EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 20348/92

                             June Buckley

                                against

                          the United Kingdom

                        REPORT OF THE COMMISSION

                     (adopted on 11 January 1995)

                           TABLE OF CONTENTS

                                                                 page

I.    INTRODUCTION

      (paras. 1-20) . . . . . . . . . . . . . . . . . . . . . . . . 1

      A.  The application

          (paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1

      B.  The proceedings

          (paras. 5-15) . . . . . . . . . . . . . . . . . . . . . . 1

      C.  The present Report

          (paras. 16-20). . . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 21-57). . . . . . . . . . . . . . . . . . . . . . . . 3

      A.  Particular circumstances of the case

          (paras. 21-45). . . . . . . . . . . . . . . . . . . . . . 3

      B.  Relevant domestic law and practice

          (paras. 46-57). . . . . . . . . . . . . . . . . . . . . . 6

III.  OPINION OF THE COMMISSION

      (paras. 58-86). . . . . . . . . . . . . . . . . . . . . . . . 9

      A.  Complaint declared admissible

          (para. 58). . . . . . . . . . . . . . . . . . . . . . . . 9

      B.  Point at issue

          (para. 59). . . . . . . . . . . . . . . . . . . . . . . . 9

      C.  Article 8 of the Convention

          (paras. 60-85). . . . . . . . . . . . . . . . . . . . . . 9

      CONCLUSION

      (para. 86). . . . . . . . . . . . . . . . . . . . . . . . . .14

CONCURRING OPINION OF MRS. J. LIDDY . . . . . . . . . . . . . . . .15

DISSENTING OPINION OF MR. E. BUSUTTIL . . . . . . . . . . . . . . .17

DISSENTING OPINION OF MR. B. CONFORTI, JOINED

BY MM. A.S. GÖZÜBÜYÜK, A. WEITZEL ET I. BÉKÉS.... . . . . . . . . .18

APPENDIX I       HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .19

APPENDIX II      DECISION ON ADMISSIBILITY. .  . . . . . . . . . . 20

I.    INTRODUCTION

1.    The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2.    The applicant is June Buckley, a British citizen born in 1964 and

resident in Willingham, Cambridgeshire. She is represented by

Mr. Luke Clements, a solicitor practising in Hereford.

3.    The application is directed against the United Kingdom.  The

respondent Government are represented by Mr. Iain Christie, Foreign and

Commonwealth Office, as Agent.

4.    The case concerns the complaints of the applicant that she is

prevented from living with her family in caravans on her own land and

from following the traditional lifestyle of a gypsy. It raises issues

under Article 8 of the Convention.

B.    The proceedings

5.    The application was introduced on 7 February 1992 and registered

on 22 July 1992.

6.    On 8 January 1993, the Commission decided to communicate the

application to the respondent Government for their written observations

on the admissibility and merits of the application.

7.    The Government submitted their written observations on

8 April 1993.  The applicant submitted her written observations in

reply on 1 June 1993.

8.    On 1 December 1993, the Commission (First Chamber) decided to

hold an oral hearing.

9.    On 14 February 1994, the parties submitted written observations.

10.   At the hearing which was held on 3 March 1994, the Government

were represented by  Mr. Iain Christie, as Agent, Mr. David Pannick

Q.C., Counsel and Ms. Virginia Harrison, Miss Pauline Prosser and

Ms. Jan Bird as Advisers from the Department of the Environment. The

applicant was represented by Mr. Timothy Jones, Counsel,

Ms. Perdita Cargill-Thompson, counsel and Mr. Luke Clements, Solicitor.

11.   On 3 March 1994, the Commission declared the application

admissible.

12.   The parties were then invited to submit additional observations

on the merits of the application.

13.   On 27 May 1994, the Government submitted further observations.

14.   On 21 June 1994, 3 and 26 October 1994 and 18 November 1994, the

applicant made further submissions.  On 23 December 1994 the Government

submitted further observations.

15.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case.  Consultations with the parties' took place

between 16 March 1994 and 9 September 1994. In the light of the

parties' reactions, the Commission now finds that there is no basis on

which a friendly settlement can be effected.

C.    The present Report

16.   The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   F. ERMACORA

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

17.   The text of the Report was adopted by the Commission on

11 January 1995 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

18.   The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

      1)  to establish the facts, and

      2)  to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

19.   A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

20.   The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.    Particular circumstances of the case

21.   The applicant is a gypsy by birth. Her family has for many

generations been based in the area of South Cambridgeshire near

Willingham. As a child, her family travelled in that area. During the

spring and summer months, they parked their caravans on farms where

they engaged in casual farm work. At other times, they camped wherever

they could, on a waste land, the roadside or on the land of sympathetic

farmers. After the applicant's marriage she continued her travelling

life. Until 1988 therefore, the applicant had no fixed abode but

travelled in caravans throughout the Willingham area.

