CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 18 janvier 2001

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margin-bottom:24pt; text-align:left } .s8913EA0E { width:283.5pt; display:inline-block } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }                   CASE OF LEE v. THE UNITED KINGDOM   (Application no. 25289/94)                     JUDGMENT     STRASBOURG   18 January 2001     This judgment is subject to editorial revision before its reproduction in final form in the official reports of selected judgments and decisions of the Court. In the case of Lee v. the United Kingdom , The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges:   Mr   L. Wildhaber , President ,   Mr   J.-P. C osta ,   Mr   A. Pastor Ridruejo ,   Mr   G. B onello ,   Mr   P. Kūris ,   Mr   R. T ürmen ,   Mrs   F. Tulkens ,   Mrs   V. S trážnická ,   Mr   P. L orenzen ,   Mr   M. F ischbach ,   Mr   V. Butkevych ,   Mr   J. Casadevall ,   Mrs   H.S. Greve ,   Mr   A.B. Baka ,   Mrs   S. Botoucharova ,   Mr   M. Ugrekhelidze , judges   Lord Justice S chiemann , ad hoc judge , and also of Mr M. de Salvia , Registrar , Having deliberated in private on 24 May and 29 November 2000, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case was referred to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No.   11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), [1] by the European Commission of Human Rights (“the Commission”) on 30 October 1999 and by the United Kingdom of Great Britain and Northern Ireland (“the Government”), on 10 December 1999 (Article   5   §   4 of Protocol No.   11 and former Articles   47 and   48 of the Convention). 2.     The case originated in an application (no. 25289/94) against the United Kingdom lodged with the Commission under former Article   25 of the Convention by a British citizen, Mr Thomas Lee (“the applicant”), on 4   May 1994. 3.     The applicant alleged that planning and enforcement measures taken against him in respect of his occupation of his land in his caravan violated his right to respect for home, family and private life contrary to Article 8 of the Convention. He complained that these also disclosed an interference with the peaceful enjoyment of his possessions contrary to Article 1 of Protocol No. 1 to the Convention and disclosed a denial of education to his grandchildren contrary to Article 2 of Protocol No. 1. He further complained that he was subject to discrimination as a gypsy contrary to Article 14 of the Convention. While he invoked Article 10 of the Convention before the Commission, he did not pursue this complaint in the proceedings before the Court. 4.     The Commission declared the application admissible on 4 March 1998. In its report of 25 October 1999 (former Article   31 of the Convention), it expressed the opinion that there had been no violation of Article 8 of the Convention (18 votes to 8), that there had been no violation of Article 1 of Protocol No. 1 (20 votes to 6), that there had been no violation of Article 2 of Protocol No. 1 (20 votes to 6), that there had been no violation of Article 10 of the Convention (unanimously) and that there had been no violation of Article 14 of the Convention (18 votes to 8). [2] 5.     Before the Court the applicant, who had been granted legal aid, was represented by Mr Mark Tilbury, a solicitor practising in King’s Lynn. The United Kingdom Government were represented by their Agent, Mr   Llewellyn of the Foreign and Commonwealth Office. 6.     On 13 December 1999, the panel of the Grand Chamber determined that the case should be decided by the Grand Chamber (Rule 100 § 1 of the Rules of Court). The composition of the Grand Chamber was determined according to the provisions of Article   27 §§   2 and 3 of the Convention and Rule 24 of the Rules of Court. Sir Nicolas Bratza, the judge elected in respect of the United Kingdom, who had taken part in the Commission’s examination of the case, withdrew from sitting in the Grand Chamber (Rule   28). The Government accordingly appointed Lord Justice Schiemann to sit as an ad hoc judge in his place (Article 27 § 2 of the Convention and Rule   29 §   1). 7.     The applicant and the Government each filed a memorial. Third-party comments were also received from European Roma Rights Centre, which had been given leave by the President to intervene in the written procedure (Article   36   §   2 of the Convention and Rule   61   §   3). 8.     A hearing took place in public in the Human Rights Building, Strasbourg, on 24 May 2000 (Rule   59   §   2). There appeared before the Court: (a)     for the respondent Government Mr H. Llewellyn,   Agent , Mr D. Pannick Q.C., Mr D. Elvin Q.C., Mr M. Shaw,   Counsel, Mr D. Russell, Mr S. Marshall-Camm,   Advisers; (b)     for the applicant Mr R. Drabble Q.C., Mr T. Jones, Mr M. Hunt,     Counsel , Mr M. Tilbury,   Solicitor. The Court heard addresses by Mr Drabble and Mr Pannick. 9.     On 29 November 2000, Mr Makarczyk, who was unable to take part in further consideration of the case, was replaced by Mr Bonello (Rules   24   §   5   (b) and 28). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     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. 11.     Throughout the years, the applicant was prosecuted frequently for illegal encampment. Over a four year period he claimed 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. 12.     The applicant’s land was situated on a hillside of the Stour Valley to the east of the village of Chartham. The surrounding land was mostly open agricultural land but in the valley bottom there was mineral working and industrial development. The land contained three caravans, which were occupied by the applicant, his wife, two children and grandchildren. It also had an area for grazing horses and contained a stable. The site was in an area designated within the relevant development plan as a Special Landscape Area where special planning policies applied. 13.     The applicant’s grandchildren attended school regularly receiving an education that in the past they frequently had not had the opportunity to receive. 14.     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. 