AS TO THE ADMISSIBILITY OF

                      Application No. 25154/94

                      by Jane SMITH

                      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 4 May 1994 by Jane

SMITH against the United Kingdom and registered on 15 September 1994

under file No. 25154/94;

     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 in December 1996 and the observations in reply

     submitted by the applicant on 15 November 1995 and on 11 November

     1996;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a British citizen born in 1955 and resident in

Lyne, Chertsey, Surrey. She is represented before the Commission by

Messrs Lance Kent & Co., solicitors practising in Berkhamstead. The

facts as submitted by the parties can be summarised as follows.

a.   Particular circumstances of the case

     The applicant is a gypsy by birth. Since her birth she has

travelled constantly, mainly in the Surrey area, with her family in

search of work. After marrying her husband, A, approximately 20 years

ago, this nomadic way of life continued.

     The applicant and A are illiterate, as, due to their way of life,

they have received little, if any, formal education. They regard

travelling as detrimental to both the health of their family and to the

education of their children. The applicant suffers from depression, her

husband from severe gout and several of her children are asthmatic.

     In pursuit of a more stable existence, the applicant and her

husband applied repeatedly throughout the years for places on many of

the local private and official sites in Surrey including the official

sites in Runnymede. Their applications proved unsuccessful as all the

sites were full with long waiting lists. Consequently, the applicant

and her husband had no option but to continue travelling. They were

required to move on from roadside to roadside on innumerable occasions.

For a period of time they stayed at a private site but when it was

redeveloped as an official site they were forced to move on as no space

was available for them. In 1984 they stayed on a relative's site for

a period of time but were forced to leave. While the Government has

suggested that in fact the applicants owned this land and that it

received planning permission, this is denied by the applicant.

According to the applicant, the land belonged to her brother. When,

following his divorce, the land was ordered to be sold by the court as

part of the financial settlement, the applicant had to leave.

     In March 1993, the applicant bought land known as 111A Almners

Road, Runnymede. It was a portion of a garden in a Green Belt area

where there was already some residential development. The applicant

moved a mobile home onto the land and took up residence with her

family.  In a declaration dated 7 March 1996 the applicant's uncle,

Jasper Smith, a member of the Gypsy Council and an employee of Surrey

County Council, stated that he had attempted on numerous occasions

prior to 1993 to obtain a site on an official site on behalf of the

applicant without success.

     On 25 June 1993, Runnymede Borough Council ("the Council")

rejected the applicant's application to join the waiting list for

rented council accommodation on the basis that they had not lived in

the borough for a minimum of three years. The applicant alleges that

by this time they had lived for many years in the Runnymede area,

although they had been compelled to move on frequently from place to

place.

     In 1988, the High Court had granted a declaration that Surrey

County Council was in breach of its duty under section 6 of the Caravan

Sites Act 1968 to provide provision for gypsies (R. v. Secretary of

State ex parte Smith [1988] C.O.D. 3). In June 1989, the Secretary of

State issued a direction under section 9 of the 1968 Act directing that

190 caravans should be accommodated. However,  on 18 August 1989, the

Borough of Runnymede was declared a designated area pursuant to section

12 of the Caravan Sites Act 1968. The area was designated on the basis

that it was not expedient for adequate provision to be made for gypsies

residing in or resorting to the borough.

     The previous owner of 111A Almoners Road, also a gypsy, had been

refused planning permission in January 1993 to live on the land in a

caravan on the basis that it conflicted with local and national

planning policies. The Council considered that the stationing of a

caravan would be detrimental to the character of the Green Belt. An

enforcement notice had been issued requiring discontinuance of the

unauthorised use. The applicant was aware of this situation and the

fact that the previous owner had appealed to the Secretary of State for

the Environment against the refusal of planning permission and the

enforcement order. When the applicant purchased the land she was

advised that there was a special concession for granting planning

permission to gypsies in Green Belt areas under Circular 28/77.

Accordingly, she took over the appeal from the previous owner.