22.   In 1988 Mr. and Mrs. Buckley (who is the applicant's sister)

acquired a one acre site in the Willingham area from a Mr. and Mrs. S.,

who had applied for, and been refused, retrospective planning

permission for a single caravan.  In May 1988, Mr. and Mrs. Buckley

applied retrospectively for planning permission to have one residential

caravan on the frontage of their one acre site.  Permission was given

on a personal temporary basis.  In November 1988, a further

retrospective application was made for three caravans.  These were

occupied by the applicant and her three children.  Permission was given

in January 1989 on a personal temporary basis.

23.   The applicant moved on to the site occupied by her sister at the

end of 1988 before the birth of her third child. Her two eldest

children had been born to the travelling life. The applicant had found

it hard, being forced to move on continually. She found once they had

settled on her sister's land that the two children integrated into the

local school.

24.   On an unspecified date in 1988, the applicant acquired part of

the land belonging to Mr. and Mrs. Buckley.  In October 1989 on the

part of the land acquired by the applicant, there were three caravans

occupied by the applicant, her children and her mother. A retrospective

planning application in respect of the three caravans was submitted on

4 December 1989.  The application for planning permission was refused

by the District Council on 8 March 1990 on the basis that adequate

provision had been made for gypsy caravans elsewhere, that the planned

use of the land would detract from the rural and open quality of the

landscape and that the access to the site was too narrow to allow two

vehicles to pass.

25.   An enforcement notice was issued by the District Council for the

caravans to be removed to take effect on 15 May 1990.

26.   The applicant appealed against the enforcement notice to the

Secretary of State for the Environment.

27.   In a decision dated 16 April 1991 based on an inspector's report,

the Secretary of State dismissed the appeal, finding that the

objections to the continued use of the site for caravans were so strong

on planning and highway safety grounds that the grant of permission

could not be justified. He found also that the concentration of gypsy

sites in the area had reached the desirable maximum and the need for

additional sites for gypsies should not outweigh the planning and

highway objections. The inspector also referred to the fact that the

applicant had planning permission to station a caravan on an adjoining

approved site.

28.   The applicant did not appeal to the High Court since this appeal

lies only on points of law and she was advised that no grounds arose

in her case.

29.   The applicant was served with a summons for failure to comply

with the enforcement notice on 9 September 1991. At the hearing in the

Magistrates' Court on 7 January 1992, the applicant pleaded guilty on

the advice of her solicitor and was fined £50 with £10 costs.

30.   On or about 27 November 1992, an official site situated in Meadow

Drove was opened which contained 15 pitches for gypsies. A number of

the pitches were filled by gypsies from unofficial roadside sites

elsewhere in the district. By letter dated 17 February 1992, the

applicant had been informed by the Council of the possible availability

of pitches on this site and it had been suggested to her that she

contact the County Council in this regard. The applicant did not make

an application. In the time which has elapsed since the site opened,

seven vacancies have arisen.

31.   There are other official sites in South Cambridgeshire; a full

facility site at Whaddon in respect of which only one vacancy has

arisen since July 1992. There are two short stay or transit sites at

Blackwell and Meldreth respectively.

32.   Between 1984 and 1993, the District Council granted planning

permission for 170 private gypsy caravans.

33.   By letter dated 20 May 1993, the Department of the Environment

informed the District Council that the Secretary of State had decided

to designate the area of South Cambridgeshire under section 12 of the

Caravan Sites Act 1968. Designation was granted on the basis of the

Council's assurance that they would apply their powers humanely and

give sympathetic consideration to applications for gypsy sites. It was

noted that a small number of gypsies still remained on unauthorised

sites but that, in light of the provision made for sites which was

greater than in any other district, it was considered "not expedient

for adequate accommodation to be provided for gypsies residing in or

resorting to South Cambridgeshire District".

34.   The Order designating the district of South Cambridgeshire came

into force on 13 August 1993.

35.   In or about the summer of 1993, the applicant travelled in a

caravan with her sister who was in a separate caravan to St. Neots to

help their mother-in-law, recently bereaved by the loss of her husband.

The applicant stationed her caravan on waste land adjacent to the site

where her mother-in-law lived but after two weeks was forced to move

on.

36.   The applicant was prosecuted for breach of an enforcement notice

on 12 January 1994. The magistrates' court granted her an absolute

discharge but ordered her to pay the prosecution expenses.

37.   The applicant's land at Meadow Drove, where she lives in two

caravans with her three children, is now part of a group of six

adjacent sites which are occupied by gypsies. One plot has received

permanent planning permission for the residential use of three

caravans. The site occupied by the applicant's sister enjoys permission

for the use of two mobile homes and one touring caravan subject to the

condition, inter alia, that this use cease on or before 4 August 1995.

The parents of the applicant and her sister have moved onto the

sister's site. The remaining three sites have been occupied without

planning permission and the occupants have been subject to enforcement

proceedings. The occupants of two of those sites have introduced

applications before the Commission (Nos. 22902/93 and 23442/93).

