CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 16 janvier 2007

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Casadevall , President ,   Sir   Nicolas Bratza ,   Mr   G. Bonello ,   Mr   K. Traja ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Ms   L. Mijović, judges , and Mr T.L. Early , Section Registrar , Having regard to the above application lodged on 13 October 2005, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows:           THE FACTS The applicant, Mr Jesse Wells, is a British national who was born in 1966 and lives in Marsh Village, Buckinghamshire. He was represented before the Court by Mr J. Browne, a solicitor practising in Chesham. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, his wife and five children, are gypsies. He bought land known as Ashbrook Farm and moved onto it with three caravans on 10 April 2002. Prior to that date, they had lived in caravans at Stables Farm, an established gypsy caravan site located some 1.2. kilometres to the south of his land. On 26 April 2002, Wycombe District Council (“the Council”) served an enforcement notice requiring him to remove the caravans and cease using the land, which had been used for agricultural purposes, as a caravan site. The applicant appealed. By decision dated 18 December 2002, following a hearing and inspection of the site, the Inspector appointed by the Secretary of State dismissed the applicant’s appeal. He found that the development was prominent and harmed the rural character of the surroundings. He noted that there was a general shortfall of sites for gypsies in the county but that there were two other privately owned sites in the vicinity, one owned by the applicant’s father (Stables Farm) and the other by his brother, where stationing of caravans had been allowed and he considered that the possibilities of reorganising or extending the residential parts of these sites had not been fully explored. In particular, permission had been granted for a replacement dwelling on Stables Farm and when his parents moved into that house more space would become available. In the circumstances therefore the applicant’s need for an additional site at Ashbrook Farm had not been made out. The Inspector did not find the enforcement disproportionate as regarded Article 8 but gave one year to comply with the condition of ceasing occupation and removal of the caravans to allow the applicant to explore other options. The applicant did not appeal against this decision to the High Court. On 25 March 2004, the Council laid an information against the applicant which alleged that he had failed to comply with an enforcement notice. On 28 September 2004, the applicant was tried by the Central Buckinghamshire Magistrates’ Court. They dismissed the information finding the applicant not guilty as he “had done all that he could reasonably be expected to do to find suitable accommodation” for the purposes of the statutory defence under section 179(3) of the Town and Country Planning Act 1990. The Council appealed against that decision by way of case stated having requested that the magistrates pose the following question for the opinion of the High Court: “whether in light of the evidence the steps that the Justices found the <applicant> had taken to comply with the enforcement notice constituted, in law, a valid statutory defence under section 179(3) of the Town and Country Planning Act 1990.” The case stated recorded the following findings of fact by the magistrates: ... f) The [applicant] continued to reside at Ashbrook Farm. g) The [applicant] previously resided at a site belonging to his father. Due to family difficulties he and his family had to leave that site. He was unable to return. h) The [applicant’s] children attend school locally. It is in their best interests to remain at their respective schools. i) The [applicant] made approaches to local farmers to buy land, confirmed in letters of June and September 2004, and was unsuccessful. The [applicant] made enquiries of, and has registered with, local property consultants. These enquiries as to available local land also proved unsuccessful. j) There is a shortfall of gypsy accommodation in the Wycombe area and consequently other alternative local sites were not available. The [applicant] did not look for any gypsy accommodation outside the Buckinghamshire area. k) The [applicant] approached the [Council’s] housing department for alternative accommodation before purchasing Ashbrook Farm. As he is the owner of a mobile home he was not deemed to be homeless and therefore none was available. l) The [applicant] was willing to change his culture and consider living in a house with his family. m) The sale of the [applicant’s] mobile home would have rendered him intentionally homeless and local authority accommodation would not have been available. He was advised by the [Council] to go to letting agents. n) The sale of the [applicant’s] mobile home would have realised him sufficient funds to enable him to rent accommodation but only for a short period and therefore he did not go to any letting agents or attempt to obtain rental accommodation. Once the funds realised were used the [applicant] the applicant would not be able to maintain rental payments. o) The sale of the mobile home would have realised in the region of £10,000. p) The [applicant] was in work. On 23 May 2005 Mr Justice Newman allowed the Council’s appeal and remitted the case to the magistrates with a direction that they convict the applicant of the offence. He noted the findings of fact by the magistrates but found that the magistrates’ application of the defence under section 179(3) was flawed: “A defence under section 179(3) is not established by demonstrating that the reason