CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 1998

.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. 24876/94                        by Thomas and Jessica COSTER                        against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 4 March 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              Mrs    M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 19 May 1994 by Thomas and Jessica COSTER against the United Kingdom and registered on 10 August 1994 under file No. 24876/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      13 February 1995 and 6 November 1996 and the observations      submitted by the applicants on 25 April 1996 and 13 November      1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicants are British citizens born in 1962 and 1964 respectively and resident in Headcorn, Kent. They are represented before the Commission by Peter Kingshill & Co, solicitors practising in London. The facts as submitted by the parties may be summarised as follows.   a.    Particular circumstances of the case        The applicants are gypsies by birth. As children, the applicants lived and travelled with their respective families in and around the area known as the Borough of Maidstone in Kent. From 1987, the Borough was a designated area pursuant to section 12 of the Caravan Sites Act 1968 (see below).         In 1982, the applicants married. When the second applicant became pregnant, the applicants decided to search for a permanent site on which to site their caravan. There remained few stopping places upon which they could   lawfully park their caravan whilst travelling in the area and they faced the threat of continual eviction. The applicants wished for their children to be brought up in a stable environment which would facilitate the continuity of their education.        The applicants state that they were refused a place on any local authorised site. They camped outside one official site for 5-6 weeks hoping to be offered a plot. No place was offered and court proceedings were brought against them by the Borough to secure their eviction from the land. The Government state that the Borough has no knowledge or record of any request by the applicants for a pitch in 1982.        With the imminent birth of their first child, the applicants moved into the caravan occupied by the first applicant's mother on a permitted gypsy site and sold their own caravan. The caravan was however small and conditions became intolerable. Having nowhere else to go, the applicants in or about 1983 reluctantly applied for permanent accommodation and accepted the offer of a council flat.   They commenced a tenancy in a fourth floor flat on 16 January 1984. Though they were moved to a first floor flat after 10 months, they found the flats totally unsuitable and alien to their traditional gypsy lifestyle. On 18 April 1986, they requested a transfer to a house on the grounds of the second applicant's health but were informed that there was a waiting list and that a move would be conditional on payment of outstanding rent. The applicants dispute that they owed any rent and suggest that the Borough has mistaken them for the tenants of a different flat, there being some confusion as to the addresses involved. In late 1987, the applicants requested a site on an official caravan site or more suitable accommodation but were told this was not possible. The Government state that they did not wish to be placed on the waiting list.        In 1988, the applicants purchased land known as Summerfields in Headcorn, Kent and moved onto it, living in a caravan.        On 11 July 1988, the second applicant made a retrospective planning application for permission to station a caravan on their site. Permission was refused by the Borough on 13 October 1988.        On 23 September 1988, an enforcement notice was issued requiring discontinuance of the unauthorised use.        In July 1989, the applicants were convicted for failure to comply with the enforcement notice.        On 27 September 1989, a public enquiry was held by way of appeal against the refusal of planning permission. The appeal was dismissed. The inspector accepted that the applicants were gypsies for whom conventional residence in permanent accommodation would lead to illness and problems of adjustment. He found however that the development on a site, well outside built-up areas, was clearly visible and would constitute a significant intrusion into the attractive rural surroundings and seriously harm the character and appearance of the countryside, particularly since there was already an established gypsy site a short distance along the same road. While he expressed his concern for the serious consequences of a refusal for the applicants, since they had nowhere to live for the foreseeable future apart perhaps from unauthorised camping sites, he concluded that the factors relating to the quality of the countryside outweighed the applicants' interests.        The applicants made a further application for planning permission which was refused on 11 December 1989. Their appeal was refused after a public inquiry on 24 April 1991 and the applicants penalised in costs on the basis that it was identical to the previous application. The inspector did not find the granting of permission for two caravans for gypsies 300-400 metres away along the same road could be regarded as a material difference. While he accepted that the applicants had a pressing need for a site, he maintained the conclusion that their caravan would remain intrusively visible and due to the location of the site, with two long road frontages, the development caused demonstrable harm to a countryside interests of acknowledged importance.        On 12 September 1990, the applicants had been convicted for breach of enforcement notices and ordered to pay £275 each as a fine and contribute £25 to the Borough's costs.        In February 1990, the Government state that the applicants made enquiries from the Borough about rehousing but no formal application was made until 21 May 1990. On 23 July 1990, the applicants were formally informed by the Borough that they were considered as intentionally homeless since they had terminated their council tenancy to move onto land not permitted for residential use contrary to the advice of the Housing and Planning Departments.        