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. 25289/94                       by Thomas LEE                       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 22 June 1994 by Thomas LEE against the United Kingdom and registered on 23 September 1994 under file No. 25289/94;        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      30 June 1995 and 6 November 1996 and the observations in reply      submitted by the applicant on 4 October 1995 and 20 January 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen born in 1943 and resident in Chartham, Kent.   He is represented before the Commission by Mr. T. Christie of the National Romani Rights Association. The facts as submitted by the parties may be summarised as follows.   a.    Particular circumstances of the case        The applicant and his wife are gypsies by birth.   They were born and bred in Kent.   They have a nomadic lifestyle and have travelled extensively around the south of England in pursuit of work and to attend traditional gypsy social gatherings.        Throughout the years, the applicant has been prosecuted frequently for illegal encampment.   Over a four year period he claims to have been evicted from more than 40 sites.   To rectify this situation in 1991 he bought a plot of land which measures approximately 0.4 hectares.        The applicant's land is situated on a hillside of the Stour Valley to the east of the village of Chartham.   The surrounding land is mostly open agricultural land but in the valley bottom there is mineral working and industrial development.   The land contains three caravans, which are occupied by the applicant, his wife, two children and grandchildren.   It also has an area for grazing horses and contains a stable. The site is in an area   designated within the relevant development plan as a Special Landscape Area where special planning policies apply.        The applicant's grandchildren attend school regularly receiving an education that in the past they have frequently not had the opportunity to receive.        The applicant and his family have mainly been employed in agricultural work all their lives.   He bought the site with the intention that it would provide a settled home and also a living from market garden produce and horticulture.        On 20 November 1992, an enforcement notice was issued by Canterbury City Council ("the Council"), requiring the applicant to cease the use of the land for the stationing of residential caravans. He was given six months within which to remove the caravans.        In January 1993, the applicant lodged an appeal against the enforcement notice.   An inspector was appointed by the Secretary of State for the Environment to determine the appeal.        On 20 September 1993, the inspector, in a decision letter, denied planning permission and dismissed the appeal, on the basis that the site was surrounded by agricultural land and was highly visible from various surrounding areas.   He noted that the Council had acknowledged that there was a shortfall of about 22 pitches in the area. However, he found, that in the circumstances, the consequences for the environment outweighed the arguments in favour of allowing the applicant and his family to live there in caravans. He did not consider it unlikely that a less inappropriate site could be found. The inspector found that there was no agricultural need for living on the site as he doubted that the applicant's proposals to support himself and his family through market-gardening were feasible. In addition, he feared that even temporary planning permission would be a signal for the establishment of other sites, which would have a detrimental effect on the landscape of the valley.        The applicant then applied for permission to use the land for winter stationing of three caravans for residential purposes.        On 1 March 1994, after having requested the applicant to explain what change in material considerations had taken place, the Council declined to determine the above application in accordance with Section 70A of the Town and Country Planning Act 1990. The Council did not consider that there were material differences between the planning application for winter stationing of caravans and the applicant's earlier application.        The applicant now lives under the threat of criminal prosecution and forcible eviction.        While the applicant has been on a number of occasions offered places on official sites, he has refused primarily because the sites in question are in a very poor state. Further, one site, at Broomfield is next to a rubbish tip and another at Vauxhall Road is built on an old sewage bed and directly adjacent to an operational sewage works. The applicant states that they are unfit for human habitation although this is disputed by the Government. The Government also comment that planning permission had been granted for the upgrading and extension of a site at Vauxhall Road and that an application to the Secretary of State for a grant has been made although they have not stated whether or not any improvements have been carried out.        The applicant states that planning permission has been given to a non-gypsy to station a caravan on the site adjacent to the applicant's. Outline planning permission has also been given for a development of 600 residential units 600 yards from his site. The Government have stated that they are unable to comment on the reasons for granting planning permission for other developments.   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 applicant claims that his right to respect for his private and family life and his home, as guaranteed by Article 8, is being unjustly interfered with.   He alleges that he and his family are being denied the right to live on their own land in caravans and are prevented from pursuing their traditional gypsy lifestyle. The applicant contends that the reasons for the Council's objections are solely based, firstly, on aesthetic grounds and secondly, on the fear that such a development will encourage other similar developments by gypsies in the area.        The applicant alleges that the treatment he received during the planning applications was despicable, bordering on defamation.   He claims it was implied, with malicious intent, that he was unfit and incompetent, so as to deprive him of planning consent.   He also invokes Article 10 of the Convention.        The applicant believes he has been discriminated against, and was refused planning permission, because of his gypsy status and the many cases of illegal encampment summonses against him. He also invokes Article 1 of Protocol No. 1 and refers to the disruptive effects moving would have on the education of his grandchildren.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 22 June 1994 and registered on 23 September 1994.        On 6 April 1995, the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 30 June 1995. The applicant replied on 4 October 1995 after an extension of 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. The applicant submitted further observations on 20 January 1997.        