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. 25154/94                       by Jane SMITH                       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 4 May 1994 by Jane SMITH against the United Kingdom and registered on 15 September 1994 under file No. 25154/94;        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      19 June 1995 and in December 1996 and the observations in reply      submitted by the applicant on 15 November 1995 and on 11 November      1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen born in 1955 and resident in Lyne, Chertsey, Surrey. She is represented before the Commission by Messrs Lance Kent & Co., solicitors practising in Berkhamstead. The facts as submitted by the parties can be summarised as follows.   a.    Particular circumstances of the case        The applicant is a gypsy by birth. Since her birth she has travelled constantly, mainly in the Surrey area, with her family in search of work. After marrying her husband, A, approximately 20 years ago, this nomadic way of life continued.        The applicant and A are illiterate, as, due to their way of life, they have received little, if any, formal education. They regard travelling as detrimental to both the health of their family and to the education of their children. The applicant suffers from depression, her husband from severe gout and several of her children are asthmatic.        In pursuit of a more stable existence, the applicant and her husband applied repeatedly throughout the years for places on many of the local private and official sites in Surrey including the official sites in Runnymede. Their applications proved unsuccessful as all the sites were full with long waiting lists. Consequently, the applicant and her husband had no option but to continue travelling. They were required to move on from roadside to roadside on innumerable occasions. For a period of time they stayed at a private site but when it was redeveloped as an official site they were forced to move on as no space was available for them. In 1984 they stayed on a relative's site for a period of time but were forced to leave. While the Government has suggested that in fact the applicants owned this land and that it received planning permission, this is denied by the applicant. According to the applicant, the land belonged to her brother. When, following his divorce, the land was ordered to be sold by the court as part of the financial settlement, the applicant had to leave.        In March 1993, the applicant bought land known as 111A Almners Road, Runnymede. It was a portion of a garden in a Green Belt area where there was already some residential development. The applicant moved a mobile home onto the land and took up residence with her family.   In a declaration dated 7 March 1996 the applicant's uncle, Jasper Smith, a member of the Gypsy Council and an employee of Surrey County Council, stated that he had attempted on numerous occasions prior to 1993 to obtain a site on an official site on behalf of the applicant without success.        On 25 June 1993, Runnymede Borough Council ("the Council") rejected the applicant's application to join the waiting list for rented council accommodation on the basis that they had not lived in the borough for a minimum of three years. The applicant alleges that by this time they had lived for many years in the Runnymede area, although they had been compelled to move on frequently from place to place.        In 1988, the High Court had granted a declaration that Surrey County Council was in breach of its duty under section 6 of the Caravan Sites Act 1968 to provide provision for gypsies (R. v. Secretary of State ex parte Smith [1988] C.O.D. 3). In June 1989, the Secretary of State issued a direction under section 9 of the 1968 Act directing that 190 caravans should be accommodated. However,   on 18 August 1989, the Borough of Runnymede was declared a designated area pursuant to section 12 of the Caravan Sites Act 1968. The area was designated on the basis that it was not expedient for adequate provision to be made for gypsies residing in or resorting to the borough.        The previous owner of 111A Almoners Road, also a gypsy, had been refused planning permission in January 1993 to live on the land in a caravan on the basis that it conflicted with local and national planning policies. The Council considered that the stationing of a caravan would be detrimental to the character of the Green Belt. An enforcement notice had been issued requiring discontinuance of the unauthorised use. The applicant was aware of this situation and the fact that the previous owner had appealed to the Secretary of State for the Environment against the refusal of planning permission and the enforcement order. When the applicant purchased the land she was advised that there was a special concession for granting planning permission to gypsies in Green Belt areas under Circular 28/77. Accordingly, she took over the appeal from the previous owner.        