In 1991, the applicants enquired about alternative accommodation on a private site but were informed that they were excluded due to the size of their family.        On 6 March 1992, the applicants state that they were told that there was a waiting list for places on official sites but that since they were intentionally homeless they could not put their names on it for 2 years. According to the Government, in March 1992, the applicants applied to the Borough for housing on the grounds of homelessness and that contrary to the policy of refusing registration within two years after a finding of intentional homelessness the Borough agreed to re-register them as homeless on condition that they paid their arrears of rent for the council tenancy. The applicants did not pay the arrears.        According to the records of the Borough, at a meeting on 26 June 1992, its officials repeated offers of temporary accommodation to give the applicants time to find permanent accommodation. The applicants were recorded as stating that they would not accept a place on an official site and that they would only accept temporary accommodation in their own caravan, which the Borough could not provide. The applicants state that they have no recollection of making the former statement.        A third prosecution resulted in conviction and sentence was deferred to enable the applicants to move. On 24 July 1992, a fine of £350 was imposed on each applicant.        The Borough took the decision to seek an injunction in the High Court restraining the applicants from stationing their caravan on their land and gave notice to the applicants. On 16 October 1992, the applicants left their land and travelled to Whitstable, Kent close to where some of the second applicant's family had stationed their caravans. On the site there was no sanitation or electricity and there was an infestation of rats. The applicants contacted the Borough's housing officer in the hope that he could offer more suitable alternative accommodation but he could not. He suggested that they apply for Housing Association accommodation which they did but were told that nothing would be available for six months. The applicants heard nothing after that. The Government state that the applicants' names were placed on the waiting list at the end of 1992 but they removed their names from that list in January 1993. The applicants dispute that they removed their names.        On 17 December 1992, the applicants returned to their land, where the children could resume their education at their previous school.        The Borough commenced its proceedings for an injunction by summons dated 22 December 1993.        On 24 February 1994, the second applicant was convicted and fined for a continued breach of the enforcement notices.        The applicants applied for judicial review to quash the injunction proceedings on the basis that the decision to pursue the injunction against them was unreasonable. Leave was refused by the High Court. On 6 May 1994, the Court of Appeal dismissed the applicants' appeal.        In May 1994 the applicants applied to the Borough for accommodation and were again offered temporary accommodation. The applicants state that this was unsuitable bed and breakfast accommodation which would have entailed separating the first applicant from the rest of the family. The applicants were informed, the Government state, of vacant plots on council and private gypsy sites in the county. The applicants recall that these vacancies related to areas outside the Borough. One site which they visited at Aylesford was infested with rats and a dangerous place for children.        On 19 February 1996, the applicants received notice that the Borough had decided to withdraw the injunction proceedings commenced in 1993 and to enter their land and enforce the enforcement notice using its powers under section 178 of the Town and Country Planning Act 1990. The applicants lodged an application for judicial review of that decision. On or about 30 October 1996 the applicants withdrew their application on the basis that they would be given 6 weeks to vacate their land.        The applicants now have four children, Jody born in 1983, Tommy in 1983, Jessica in 1991 and Joshua in 1993.   b.    Relevant domestic law and practice   i.    General planning law        The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) ("the 1990 Act") consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act).   A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601).        An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act).        The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78).   With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, para. 21).   There is a further appeal to the High Court on the ground that the Secretary of State's decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288).        If a development is carried out without the grant of the required planning permission, the local authority may issue an "enforcement notice", if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act).        There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174).   As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector.        Again there is a further right of appeal "on a point of law" to the High Court against a decision of the Secretary of State under section 174 (section 289).   Such an appeal may be brought on grounds identical to an application for judicial review.   It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D).   The High Court will also grant a remedy if the inspector's decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument.   However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority.   ii.   Gypsy caravan sites provision        The Caravan Sites Act 1968        Part II of the Caravan Sites Act 1968 ("the 1968 Act") was intended to combat the problems caused by the reduction in the number of lawful stopping places available to Gypsies as a result of planning and other legislation and social changes in the post-war years. Section 16 defined "gipsies" as:        "persons of nomadic habit of life, whatever their race or origin,      but does not include members of an organised group of travelling      showmen, or of persons engaged in travelling circuses, travelling      together as such".        