CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 juillet 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    AS TO THE ADMISSIBILITY OF     Application No. 13341/87 by Philip and Annie LAY against the United Kingdom             The European Commission of Human Rights sitting in private on 14 July 1988, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      F. ERMACORA                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                   Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 19 September 1987 by Philip and Annie LAY against the United Kingdom and registered on 23 October 1987 under file No. 13341/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicants are British citizens resident in Upper Bodington, Northamptonshire and born in 1912 and 1915 respectively. They are married and the second applicant suffers from ill-health. The facts as submitted by the applicants may be summarised as follows.           The applicants are owners of eleven acres of ground in Upper Bodington.   In 1978, they moved into a caravan on the holding, where they keep a herd of twenty-five beef cattle.   They pay domestic rates in relation to their occupation of the caravan.           In May 1978, the South Northamptonshire District Council (hereafter "the Council") served an enforcement notice on the applicants alleging an unauthorised change of use from agricultural purposes to use as a site for a caravan contrary to the Town and Country Planning Act 1971 and requiring the applicants to remove the caravan.   The applicants' appeal against the notice was dismissed in April 1979.   The applicants then moved the caravan to an area of their land omitted from the scope of the notice.           In January 1980 a second enforcement notice was served concerning the whole of the holding.   The applicants appeal was dismissed on 6 November 1980, although the planning inspector found the proper description of the present user was dual, for agricultural purposes and as a site for a caravan, and gave the applicants six months to remove their caravan.   He also found that the caravan detracted from the visual amenities of the area of open countryside beyond the village.           The applicants then apparently moved the caravan on to land adjacent to their holding and, on 15 January 1982, a third enforcement notice was served concerning the new site of the caravan.   The applicants appealed and their appeal was heard before a planning inspector.   In a decision dated 2 September 1982, the inspector found the Council had erred in the terms of their notice, which was accordingly reworded to require removal of a residential caravan, a caravan used for agricultural purposes not involving any change of user.   The inspector found that the caravan detracted from the rural amenities and was contrary to policy.   Under the question of special need he took into consideration the age of the applicants and their wish to continue to manage their holding but found that the size and nature of their farming activity was not such as to require them to reside permanently on the site.   He therefore dismissed the applicants' appeal and they were given nine months to remove the caravan.           The applicants, at a date unknown, returned the caravan on to their holding.   On 5 December 1983, the Council issued three summons, alleging breach of each of the three enforcement notices.   These were heard separately before the magistrates court and dismissed.   On 13 June 1984, two further summonses were issued in relation to the first two notices but these were either withdrawn or dismissed at a hearing before the magistrates' court on 4 November 1984.           A third set of summonses was issued and on 22 May 1985 the first applicant was found guilty and fined £250 in respect of the summons relating to the 1980 notice.   The first applicant appealed to the Crown Court on the grounds that the prosecution was unjust and oppressive.   The first applicant's counsel sought to make the point that when the notice was issued, in the event of a prosecution, the notice could have been challenged on the basis that the steps required to be taken exceeded what was necessary to remedy any breach of planning control, namely, while the local authority could require the applicants to cease residential use of the caravan, it had no power to require removal of the caravan.   However, due to a subsequent legislative amendment in 1981, this method of challenge was no longer available and counsel argued that the local authority were bringing a prosecution in respect of a notice which they knew to be invalid but the invalidity of which the applicant was now precluded from challenging.   The first applicant's appeal was dismissed by the Crown Court on 11 October 1985.           The local authority proceeded to seek an injunction against the applicants to enforce the removal of the caravan.   Their application was heard before the High Court on 30 March 1987 and an injunction was granted, requiring the applicants to remove the caravan by 30 June 1987.           In his judgment, the judge stated that the grant of an injunction was a discretionary remedy and he took into consideration the applicants' age, health and the history of the case in deciding whether to exercise his discretion in granting an injunction.   The judge also considered again the argument of the applicants' counsel that the prosecution was based on an invalid notice but came to the conclusion that there was no substance in this.   He found that the applicants had acted in breach of the relevant legislation and that there was no evidence that the local authority had not acted in good faith or that it had been actuated by anything other than proper planning considerations in refusing planning permission to the applicants.   He concluded:           "... as was explained by counsel for the plaintiff, the         plaintiff Council have taken the administrative view that         the best course here in everybody's interests would be to         come to this court for an injunction rather than to put         Mr. and Mrs.   Lay to the trouble and expense and harassment         of a whole series of prosecutions in the magistrates' court.         