for non-compliance with an enforcement notice is that no alternative site had become available, where the activity in question could be continued. On that basis, a whole range of activities, which take place contrary to planning control, and are commonly enforced against, could continue simply because nowhere else was available for them to be carried on. For example, the use of land for the whole range of industrial and commercial activities to which land can be put, could be continued, despite the service of an enforcement notice, so long as the owner or user demonstrated that an alternative site, where the activity could continue, had not become available. The enforcement procedures, essential to proper planning control, would be wholly undermined. It can also be seen that the magistrates placed some weight upon an approach to the [Council’s] housing authority before he purchased Ashbrook Farm. It is not clear why the position prior to ownership of Ashbrook Farm was relevant but it seems likely the magistrates concluded that the [applicant’s] ownership of a mobile home meant that he would not be regarded as "homeless". The service of an enforcement notice requiring the [applicant] and his family to leave the site where they were living obviously gave rise to facts enabling the eligibility of the family (including the [applicant]) for the provision of housing accommodation provided by the local authority to be considered by the housing department of the [Council]. There had been no application to the housing authority by the [applicant] and his family after the service of the enforcement notice. Had the magistrates realised the true position I doubt that they would have come to the conclusion that the [applicant] had done everything reasonably possible to find alternative accommodation. In the course of argument on the appeal and in response to the court, counsel for the [Council] accepted that the position of the [applicant] and his family arising from their need to comply with the enforcement notice, meant that the issue was fit to be taken up by the housing department... as soon as any application was made to it.” He referred also to previous cases on the section 179(3), noting that it had been held in Brockham (Kent County Council v. Brockham 1996 1 PLR): “that personal circumstances were admissible to establish incapacity, not that personal circumstances were admissible to establish an excuse or explanation for non-compliance or that compliance would give rise to particular hardship. It is clear the court was holding that for a defence to be made out, it must be established that, despite doing everything that could be reasonably expected, the defendant was nevertheless incapable of complying with the notice. Simon Brown LJ ... foresaw the risk that arguments on the basis of impecuniosity could lead to magistrates upholding defences, which were outside the contemplation and true meaning of the statutory defence... In my judgment Brockman provides no support for the factual conclusion reached by the magistrates in this case being treated as a defence. The <applicant> was not incapable of leaving the site. Whether or not he had an alternative site to go to, he was physically able to leave the site with his family. Further, as to his financial circumstances, although in selling the mobile home, he might only be able to provide himself with a home for a limited period of time, estimated at ten months, the hardship that that created for himself and his family did not establish that he was incapacitated by any “impecuniosity”. His “impecuniosity” did not prevent him from leaving the site, but plainly the requirement for them to go was capable of creating a measure of hardship. It has to be said, in light of their homelessness and the statutory duty upon housing authorities, it is likely to be substantially less than the magistrates had in mind... For these reasons...I am satisfied that the magistrates erred and that this appeal must be allowed.” Mr Justice Newman refused to certify the case as involving a point of law of general public importance for the purpose of further appeal to the House of Lords. In July 2005 the applicant was convicted by the magistrates and fined GBP 1,500 and ordered to pay costs. Meanwhile, on 21 June 2005, the applicant was granted by an inspector on appeal planning permission subject to conditions to change the use of the site to a gypsy caravan site for one family occupying no more than three caravans. The applicant and his family remain on the site on the authority of that permission. B.     Relevant domestic law Section 179(3) of the Town and Country Planning Act 1990 provides: “In proceedings against any person for an offence under section (2) <failure to comply with an enforcement notice>, it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.” Previous cases concerning the application of his defence include the following. In Kent County Council v. Brockman [1996] 1 PLR 1, the High Court (Divisional Court) refused the prosecuting authority’s appeal by way of case stated from a magistrates court’s decision to acquit the defendant on the basis of the defence. Buckley J held that the magistrates were correct in taking the individual’s personal circumstances into account and that where the individual was genuinely incapacitated, he did not have to show that he done something to try to comply with the enforcement notice. In that case the fact that the applicant was incapacitated physically by reason of a heart attack and was aged 65 living alone, could not do the work himself or pay for it, was sufficient to make out the defence. It was emphasised that magistrates should be fairly rigorous an proof of incapacity. In R. v. Beard [1997] 1PLR 64, the Court of Appeal dismissed the applicant gypsy’s appeal against conviction for breach of an enforcement notice in failing to quit the land which he occupied in his caravans. In dismissing the contention that the applicant had done everything he could be expected to comply by searching for alternative accommodation without success, the court found that the alleged facts relied on did not relate to any lack of capacity or inability to comply with the enforcement notice. Lord Justice Hobhouse noted that the system of planning controls, which existed in the interests of the community as a whole, was entrusted to democratically elected local authorities with rights of appeal to ministers accountable to Parliament and aggrieved applicants had rights of recourse to the courts under statute or by way of judicial review, with scope on appeals from planning decisions for public hearings at which parties and interested members of the public were entitled to present their views and evidence. It was at that stage that the fact that the applicant was a gypsy and that there might be special needs of the applicant or other gypsies for camp sites might justify the grant of a planning permission which would be refused in the absence of those special considerations. Against that background, he stated that the meaning of section 179(3) was “... clear and unambiguous. Where it is within the power of the owner of the land to comply with the notice without the assistance of others, no question of a defence ... arises. Before a defence can arise... the owner must show that compliance with the notice is not within his own unaided powers, otherwise no question of his having to secure compliance with the notice can arise. Thus, if there are other persons in occupation of the land, it is enough if he has done all that he could reasonably be expected to do to secure that they comply with the notice. If compliance would require, for example, some engineering work and the owner is not himself able to do that work and does not have the resources to employ another to do it, he will have a defence... .. “Sub-section (3) is not concerned with a balance of social factors. It is not concerned with policy issues as arise in relation to the circumstances in which gypsies live. It does not enjoin the court to accept a defence on the footing only that it concludes that it would be a good thing if the defendant were not required to comply. Indeed it is not at all concerned with the defendant’s wishes; only with his capacity. It is there to protect an individual who shows that in reality and common sense he is unable to comply with the obligations imposed on him by an enforcement notice as owner. ... The legislative scheme allows for the legitimate rights and expectations of gypsies to be taken into account at the appropriate stages of the procedure, including the stage of whether or not an enforcement notice should be upheld. Once an appropriate decision has been made in accordance with the law to uphold the enforcement notice, its enforcement involves no conflict with Article 8. The subject matter of section 179 is failure to comply with a lawful enforcement notice... There is nothing in the present case which requires the appellant to desist from following a nomadic life or abandoning a communal existence with other gypsies.”   In R. v. Wood [2002] JPL 219, the Court of Appeal allowed the appeal of a gypsy against conviction for breach of an enforcement notice requiring him to remove his caravan from his land. It held that the judge had been wrong to rule that there was no defence on the facts to be left to the jury, stating that it was for the jury to decide whether the defendant had done all that he reasonably could to secure compliance with the notice and that while there was little or no merit in the grounds advanced by the applicant (e.g. whether he would be able to convince his family to move even if he left himself), the issue should be determined at a retrial. In R. v. Clarke [2002] JPL 1372, the Court of Appeal rejected the appeal against conviction of a gypsy who had failed to remove his caravans, finding that the considerations in Beard still applied as they had been endorsed in Wood which had been decided after the Human Rights Act 1998 had come into force. Mr Justice Cooke rejected the contention that the tribunal of fact was entitled to consider before convicting, in addition to whether or not he had done everything reasonable to comply in his personal and financial circumstances, whether the alleged interference with the defendant’s right to respect for his traditional way of life was justified under Article 8 § 2 of the Convention. “The question of the rights of the applicant, in relation to home and family life, was fully considered at the earlier stage of the planning process, by the decisions of the planning authorities and the two appeals therefrom, when the inspectors decided against the applicants...” COMPLAINTS The applicant complained under Article 8 of the Convention that Mr Justice Newman’s decision was wrong in law and constituted an unlawful breach of his right to respect for his home, family life and traditional way of life as a Romani Gypsy. The applicant complained under Article 14 that the judge’s ruling had a far greater impact on the Gypsy population and Travellers than other sectors of society, particularly since the availability of alternative site provision was excluded from consideration. The applicant complained under Article 6 that the refusal to certify a point of law of general public importance deprived him of an ability to appeal. THE LAW 1. The applicant complained that the High Court judge’s decision concerning the approach to apply to a gypsy’s failure to comply with an enforcement notice breached Article 8 of the Convention which provides as relevant: “1.     