15.     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. 16.     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. 17.     On 20 September 1993, the Inspector, in a decision letter, denied planning permission and dismissed the appeal. He stated inter alia : “6.     From my inspection of the site and the surrounding area and from the written representations I consider that the main issues are whether the impact of the residential caravans on the surrounding area is acceptable having regard to relevant planning policies, and also, if the impact is not acceptable whether the stationing of residential caravans is nevertheless justified by the agricultural needs of the proposed enterprise or by the needs of the three gypsy families involved. 7.     There are three approved development plans for the area: the 1990 Kent Structure Plan; the 1983 Kent Countryside Local Plan; and the 1982 Stour Valley Countryside Plan. Policy S6 of the Structure Plan imposes a general presumption against development of fresh land in the countryside although policy RS6 recognises that the needs of agriculture may constitute an exception. However even so policy RS1 requires that all development shall be appropriate in location and appearance while policies in all the plans provide that in such Special Landscape Areas as this conserving the landscape will normally have priority over other planning considerations. 8.     The site is in a corner of an open field on the southern hillside of the Stour Valley and surrounded by agricultural land. In this position it is highly visible at various points along the Cockering Road below and from the A28 in the valley bottom. It is also visible from footpaths in the vicinity and particularly from one that runs along the back of the site. The group of three caravans within the fenced site is a most conspicuous and alien form of development in this exposed rural location and is in conflict with the character and appearance of its surroundings. An attempt has been made to screen the caravans on the hillside by planting evergreens but many have died. However neither screening nor painting the caravans, as offered, is likely to make the development less obtrusive in such an isolated and open situation, and there is no doubt in my mind that it seriously conflicts with the policies designed to conserve and enhance the countryside. ... 11.     ... In my opinion, and on the evidence submitted the proposed enterprise <market gardening and horticulture> even taking into account the further land available is not likely to support the three families who would be engaged in it so as to justify their living on the site. 12.     As regards the agricultural need for living on the site, I am not satisfied that the type of horticulture outlined demands living on the site ... I do not doubt that the families wish to continue earning their living from agricultural pursuits but the offer to tie their occupation to agriculture ... does not overcome the lack of agricultural need to live on the site which might justify setting aside the strong amenity objection. ... 13.     In support of allowing the development as a gypsy caravan site it is stated that <the applicant> has been evicted from 40 sites over a 4 year period and was exasperated by the Council’s inability to provide suitable sites. He took the opportunity to acquire the present site to provide a permanent home and an income. This <he claims> is in line with the guidance in DOE Circular 28/77 which recognises that even in sensitive locations it may be necessary to accept the establishment of caravan sites or to refrain from enforcement actions until sites are available. 14.     The Council recognise that, despite being a ‘designated area’ under the 1968 Act, there is a shortfall of some 22 pitches and further provision needs to be made. A number of sites are being evaluated and in addition the draft local plan contains a policy for permitting gypsies to establish sites on their own land providing it is suitable. The Council do not consider that the Department’s guidance implies that private sites should be allowed without regard to the consequences. 15.     Having considered the evidence, I accept that there is a shortfall of pitches in the Canterbury area but I recognise too <the applicant’s> willingness, if not a preference, for providing a small site for the family group and I do not consider it unlikely that a less inappropriate place can be found. While therefore I accept that the loss of the present site would create a need for an alternative, in the circumstances of this case I find that the complete unsuitability of the present site outweighs that need. I have considered whether a temporary permission might be granted for this small group until the Council’s provision of other sites comes to fruition and I have taken account of <the applicant’s> willingness to accept a planning condition restricting the number of caravans on the site so as not to create a precedent for the use of adjoining land. However I can see no way of preventing it from being a precedent if other gypsy families sought to acquire plots of land nearby. ... I am satisfied that even a temporary planning permission could be a signal for the establishment of other sites which would have a very harmful effect on the landscape of this attractive valley. ...” 18.     The applicant then applied for permission to use the land for winter stationing of three caravans for residential purposes. 19.     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. 20.     The applicant now lives under the threat of criminal prosecution and forcible eviction. 21.     