They seek to have the matter determined once and for all by         the injunction, and I am bound to say, in the light of all         the circumstances known to me, that is a very understandable         decision to take.   It seems to me I ought not to refuse an         injunction in the circumstances of this case, the Council         itself now standing in the place of the Attorney General,         merely because all other remedies have not been exhausted.           But what of the other matters?   I am painfully aware that the         order restraining - or the effect of which is to restrain         Mr. and Mrs.   Lay from living in the caravan on their own         land is going to cause them very great distress.   It is         going to put them, temporarily at any rate, in very great         difficulties with regard to housing.   They are old.   They         are not well.   They have persuaded themselves, wrongly I         think, that they are being persecuted.   Weighing all these         matters and the observations in Mr.   Scott's opinion as best         I can I come to the conclusion that this is a case in which         it would be right to make an order very broadly in the terms         sought by the Council.   I think it is a case for an injunction         which is fully made out, and in the exercise of the court's         discretion I propose to make an order."           The applicants did not move the caravan and the local authority applied to the High Court for an order to enter and remove the caravan.   The applicants were unable to attend the hearing on 10 December 1987 due to ill-health when the application was granted, but were allowed to re-apply to the Court.   Having been refused legal aid, the applicants attended the High Court in person on 11 January 1988.   After representations from both parties, the judge held that he maintained the order.           During the course of these proceedings the applicants applied on two occasions for planning permission to build a cottage on their land, on the site of a previous cottage which was in ruins.   Their applications were refused on 3 October 1981 and 4 July 1985 on the grounds that it would have constituted an unjustifiable extension of development and intrusion into the open countryside beyond the approved village framework.           By letter dated 22 January 1988, the applicants were informed by the Council's housing officer that they were considered as falling within a priority group for the purposes of housing.   He mentioned that the Council had already made 2 offers of alternative accommodation which the applicants had refused but that the Council were willing to offer a third possibility, namely, a 2 bedroomed bungalow in Litchborough.   By letter in reply, the applicants explained that they had refused the first offer because it concerned a house with steep stairs   and the second because it concerned a property 20 miles from their land, which would have caused them great difficulties in continuing to manage their holding.   The applicants refused the third offer on the same grounds, the bungalow in question being situated 12-14 miles from their land.     COMPLAINTS           The applicants complain that the Council is threatening to remove the caravan in which they live from their land.   The applicants complain that the Council has treated them unjustly and oppressively. They submit that the Council has granted permission to others to build or have caravans on land outside the perimeter of the village: they refer in particular to 3 farmers who were granted permission to build housing on their land overside the village, which they then sold for six-figure sums of money.   They complain that the third accommodation offered is unsuitable, since it is situated 12-14 miles from their holding and would cause them great difficulties in continuing to farm their land.     THE LAW   1.       The applicants complain that the Council is threatening to remove the caravan in which they live from their land.   They also complain of being refused permission to build on their land although permission has been granted to others.   The Commission has examined these complaints under Articles 8 and 14 (Art. 8, Art. 14) of the Convention and Article 1 of Protocol No. 1 (P1-1) to the Convention.   2.       Article 8 (Art. 8) of the Convention provides that:   "1.      Everyone has the right to respect for his private and family life, his home and his correspondence.   2.       There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."           The Commission finds that the caravan in question, which the applicants have lived in since 1978, must be considered as their "home" and that the enforcement procedure pursued by the Council to remove their caravan constitutes an interference with the applicants' right to respect for their home.           The Commission must therefore consider whether this interference is "in accordance with the law" and whether it is "necessary in a democratic society" for one or more of the reasons listed in paragraph 2 of Article 8 (Art. 8-2) of the Convention.           The Commission recalls that the applicants had not obtained planning permission for using their land as a site for a residential caravan and that this use was accordingly unauthorised.   The Council, which served enforcement notices and issued summonses alleging breach of these notices, was acting in implementation of the relevant planning legislation.   The Commission notes that, although the Council apparently made various procedural errors in the course of the proceedings, the first applicant was found guilty of breach of an enforcement notice, by a magistrates court and ordered to remove the caravan.   His appeal against this decision was dismissed.   Further on 30 March 1987 the injunction requiring removal of the caravan and the order permitting the Council to enter and remove the caravan were made by the High Court.   The Commission accordingly finds that the enforcement procedure was "in accordance with the law".           The Commission also finds that the interference pursues a legitimate aim, namely, the protection of the rights of others through the operation of planning controls which is recognised as necessary in a democratic society throughout the member States of the Council of Europe.   