On 20 April 1993, a Public Enquiry was held. An inspector appointed by the Department of Environment heard evidence and representations from the applicant and the Council. By a letter dated 3 June 1993, the inspector dismissed the appeal. He concluded that the use of the applicant's land as a residential caravan site for a mobile home was not appropriate to that part of the Metropolitan Green Belt in which it was situated. He then considered whether or not there were exceptional reasons for granting planning permission noting that Circular 28/77 stated that it may be necessary to accept the establishment of caravan sites in green belt areas. He accepted that it might not be possible to locate the applicant's mobile home on any authorised site within the area but also commented that he did not consider that the applicant and her husband had explored all other avenues relating to other possible accommodation. He noted that the Council had no record that she had sought a place on any official site and that she had stated that she had not enquired whether there was any space on any of the sites occupied by her relatives. Consequently, he was not "assured that the applicants would have to return to live on unauthorised sites". The inspector therefore dismissed the appeal and upheld the decision of the Council that planning policy should override the needs of the applicant and her family.        The applicant remained on her land in the caravan as the family had not been offered a place on an official campsite and thus had no alternative legal site to place their caravan.        On 29 July 1993, the applicant applied to the Council for planning permission to build a bungalow, of which there were already some 20 on Almoners Road. The Council refused planning permission. On 16 September 1993, the applicant appealed this decision by written statement as she could not afford a public enquiry.        On 29 November 1993, an inspector appointed by the Department of the Environment dismissed the appeal on similar grounds to the earlier appeal, namely that the bungalow was inappropriate within the Green Belt and that there were no special circumstances which would override the strong presumption against such a development. As a consequence, the applicant and her husband were in breach of the enforcement notice and liable to receive a summons issued by the Council for breach of Planning Regulations.        Injunction proceedings were instituted against the applicant and her family by the Council. On 5 September 1994, the Council obtained an injunction in the High Court requiring the applicant and her family to move off their land immediately. The applicant applied for judicial review of this decision and was granted limited legal aid. However, she received counsel's opinion which advised that the application was doomed to failure.        In light of the new Criminal Justice and Public Order Act 1994, which came into force on 3 November 1994, the applicant, in fear of being on the roadside, applied to be placed on the local authority homeless list on 4 August 1994. The Council informed the applicant's solicitors on 4 November 1994 that the applicant had been placed on the list.        The applicant has been offered accommodation in two flats in a town. However, the rent was excessively high and there was no facility to keep her husband's van nor his tarmacadaming and landscape gardening equipment. Moreover, the environment next to a busy, treeless road was contrary to the country existence which she and her family had enjoyed all their lives. They have applied for accommodation in a more natural environment but no offer has yet been made. The Council had previously offered three alternative pieces of land which were subsequently withdrawn   due to respectively a methane gas leak, boggy ground and being near a rubbish dump.        The local authority have stated that, in the event that the applicant is forced to leave the site, the authority will provide temporary accommodation for her until permanent accommodation becomes available. However, in view of the restrictions on development within the Green Belt, all accommodation offered will be in urban areas.        The 1995 Annual Report from Surrey County Council planning department revealed that following the coming into force of the Criminal Justice and Public Order Act 1994 the County Council no longer had an obligation to identify new gypsy caravan sites and that unless very special circumstances were proved it was unlikely that new sites would be allowed in Green Belt and sensitive areas. The statistics for 1994 showed that the official sites in the area catered for 44 caravans while there were another 26 caravans on unauthorised sites.        It appears that the local authority decided to institute proceedings against the applicant in May 1997. The state of those proceedings is unknown.   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 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 applicant complains of an interference with her rights under Article 8 of the Convention. She complains both that she is unable to live in a caravan on her own land and that she is being prevented from practising her traditional culture. She submits that due to planning regulations and a shortage of sites built for gypsies she was forced to purchase her own land. However, she has been denied the right to live on her own land by the local authority and the Department of the Environment.        The applicant alleges that her right to a fair hearing under Article 6 para 1 of the Convention has been violated. The decision to refuse planning permission was made by two inspectors appointed by the Secretary of State for the Environment. No right of appeal lies against these decisions as they are decisions of fact.        The applicant invokes Article 1 of Protocol No. 1 and complains that she has been denied the right to live peacefully on her own land.        The applicant also invokes Article 2 of Protocol No. 1 and submits that, if forced to leave her land, her children's education would suffer. Her oldest three children are illiterate having lived most of their lives on the road while of her youngest two, the six year old is integrated into the local school and the three year old has his name down for the school.        