38.   By letter dated 20 January 1994, the District Council contacted

the applicant noting that she had never applied for a place on the

official site at Meadow Drove and informing her that vacancies had

arisen recently which were due to be filled by residents transferring

from elsewhere but that a further pitch might become vacant in the next

days and weeks and that she should reconsider her decision not to apply

for a place. An application form was enclosed with the letter.

39.   As of 21 April 1994, there was a waiting list containing the

names of two persons who had applied for vacancies on the official site

at Meadow Drove. A vacancy which had arisen at or about that date was

notified to the two persons on the list but they had, however, lost

interest.

40.   The official Meadow Drove site is situated approximately

700 metres along the road to the east of the applicant's land. There

is another unofficial encampment of approximately 12 gypsy caravans

further east down the road beyond the official site.

41.   According to the gypsy liaison officer for the East Anglian Gypsy

Council in a letter dated 7 February 1994, as of 4 February 1994

additional families had moved on to three of the pitches on the

official site, "doubling up" because they had nowhere else to go. A

letter dated 20 February 1994 from an official of the Romani Union also

refers to problems on the site: "the Willingham site itself is

overcrowded and is not in my opinion suitable for a single mother...I

have heard reports that the site has recently been the subject of

disorder."

42.   Between the opening of the official site in November 1992 and

April 1994, the fire service attended twelve incidents in Meadow Drove.

From 24 April 1994, they have responded to 14 emergency incidents in

Meadow Road.  From the police records from October/November 1992 it

would appear that a number of these incidents related to abandoned

and/or stolen cars which had been set on fire.

43.   There is reference in the material before the Commission to two

incidents involving the threat of the use of firearms at the official

site. In the first, following an incident on 22 May 1993 in which G.P.

breached an injunction which forbade him to approach the caravan in

which his wife lived (he allegedly used a catapult to bombard the

caravan) he was taken briefly into custody. A call was received by the

police on 29 May 1993 warning that G.P.had a gun and was intending to

go back down to the site to shoot his wife and son. On investigation,

it appeared that the call was a hoax either by G.P. himself or his

brother. In a later incident in December 1993, a resident on the site

was punched in the eye by another. It was claimed by one that the other

had a gun but on investigation the police again found no evidence that

a gun had been on the site.

44.   The records refer also to joyriding, an apparent overdose of

drugs by some-one on the official site and numerous incidents of

vandalism and theft and stripping of motor vehicles, some of which were

then set on fire. The latter incidents took place in or about the

Meadow Drove area, on or near the road or on nearby farm land. The

front page of one of the local newspapers, the Cambridge Evening News,

of 20 November 1992, refers to a raid by 200 policemen on gypsy sites

in south Cambridgeshire, including two sites at Willingham, during

which it is reported that 25 men were arrested (14 from Willingham) and

suspected stolen property recovered.

45.   By decision dated 14 November 1994, the District Council rejected

the applicant's application of 19 September 1994 for planning

permission in respect of stationing her caravans on her land. It was

stated that the site was located in open countryside and repeated the

Inspector's finding in June 1992 that gypsy provision in Willingham had

reached the desirable maximum of 35 caravans. It also stated that

adequate provision for gypsies had been made along Meadow Road and that

granting permission to sites beyond the two private sites already

permitted at that location would consolidate the visually intrusive

character of the land use and detract from the rural and open quality

of the area.

B.    Relevant domestic law and practice

      Provision for gypsy sites

46.   Section 16 of the Caravan Sites Act 1968 (the 1968 Act) defines

"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."

47.   Section 6 of the 1968 Act provides that it shall 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."

48.   Pursuant to section 9 of the 1968 Act, the Secretary of State may

direct local authorities to provide sites:

      "The Secretary of State may, if at any time it appears to him to

      be necessary so to do, give directions to any local authority to

      which subsection 1 of section 6 of this Act applies requiring

      them to provide pursuant to that section, such sites or

      additional sites, for the accommodation of such numbers of

      caravans, as may be specified in the directions; and any such

      directions shall be enforceable, on the application of the

      Secretary of State, by mandamus."

49.   The Secretary of State has given directions to a local authority

under section 9 on five occasions. No application has ever been made

to the courts to enforce any such directions.

      The designation system

50.   Pursuant to section 12 of the 1968 Act, where the Secretary of

State is satisfied that the duty imposed by section 6 has been carried

out, he may designate the area of that local authority as one to which

section 10 applies. An order may not be made by the Secretary of State

unless it appears to him that either adequate provision has been made

in the area for the accommodation of gypsies residing in or resorting

to the area or  that in all the circumstances it is not necessary or

expedient to make any such provision (section 12 (3)).

51.   Section 10 of the 1968 Act provides :

      "Prohibition of unauthorised camping in designated areas

      (1) In any area designated under the following provisions of this

      Act as an area to which this section applies it shall be an

      offence for any person being a gipsy to station a caravan for the

      purpose of residing for any period -

           (a)   on any land situated within the boundaries of a

                 highway; or

           (b)   on any other unoccupied land; or

           (c)   on any occupied land without the consent of the

                 occupier.