The Commission recalls that in previous case-law it has recognised that the existence and operation of planning controls which delimit areas where domestic development may be extended is a legitimate measure to protect the amenity value of rural areas and thereby to protect the rights of others (see No. 11185/84, Dec. 11.3.85, to be published in D.R. 42).           It remains to be examined whether the interference was "necessary in a democratic society" for this legitimate aim.   In making the assessment of the necessity of a given interference the national authorities enjoy a margin of appreciation.   It is established case-law that an interference with a Convention right cannot be regarded as "necessary" unless it is proportionate to the legitimate aim pursued (see e.g.   Eur.   Court H.R., Gillow judgment of 24 November 1986, Series A no. 109, p. 22, para. 55).   Concerning the necessity and the proportionality of the measures, the Commission recalls that the applicants moved on to their land in their caravan without obtaining permission for the change of user and that it was found by the planning inspectors in the various appeals that the caravan detracted from the visual amenities of the rural landscape outside the village area.   The Commission recalls that the inspector, in the decision dated 2 September 1982, took into consideration the age of the applicants and their desire to farm the land but found that the size and nature of their farming activity was not such as to render it essential for anyone to reside on the site.   The Commission further recalls that the Council has endeavoured to find alternative accommodation for the applicants, although the applicants have so far rejected these offers on the basis, inter alia, that the housing was situated too far away from their land.           The Commission notes that the position of the applicants was also considered by the High Court, when on 30 March 1987, it decided whether to grant the local authority an injunction to enforce the removal of the caravan.   The judgment of the court took into account the age and circumstances of the applicants and the possible legal arguments in their favour but found that the applicants had acted in breach of the planning legislation and that there was no evidence that the local authority had been actuated by other than proper planning considerations in refusing planning permission.   Having weighed all these matters, the court decided to grant the injunction.           In light of these circumstances and in particular the fact that the use of the land for residential purposes was originally illegal, the Commission finds that the measures taken can be considered as "necessary in a democratic society".           The Commission therefore finds that the interference in the present case is justified under paragraph 2 of Article 8 (Art. 8-2) of the Convention and that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       Article 1 of Protocol No. 1 (P1-1) to the Convention provides:           "Every natural or legal person is entitled to the peaceful         enjoyment of his possessions.   No one shall be deprived of his         possessions except in the public interest and subject to the         conditions provided for by law and by the general principles         of international law.           The preceding provisions shall not, however, in any way         impair the right of a State to enforce such laws as it deems         necessary to control the use of property in accordance with         the general interest or to secure the payment of taxes or         other contributions or penalties."           Insofar as the applicants complain of the enforcement proceedings which endeavour to remove their caravan from their land, the Commission finds that this amounts to a control of use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (P1-1).   However, even assuming that the applicants have complied with the six months time-limit provided for in Article 26 (Art. 26) of the Convention, the Commission considers that this control of use of the land is necessary in accordance with the general interest of safeguarding rural areas from unsuitable development.   The Commission refers in this respect to its reasons given above in the context of Article 8 (Art. 8) of the Convention, the requirements of which are more stringent than those of Article 1 of Protocol No. 1 (P1-1).           The Commission finds that an examination under Article 1 of Protocol No. 1 (P1-1) of this aspect of the applicants' complaints does not disclose any appearance of a violation of this provision.   It follows that, in this respect, the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       It is true that the applicants have also complained that they were discriminated against in that other land owners were permitted to have caravans on their property.   However, they have failed to show that the local situation in these cases was comparable to their own.           The Commission therefore finds no indication of discrimination contrary to Article 14 (Art. 14) of the Convention.           It follows that, in this respect, the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.       Insofar as the applicants complain of the refusals of planning permission to build a cottage upon their land, the Commission is not required to decide whether or not the facts alleged by the applicants disclose any appearance of a violation of the Convention as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           In the present case the applicants have failed to appeal against these decisions to the Secretary of State in accordance with S. 36 of the Town and Country Planning Act 1971 and have therefore not exhausted the remedies available to them under United Kingdom law. Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicants, according to the generally recognised rules of international law, from exhausting the domestic remedies at their disposal.           It follows that, in this respect, the applicants have not complied with the condition as to the exhaustion of domestic remedies and this complaint must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.      Secretary to the Commission         President of the Commission                  (H.C. KRÜGER)                     (C.A. NØRGAARD)