Everyone has the right to respect for his private and family life, his home ... 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” adopted the wrong approach in holding that he could not rely on the defence under section 179(3) of the 1990 Act The parties’ submissions The Government accepted that the applicant’s right to respect for home, private and family life were engaged. Any interference was, however, justified. It was in accordance with law and pursued the legitimate aim of protecting the rights of others and the promoting the economic well-being of the country through preservation of the countryside. As to necessity and proportionality, they pointed to the wide margin of appreciation and argued that the decision-making process had been fair and due respect afforded to the applicant’s interests. They emphasised that the applicant had established his site unlawfully and that his appeal against enforcement had been heard by an inspector after a hearing. He had the right to appeal further but did not do so. In their view the way in which the courts interpreted and applied section 179(3) did not give rise to any violation of Article 8. They noted that in the appeal in the criminal proceedings it had been open to the applicant to argue in the High Court that section 179(3) should have been given effect to in a way compatible with Articles 8 and 14 of the Convention. Had the judge rejected the arguments, he could have sought to appeal further to the House of Lords. As regarded the sentence imposed, this had been decided by the magistrates after hearing the plea in mitigation; the applicant had not appealed against it. The sanction was not disproportionate in the circumstances. The applicant submitted that the High Court judge’s approach in this case could not be reconciled with earlier precedent which properly protected Article 8 rights of individuals charged with such offences. According to the earlier decision in Wood (cited above), the applicant’s defence was one which he was entitled to raise and the merit of that defence was for the magistrates to determine. The High Court judge’s decision to quash the applicant’s acquittal was quite simply unlawful and as a consequence his rights under Article 8 were breached. The fact that a planning inspector had previously considered a defendant’s personal circumstances and the availability of alternative accommodation when determining whether to uphold the enforcement notice did not absolve the criminal courts from considering those issues at a later stage. On remittal of the case the magistrates’ court should also have the opportunity to evaluate the circumstances afresh before determining whether to convict the applicant. He further submitted that there was no pressing social need for the prosecution as his use of land did not give rise to safety or health considerations and there was an absence of alternative accommodation. In the circumstances of the case, given the vulnerable position of gypsies, the High Court judge’s decision, overruling the magistrates’ court which had taken into account the applicant’s personal circumstances, was disproportionate. The Court’s assessment The Court notes that the criminal proceedings against the applicant concerned his failure to comply with an enforcement notice requiring him to remove his caravans from the land where he had set up home with his family. It considers that the measures of enforcement taken in respect of his continued occupation constituted an interference with his right to respect for his private life, family life and home within the meaning of Article 8 § 1 of the Convention. It must therefore determine whether this interference was justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing a legitimate aim or aims and as being “necessary in a democratic society” in pursuit of that aim or aims. The applicant has argued that the decision of the High Court judge, namely that it was not open to him to rely on section 179(3) of the 1990 Act was unlawful. The Court would observe that the interpretation and application of domestic law is, first and foremost, for the national courts. There is no information in the file which would enable it to assess the High Court’s decision in this case as flying in the face of the wording or intention of the statutory provision or of established precedent. The Court therefore considers that the High Court judgment must be regarded as “in accordance with the law” in pursuit of the aim of protecting the rights of others through preservation of the environment. It will however assess whether the approach disclosed in this case may be regarded as “necessary in a democratic society” and, in particular, if it is proportionate to the legitimate aim pursued. In this context, the complexity and sensitivity of the issues involved in policies balancing the interests of the general population, in particular with regard to environmental protection, and the interests of a minority with possibly conflicting requirements renders the Court’s role a strictly supervisory one, with a wide margin of appreciation afforded to the domestic authorities ( Chapman v. the United Kingdom [GC], no. 27238/95, §§ 91-104), ECHR 2001 ‑ I). The Court acknowledges the importance of what was at stake for the applicant in this case and the strong personal interest he and his family had in remaining on the land. However, there is no right as such under Article 8 to choose the location of a home or to be provided with a home. The applicant knowingly took up residence on his land without planning permission, and, it may be noted, did not appeal to the