Section 6 of the 1968 Act provided that it should be the duty of local authorities:        "to exercise their powers ... so far as may be necessary to      provide adequate accommodation for gipsies residing in or      resorting to their area".        The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9).         Where the Secretary of State was satisfied either that a local authority had made adequate provision for the accommodation of Gypsies, or that it was not necessary or expedient to make such provision, he could "designate" that district or county (section 12 of the 1968 Act).        The effect of designation was to make it an offence for any Gypsy to station a caravan within the designated area with the intention of living in it for any period of time on the highway, on any other unoccupied land or on any occupied land without the consent of the occupier (section 10).        In addition, section 11 of the 1968 Act gave to local authorities within designated areas power to apply to a magistrates' court for an order authorising them to remove caravans parked in contravention of section 10.        The Cripps Report        By the mid-1970s it had become apparent that the rate of site provision under section 6 of the 1968 Act was inadequate, and that unauthorised encampments were leading to a number of social problems. In February 1976, therefore, the Government asked Sir John Cripps to carry out a study into the operation of the 1968 Act.   He reported in July 1976 (Accommodation for Gypsies: A report on the working of the Caravan Sites Act 1968, "the Cripps Report").        Sir John estimated that there were approximately 40,000 Gypsies living in England and Wales.   He found that:        "Six-and-a-half years after the coming into operation of Part II      of the 1968 Act, provision exists for only one-quarter of the      estimated total number of gypsy families with no sites of their      own.   Three-quarters of them are still without the possibility      of finding a legal abode ...   Only when they are travelling on      the road can they remain within the law: when they stop for the      night they have no alternative but to break the law."        The report made numerous recommendations for improving this situation.        Circular 28/77        Circular 28/77 was issued by the Department of the Environment on 25 March 1977.   Its stated purpose was to provide local authorities with guidance on "statutory procedures, alternative forms of gypsy accommodation and practical points about site provision and management".   It was intended to apply until such time as more final action could be taken on the recommendations of the Cripps Report.        Among other advice, it encouraged local authorities to enable self-help by gypsies through the adoption of a "sympathetic and flexible approach to [Gypsies'] applications for planning permission and site licences".   Making express reference to cases where gypsies had bought a plot of land and stationed caravans on it only to find that planning permission was not forthcoming, it recommended that in such cases enforcement action not be taken until alternative sites were available in the area.        Circular 57/78        Circular 57/78, which was issued on 15 August 1978, stated, inter alia, that "it would be to everyone's advantage if as many gypsies as possible were enabled to find their own accommodation", and thus advised local authorities that "the special need to accommodate gypsies ... should be taken into account as a material consideration in reaching planning decisions".        In addition, approximately £100 million was spent under a scheme by which one hundred per cent grants were made available to local authorities to cover the costs of creating Gypsy sites.        The Criminal Justice and Public Order Act 1994        Section 80 of the Criminal Justice and Public Order Act 1994 ("the 1994 Act"), which came into force on 3 November 1994, repealed sections 6-12 of the 1968 Act and the grant scheme referred to above.        Section 77 of the 1994 Act gives to a local authority power to direct an unauthorised camper to move.   An unauthorised camper is defined as        "a person for the time being residing in a vehicle on any land      forming part of the highway, any other unoccupied land or any      occupied land without the owner's consent".        Failure to comply with such a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrates' court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act).        Circular 1/94        New guidance on Gypsy sites and planning, in the light of the 1994 Act, was issued to local authorities by the Government in Circular 1/94 (5 January 1994), which cancelled Circular 57/78 (see above).        Councils were told that:        "In order to encourage private site provision, local planning      authorities should offer advice and practical help with planning      procedures to gypsies who wish to acquire their own land for      development. ... The aim should be as far as possible to help      gypsies to help themselves, to allow them to secure the kind of      sites they require and thus help avoid breaches of planning      control."        However:        "As with other planning applications, proposals for gypsy sites      should continue to be determined solely in relation to land-use      factors.   Whilst gypsy sites might be acceptable in some rural      locations, the granting of permission must be consistent with      agricultural, archaeological, countryside, environmental, and      Green Belt policies ..."     COMPLAINTS        The applicants complain of being prevented from living in a caravan on their own land and pursuing the traditional gypsy lifestyle. They wish to enjoy a settled life with good education for their four children while living and passing on the tradition of the gypsy lifestyle and culture. They submit that there is no justification for the interference with their Article 8 rights, the Borough's objections being based solely on aesthetic grounds. They point out that they face criminal prosecution and forcible eviction for remaining on their land and if they leave they have nowhere else lawfully to station their caravan. The Borough is a designated area and there is an acknowledged shortfall of official gypsy sites available. By 5 January 1993, the number of unauthorised caravans in the county was 283.        