While the applicant had been on a number of occasions offered places on official sites, he refused primarily because the sites in question were in a very poor state. One site, at Broomfield was next to a rubbish tip and the other, at Vauxhall Road, was built on an old sewage bed and adjacent to an operational sewage works and with a steel works adjoining the southern boundary of the site, which operated 24 hours per day. The applicant stated that they were unfit for human habitation (photographs were attached to his application in support of his contention) and that the noise of the steelworks deprived inhabitants of the site of sleep. While the Government disputed before the Commission that the Broomfield site was unfit for habitation, referring to repairs being carried out when required due to the vandalism of occupants, the Government confirmed at the hearing before the Court that this site had now closed. The Government also provided the information that planning permission had been granted for the upgrading and extension of the site at Vauxhall Road and that a grant was made by the Secretary of State for this purpose. The original 16 pitches had now been refurbished, and two further pitches added, at a cost of GBP   495,000. The Council had served a Noise Abatement Notice on the steelworks with a view to improving the residential environment for the gypsy site and discussions were ongoing regarding the creation of a boundary between the two sites. 22.     The Government also stated that in 1998 in the Canterbury area there were two official sites comprising 30 pitches (with eight currently vacant) and in addition 28 caravans on authorised private sites and 14 caravans on unauthorised private sites. The July 1999 Department of the Environment figures showed however that the number of authorised private sites had dropped from 28 to 8, the number of public sites fell from 27 to 21, while the number of unauthorised encampments almost tripled from 14 to 38. 23.     The applicant stated that planning permission had been given to a non-gypsy to station a caravan on the site adjacent to the applicant’s. Outline planning permission had also been given for a development of 600 residential units 600 yards from his site. The Government have provided information and documents concerning both developments. Temporary planning permission was granted for two years in August 1994 for a caravan on a site called Larkey Wood Farm. The purpose of this was to enable the owner to establish the viability of his pig unit and the permission limited to occupation by an agricultural worker. Permission was granted recently for a permanent dwelling of the site given the established agricultural need and the owner’s establishment of the viability of his pig farm. In the Inspector’s decision of 17 August 1994, he found that this site did not have as unfortunate effect on the landscape as the applicant’s, though it did detract from the openness of the countryside and the natural appearance of the landscape. The Government have also explained that in the 1990’s a hospital (St.   Augustine’s), which was a large complex of buildings, closed down and it has been considered by the Council as suitable for residential development. The outline planning permission was granted to accommodate 600 houses and took into account the need to landscape the site. The applicant provided photographs of his own site and the Larkey Wood Farm site and the Government provided an aerial photograph identifying the locations of these developments relative to the applicant’s land. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     General planning law 24.     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). 25.     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). 26.     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, § 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). 27.     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). 28.     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. 29.     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. 30.     Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act). B.     The Caravan Sites Act 1968 31.     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, in particular the closure of commons carried out by local authorities pursuant to section 23 of the Caravan Sites and Control of Development Act 1960. Section 16 of the 1968 Act defined “gypsies” 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”. 32.     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”. 33.     The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9). 34.     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). 35.     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). 36.     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. C.     The Cripps Report 37.     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”). 38.     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.” 39.     The report made numerous recommendations for improving this situation. D.     Circular 28/77 40.     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. 41.     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. E.     Circular 57/78 42.     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”. 43.     In addition, approximately GBP 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. F.     The Criminal Justice and Public Order Act 1994 44.     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. 45.     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”. 46.     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). 47.     In the case of R. v. Lincolnshire County Council, ex parte Atkinson (22 September 1995), Sedley J. referred to the 1994 Act as “Draconic” legislation. He commented that: “For centuries the commons of England provided lawful stopping places for people whose way of life was or had become nomadic. Enough common land had survived the centuries of enclosure to make this way of life still sustainable, but by s.23 of the Caravan Sites and Control of Development Act 1960 local authorities were given the power to close the commons to travellers. This they proceeded to do with great energy, but made no use of the concomitant powers given them by s.24 of the same Act to open caravan sites to compensate for the closure of the commons. By the Caravans Act 1968, therefore Parliament legislated to make the s.24 power a duty, resting in rural areas upon county councils rather than district councils... For the next quarter of a century there followed a history of non-compliance with the duties imposed by the Act of 1968, marked by a series of decisions of this court holding local authorities to be in breach of their statutory duty, to apparently little practical effect. The default powers vested in central government to which the court was required to defer, were rarely, if ever used. The culmination of the tensions underlying the history of non-compliance was the enactment of ...the Act of 1994...” G.     