AS TO THE ADMISSIBILITY OF

                       Application No. 24876/94

                       by Thomas and Jessica COSTER

                       against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 4 March 1998, the following members being present:

           MM    M.P. PELLONPÄÄ, President

                 N. BRATZA

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

           Mrs   J. LIDDY

           MM    L. LOUCAIDES

                 B. CONFORTI

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs   M. HION

           Mr    R. NICOLINI

           Mrs   M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 19 May 1994 by

Thomas and Jessica COSTER against the United Kingdom and registered on

10 August 1994 under file No. 24876/94;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     13 February 1995 and 6 November 1996 and the observations

     submitted by the applicants on 25 April 1996 and 13 November

     1996;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicants are British citizens born in 1962 and 1964

respectively and resident in Headcorn, Kent. They are represented

before the Commission by Peter Kingshill & Co, solicitors practising

in London. The facts as submitted by the parties may be summarised as

follows.

a.   Particular circumstances of the case

     The applicants are gypsies by birth. As children, the applicants

lived and travelled with their respective families in and around the

area known as the Borough of Maidstone in Kent. From 1987, the Borough

was a designated area pursuant to section 12 of the Caravan Sites Act

1968 (see below).

      In 1982, the applicants married. When the second applicant became

pregnant, the applicants decided to search for a permanent site on

which to site their caravan. There remained few stopping places upon

which they could  lawfully park their caravan whilst travelling in the

area and they faced the threat of continual eviction. The applicants

wished for their children to be brought up in a stable environment

which would facilitate the continuity of their education.

     The applicants state that they were refused a place on any local

authorised site. They camped outside one official site for 5-6 weeks

hoping to be offered a plot. No place was offered and court proceedings

were brought against them by the Borough to secure their eviction from

the land. The Government state that the Borough has no knowledge or

record of any request by the applicants for a pitch in 1982.

     With the imminent birth of their first child, the applicants

moved into the caravan occupied by the first applicant's mother on a

permitted gypsy site and sold their own caravan. The caravan was

however small and conditions became intolerable. Having nowhere else

to go, the applicants in or about 1983 reluctantly applied for

permanent accommodation and accepted the offer of a council flat.  They

commenced a tenancy in a fourth floor flat on 16 January 1984. Though

they were moved to a first floor flat after 10 months, they found the

flats totally unsuitable and alien to their traditional gypsy

lifestyle. On 18 April 1986, they requested a transfer to a house on

the grounds of the second applicant's health but were informed that

there was a waiting list and that a move would be conditional on

payment of outstanding rent. The applicants dispute that they owed any

rent and suggest that the Borough has mistaken them for the tenants of

a different flat, there being some confusion as to the addresses

involved. In late 1987, the applicants requested a site on an official

caravan site or more suitable accommodation but were told this was not

possible. The Government state that they did not wish to be placed on

the waiting list.

     In 1988, the applicants purchased land known as Summerfields in

Headcorn, Kent and moved onto it, living in a caravan.

     On 11 July 1988, the second applicant made a retrospective

planning application for permission to station a caravan on their site.

Permission was refused by the Borough on 13 October 1988.

     On 23 September 1988, an enforcement notice was issued requiring

discontinuance of the unauthorised use.

     In July 1989, the applicants were convicted for failure to comply

with the enforcement notice.

     On 27 September 1989, a public enquiry was held by way of appeal

against the refusal of planning permission. The appeal was dismissed.

The inspector accepted that the applicants were gypsies for whom

conventional residence in permanent accommodation would lead to illness

and problems of adjustment. He found however that the development on

a site, well outside built-up areas, was clearly visible and would

constitute a significant intrusion into the attractive rural

surroundings and seriously harm the character and appearance of the

countryside, particularly since there was already an established gypsy

site a short distance along the same road. While he expressed his

concern for the serious consequences of a refusal for the applicants,

since they had nowhere to live for the foreseeable future apart perhaps

from unauthorised camping sites, he concluded that the factors relating

to the quality of the countryside outweighed the applicants' interests.

     The applicants made a further application for planning permission

which was refused on 11 December 1989. Their appeal was refused after

a public inquiry on 24 April 1991 and the applicants penalised in costs

on the basis that it was identical to the previous application. The

inspector did not find the granting of permission for two caravans for

gypsies 300-400 metres away along the same road could be regarded as

a material difference. While he accepted that the applicants had a

pressing need for a site, he maintained the conclusion that their

caravan would remain intrusively visible and due to the location of the

site, with two long road frontages, the development caused demonstrable

harm to a countryside interests of acknowledged importance.

