Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24882/94

by John and Catherine BEARD

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 14 May 1994 by

John and Catherine BEARD against the United Kingdom and registered on

11 August 1994 under file No. 24882/94;

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

19 June 1995 and 6 November 1996 and the observations in reply

submitted by the applicant on 15 November 1995 and on 20 November

1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are British citizens born in 1935 and 1937

respectively and resident in Carnforth, Lancashire. They are

represented before the Commission by D. Montagu Scott, solicitor

practising in Devon. The facts as submitted by the parties may be

summarised as follows.

a. Particular circumstances of the case

The applicants are gypsies by birth. All their lives they have

moved between official sites and unofficial stopping places, mostly in

the Lancashire area.

The applicants regard themselves as being Lancashire folk. The

first applicant is a carpet seller and does most of his business in

Lancashire. Both their children were born in Lancashire, at present

their daughter lives with them and works nearby. Their son travels

independently, but stays with them frequently.

Over the last 10 years they have had to move between a number of

sites in Lancashire. As they wanted to set up a family site in 1986

they bought a piece of land, known as Cinderbarrow Malt Kiln, Yealand

Redmayne, Carnforth in Lancashire. The site is 0.365 hectares in area,

and is positioned in the countryside between the M6 motorway and the

London-Carlisle railway line. When the applicants bought it, they

state that it was generally regarded as being an eyesore. They refer

to letters from local residents referring to it having been used for

car breaking and tipping rubbish, being littered and infested with

rats. They spent two years cleaning it up and developing it. The

Government dispute this assertion, stating that local authority records

indicate that it was after the applicants had occupied it that

complaints were received about its condition. They state that the land

was previously used for grazing and growing crops.

In August 1991 they moved on to the site and on 17 September 1991

they applied for planning permission to Lancaster City Council for a

small close-knit gypsy family site for six caravans.

On 18 October 1991, they were prosecuted in Lancaster Magistrates

Court for being on the land unlawfully. They were fined £75.00.

On 11 November 1991, the applicants' planning application was

refused, by letter, on the grounds of adverse effect on highway safety

and impact on visual amenity. On 17 December 1991, the applicants

submitted an appeal to the Secretary of State.

On 18 December 1991, they were served with an enforcement notice

requiring them essentially to move the caravans off the land and to

reinstate the land to its former condition. They were given 56 days

to comply with the latter condition.

On 30 December 1991, the applicants submitted a further appeal

against the enforcement notice.

On 9 June 1992 a public local inquiry was held to consider both

appeals. These appeals were heard by an inspector appointed by the

Secretary of State for the Environment.

On 9 September 1992 these appeals were dismissed. Though he

accepted that before the applicants' occupation the general condition

of the land was poor, the inspector found that the siting of 6 caravans

would cause serious harm to the character of the landscape, which he

described as open countryside with undulating pasture. With regard to

highway safety, the inspector was of the opinion that Cinderbarrow

Lane, which is an unclassified road approximately 2 km long, and its

junction with the main roads presented hazards for traffic. At one end

visibility was below recommended standards; furthermore, the land

provided emergency access to both carriageways of the M6 motorway. He

noted that there were five permanent local authority sites in the

County and extensions made to five private sites. In July 1991, the

Council informed him that there were 21 vacancies on authorised sites

and on the day before the inquiry 17 vacancies. While he gave some

weight to the reasons given by the applicants for not wishing to live

on official sites, he concluded that the special need for accommodation

to be provided for gypsies was not so weighty in this case as to

outweigh the harm caused to the character of the area and the adverse

effects on highway safety. The time period for compliance was extended

to 6 months. He also revoked the condition of returning the land to its

former condition finding it excessive due to the tidying work carried

out by the applicants.

The applicants did not appeal against this decision to the High

Court, as such appeals can only be made if the inspector has erred on

a point of law.

The applicants tried unsuccessfully to find an alternative site

both in the Lancashire City Council area and in the nearby Cumbria City

Council area. They were offered places on an authorised site, which

they turned down for strong personal reasons, namely, since this

particular site was occupied by a large, violent gypsy family who have

attacked them on more than one occasion. In May 1992, the first

applicant received serious injury, being beaten with a baseball bat and

being showered with glass as his car was smashed. His assailant was

convicted of actual bodily harm. The applicants have been advised by

the police to stay away from the area.

On 28 May 1993, the applicants were prosecuted in Lancaster

Magistrates' Court and given a conditional discharge for one year,

which would expire on 28 May 1994.

On 7 June 1993 they applied for planning permission for a smaller

gypsy site which would consist of one mobile home and a transit pitch.

On 19 July 1993 their application was refused and they appealed

against this decision.