      (2) In proceedings against any person for an offence under this

      section it shall be a defence to prove that the caravan was

      stationed on the land in consequence of illness, mechanical

      breakdown or other immediate emergency and that he removed it (or

      intended to remove it) as soon as reasonably practicable.

      (3) A person guilty of an offence under this section shall be

      liable on summary conviction to a fine not exceeding [level 1 on

      the standard scale]; and if the offence of which he is convicted

      is continued after the conviction he shall be guilty of a further

      offence and shall be liable in respect thereof to a fine not

      exceeding £5 for every day on which the offence is so continued."

52.   Section 11 of the Act provides:

      "Orders for removal of unlawfully parked caravans and their

      occupants

      (1) In any area to which section 10 of this Act applies, a

      magistrates' court may, on a complaint made by a local authority,

      and if satisfied that a caravan is stationed on land within the

      authority's area in contravention of that section, make an order

      requiring any caravan (whether or not identified in the order)

      which is so stationed on the land to be removed together with any

      person residing in it.

      (2) An order under this section may authorise the local authority

      to take such steps as are reasonably necessary to ensure that the

      order is complied with and in particular, may authorise the

      authority, by its officers and servants -

           (a)   to enter upon the land specified in the order; and

           (b)   to take, in relation to any caravan to be removed

                 pursuant to the order, such steps for securing entry

                 and rendering it suitable for removal as may be so

                 specified ..."

53.   Five of the six authorities in Cambridgeshire have been

designated pursuant to section 12. Four authorities, including the

district in question in the present case, were designated by the

Secretary of State on grounds of "expediency" while the fifth was

designated on the ground that adequate provision had been made for

gypsy accommodation in the area.

54.   In England and Wales as a whole, 157 from a total of 401 district

or borough councils have been designated.

55.   The Criminal Justice and Public Order Act 1994 which received the

royal assent on 3 November 1994, contains provisions which, inter alia,

abolish the duty on local authorities to provide gypsy sites and repeal

sections 10-12 of the 1968 Act above.

      Gypsy sites and planning

56.   In a circular 1/94 from the Department of the Environment dated

5 January 1994, revised guidance was given to local authorities in

respect of the planning aspects of sites for caravans which provide

accommodation for gypsies. Its main intentions included "to provide

that the planning system recognises the need for accommodation

consistent with the gypsies' nomadic lifestyle". It indicated that in

the preparation of development plans local planning authorities should

consult  with gypsies and relevant gypsy organisations to discuss their

accommodation needs. Relevant plans should identify locations suitable

for gypsy sites or set out clear, realistic criteria for suitable sites

as a basis for site provision policies.

57.   As regards applications by gypsies, the circular stated inter

alia:

      "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. Wherever possible gypsies

      should be encouraged to consult authorities on planning

      matters before buying land on which they intend to camp and

      for which planning permission would be required. Pre-

      application discussions are particularly important to avoid

      misunderstanding. 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."

III.  OPINION OF THE COMMISSION

A.    Complaint declared admissible

58.   The Commission has declared admissible the applicant's complaint

that she and her family are being prevented from living in caravans on

her own land and from following the traditional lifestyle of a gypsy.

B.    Point at issue

59.   The issue to be determined is whether there has been a violation

of Article 8 (Art. 8) of the Convention in respect of her complaint.

C.    Article 8 (Art. 8) of the Convention

60.   Article 8 (Art. 8) of the Convention provides:

      "1.  Everyone has the right to respect for his private and

      family life, his home and his correspondence.

      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."

a.    Applicability of Article 8 para. 1 (Art. 8-1) of the Convention

61.   The applicant complains that she is prohibited from living in her

caravans on her own land, where her children can grow up in a stable

environment and receive a continuous education and that she is also

prevented from pursuing the traditional lifestyle of  a gypsy.

62.   The Government point out that the applicant took up residence on

her land in contravention of the applicable planning controls and,

referring to the Commission's case-law, submit that Article 8 para. 1

(Art. 8-1) does not contain an express right to living accommodation

(cf. Application No. 14455/88, Dec. 4.9.91, unpublished). Since the

applicant is claiming in essence a right to establish a home, it is

submitted that she is relying on a right not guaranteed by Article 8

(Art. 8).

