the PDO standard, then he would have to fall back on the geographical indication, which would mean that he could only call his wine 'English wine', rather than 'English regional wine'.

In terms of designations, the French are some way ahead of our current single designation (think 'Côtes du Rhône', 'Corbières', 'Pauillac', etc.), but expect further designations of origin to focus on much tighter English geographical areas as wine brands grow their reputation and lobby the government for enhanced protection for their terroirs.

With the advent of the regulations, it is now an offence in this country to:

• breach the protection of protected designations and protected geographical indications by practice 'liable to mislead the consumer as to the true origin of the product';
• make use of a protected name (e.g. 'Champagne') by marketing comparable products that do not comply with the product specification or which exploit the reputation of a designation of origin;
• produce and market wine other than in accordance with the procedures set out at annex XVa to EC regulation 20071234, which govern acidification, enrichment and de-acidification. The good news is that England is one of the countries where it is expressly permitted to add sugar to wine to make it stronger(!);
• fail to record acidification, sweetening, bottling, distillation, etc. of wine in the registers that producers must keep; and
• fail to comply with the provision of the EU regulations at any time after having received a warning notice. Given that the EU regulations in total run to some 400 to 500 pages, it would be unsurprising if producers decide to stick to the bits that they understand and wait to be advised of any required remedial action!

Penalties are on summary conviction a fine not exceeding the statutory maximum of £5,000, with this limit removed for cases that make it to the higher courts. There is no hiding behind the corporate veil either, because any director, manager or 'the person who has consented, connived or been neglectful' can be guilty of the offence as well as the body corporate.

So, who should register their vineyards and when? The regulations apply to people who own or have planted vines of more than 0.1 ha (¼ acre) before 30 December 2011. Producers have six months from 30 December 2011 to register with the Food Standards Agency. If the vineyard is created after 30 December 2011, the producer has six months to register, beginning with the date of planting; it is important to bear in mind that the vineyard will therefore likely need to be registered at least three years before the first bottle is filled.

The information provided to the FSA is:

1. the identity of the grower;

2. the location of the vineyard parcel(s);

3. the acreage of the vineyard parcel(s); and

4. the characteristics of the vines planted on the vineyard parcels.

'Authorised officers' may at any reasonable time go into any premises (apart from people's homes) for the purpose of enforcing the regulations. That officer can then inspect, access records and seize or retain anything required as evidence. If access is refused, they may apply for a warrant. Inspectors may also issue enforcement notices or prohibition notices prohibiting the movement, marketing or export of a wine sector product.

The regulations are relatively straightforward, but the EU regulations that sit behind them require quite a lot of study. However, the good news in all of this is that, to reach the coveted protected designation 'English regional' or 'Welsh regional', the minimum alcohol content is 8.5 per cent for still wines and ten per cent for sparkling, which will please purists in that we are not being railroaded into accepting very high ABV numbers as a norm in our wines.

Finally, and to avoid any disappointing fizzes, the fizz must be at a pressure of not less than 3.5 bars when measured at 20°C!

All in all, these regulations should be seen as a positive step for our fledgling wine industry, which are likely to boost international confidence in English and Welsh viticulture.

Keeping tenancy documents up to date

On the bald facts, Christine Hallett did serve notice to quit on the landlord of Brian Potter's holding, which did bring the tenancy to the end, the Court of Appeal held on 30 November 2011, giving judgment in Potter v Dyer [2011] EWCA Civ 1417. This highlights the point that one tenant can serve notice to quit and bring a joint tenancy to an end validly, one that was covered in detail in this column when reporting on the consequences of Hussain v Bradford Community Housing Ltd [2009] EWCA Civ 763 (Solicitors Journal 154/5, 9 February 2009).

Brian Potter's parents bought Little Heath Farm in 1947, granting him an oral tenancy of the farm (excluding the farmhouse) in 1971. He continued to live in the farmhouse with them until they died, leaving the freehold of both farm and house to his brother (and seemingly arch-enemy), who evicted him in 1985.