On 13 September 1995 the Commission granted the applicant legal aid.     THE LAW   1.    The applicant complains that the measures taken in relation to his occupation of his land in his caravans discloses violations of his right to respect for his private and family life and home (Article 8 (Art. 8)), an interference with his freedom of expression (Article 10 (Art. 10)), discrimination (Article 14 (Art. 14)), an interference with peaceful enjoyment of his possessions (Article 1 of Protocol No. 1 (P1-1)) and with his grandchildren's right to education (Article 2 of Protocol No. 1 (P1-2)).        Concerning exhaustion of domestic remedies        The Government contend initially that the applicant has failed to exhaust domestic remedies as he did not seek judicial review of the decision by the Council in March 1994 to decline to make a finding in his second planning application for winter accommodation of his caravans.        The applicant submits that the domestic courts do not in judicial review applications address the wider implications of the situation and that they have failed, save on one occasion, to find that the Secretary of State has acted unreasonably in such cases.        The Commission recalls from the judgment of Akdivar v. Turkey (Eur. Court HR, judgment of 16 September 1996, Reports-IV, No. 15, p. 1210, para. 66) that Article 26 (Art. 26) requires an applicant to have exhausted all remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. There is no obligation to have recourse to remedies which are inadequate or ineffective. Moreover, it is incumbent upon the Government to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time.        The Commission observes that judicial review of the Council's refusal to determine the applicant's planning application would, if successful, simply have resulted in the matter being remitted to the Council for a determination; the High Court would not have been able to determine the planning application itself. The Commission notes that in the Council's letter of March 1994 the Director of Planning stated that he did not consider that the proposals to use the site as a winter site were materially different from the planning considerations which formed part of the previous appeal. The Commission is therefore of the view that had the Council been required to determine the second planning application it would in all probability have been rejected. The Commission consequently considers that judicial review of the Council decision would not have amounted to an effective remedy.        It follows that the application cannot be rejected pursuant to Article 26 and 27 para. 3 (Art. 26, 27-3) of the Convention for failure to exhaust domestic remedies.        Concerning the substance of the applicant's complaints        The Government submit under Article 8 (Art. 8) that any interference with the applicant's rights was proportionate to the legitimate aim of protecting the environment, citing the approach adopted by the Court in the Buckley case (Eur. Court HR, judgment of 25 September 1996, Reports 1996-IV, p. 1271). The Government point out that the site is in a Special Landscape Area where particular policies apply and note that the Inspector considered that the applicant's development represented a "conspicuous and alien form of development" in an "exposed rural location" which conflicted with the policies designed to conserve the countryside. He also found that the development could not be justified on agricultural reasons. The Government rely upon the fact that the Inspector balanced the policy objections to the development against the applicant's arguments and found that, although the loss of the present site would create the need for an alternative, the complete unsuitability of the applicant's site outweighed that need. The Inspector also considered that the grant of even temporary planning permission would result in a precedent being set which would have a harmful effect on the landscape of the valley.        The Government also contest the applicant's assertions that the sites on which he had been offered vacancies in the past were unfit for human habitation. They remark that the Vauxhall Road site had received planning permission for improvements and an application had been made for a grant.   The importance of the margin of appreciation afforded to the State is also emphasised by the Government who contend that, in all the circumstances, proper regard was had to the applicant's circumstances, thereby making the decision compatible with Article 8 (Art. 8).        As regards Article 14 (Art. 14), they dispute that there has been any discrimination. They submit that the factors above apply equally to the complaints under Article 1 of Protocol No. 1 (P1-1). In the context of Article 2 of Protocol No. 1 (P1-2), they submit that there is adequate provision for the children of gypsies to attend school, the onus resting on their parents to maintain contact with education authorities and that the applicant cannot claim a right for the children to attend any particular school.        The applicant submits that the interference with his home and family life is disproportionate. He disputes the findings of the inspector both in terms of his assessment of the harm which would be caused by the development and his decision that, agriculturally, the development was neither necessary nor feasible. The applicant further points out that, although he has have been offered alternative sites in the past, these have all been unsuitable as being unfit for human habitation. Photographs of one site, at Broomfield, reveal it to be squalid and situated next to an unpleasant rubbish dump. The applicant argues that if enforcement measures are successful he will have no alternative but to return to travelling on the roads where he will be subject to possible prosecution under the Criminal Justice and Public Order Act 1994. On the same basis, the measures constitute a disproportionate interference with the peaceful enjoyment of his property.        In respect of Article 14 (Art. 14) the applicant points to the fact that planning permission has been obtained by a non-gypsy neighbour for a residential caravan on land adjacent to that of the applicant which, the applicant alleges, would have a more damaging environmental impact than his own development. Additionally, it appears that planning permission has been granted for a development of 600 homes within one kilometre of the applicant's property. The applicant alleges that his failure to obtain planning permission is the result of his gypsy status and suggests that there has been an element of social engineering in the planning applications.        With regard to the education of his grandchildren, which complaints were communicated to the respondent Government under Article 2 of Protocol No. 1 (P1-2), the applicant submits that it is essential for his grandchildren to continue to receive regular schooling and that if he is forced to move from his land to a more nomadic lifestyle, the children will lose this benefit.        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