Circular 1/94 48.     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.” (para. 20) 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 ...” (para. 22). It was indicated that as a rule it would not be appropriate to make provision for gypsy sites in areas of open land where development was severely restricted, for example Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest. Nor were gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt (paragraph 13). H.     Circular 18/94 49.     Further guidance issued by the Secretary of State dated 23   November 1994 concerned the unauthorised camping by gypsies and the power to give a direction to leave the land (CJPOA above). Paragraphs 6-9 required local authorities to adopt “a policy of toleration towards unauthorised gypsy encampments: “6.     ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which cannot be effectively controlled, an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance. Accordingly, authorities should consider tolerating gypsies’ presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites, for example by providing basic services for gypsies e.g. toilets, a skip for refuse and a supply of drinking water. 8.     Where gypsies are unlawfully camped on Government-owned land, it is for the local authority, with the agreement of the land-owning Department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health. It will continue to be the policy of the Secretaries of State that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance. 9.     The Secretaries of State continue to consider that local authorities should not use their powers to evict gypsies needlessly. They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land.” 50.     Paragraphs 10-13 further require local authorities to consider their obligations under other legislation before taking any decisions under the 1994 Act. These obligations include their duties concerning pregnant women and newly-born children, the welfare and education of children and the housing of homeless persons. In a judgment of 22 September 1995 ( R.   v.   Lincolnshire County Council, ex parte Atkinson , R. v. Wealden District Council, ex parte Wales and R. v. Wealden District Council, ex parte Stratford , unreported), the High Court held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages. I.     Gypsy sites policies in development plans 51.     In a letter dated 25 May 1998, the Department of the Environment drew to the attention of all local planning authorities in England that Circular 1/94 required local planning authorities to assess the need for gypsy accommodation in their areas and make suitable locational and/or criteria based policies against which to decide planning applications. The Government was concerned that this guidance had not been taken up. ACERT research (see below) had showed that 24% of local authorities (96) had no policy at all on gypsy sites and that many in the process of reviewing their plans at the time of the survey did not feel it necessary to include policies on gypsy provision. It was emphasised that it was important to include consideration of gypsy needs at an early stage in drawing up structure and development plans and that detailed policies should be provided. Compliance with this guidance was essential in fulfilling the Government’s objective that gypsies should seek to provide their own accommodation, applying for planning permission like everyone else. It was necessary, therefore, that adequate gypsy site provision be made in development plans to facilitate this process. J.     1998 ACERT research into provision for private gypsy sites 52.     The Advisory Council for the Education of Romany and Other Travellers (ACERT) which carried out research sponsored by the Department of the Environment, Transport and Regions, noted in its 1998 report that since 1994 private site provision had increased by 30 caravans per year while the pace of public site provision had declined by 100 caravans, disclosing that the pace of private site provision had not increased sufficiently to counterbalance decreases in public site provision. Noting the increase of gypsies in housing and the increased enforcement powers under the 1994 Act, it questioned, if these trends continued, the extent to which the ethnic, cultural and linguistic identity of Gypsy and Traveller people would be protected. 53.     The research looked, inter alia , at 114 refused private site applications, which showed that 97% related to land within the countryside and that 96% were refused on grounds relating to the amenity value (e.g.   Green Belt, conservation area locations). Of the 50 gypsy site applicants interviewed, for most acquiring permission for their own land was an important factor in improving the quality of life, gaining independence and providing security. For many, the education of their children was another important reason for private site application. All save one had applied for permission retrospectively. 54.     The report stated that the figures for success rates in 624 planning appeals showed that before 1992 the success rate had averaged 35% but had decreased since. Having regard however to the way in which data was recorded, the actual success rate was probably between 35% and 10% as given as the figures in 1992 and 1996 by the gypsy groups and Department of the Environment respectively. Notwithstanding the objectives of planning policy that local authorities make provision for gypsies, most local authorities did not identify any areas of land as suitable for potential development by gypsies and reached planning decisions on the basis of land-use criteria in the particular case. It was therefore not surprising that most gypsies made retrospective applications and that they had little success in identifying land on which local authority would permit development. Granting of permission for private sites remained haphazard and unpredictable. K.     