63.   The Commission recalls that the applicant did not have permission

to station her caravans on the land which she purchased in or about the

end of 1988. Her occupation has therefore never been lawful. The

Commission considers however that the concept of "home" within the

meaning of Article 8 (Art. 8) is not limited to those which are

lawfully occupied or which have been lawfully established. "Home" is

an autonomous concept which does not depend on classification under

domestic law. Whether or not a particular habitation constitutes a

"home" which attracts the protection of Article 8 para. 1 (Art. 8-1)

will depend on the factual circumstances, namely, the existence of

sufficient and continuous links (see eg. No. 7456/76, 8.2.78, D.R. 13

p. 40 and Eur. Court H.R. Gillow judgment of 24 November 1986, Series

A no. 109). The factor of "lawfulness" is relevant rather to

considerations under paragraph 2 of that provision of "in accordance

with law" and to the balancing exercise undertaken between the

interests of the community and those of the individual in assessing the

necessity of any interference.

lived on her land in her caravans since the end of 1988. She applied

for planning permission, albeit retrospectively and unsuccessfully, and

had been resident on her land for over three years before introducing

this complaint before the Commission. The Commission has had regard

particularly to the fact that the applicant is a gypsy who has always

lived in a caravan in or about the Willingham area. It accepts, as

submitted by the applicant, that living in a caravan home is an

integral and deeply-felt part of her gypsy life-style. The Commission's

case-law indicates that the traditional lifestyle of a minority may

attract the guarantees of Article 8 (Art. 8) as concerning their

"private life", "family life" and "home" (eg. Nos. 9278/81 and 9415/81,

Dec. 3.10.83, D.R. 35 p.30).

65.   The Commission accordingly finds in the circumstances of this

case that the applicant's complaint that she is prevented from living

with her family in her caravans on her land falls within the scope of

Article 8 (Art. 8) of the Convention as relating to her right to

respect for her family life, private life and home.

b.    Was there an interference under Article 8 para. 1 (Art. 8-1) of

      the Convention?

66.   The applicant contends that she has nowhere she can legally or

safely go if she is prevented from living on her own land. She submits

that there is an acknowledged shortfall of sites for gypsies in South

Cambridgeshire and that local authorities are failing to fulfil their

statutory duty to provide sites. The applicant asserts that in light

of the shortfall of sites for gypsies in the area it is unrealistic to

require her to apply for vacancies on the nearby  official site as this

will merely transfer the problem to another family. Even if there were

vacant pitches on the official site, she would submit in addition that

it has been and continues to be subject to violence and disturbance

which renders it an unsafe location for a single woman living alone

with her children. Further, the designation system which discriminates

against gypsies prevents her moving onto unoccupied land or stationing

her caravans near the highway. Though she wishes to remain on her land

in order to provide a stable home and attendance for her children at

the local school, she would wish to travel when possible.

67.   The Government contend that the applicant cannot be considered

a victim of any interference with her rights under Article 8

paragraph 1 (Art. 8-1) since as a matter of fact she was and is able

to apply for a place on one of the many other local authority and

private gypsy caravan sites throughout Cambridgeshire. They point in

particular to the official site in Meadow Drove close to the

applicant's present location and state that vacancies arise

periodically for which she could have applied since the site opened and

for which she could still apply. The Government submit also that the

applicant cannot claim to be a victim of the designation system since

she has not in fact been subject to any of the criminal sanctions which

may apply under the designation powers.

68.   The Commission has considered whether the applicant can claim to

be a victim of any interference with her right to private life, family

life or home. While the applicant has complained of the designation

system which applies criminal powers of enforcement to gypsies alone

in respect of stationing of caravans on public land or without consent

on privately owned land, the Commission notes that it is not its task

to review legislation in abstracto. It may only examine the applicant's

complaints insofar as she has been directly and immediately affected

by the measures in question. In this context, it appears that the

applicant has not been prosecuted or been subject to any order for

removal under the designation provisions (see eg. No. 18401/91,

Dec. 6.5.93, to be published in D.R.).

69.   The Commission recalls however that the applicant has been

subject to enforcement measures and has been prosecuted in respect of

her failure to cease occupying her land in her caravans. This is

sufficient to constitute an interference under the terms of the first

paragraph of Article 8 (Art. 8-1). Whether there are viable

alternatives open to the applicant if she leaves her land is relevant

to the consideration of the necessity of such interference (see below

paras. **).

c.    Compliance with Article 8 para. 2 (Art. 8-2) of the Convention

70.   According to the constant case-law of the Convention organs, an

interference under the first paragraph of Article 8 (Art. 8) entails

a violation unless it is "in accordance with the law", has an aim that

is legitimate under Article 8 paragraph 2 (Art. 8-2) and is "necessary

in a democratic society" for the aforesaid aim (see, inter alia, Eur.

Court H.R., W. v. the United Kingdom, judgment of 8 July 1987, Series A

no. 121, p.27 para. 60 (a)).

      i.   "in accordance with the law"

71.   The applicant has not contested the lawfulness of the measures

to which she has been subjected. The Commission finds that the

interference was "in accordance with the law".

      ii.  legitimate aim

72.   The Government have submitted that the measures taken against the

applicant pursue the enforcement of planning controls which are in the

interests of the economic well-being of the country, public safety (in

regard to the highway safety aspects), the preservation of the

environment and public health (recreational facilities and amenity for

the general public). The applicant has not seriously disputed these

aims. The Commission accordingly finds that the measures in this case

pursue, inter alia, the legitimate aims of the economic well-being of

the country and the protection of the health and rights of others as

provided for in the second paragraph of Article 8 (Art. 8-2) of the

Convention.

      iii. "necessary in a democratic society"

73.   The case-law of the Commission and Court establish that the

notion of "necessity" implies that the interference corresponds to a

pressing social need and that it is proportionate to the aim or aims

pursued. In assessing the proportionality, regard must be had to

whether a fair balance has been struck between the demands of the

general interest of the community and the requirements of the

protection of the individual's fundamental rights. Further, in

determining whether an interference is justified the Commission and

Court will take into account that a margin of appreciation is left to

the Contracting States, which are in principle in a better position to

make an initial assessment of the necessity of a given interference

(see eg. Eur. Court H.R. Olsson judgment of 24 March 1988, Series A

no. 130, p. 32, para. 68).

