The Heads of the Valleys Development Company is under financial and competitive pressure to build its massive Circuit of Wales motorsports development as soon as possible. Bizarrely, it opted to site the construction on common land, with all the inherent delays which that designation rightly requires.
The proposed Circuit of Wales
We have just completed a ten-day public inquiry into the proposed deregistration and exchange of common land, which must be approved for the development to go ahead. But it is now 20 months since the development received planning approval from Blaenau Gwent County Borough Council, and the delay has been largely due to the requirement to find common land in exchange for the square mile to be taken for the development. The Commons Act 2006 section 16 governs this process.
Open common land, the site for the proposed development
I appeared on day nine of the inquiry, to present the objection of the Open Spaces Society and call as a witness Mark Weston from the British Horse Society. Other objectors, including the Brecon Beacons Park Society and Gwent Wildlife Trust, had already presented their cases.
The existing common, which is a broad sweep of open moorland extending to the boundary of the Brecon Beacons National Park, is available for public access by right on foot and horseback (the common is in a former urban district and therefore subject to section 193 of the Law of Property Act 1925).
The exchange land is on seven scattered sites, most of it serving different communities from the existing common. There is already public access on foot to much of the replacement land, some of it already by right under the Countryside and Rights of Way Act 2000.
Tjhere is already a right of public access on foot to this proposed exchange land at Green Meadow
There is little opportunity for extensive public access on horseback because there are restrictions such as fences and trees.
Fences and trees at Waun-y-Pound exchange site
Furthermore, the management proposals for these sites assume there will be grazing and consequently more fencing to make stockproof boundaries, with restrictions on access which would not be legal on a section 193 common.
So we said all this, and then Russell Harris, the applicants’ QC (they had gone to the top for this inquiry), got to work with his cross-examination. He is from Landmark Chambers and its website proclaims that he was Legal 500’s top planning counsel in 2013: ‘he is now involved in most of the UK’s highest-profile development schemes’. It is reported in the Western Mail that ‘some of London’s most iconic buildings may never have been built without the legal skills of Russell Harris QC’, and it gives him credit for the Gherkin and the Shard.
The public inquiry venue, Blaenau Gwent Council Offices in Steelworks Road, Ebbw Vale
The Chambers & Partners Directory (2011) states: Famed for his ‘flawless client service’ is the extremely well-regarded Russell Harris QC. One instructing solicitor described his approach as ‘really helpful and client-friendly’, and went on to say that once in court he is ‘up and at them, and not willing to take any prisoners’. I recognise the last phrase—his method is to lure you into agreeing with him and then wham! I was careful how I answered him.
His line was that the development had planning permission and therefore must be in the public interest, and that section 16 of the Commons Act 2006 gives Welsh ministers, the decision-makers, a wide discretion. So, he argued, since the planning application had been granted, the development must be in the public interest and this was an overriding factor for the decision-maker.
Proposed exchange land at Bryn Farm: already enjoyed by the public
I disputed this strongly. After all why do we have the section 16 process if it is to be rendered meaningless by planning permission (in which common-land issues are not considered)? Mr Harris also claimed that the development had to be built on common land because there was nowhere in the valleys that could take it, and all the upland was registered common. But why does it need to be in south Wales at all? Is this development so crucial to the economy of the area that the splendid commons must be sacrificed? Is there no other way to generate income and jobs which does not destroy the environment?
It was also put to us that Natural Resources Wales, the Welsh Government’s adviser on landscape, access and nature conservation, had not objected. But I know only too well that it is difficult for a government agency to oppose something that the government has made clear it supports. I felt that NRW had gone as far as it could in giving professional advice, stating clearly, after a detailed analysis, that ‘it is difficult to conclude that the replacement land is of equal value’.
Proposed exchange land at Crown Business Park: inpenetrable
During the presentation of our case, we learnt that there was a recent Statement of Common Ground between the company and NRW. The inspector allowed an adjournment while I studied the document. But the section on access is only a statement of principle; it gives no assurance of what will happen on the ground. It says that ‘both parties agree that the designation of the replacement land as common land will in principle provide more opportunities for unrestricted public access across the replacement land’. What does ‘more opportunities’ mean? There is no mention of horse-riding, and there is a requirement to ‘align with the ecological and landscape aims and objectives’ of the management plans, which may be laudable but make it clear that there will be restrictions on access.
Moreover, some puzzling issues arose in relation to Wentwood Forest. Part of this has been offered to make up about a third of the proposed exchange land, yet is 30 miles away in the next county. It appears to be traditional Forestry Commission (now NRW) land, open to public access along tracks. The horse-riders believe they have access here too. It seems there will be little gain by making it a common.
Wentwood Forest leaflet (the proposed exchange land is shaded)
The leaflet has a map showing public access. But we learnt at the inquiry that the agent for the landowner, the Somerset Trust, had written to NRW to say the lease between the Tenth Duke of Beaufort and the Forestry Commissioners dated 25 May 1941 ‘is clearly for forestry purposes only and does not permit public access on the site. … I understand in the public inquiry that an argument is put forward that the land already has some degree of public access. This would be in contravention of the lease as I read it.’
So we have a leaflet welcoming visitors over the whole site: ‘with over 1000 hectares of continuous woodland, Wentwood is the perfect place to explore on foot, bicycle or even horseback’—yet access to part of this land is alleged to be unlawful. This is extraordinary and obviously requires investigation. There would be a massive protest if people were suddenly prohibited.
Wentwood Forest leaflet
I believe that, regardless of the outcome of the inquiry, such prohibition would not happen and that the public will not gain from the exchange. Walkers and horse-riders already enjoy the tracks but they cannot go where trees are planted and there is no intention to clear fell, so the land is inferior to the existing common. And of course, if the land became common, NRW would not be able to carry out management works there without ministerial consent under section 38 of the Commons Act 2006.
What a muddle it all is, and what devastation to common land. We can only hope that, even at this late stage in the Circuit of Wales’s chequered history, inspector Emyr Jones, recommends that the application for exchange of common land be rejected, and Welsh ministers agree with him.