On 21 December 1993, a public local inquiry was held.

On 25 January 1994 the appeal was dismissed again, on grounds of

visual amenity and adverse effect on highway safety. Even though the

applicants had offered to provide whatever form of screening was

necessary, the inspector considered that an effective screen would take

too long to establish and would look alien. He gave weight to the

highway authority evidence that the exit from Cinderbarrow Lane to the

A6 suffered from lack of visibility. While he noted that the

applicants' submission that they could use the alternative exit in Tarn

Lane, he considered that the greater convenience of the shorter route

would be likely to encourage its regular use. He also referred to the

designation of the district on the basis that adequate provision had

been made for gypsies and that during 1993 29 vacancies had arisen on

private sites and an average of 7 vacancies on the council owned site.

While the applicants had put forward reasons for not wishing to go to

official sites in the area, these were personal reasons which did not

outweigh the harm to the character of the area and the adverse effects

on highway safety. The provision for gypsy sites in the area was

sufficient for him to conclude that special need for accommodation to

be provided for gypsies did not justify a departure from established

planning policy.

In June 1994, further prosecution was adjourned to 7 October

1994. As regards the availability of pitches elsewhere, the Government

submit that during the period of May 1993-June 1995 12 vacancies arose

on the Mellishaw official site in the district. There is a waiting list

but the applicants would only have to wait 4-6 months for a vacancy to

occur. The conditions on this site are closely monitored by weekly

inspections by a resident warden. In the local authority's area, there

are also 90 ordinary caravan sites providing more than 5000 pitches,

some of which sites are used by travellers particularly in the winter

months. The applicants state that these sites are largely seasonal for

tourists and gypsies are not welcome. Only one of them has been

designated as official gypsy site but is still inhabited mostly by non-

gypsies.

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 denied the right to live in a

caravan on their own land in the traditional gypsy way of life. They

allege that there is no justification for the interference with their

Article 8 rights, as the Council's objections on the grounds of impact

on visual amenity and highway safety are not insuperable and are not

sufficient to fall within any of the exceptions in Article 8 para. 2.

Furthermore, they claim that the Council's decision not to grant

planning permission is unreasonable as they now face criminal

prosecution and possible forcible eviction for remaining on their land.

Yet they have nowhere else lawfully to station their caravans and as

such the applicants submit that local authorities are failing to fulfil

their statutory duty to provide sites.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 May 1994 and registered on

11 August 1994.

On 6 April 1995, the Commission decided to communicate the

application to the respondent Government.

The Government's initial written observations were submitted on

19 June 1995. The applicants submitted observations in reply on

15 November 1995 after two extensions in the time-limit.

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

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

the Court.

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 20 November 1996.

On 13 September 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 discloses violations

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

(Article 8 (Art. 8)) and discrimination (Article 14 (Art. 14)).

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

without obtaining the necessary planning permission. They rely on the

balancing exercise undertaken by various inspectors in weighing the

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

regard to highway safety with the needs of the applicants. They note

with reference to Article 26 (Art. 26) of the Convention that the

events relating to the refusal of planning permission, and dismissal

of appeals, in 1992 occurred long before they introduced their

complaint before the Commission and these matters must be barred from

consideration. As regards Article 14 (Art. 14), the Government note

that the applicants added this complaint in their observations and that

they had no opportunity to answer it. They would submit however that

it should fail for the reasons given by the Court in Buckley (op. cit.)

The Commission has also noted the submissions made by the Government

in the context of similar applications (eg. Application Nos. 27238/95,

Chapman v. the United Kingdom, Dec. 4.3.98 and Smith v. the United

Kingdom, Dec. 4.3.98).

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 they were not aware that they

required planning permission to occupy the land with their caravans.

They dispute that their site attracts considerations of special

landscape protection or that their occupation subject to proper

conditions would cause significant harm or danger to traffic. The

principal ground of objection in the 1994 decision was the risk of

using the Cinderbarrow Land exit to the A6, even though the applicants

had another safe exit to use, a factor which the inspector dismissed

on a highly speculative assumption that they would not use it. They

submit that there is no alternative site available in the area, other

sites being excluded due to the enmity of an other gypsy family or

their unfit state.

The applicants further submit that the situation to which they

have been exposed as a result of planning and enforcement policies and

measures disclose 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 14 May 1994. While

it recalls that a decision relating to the refusal of planning

permission, and the relevant appeal, occurred in 1992, the Commission

observes that the applicants have continued to occupy their land and

that the more recent decisions and 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

pursuant to Article 27 para. 3 (Art. 27-3).

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

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BEARD v. THE UNITED KINGDOM

BEARD v. THE UNITED KINGDOM

LEXI