74.   The applicant contends that the interference is not necessary.

It is not, she submits, justified by a pressing social need. She refers

to the lack of viable alternatives if she leaves. She is unable to

afford the expense of buying into a private mobile home site and she

alleges that the official site nearby is not practicable due to the

overcrowding and disorder to which it is subject. Due to the

designation system in force in South Cambridgeshire and other adjacent

districts, she has nowhere else where she can lawfully go. She points

out that the local authority is acknowledged as not having provided

sufficient number of sites for gypsies and in these circumstances, it

is disproportionate for enforcement steps to be taken against her for

occupation of her own land.

75.   The Government consider that the applicant could have applied for

a place on the official site nearby which would allow her children to

continue to attend the local school. They dispute that the site has

been marked significantly by incidents of violence or disorder or by

overcrowding. They submit that the local authority has taken reasonable

steps to fulfil its duty to provide adequate accommodation in the face

of an increase in the gypsy population resorting to the area. They

emphasise that the applicant occupied her land without the requisite

planning permission and that she cannot rely on her membership of a

minority to gain immunity from planning controls which apply to

everyone else.

enforcement measures in respect of planning controls can be regarded

as necessary under the terms of the second paragraph of Article 8

(Art. 8-2) in the interests of the protection of the environment and

public amenity, particularly where the applicant concerned had taken

up residence on the land in question without permission (see

eg. 11185/84, Dec. 11.3.85, D.R.42 p. 275). As in those cases, the

Commission must weigh the general interests of the community in

effective planning controls against the applicant's right to respect

for her private life, family life and home, rights which are an

intrinsic part of her personal security and well-being. In this

assessment, the Commission must have regard to whether an excessive

burden is placed on the applicant. Relevant to this exercise is

consideration of whether there are practical alternatives open to the

applicant if she leaves her land. This is not, the Commission would

remark, a factor which plays a role in the general type of planning

case, where the assumption is that an individual has a wide range of

accommodation possibilities available to him or her throughout the

country. This case presents the special feature that, being a gypsy,

the applicant leads a traditional lifestyle which restricts the options

open to her.

77.   The Commission notes that local authorities are placed under a

duty by section 6 of the Caravan Sites Act 1968 to provide adequate

provision for the gypsies living or resorting to their area. The

district of South Cambridgeshire in the present case was however

designated by the Secretary of State under section 12 of the Caravan

Sites Act 1968. Designation was granted even though it was noted that

a small number of gypsies still remained on unauthorised sites, since,

in light of the provision made for sites which was greater than in any

other district, it was considered "not expedient for adequate

accommodation to be provided for gypsies residing in or resorting to

South Cambridgeshire District". The Government have referred to the

increase in number of gypsies resorting to the area and the resulting

burden that it has placed on the District Council. However, it would

appear, as pointed out by the applicant, that even if the Government's

figures of an increase between 1984 to 1992 from 66 to 206 caravans

(approximately 196 people) are correct (which she disputes), that has

to be seen in the context of an even steeper increase in the settled

population of the area which has generated a significant amount of new

housing in Willingham itself.

78.   While an official site was opened in November 1992, offering

15 pitches, this site was filled immediately and has since then had

only occasional vacancies. The Commission notes that there is an

unofficial roadside site further down Meadow Drove of an estimated

12 caravans and that there are three other families occupying land

adjacent to the applicant without planning permission. It is therefore

apparent that there is insufficient room on official sites for the

number of gypsies in South Cambridgeshire.

79.   The Commission does not consider that the possibility of moving

on to a private site is reasonably open to the applicant. This type of

privately owned site does not cater for gypsies and occupants are

required to purchase a mobile home on the site.

80.   While reference was made by the planning inspector (para. 22) to

the possibility of the applicant moving to her sister's site where

there was planning permission, the parents of the applicant and her

sister have now moved on to the sister's site. The Government accept

that it is no longer practicable to expect the applicant to move her

caravans there.

81.   The Commission notes in addition that the designation of the

district and those nearby renders it a criminal offence for the

applicant to station her caravans, inter alia, on waste ground or the

side of the road anywhere in the vicinity.