Having lost the house but succeeded in keeping the land, Mr Potter moved into what is described in the judgment as a 'shed on the farm', and invited his girlfriend, Christine Hallett, to join him there. He also joined her into his farm tenancy, but they parted ways in August 1990. In November 1990 the land was sold to a Mrs How, who on Mr Potter's evidence had bought the farm for his benefit and to save him from the vagaries of his brother. Mr Potter moved back into the farmhouse with Mrs How's blessing on the basis

that there would be no repairing obligations on either side, but also on the understanding that Mr Potter could improve the house if he wished. They began negotiations for an AHA tenancy of the farm and house; in the draft document, the farm buildings and house were to be written out of the repair clauses, but this was never completed.

The claimant bought the farm and house in 2006 and almost immediately served notices to remedy disrepair on Mr Potter. It was at this point that Potter's agent played what he thought was the trump, by disclosing the assignment into joint names, thus making the notices invalid. Having previously known nothing of the assignment of the oral tenancy to Mr Potter and Christine, the claimant ran Christine to ground in New Zealand, and started corresponding with her regularly and persuasively. The persuasion resulted in Christine being induced to sign a notice to quit on the basis that it would get her off the hook for repairing liabilities which had built up. From the evidence, she did not do this with the intention of bringing Mr Potter's tenancy to an end.

When Mr Potter refused to quit, the claimant brought possession proceedings and a claim for injunctive relief to prevent Mr Potter from interfering with the claimant's right as landlord to inspect and repair the premises. The defence hinged upon an assertion that Mrs How's permission to live in the farmhouse and farm the land:

• brought the joint tenancy to an end by operation of law, replacing it with an with a contractual licence. In turn, this became an oral tenancy from year to year by virtue of section 2 of the Agricultural Holdings Act 1986; or
• it created a tenancy by estoppel '“

'“ neither of which included Christine as

a tenant. It followed that Christine would not have been entitled to serve a valid notice to quit.

Later, Mr Potter pleaded that the manner in which the claimant had induced Christine to sign the notice to quit amounted to fraudulent misrepresentation and should therefore be declared invalid. The misrepresentation point was given short shrift both at trial and on appeal, dismissed by Lord Justice Etherton as 'contrary to the basic principle' of law in that either Christine should have taken the offer of the notice with both hands or rejected it altogether. It was not open to a third party to impute a 'partial affirmation' on Christine's behalf that the notice should get her out of the tenancy but stop short of its full potential (being the ending of Mr Potter's tenancy).

In answer to Mr Potter's claim of a contractual licence, it was held that the right to occupy the farmhouse was a gratuitous licence, and as such could not be converted in to a tenancy by section 2 of the AHA; even if Mr Potter had in fact provided consideration, there was no evidence that he was contracted to do so.

While the judgment did not turn on this point, it is worth noting that a model clauses AHA tenancy would be radically different from the no repairing obligations type of oral agreement that Mr Potter claimed was agreed. In such circumstances, and as a result of the decision in Davies v Davies [2002] EWCA Civ 1991, a section 2 tenancy cannot generally be implied.

Registering 'lost' rights of way

While 1 January 2026 is some way off, we are almost at mid-point in time between the enactment of the Countryside and Rights of Way Act 2000 and the deadline for registering 'lost' rights of way, and many local rambler and equestrian groups have now gathered enough support and evidence to start submitting plans to county councils. Groups are also concerned that councils are taking up to 12 years to process applications for registration of footpaths and bridleways, and that applications not submitted soon will result in a loss of the opportunity to register them.

South Somerset Bridleways Association has applied for the reinstatement of just under 200 bridleways, with the applications set to gather pace as 2026 approaches. The effect of a bridleway running over farmland cannot be played down: increased public liability, decreased productivity and decreased land values all contribute to landowners' well-recited distaste for these public rights of way.

A 'landowners' toolkit' will follow in the next update with input from Birketts LLP's specialist rights-of-way team.

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