     On 12 September 1990, the applicants had been convicted for

breach of enforcement notices and ordered to pay £275 each as a fine

and contribute £25 to the Borough's costs.

     In February 1990, the Government state that the applicants made

enquiries from the Borough about rehousing but no formal application

was made until 21 May 1990. On 23 July 1990, the applicants were

formally informed by the Borough that they were considered as

intentionally homeless since they had terminated their council tenancy

to move onto land not permitted for residential use contrary to the

advice of the Housing and Planning Departments.

     In 1991, the applicants enquired about alternative accommodation

on a private site but were informed that they were excluded due to the

size of their family.

     On 6 March 1992, the applicants state that they were told that

there was a waiting list for places on official sites but that since

they were intentionally homeless they could not put their names on it

for 2 years. According to the Government, in March 1992, the applicants

applied to the Borough for housing on the grounds of homelessness and

that contrary to the policy of refusing registration within two years

after a finding of intentional homelessness the Borough agreed to

re-register them as homeless on condition that they paid their arrears

of rent for the council tenancy. The applicants did not pay the

arrears.

     According to the records of the Borough, at a meeting on 26 June

1992, its officials repeated offers of temporary accommodation to give

the applicants time to find permanent accommodation. The applicants

were recorded as stating that they would not accept a place on an

official site and that they would only accept temporary accommodation

in their own caravan, which the Borough could not provide. The

applicants state that they have no recollection of making the former

statement.

     A third prosecution resulted in conviction and sentence was

deferred to enable the applicants to move. On 24 July 1992, a fine of

£350 was imposed on each applicant.

     The Borough took the decision to seek an injunction in the

High Court restraining the applicants from stationing their caravan on

their land and gave notice to the applicants. On 16 October 1992, the

applicants left their land and travelled to Whitstable, Kent close to

where some of the second applicant's family had stationed their

caravans. On the site there was no sanitation or electricity and there

was an infestation of rats. The applicants contacted the Borough's

housing officer in the hope that he could offer more suitable

alternative accommodation but he could not. He suggested that they

apply for Housing Association accommodation which they did but were

told that nothing would be available for six months. The applicants

heard nothing after that. The Government state that the applicants'

names were placed on the waiting list at the end of 1992 but they

removed their names from that list in January 1993. The applicants

dispute that they removed their names.

     On 17 December 1992, the applicants returned to their land, where

the children could resume their education at their previous school.

     The Borough commenced its proceedings for an injunction by

summons dated 22 December 1993.

     On 24 February 1994, the second applicant was convicted and fined

for a continued breach of the enforcement notices.

     The applicants applied for judicial review to quash the

injunction proceedings on the basis that the decision to pursue the

injunction against them was unreasonable. Leave was refused by the High

Court. On 6 May 1994, the Court of Appeal dismissed the applicants'

appeal.

     In May 1994 the applicants applied to the Borough for

accommodation and were again offered temporary accommodation. The

applicants state that this was unsuitable bed and breakfast

accommodation which would have entailed separating the first applicant

from the rest of the family. The applicants were informed, the

Government state, of vacant plots on council and private gypsy sites

in the county. The applicants recall that these vacancies related to

areas outside the Borough. One site which they visited at Aylesford was

infested with rats and a dangerous place for children.

     On 19 February 1996, the applicants received notice that the

Borough had decided to withdraw the injunction proceedings commenced

in 1993 and to enter their land and enforce the enforcement notice

using its powers under section 178 of the Town and Country Planning Act

1990. The applicants lodged an application for judicial review of that

decision. On or about 30 October 1996 the applicants withdrew their

application on the basis that they would be given 6 weeks to vacate

their land.

     The applicants now have four children, Jody born in 1983, Tommy

in 1983, Jessica in 1991 and Joshua in 1993.

b.   Relevant domestic law and practice

i.   General planning law

     The Town and Country Planning Act 1990 (as amended by the

Planning and Compensation Act 1991) ("the 1990 Act") consolidated

pre-existing planning law. It provides that planning permission is

required for the carrying out of any development of land (section 57

of the 1990 Act).  A change in the use of land for the stationing of

caravans can constitute a development (Restormel Borough Council v.

Secretary of State for the Environment and Rabey [1982] Journal of

Planning Law 785; John Davies v. Secretary of State for the Environment

and South Hertfordshire District Council [1989] Journal of Planning Law

601).