82.   The Commission has given careful consideration to the possibility

that the applicant could apply, as stated by the Government, for a

place on the nearby official site which has had and continues to have

vacancies from time to time.  While according to the Government there

have been few official complaints made to the District Council by the

residents of the site or the local population, the Commission finds

that the records of the police and fire services indicate a not

insignificant level of disorder, crime and, on occasion, violence

connected with, or in the vicinity of, the official site. It recalls

in this context that the applicant is a single mother living with her

three children. Given that there are insufficient places for gypsies

on official sites, it is unreasonable, in the Commission's view, to

expect the applicant, amongst those currently residing without

authorisation on their own or other land, to apply for a place on a

site which offers distinct disadvantages compared to her present

location on her own land, close to other members of her family.

83.   The Commission finds that the measures taken against the

applicant with regard to her continued occupation of her land place her

in the position where she is being required either to move off without

any specific lawful place where she can go or to apply for a future

vacancy on a site which she considers, with reason, to be unsuitable.

Both these alternatives offer the prospect of insecurity and the threat

of disrupting the stability of her own and her children's existence.

Against this, the Commission considers that the factors weighing in

favour of the public interest in planning controls are of a slight and

general nature. The highway safety aspect does not appear strong in

view of the location of an official and unofficial gypsy site along the

same road and the fact that two of the gypsy families at the

applicant's location have permission to be there. The general amenity

of the immediate area would not appear to require special measures of

protection in view of the number of authorised gypsy sites already in

place ie. it is not an area of untouched countryside or of particular

scenic beauty which might weight the balance more heavily towards

preservation.

84.   In these circumstances, the burden placed upon the applicant by

the enforcement measures is, in the Commission's opinion, excessive and

disproportionate. Even having regard to the margin of appreciation

accorded to the domestic authorities, the Commission finds that the

interests of the applicant in this case outweigh the general interest.

It does not consider that this finding is tantamount to rendering

gypsies immune from legitimate planning controls. Special

considerations arise in the planning sphere regarding the needs of

gypsies which are acknowledged in the Government's own policies.

Whether the correct balance has been struck between the rights of an

individual gypsy or gypsy family and the interests of the general

community will depend always on the particular facts of the case.

85.   The Commission finds that in the circumstances of the case the

interference cannot be regarded as "necessary in a democratic society"

in pursuit of the aims identified above.

CONCLUSION

86.   The Commission concludes, by 7 votes to 5, that there has been

a violation of Article 8 (Art. 8) of the Convention.

Secretary to the First Chamber      President of the First Chamber

       (M.F. BUQUICCHIO)                   (C.L. ROZAKIS)

                                                        (Or. English)

                  CONCURRING OPINION OF MRS. J. LIDDY

      I agree with the opinion expressed by the majority, but wish to

add some further considerations which led to my voting for a finding

of violation.  As noted in the Report, the Commission's case-law

indicates that the traditional life-style of a minority may attract the

guarantees of Article 8.

      It is my understanding that for many decades now in the part of

Europe this case concerns developments in the field of social security,

the decline in a market for traditional gypsy skills and the

development of the countryside have led to a situation where many

gypsies wish to remain for the greater part of the year on one spot,

while preserving their tradition of moving to halting-spots from time

to time.  Mothers are particularly concerned to ensure that the

traditional way of life does not have an unduly adverse effect on the

continuity of education of children, and their prospects for the

future.

      On the other hand, many members of the settled community do not

welcome gypsies to their vicinity.  They may impose strong pressure on

local or national elected representatives to prevent sites being

established in their neighbourhood.

      Central Government has a difficult task in taking measures, such

as the introduction of legislation, to respect the traditional way of

life of gypsies while at the same time having regard to the principle

of subsidiarity and the role of local authorities in planning matters.

The 1968 Act and Circular 1/94 from the Department of Environment to

local authorities (summarised at paragraphs 46 to 57 of the Report)

seem to reflect some such concern to take into account several

competing interests.

      However, the application in the present case of the relevant

legislation failed to achieve due balance.  On the one hand there was

a mother who had apparently saved enough money to buy a site and who

was concerned to ensure continuity of education for her children.  The

children of school-going age had integrated in their local school.  On

the other hand, first, the Secretary of State had decided that it was

"expedient" to make a Section 10 Order criminalising roadside parking,

notwithstanding that adequate accommodation (halting or permanent

sites) had not been provided by the local authority and second, the

local authority in dealing with the applicant's planning application

placed greater emphasis on what are  not totally convincing planning

considerations than they did on the special position of the applicant.

In particular, the applicant's wish to ensure that her children might

continue their education and that they might continue to be reared in

the comparatively gentle environs of her sister's home do not seem to

have been factors that the legal system took cognizance of.

      Whether the question is analyzed in terms of a positive duty on

the State - to take reasonable and appropriate measures to secure the

applicant's rights under paragraph 1 of Article 8 - or in terms of an

"interference by a public authority" to be justified in accordance with

paragraph 2, regard must be had to the fair balance that has to be

struck between the competing interests of the individual and that of

the community as a whole, and in any case the State enjoys a certain

margin of appreciation (Lopez Ostra v. Spain, Judgment of

9 December 1994).

      Having regard to the foregoing considerations an addition to

these in the Commission's Report, and despite the margin of

appreciation left to the respondent State, I consider that the State

did not succeed in striking a fair balance between the interest of

controlling development by planning measures and the applicant's

enjoyment of her right to respect as a gypsy for her home and her

private and family life.