The applicant also refers to discrimination on the basis of her status as a gypsy in relation to the refusal of planning permission thereby raising issues under Article 14 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 4 May 1994 and registered on 15 September 1994.        On 6 April 1995, the Commission decided to communicate the application to the respondent Government.        The Government's initial written observations were submitted on 19 June 1995. The applicant submitted observations in reply on 15 November 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 in December 1996. The applicant submitted further observations on 11 November 1996, and further information and documents on 12 April, 16 May and 15 August 1996.        On 24 October 1995 the Commission granted the applicant legal aid.     THE LAW        The applicant complains that the measures taken in relation to her occupation of her land in her caravans discloses violations of her right to respect for her private and family life and home (Article 8) (Art. 8),   discrimination (Article 14) (Art. 14), an interference with peaceful enjoyment of her possessions (Article 1 of Protocol No. 1) (P1-1) and with her children's right to education (Article 2 of Protocol No. 1 (P1-2)).        The Government submit that any interference with the applicant's 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, Buckley v. the United Kingdom judgment of 25 September 1996, Reports 1996-IV, p. 1271). They point out that the applicant's site lies within the Metropolitan Green Belt. They rely on the balancing exercise undertaken by both inspectors in weighing the strong policy objections to further development in the Green Belt with the needs of the applicant and her family.   In those circumstances, they submit that proper regard has been had by the authorities to the applicant's individual circumstances and that the measures are compatible with Article 8 (Art. 8) and, on the basis of the same reasoning, with the right to peaceful enjoyment of possessions guaranteed under Article 1 of Protocol No. 1 (P1-1) to the Convention. They note with reference to Article 26 (Art. 26) of the Convention that the final decision referred to by the applicant as being the decision of the inspector of 29 November 1993 related to her application for planning permission to build a bungalow and not to her occupation of her land in a caravan, the proceedings in respect of which terminated earlier.        As regards Article 6 para. 1 (Art. 6-1) the Government submit that the opportunity to apply to the High Court provided access to court, referring to the Court's judgment in the case of Bryan v. the United Kingdom (Eur. Court HR, judgment of 22 November 1995, Series A no. 335). Under Article 14 (Art. 14), the Government dispute that the applicant was subject to any difference in treatment based on her gypsy status and that the refusal to allow her to settle in the Green Belt, which would be equally prohibited to the non-gypsy population, cannot disclose discrimination. 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 applicant argues that the interference with her home, private and family life is disproportionate and part of a continuing situation. She submits that there is no alternative site available in the Runnymede area and that there is no realistic chance of acquiring a site within Surrey given the inadequate provision for gypsies within Surrey. She further submits that the accommodation which has been offered to her, a flat in an urban area,   is inappropriate, as it will prevent her from continuing her lifestyle. She contests the Government's submissions that she could live in a house, arguing both that she would be unable to afford this option and that it is fundamentally incompatible with her culture.        The applicant argues that the committal proceedings which have been threatened by the local authority, and now appear to have been re-instituted, would, if enforced, result in her having nowhere where she could continue to live a traditional existence.        As regards Article 6 para. 1 (Art. 6-1) the applicant complains that, while an appeal lay to the High Court on points of law, this did not provide review of the issues of fact which arose in her case. The applicant has invoked Article 1 of Protocol No. 1 (P1-1) in regard to being denied the right to live peacefully on her land and complains of discrimination contrary to Article 14 (Art. 14) in that her status as a gypsy was not given   sufficient weight in the planning decisions. The applicant also invokes Article 2 of Protocol No. 1 (P1-2) to the Convention and argues that the effect of the planning decisions will be to force her to choose between passing on her culture to her children or providing them with an education.        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 applicant's complaints to those directly related to the planning decisions taken within six months of the introduction of the application on 4 May 1994. While it recalls that the decision taken by the inspector in November 1993 relates to a refusal for planning permission for a bungalow, the Commission observes that the applicant's application was by way of a last resort due to the enforcement procedures relating to her occupation of her caravan. It considers that the planning and enforcement proceedings relating to her occupation of her land may be regarded as a continuing situation which has not yet terminated. 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