     An application for planning permission must be made to the local

planning authority, which has to determine the application in

accordance with the local development plan, unless material

considerations indicate otherwise (section 54A of the 1990 Act).

     The 1990 Act provides for an appeal to the Secretary of State in

the event of a refusal of permission (section 78).  With immaterial

exceptions, the Secretary of State must, if either the appellant or the

authority so desire, give each of them the opportunity of making

representations to an inspector appointed by the Secretary of State.

It is established practice that each inspector must exercise

independent judgment and must not be subject to any improper influence

(see the Bryan v. the United Kingdom judgment of 22 November 1995,

Series A no. 335-A, p. 11, para. 21).  There is a further appeal to the

High Court on the ground that the Secretary of State's decision was not

within the powers conferred by the 1990 Act, or that the relevant

requirements of the 1990 Act were not complied with (section 288).

     If a development is carried out without the grant of the required

planning permission, the local authority may issue an "enforcement

notice", if it considers it expedient to do so having regard to the

provisions of the development plan and to any other material

considerations (section 172 (1) of the 1990 Act).

     There is a right of appeal against an enforcement notice to the

Secretary of State on the grounds, inter alia, that planning permission

ought to be granted for the development in question (section 174).  As

with the appeal against refusal of permission, the Secretary of State

must give each of the parties the opportunity of making representations

to an inspector.

     Again there is a further right of appeal "on a point of law" to

the High Court against a decision of the Secretary of State under

section 174 (section 289).  Such an appeal may be brought on grounds

identical to an application for judicial review.  It therefore includes

a review as to whether a decision or inference based on a finding of

fact is perverse or irrational (R. v. Secretary of State for the Home

Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D).  The

High Court will also grant a remedy if the inspector's decision was

such that there was no evidence to support a particular finding of

fact; or the decision was made by reference to irrelevant factors or

without regard to relevant factors; or made for an improper purpose,

in a procedurally unfair manner or in a manner which breached any

governing legislation or statutory instrument.  However, the court of

review cannot substitute its own decision on the merits of the case for

that of the decision-making authority.

ii.  Gypsy caravan sites provision

     The Caravan Sites Act 1968

     Part II of the Caravan Sites Act 1968 ("the 1968 Act") was

intended to combat the problems caused by the reduction in the number

of lawful stopping places available to Gypsies as a result of planning

and other legislation and social changes in the post-war years.

Section 16 defined "gipsies" as:

     "persons of nomadic habit of life, whatever their race or origin,

     but does not include members of an organised group of travelling

     showmen, or of persons engaged in travelling circuses, travelling

     together as such".

     Section 6 of the 1968 Act provided that it should be the duty of

local authorities:

     "to exercise their powers ... so far as may be necessary to

     provide adequate accommodation for gipsies residing in or

     resorting to their area".

     The Secretary of State could direct local authorities to provide

caravan sites where it appeared to him to be necessary (section 9).

      Where the Secretary of State was satisfied either that a local

authority had made adequate provision for the accommodation of Gypsies,

or that it was not necessary or expedient to make such provision, he

could "designate" that district or county (section 12 of the 1968 Act).

     The effect of designation was to make it an offence for any Gypsy

to station a caravan within the designated area with the intention of

living in it for any period of time on the highway, on any other

unoccupied land or on any occupied land without the consent of the

occupier (section 10).

     In addition, section 11 of the 1968 Act gave to local authorities

within designated areas power to apply to a magistrates' court for an

order authorising them to remove caravans parked in contravention of

section 10.

     The Cripps Report

     By the mid-1970s it had become apparent that the rate of site

provision under section 6 of the 1968 Act was inadequate, and that

unauthorised encampments were leading to a number of social problems.

In February 1976, therefore, the Government asked Sir John Cripps to

carry out a study into the operation of the 1968 Act.  He reported in

July 1976 (Accommodation for Gypsies: A report on the working of the

Caravan Sites Act 1968, "the Cripps Report").

     Sir John estimated that there were approximately 40,000 Gypsies

living in England and Wales.  He found that:

     "Six-and-a-half years after the coming into operation of Part II

     of the 1968 Act, provision exists for only one-quarter of the

     estimated total number of gypsy families with no sites of their

     own.  Three-quarters of them are still without the possibility

     of finding a legal abode ...  Only when they are travelling on

     the road can they remain within the law: when they stop for the

     night they have no alternative but to break the law."