                                                        (Or. English)

                 DISSENTING OPINION OF MR. E. BUSUTTIL

      I voted against violation in this case because I had taken the

view, at the admissibility stage, that the applicant could not be

considered a victim of any violation of her rights to respect for her

family life, private life and home under Article 8 para. 1 of the

Convention.

      No one had prevented the applicant from conducting her family and

private life in a caravan home.  She was merely prevented from camping

her caravans on land which lacked the requisite planning permission.

Indeed, to allow her to pursue the traditional lifestyle of a gypsy to

her heart's content, she had repeatedly been invited by the authorities

concerned to apply for a vacant pitch on a nearby official caravan site

where vacancies frequently occurred.  She had stubbornly refused to do

so for spurious reasons, as the letter dated 3 May 1994 from the Legal

and Housing Director of the South Cambridgeshire District Council to

her solicitors makes abundantly clear.  Thus in the letter the Director

describes the condition of the site as "immaculate" and the site

residents as "pleasant, friendly people" in sharp contrast to the

applicant's claim that it was an unsafe location for a single woman

living alone with her children.

                                                         (Or. French)

       OPINION DISSIDENTE DE M. B.CONFORTI A LAQUELLE DECLARENT

         SE RALLIER MM. A.S. GÖZÜBÜYÜK, A. WEITZEL ET I. BÉKÉS

      A mon avis le comportement du Royaume Uni dans cette affaire ne

peut être considéré comme une entrave au droit de la requérante au

respect de son domicile et cela car ce droit n'a jamais existé. En

effet la requérante avait installé ses roulottes sur un terrain de sa

propriété au mépris de la législation en vigueur; dès le début, donc,

l'installation des roulottes était illégale. Selon un principe général

de droit, nul ne peut tirer des conséquences favorables de son propre

fait illicite (nullus commodum capere potest ex sua iniuria propria).

      Je ne crois pas que l'on puisse se référer, comme le fait la

majorité de la Commission pour soutenir que le droit au domicile au

sens de l'art. 8  existait quand même (voir Rapport, par. 63), à la

décision de la Commission dans l'affaire Wiggins (No 7456/76, 8.2.78,

D.R. 13 p. 40) et à l'arrêt de la Cour dans l'affaire Gillow

(24.9.1986, Série A no. 109). Dans ces deux affaires il s'agissait d'un

domicile légalement établi et maintenu pendant un certain laps de

temps, et que les occupants avaient été obligés par la suite de quitter

dès que les conditions légales de l'occupation ne subsistaient plus

(affaire Wiggins) où par l'effet d'une législation survenue en matière

de logements dans la petite île de Guernesey (affaire Gillow). Il me

semble que dans l'une et dans l'autre affaire la Commission et la Cour

ont donné un poids important à cette circonstance (cf. Déc. 7456/76,

p. 44; Arrêt Gillow, par 46.).

      La majorité de la Commission souligne aussi que le fait de vivre

dans une maison-roulotte fait partie du "style de vie" de la requérante

en tant que gitane (voir Rapport, par. 64). Je ne crois pas que cela

puisse entrer en ligne de compte dans l'évaluation du droit au domicile

dans la présente affaire. Le problème ne se poserait pas de manière

différente si, au lieu d' une gitane, il s'agissait d'une personne dont

le style de vie consiste à vivre dans des bâtiments: que l'on pense au

propriétaire d'un terrain qui construit une maison en pierre sans les

autorisations prévues par la loi et qui, frappé par un ordre de

démolition, prétend voir respecter son "droit au domicile".

                              Appendix I

                      HISTORY OF THE PROCEEDINGS

Date                  Item

________________________________________________________________

07.02.92              Introduction of the application

222.07.92             Registration of the application

Examination of admissibility

08.01.93              Commission's decision to invite the parties to

                      submit observations on the admissibility and

                      merits

08.04.94              Government's observations

01.06.93              Applicant's reply

05.07.93              Commission's grant of legal aid

01.12.93              Commission's decision to hold an oral hearing

14.02.94              Further written submissions from the Government

                      and the applicant

03.03.94              Hearing on admissibility and merits

03.03.94              Commission's decision to declare the application

                      admissible

Examination of the merits

03.03.94              Commission's deliberations

27.05.94              Government's observations on the merits

21.06.94              Applicant's further submissions

05.07.94              Commission's examination of the state of

                      proceedings

03.10.94              Applicant's further information

26.10.94              Applicant's further information

18.11.94              Applicant's further information

07.12.94              Commission's examination of the state of

                      proceedings

23.12.94              Government's further observations

11.01.95              Commission's deliberations on the merits, final

                      votes and adoption of the Report