The applicants also invoke Article 14 of the Convention in conjunction with Article 8; Article 1 of Protocol No. 1 in respect of being denied the right to live peacefully in their caravan   on their own land and Article 2 of Protocol No. 1 in that the applicants' children would be denied education if they were forced to leave their own land and move constantly from one place to another trying to avoid prosecution or eviction.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 19 May 1994 and registered on 10 August 1994.        On 30 November 1994, the Commission decided to communicate the application to the respondent Government.        The Government's initial written observations were submitted on 13 February 1995. The applicants submitted observations in reply on 25 April 1995 after an extension in the time-limit.        On 16 April 1996, the Commission decided to adjourn the case pending the case of Buckley v. the United Kingdom before the Court (see below).        By letter dated 25 September 1996, following the Court judgment in Buckley v. the United Kingdom (Eur Court HR, judgment of 25 September 1996, Reports 1996-IV, No. 16, p. 1271), the Commission invited the Government and the applicant to submit further observations on the admissibility and merits of the application.        The Government submitted further observations on 6 November 1996 and the applicants on 13 November 1996.        On 24 May 1995 the Commission granted the applicants legal aid.     THE LAW        The applicants complain that the measures taken in relation to their occupation of their land in their caravan disclose violations of their right to respect for their private and family life and home (Article 8 (Art. 8)), discrimination (Article 14 (Art. 14)), an interference with peaceful enjoyment of their possessions (Article 1 of Protocol No. 1 (P1-1)) and with their children's right to education (Article 2 of Protocol No. 1 (P1-2)).        The Government submit that any interference with the applicants' rights is proportionate to the legitimate aims of protecting the environment, citing the approach taken by the Court in the Buckley case (Eur Court HR, judgment of 25 September 1996, Reports 1996-IV, p. 1271). They point out that the applicants occupied their land in full knowledge that planning permission had not been granted. They rely on the balancing exercise undertaken by various inspectors in weighing the strong policy objections to the development in a rural area with the needs of the applicants and their family. They note with reference to Article 26 (Art. 26) of the Convention that the decisions relating to the refusal of planning permission and dismissal of appeals in 1989 and 1991 occurred long before the applicants introduced their complaint before the Commission and these matters must be barred from consideration. They observe that the applicants' problems have largely been caused by their own actions. In those circumstances, they submit that proper regard has been had by the authorities to the applicants' individual circumstances and that the measures are compatible with Article 8 (Art. 8) of the Convention. On the same basis, the measures may be justified under Article 1 of Protocol No. 1 (P1-1) to the Convention.        Under Article 14 (Art. 14), the Government dispute that the applicants were subject to any difference in treatment based on their gypsy status. As regards Article 2 of Protocol No. 1 (P1-2), the Government submit that specific funds have been allocated to provide for the education of gypsy children. Moreover, the itinerant nature of gypsy culture means that gypsy parents have a duty to ensure that they stay in contact with local authorities to ensure that their children can receive an education.        The applicants argue that the interference with their home, private and family life is excessive and disproportionate and part of a continuing situation. They submit that there is no alternative site available in the Borough, where they have been settled and the children attend school and that the shortage of official sites in Kent as a whole renders it unfair on other gypsy families that they should seek vacancies beyond their own area. They emphasise that they have never been offered a pitch on an authorised gypsy site and that they have been subject to injunctions and more recent action designed to evict them from their land. There is nowhere else to lawfully station their caravan and continue their traditional way of life. Relying on the same factors, they submit the measures interfere unjustifiably with the peaceful enjoyment of their possessions.        As regards Article 2 of Protocol No. 1 (P1-2), the applicants argue that being denied permission to stay on their own land, threatening them with removal, undermines the stability of their childrens' education and will inevitably have a severely deleterious effect on their future education and emotional welfare. The applicants further submit that the situation to which they have been exposed as a result of planning and enforcement policies and measures discloses serious issues of discrimination.        As regards the Government's reference to Article 26 (Art. 26) of the Convention, the Commission notes that this seeks to restrict the examination of the applicants' complaints to matters occurring   within six months of the introduction of the application on 19 May 1994. While it recalls that the decisions relating to the refusals of planning permission, and the relevant appeals, occurred in 1989 and 1991,   the Commission observes that the applicants continued to occupy their land until at least the end of 1996 and that the more recent enforcement steps taken against them may be regarded as directly linked to these earlier planning measures.   It considers that the planning and enforcement proceedings relating to their occupation of their land may be regarded as a continuing situation. Accordingly, the Commission finds that it is not appropriate to make any finding under Article 26 (Art. 26) that any part of the application must be excluded from its examination as out of time.        The Commission considers, in light of the parties' submissions, that the case raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Commission concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.     M.F. BUQUICCHIO                                M.P. PELLONPÄÄ      Secretary                                     President to the First Chamber                          of the First Chamber