     The report made numerous recommendations for improving this

situation.

     Circular 28/77

     Circular 28/77 was issued by the Department of the Environment

on 25 March 1977.  Its stated purpose was to provide local authorities

with guidance on "statutory procedures, alternative forms of gypsy

accommodation and practical points about site provision and

management".  It was intended to apply until such time as more final

action could be taken on the recommendations of the Cripps Report.

     Among other advice, it encouraged local authorities to enable

self-help by gypsies through the adoption of a "sympathetic and

flexible approach to [Gypsies'] applications for planning permission

and site licences".  Making express reference to cases where gypsies

had bought a plot of land and stationed caravans on it only to find

that planning permission was not forthcoming, it recommended that in

such cases enforcement action not be taken until alternative sites were

available in the area.

     Circular 57/78

     Circular 57/78, which was issued on 15 August 1978, stated, inter

alia, that "it would be to everyone's advantage if as many gypsies as

possible were enabled to find their own accommodation", and thus

advised local authorities that "the special need to accommodate gypsies

... should be taken into account as a material consideration in

reaching planning decisions".

     In addition, approximately £100 million was spent under a scheme

by which one hundred per cent grants were made available to local

authorities to cover the costs of creating Gypsy sites.

     The Criminal Justice and Public Order Act 1994

     Section 80 of the Criminal Justice and Public Order Act 1994

("the 1994 Act"), which came into force on 3 November 1994, repealed

sections 6-12 of the 1968 Act and the grant scheme referred to above.

     Section 77 of the 1994 Act gives to a local authority power to

direct an unauthorised camper to move.  An unauthorised camper is

defined as

     "a person for the time being residing in a vehicle on any land

     forming part of the highway, any other unoccupied land or any

     occupied land without the owner's consent".

     Failure to comply with such a direction as soon as practicable,

or re-entry upon the land within three months, is a criminal offence.

Local authorities are able to apply to a magistrates' court for an

order authorising them to remove caravans parked in contravention of

such a direction (section 78 of the 1994 Act).

     Circular 1/94

     New guidance on Gypsy sites and planning, in the light of the

1994 Act, was issued to local authorities by the Government in

Circular 1/94 (5 January 1994), which cancelled Circular 57/78 (see

above).

     Councils were told that:

     "In order to encourage private site provision, local planning

     authorities should offer advice and practical help with planning

     procedures to gypsies who wish to acquire their own land for

     development. ... The aim should be as far as possible to help

     gypsies to help themselves, to allow them to secure the kind of

     sites they require and thus help avoid breaches of planning

     control."

     However:

     "As with other planning applications, proposals for gypsy sites

     should continue to be determined solely in relation to land-use

     factors.  Whilst gypsy sites might be acceptable in some rural

     locations, the granting of permission must be consistent with

     agricultural, archaeological, countryside, environmental, and

     Green Belt policies ..."

COMPLAINTS

     The applicants complain of being prevented from living in a

caravan on their own land and pursuing the traditional gypsy lifestyle.

They wish to enjoy a settled life with good education for their four

children while living and passing on the tradition of the gypsy

lifestyle and culture. They submit that there is no justification for

the interference with their Article 8 rights, the Borough's objections

being based solely on aesthetic grounds. They point out that they face

criminal prosecution and forcible eviction for remaining on their land

and if they leave they have nowhere else lawfully to station their

caravan. The Borough is a designated area and there is an acknowledged

shortfall of official gypsy sites available. By 5 January 1993, the

number of unauthorised caravans in the county was 283.

     The applicants also invoke Article 14 of the Convention in

conjunction with Article 8; Article 1 of Protocol No. 1 in respect of

being denied the right to live peacefully in their caravan  on their

own land and Article 2 of Protocol No. 1 in that the applicants'

children would be denied education if they were forced to leave their

own land and move constantly from one place to another trying to avoid

prosecution or eviction.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 19 May 1994 and registered on

10 August 1994.

     On 30 November 1994, the Commission decided to communicate the

application to the respondent Government.

     The Government's initial written observations were submitted on

13 February 1995. The applicants submitted observations in reply on

25 April 1995 after an extension in the time-limit.

     On 16 April 1996, the Commission decided to adjourn the case

pending the case of Buckley v. the United Kingdom before the Court (see

below).