High Court against the decision of the Inspector raising, inter alia , his arguments concerning his Convention rights. It is apparent from the domestic case-law that it is at this stage in the planning system that the individual’s interests are balanced against those of the community in planning controls (see Relevant Domestic Law and Practice above). The Court has on a number of occasions found the planning mechanisms and the avenues of redress provided comply with both Articles 6 and 8 of the Convention ( Bryan v. the United Kingdom , judgment of 22 November 1995, Series A no. 335 ‑ A, Buckley v. the United Kingdom , judgment of 25 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, Chapman , cited above). In these circumstances, the High Court ruling that it was no defence, at the stage of enforcement, to rely on the apparent lack of other alternative sites for caravans in the vicinity does not in the circumstances disclose any arbitrary or disproportionate response. The scope of the defence under section 179(3) was restricted to cases of incapacity, to which a rigorous standard of proof applied. The High Court judge found that the applicant was not in any way incapacitated or incapable of leaving the land where he was unlawfully resident and further that the magistrates’ court had erred in finding that there were no other options available to him, in particular, he could rely on the statutory duty of the housing authority to provide for the homeless. As stated in Buckley (cited above, §   81 and reiterated in Chapman , cited above, § 113), Article 8 does not necessarily go so far as to allow individuals’ preferences as to their place of residence to override the general interest and gypsies must be regarded as in the same unfortunate position as many others who are not able to afford to continue to reside on sites or in houses attractive to them. In conclusion, the Court finds that there is no appearance of a violation of Article 8 in the approach adopted by the High Court or in the prosecution or conviction of the applicant in this case. It follows therefore that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.   2. The applicant complained that the ruling of the High Court judge impacted disproportionately on gypsies, invoking Article 14 of the Convention which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” The Government submitted that any interference with the applicant’s rights was proportionate to the legitimate aim of the preservation of the environment and that there had been no lack of objective and reasonable justification for the measures taken. Nor in light of the domestic case-law and the facts of the case had the applicant been treated any less favourably than a non-gypsy in his trial and sentence. The applicant argued that the High Court judge’s decision was bound to impact most on gypsies and travellers and thereby disclosed discrimination in that different groups were being treated in the same way. In the case of industrial or commercial land users, no Article 8 rights were likely to arise and so gypsies should not have been treated in the same way. Having regard to its findings above under Article 8 of the Convention that any interference with the applicant’s rights was proportionate to the legitimate aim of preservation of the environment, the Court concludes that there has been no discrimination contrary to Article 14. While discrimination may arise where States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (see Thlimmenos v. Greece [GC], no.   34369/97, § 44, ECHR 2000-IV), the Court does not find, in the circumstances of this case, any lack of objective and reasonable justification for the measures taken against the applicant. His status as a gypsy was taken into account at an earlier stage in the enforcement procedure and was reasonably regarded as not of decisive relevance in determining the issue of incapacity and the availability of a defence to failure to comply. It follows therefore that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.   3. Finally, the applicant complained under Article 6 of the Convention (right of access to court for a fair trial) that he had been deprived of an appeal due to the refusal of the High Court judge to certify a point of law of general public importance. Article 6 does not, however, guarantee a right of appeal. Although where a right of appeal is provided in domestic law Article 6 § 1 applies to such appellate procedures, the right of access to an appeal court is not absolute and the State, which is permitted to place limitations on the right of appeal, enjoys a certain margin of appreciation in relation to such limitations (( Delcourt v. Belgium judgment of 17   January 1970, Series A no. 11, § 25 ; De Ponte Nascimento v. the United Kingdom , ( dec. ), no. 55331/00, 31 January 2002). Conditions of admissibility of an appeal on points of law or to superior appeal courts may also be stricter than for an ordinary appeal (see, mutatis mutandis , Brualla Gomez de la Torre v. Spain judgment of 19   December 1997, Reports 1997-VIII).   The Court considers that, taking into account the margin of appreciation to be afforded to the respondent Government, the fact that the High Court was acting as a first tier appellate court and the characteristics of the national system in which the House of Lords’ jurisdiction as superior court of appeal is limited to a narrow category of cases of a particular legal importance, there is no appearance of unreasonable or disproportionate restriction on access to court for the purposes of Article 6 of the Convention. It follows therefore that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   T.L. E arly   Josep C asadevall   Registrar   President