Overall statistics concerning gypsy caravans 55.     In January 2000, the Department of the Environment, Regions and Transport figures for caravans in England disclosed that of 13,134 caravans counted, 6,118 were accommodated on local authority pitches, 4,500 on privately owned sites and 2,516 on unauthorised sites. Of the latter, 684 gypsy caravans were being tolerated on land owned by non-gypsies (mainly local authority land) and 299 gypsy caravans tolerated on land owned by gypsies themselves. On these figures, about 1,500 caravans were therefore on unauthorised and untolerated sites while over 80% of caravans were stationed on authorised sites. L.     Local authority duties to the homeless 56.     Local authority duties to the homeless were contained in Part VII of the Housing Act 1996, which came fully into force on 20 January 1997. Where the local housing authority was satisfied that an applicant was homeless, eligible for assistance, had a priority need (e.g. the applicant was a person with whom dependant children resided or was vulnerable due to old age, physical disability etc), and did not become homeless intentionally, the authority was required, if it did not refer the application to another housing authority, to secure that accommodation was available for occupation by the applicant for a minimum period of two years. Where an applicant was homeless, eligible for assistance and not homeless intentionally, but was not a priority case, the local housing authority was required to provide the applicant with advice and such assistance as it considered appropriate in the circumstances in any attempt he might make to secure that accommodation became available for his occupation. III.     RELEVANT INTERNATIONAL TEXTS A.     The Framework Convention for the Protection of National Minorities 57.     This Convention, opened for signature on 1 February 1995, provides inter alia : “Article 1 The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international co-operation. Article 4 1.     The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited. 2.     The parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority; In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities. 3.     The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination. Article 5 1.     The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage. 2.     Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation.” 58.     The Convention entered into force on 1 February 1998. The United Kingdom signed the Convention on the date it opened for signature and ratified it on 15 January 1998. It entered into force for the United Kingdom on 1 May 1998. By 9 February 2000, it had been signed by 37 of the Council of Europe’s 41 member states and ratified by 28. 59.     The Convention did not contain any definition of “national minority”. However the United Kingdom in its Report of July 1999 to the Advisory Committee concerned with the Convention accepted that gypsies are within the definition. B.     Other Council of Europe texts 60.     Recommendation 1203(1993) of the Parliamentary Assembly on Gypsies in Europe included the recognition that gypsies, as one of the very few non-territorial minorities in Europe, “need special protection”. In its general observations, the Assembly stated inter alia : “6.     Respect for the rights of Gypsies, individual, fundamental and human rights and their rights as a minority, is essential to improve their situation. 7.     Guarantees for equal rights, equal chances, equal treatment and measures to improve their situation will make a revival of Gypsy language and culture possible, thus enriching the European cultural diversity.” Its recommendations included: “xiv.     member states should alter national legislation and regulations which discriminate directly or indirectly against Gypsies; ... xviii.     further programmes should be set up in the member states to improve the housing situation, education... of those Gypsies who are living in less favourable circumstances. ...” 61.     In 1998, the European Commission against Racism and Intolerance issued General Policy Recommendation No. 3: Combating Racism and Intolerance against Roma/Gypsies. Its recommendations included: “... to ensure that discrimination as such, as well as discriminatory practices, are combated through adequate legislation and to introduce into civil law specific provisions to this end, particularly in the fields of ... housing and education. ... ... to ensure that the questions relating to ‘travelling’ within a country, in particular, regulations concerning residence and town planning, are solved in a way which does not hinder the life of the persons concerned; ...” C.     The European Union 62.     On 21 April 1994, the European Parliament passed a Resolution on the situation of Gypsies in the Community, calling on the governments of member states “to introduce legal, administrative and social measures to improve the social situation of Gypsies and Travelling People in Europe”; and recommending that “the Commission, the Council and the governments of Member States should do everything in their power to assist in the economic, social and political integration of Gypsies, with the objective of eliminating the deprivation and poverty in which the great majority of Europe’s Gypsy population still lives at the present time.” 63.     Protection of minorities has become one of the preconditions for accession to the European Union. In November 1999, the European Union adopted “Guiding Principles” for improving the situation of Roma in candidate countries, based expressly on the recommendations of the Council of Europe’s Specialist Group of Roma/Gypsies and the OSCE High Commissioner on National Minorities’ recommendations. D.     The Organisation for Security and Co-operation in Europe (OSCE) 64.     The situation of Roma and Sinti has become a standard item on the Human Dimension section of the agenda of OSCE Review Conferences. Two structural developments - the Office of Democratic Institutions and Human Rights (ODIHR) and the appointment