     By letter dated 25 September 1996, following the Court judgment

in Buckley v. the United Kingdom (Eur Court HR, judgment of

25 September 1996, Reports 1996-IV, No. 16, p. 1271), the Commission

invited the Government and the applicant to submit further observations

on the admissibility and merits of the application.

     The Government submitted further observations on 6 November 1996

and the applicants on 13 November 1996.

     On 24 May 1995 the Commission granted the applicants legal aid.

THE LAW

     The applicants complain that the measures taken in relation to

their occupation of their land in their caravan disclose violations of

their right to respect for their private and family life and home

(Article 8 (Art. 8)), discrimination (Article 14 (Art. 14)), an

interference with peaceful enjoyment of their possessions (Article 1

of Protocol No. 1 (P1-1)) and with their children's right to education

(Article 2 of Protocol No. 1 (P1-2)).

     The Government submit that any interference with the applicants'

rights is proportionate to the legitimate aims of protecting the

environment, citing the approach taken by the Court in the Buckley case

(Eur Court HR, judgment of 25 September 1996, Reports 1996-IV,

p. 1271). They point out that the applicants occupied their land in

full knowledge that planning permission had not been granted. They rely

on the balancing exercise undertaken by various inspectors in weighing

the strong policy objections to the development in a rural area with

the needs of the applicants and their family. They note with reference

to Article 26 (Art. 26) of the Convention that the decisions relating

to the refusal of planning permission and dismissal of appeals in 1989

and 1991 occurred long before the applicants introduced their complaint

before the Commission and these matters must be barred from

consideration. They observe that the applicants' problems have largely

been caused by their own actions. In those circumstances, they submit

that proper regard has been had by the authorities to the applicants'

individual circumstances and that the measures are compatible with

Article 8 (Art. 8) of the Convention. On the same basis, the measures

may be justified under Article 1 of Protocol No. 1 (P1-1) to the

Convention.

     Under Article 14 (Art. 14), the Government dispute that the

applicants were subject to any difference in treatment based on their

gypsy status. As regards Article 2 of Protocol No. 1 (P1-2), the

Government submit that specific funds have been allocated to provide

for the education of gypsy children. Moreover, the itinerant nature of

gypsy culture means that gypsy parents have a duty to ensure that they

stay in contact with local authorities to ensure that their children

can receive an education.

     The applicants argue that the interference with their home,

private and family life is excessive and disproportionate and part of

a continuing situation. They submit that there is no alternative site

available in the Borough, where they have been settled and the children

attend school and that the shortage of official sites in Kent as a

whole renders it unfair on other gypsy families that they should seek

vacancies beyond their own area. They emphasise that they have never

been offered a pitch on an authorised gypsy site and that they have

been subject to injunctions and more recent action designed to evict

them from their land. There is nowhere else to lawfully station their

caravan and continue their traditional way of life. Relying on the same

factors, they submit the measures interfere unjustifiably with the

peaceful enjoyment of their possessions.

     As regards Article 2 of Protocol No. 1 (P1-2), the applicants

argue that being denied permission to stay on their own land,

threatening them with removal, undermines the stability of their

childrens' education and will inevitably have a severely deleterious

effect on their future education and emotional welfare. The applicants

further submit that the situation to which they have been exposed as

a result of planning and enforcement policies and measures discloses

serious issues of discrimination.

     As regards the Government's reference to Article 26 (Art. 26) of

the Convention, the Commission notes that this seeks to restrict the

examination of the applicants' complaints to matters occurring  within

six months of the introduction of the application on 19 May 1994. While

it recalls that the decisions relating to the refusals of planning

permission, and the relevant appeals, occurred in 1989 and 1991,  the

Commission observes that the applicants continued to occupy their land

until at least the end of 1996 and that the more recent enforcement

steps taken against them may be regarded as directly linked to these

earlier planning measures.  It considers that the planning and

enforcement proceedings relating to their occupation of their land may

be regarded as a continuing situation. Accordingly, the Commission

finds that it is not appropriate to make any finding under Article 26

(Art. 26) that any part of the application must be excluded from its

examination as out of time.

     The Commission considers, in light of the parties' submissions,

that the case raises serious issues of fact and law under the

Convention, the determination of which should depend on an examination

of the merits of the application as a whole. The Commission concludes,

therefore, that the application is not manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No

other ground for declaring it inadmissible has been established.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

     merits of the case.

  M.F. BUQUICCHIO                               M.P. PELLONPÄÄ

     Secretary                                    President

to the First Chamber                         of the First Chamber