     On 20 April 1993, a Public Enquiry was held. An inspector

appointed by the Department of Environment heard evidence and

representations from the applicant and the Council. By a letter dated

3 June 1993, the inspector dismissed the appeal. He concluded that the

use of the applicant's land as a residential caravan site for a mobile

home was not appropriate to that part of the Metropolitan Green Belt

in which it was situated. He then considered whether or not there were

exceptional reasons for granting planning permission noting that

Circular 28/77 stated that it may be necessary to accept the

establishment of caravan sites in green belt areas. He accepted that

it might not be possible to locate the applicant's mobile home on any

authorised site within the area but also commented that he did not

consider that the applicant and her husband had explored all other

avenues relating to other possible accommodation. He noted that the

Council had no record that she had sought a place on any official site

and that she had stated that she had not enquired whether there was any

space on any of the sites occupied by her relatives. Consequently, he

was not "assured that the applicants would have to return to live on

unauthorised sites". The inspector therefore dismissed the appeal and

upheld the decision of the Council that planning policy should override

the needs of the applicant and her family.

     The applicant remained on her land in the caravan as the family

had not been offered a place on an official campsite and thus had no

alternative legal site to place their caravan.

     On 29 July 1993, the applicant applied to the Council for

planning permission to build a bungalow, of which there were already

some 20 on Almoners Road. The Council refused planning permission. On

16 September 1993, the applicant appealed this decision by written

statement as she could not afford a public enquiry.

     On 29 November 1993, an inspector appointed by the Department of

the Environment dismissed the appeal on similar grounds to the earlier

appeal, namely that the bungalow was inappropriate within the Green

Belt and that there were no special circumstances which would override

the strong presumption against such a development. As a consequence,

the applicant and her husband were in breach of the enforcement notice

and liable to receive a summons issued by the Council for breach of

Planning Regulations.

     Injunction proceedings were instituted against the applicant and

her family by the Council. On 5 September 1994, the Council obtained

an injunction in the High Court requiring the applicant and her family

to move off their land immediately. The applicant applied for judicial

review of this decision and was granted limited legal aid. However, she

received counsel's opinion which advised that the application was

doomed to failure.

     In light of the new Criminal Justice and Public Order Act 1994,

which came into force on 3 November 1994, the applicant, in fear of

being on the roadside, applied to be placed on the local authority

homeless list on 4 August 1994. The Council informed the applicant's

solicitors on 4 November 1994 that the applicant had been placed on the

list.

     The applicant has been offered accommodation in two flats in a

town. However, the rent was excessively high and there was no facility

to keep her husband's van nor his tarmacadaming and landscape gardening

equipment. Moreover, the environment next to a busy, treeless road was

contrary to the country existence which she and her family had enjoyed

all their lives. They have applied for accommodation in a more natural

environment but no offer has yet been made. The Council had previously

offered three alternative pieces of land which were subsequently

withdrawn  due to respectively a methane gas leak, boggy ground and

being near a rubbish dump.

     The local authority have stated that, in the event that the

applicant is forced to leave the site, the authority will provide

temporary accommodation for her until permanent accommodation becomes

available. However, in view of the restrictions on development within

the Green Belt, all accommodation offered will be in urban areas.

     The 1995 Annual Report from Surrey County Council planning

department revealed that following the coming into force of the

Criminal Justice and Public Order Act 1994 the County Council no longer

had an obligation to identify new gypsy caravan sites and that unless

very special circumstances were proved it was unlikely that new sites

would be allowed in Green Belt and sensitive areas. The statistics for

1994 showed that the official sites in the area catered for 44 caravans

while there were another 26 caravans on unauthorised sites.

     It appears that the local authority decided to institute

proceedings against the applicant in May 1997. The state of those

proceedings is unknown.

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 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 applicant complains of an interference with her rights under

Article 8 of the Convention. She complains both that she is unable to

live in a caravan on her own land and that she is being prevented from

practising her traditional culture. She submits that due to planning

regulations and a shortage of sites built for gypsies she was forced

to purchase her own land. However, she has been denied the right to

live on her own land by the local authority and the Department of the

Environment.

     The applicant alleges that her right to a fair hearing under

Article 6 para 1 of the Convention has been violated. The decision to

refuse planning permission was made by two inspectors appointed by the

Secretary of State for the Environment. No right of appeal lies against

these decisions as they are decisions of fact.

     The applicant invokes Article 1 of Protocol No. 1 and complains

that she has been denied the right to live peacefully on her own land.

     The applicant also invokes Article 2 of Protocol No. 1 and

submits that, if forced to leave her land, her children's education

would suffer. Her oldest three children are illiterate having lived

most of their lives on the road while of her youngest two, the six year

old is integrated into the local school and the three year old has his

name down for the school.

     The applicant also refers to discrimination on the basis of her

status as a gypsy in relation to the refusal of planning permission

thereby raising issues under Article 14 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 4 May 1994 and registered on

15 September 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 applicant submitted observations in reply on

15 November 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 in December 1996.

The applicant submitted further observations on 11 November 1996, and

further information and documents on 12 April, 16 May and 15 August

1996.     On 24 October 1995 the Commission granted the applicant legal

aid.

THE LAW

     The applicant complains that the measures taken in relation to

her occupation of her land in her caravans discloses violations of her

right to respect for her private and family life and home (Article 8)

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

peaceful enjoyment of her possessions (Article 1 of Protocol No. 1)

(P1-1) and with her children's right to education (Article 2 of

Protocol No. 1 (P1-2)).

     The Government submit that any interference with the applicant's

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, Buckley v. the United Kingdom judgment of 25 September

1996, Reports 1996-IV, p. 1271). They point out that the applicant's

site lies within the Metropolitan Green Belt. They rely on the

balancing exercise undertaken by both inspectors in weighing the strong

policy objections to further development in the Green Belt with the

needs of the applicant and her family.  In those circumstances, they

submit that proper regard has been had by the authorities to the

applicant's individual circumstances and that the measures are

compatible with Article 8 (Art. 8) and, on the basis of the same

reasoning, with the right to peaceful enjoyment of possessions

guaranteed under Article 1 of Protocol No. 1 (P1-1) to the Convention.

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

the final decision referred to by the applicant as being the decision

of the inspector of 29 November 1993 related to her application for

planning permission to build a bungalow and not to her occupation of

her land in a caravan, the proceedings in respect of which terminated

earlier.

     As regards Article 6 para. 1 (Art. 6-1) the Government submit

that the opportunity to apply to the High Court provided access to

court, referring to the Court's judgment in the case of Bryan v. the

United Kingdom (Eur. Court HR, judgment of 22 November 1995, Series A

no. 335). Under Article 14 (Art. 14), the Government dispute that the

applicant was subject to any difference in treatment based on her gypsy

status and that the refusal to allow her to settle in the Green Belt,

which would be equally prohibited to the non-gypsy population, cannot

disclose discrimination. 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 applicant argues that the interference with her home, private

and family life is disproportionate and part of a continuing situation.

She submits that there is no alternative site available in the

Runnymede area and that there is no realistic chance of acquiring a

site within Surrey given the inadequate provision for gypsies within

Surrey. She further submits that the accommodation which has been

offered to her, a flat in an urban area,  is inappropriate, as it will

prevent her from continuing her lifestyle. She contests the

Government's submissions that she could live in a house, arguing both

that she would be unable to afford this option and that it is

fundamentally incompatible with her culture.

     The applicant argues that the committal proceedings which have

been threatened by the local authority, and now appear to have been

re-instituted, would, if enforced, result in her having nowhere where

she could continue to live a traditional existence.

     As regards Article 6 para. 1 (Art. 6-1) the applicant complains

that, while an appeal lay to the High Court on points of law, this did

not provide review of the issues of fact which arose in her case. The

applicant has invoked Article 1 of Protocol No. 1 (P1-1) in regard to

being denied the right to live peacefully on her land and complains of

discrimination contrary to Article 14 (Art. 14) in that her status as

a gypsy was not given  sufficient weight in the planning decisions. The

applicant also invokes Article 2 of Protocol No. 1 (P1-2) to the

Convention and argues that the effect of the planning decisions will

be to force her to choose between passing on her culture to her

children or providing them with an education.

     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 applicant's complaints to those directly related to

the planning decisions taken within six months of the introduction of

the application on 4 May 1994. While it recalls that the decision taken

by the inspector in November 1993 relates to a refusal for planning

permission for a bungalow, the Commission observes that the applicant's

application was by way of a last resort due to the enforcement

procedures relating to her occupation of her caravan. It considers that

the planning and enforcement proceedings relating to her occupation of

her land may be regarded as a continuing situation which has not yet

terminated. 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