Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26662/95

by Joseph and Mary VAREY

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 2 December 1994

by Joseph and Mary VAREY against the United Kingdom and registered on

8 March 1995 under file No. 26662/95;

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 December 1996 and the observations in reply submitted by the

applicants on 15 April 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are British citizens born in 1940 and 1944

respectively and resident in Featherstone, Staffordshire. They are

represented before the Commission by Hutsby Mees, solicitors practising

at Stafford. The facts as submitted by the parties may be summarised

as follows.

a. Particular circumstances of the case

The applicants are gypsies by birth. Throughout their lives they

have moved from place to place but mainly in the Stafford area, since

they were born in Stafford. The first applicant is a carpet seller and

obtains most of his wares from a local depot. The majority of his

trading is done in the Stafford and Wolverhampton districts. The

applicants' children have been educated locally. It was difficult

because of their nomadic lifestyle but the applicants did all they

could to ensure that their children received regular education. The

applicants have health problems requiring regular attention and have

been attending the same doctor in Stafford since 1975.

The area carries a very large population of gypsies and other

travellers and it became more and more difficult for the applicants to

find somewhere to stay. In desperation, the applicants bought a piece

of land. They were particularly attracted to it because it had been

used for several years as a stopping place for gypsies and, for a time,

this had been permitted by licence from the local planning authority.

The applicants therefore thought that they would have an especially

good chance of obtaining planning permission to enable them to set up

a residential caravan site there.

The applicants submitted an application to South Stafford

District Council ("the Council") for planning permission for use of the

major part of the land as a fifteen pitch gypsy caravan site. The

Council refused the application and issued an Enforcement Notice on

27 May 1988. Appeals were lodged against the refusal of planning

permission and the Enforcement Notice and a Public Inquiry was held on

7 February 1989. By letter dated 2 June 1989 the Secretary of State for

the Environment dismissed the appeals on the basis that the applicants'

needs did not override the stringent policies of development control

which apply to sites located within an area designated as Green Belt.

However, since there were no authorised gypsy sites to which the

applicants could move, the period for compliance with the Enforcement

Notice was increased from one month to nine months.

On 26 April 1990, the first applicant was convicted by the

Cannock Magistrates' Court for failing to comply with the requirements

of the Notice and he was fined £500 and required to pay costs. On

9 August 1990, the first applicant was convicted by the same court of

a further offence of failing to comply with the Notice and was fined

£500 and required to pay costs. This was reduced to £250 on appeal.

A fresh application had been submitted for twelve pitches in

respect of the eastern portion of the land only. The Council refused

the application on 6 March 1990. An appeal was lodged and an inspector

appointed by the Secretary of State for the Environment held a local

inquiry on 15 November 1990. The inspector recommended that the appeal

be allowed subject to conditions. He considered that a material change

of circumstances had taken place since the 1989 inquiry. He identified

an increase in the number of gypsies and a decline in site provision

in the area. He also concluded that the impact of the site on its

surroundings would be less significant due to improvements made in

screening the caravans from public view, the building of a prison and

the construction of a proposed orbital route nearby.

However, by letter dated 13 February 1992, the Secretary of State

dismissed the appeal on the ground that the need for gypsy

accommodation was insufficient to constitute the very special

circumstances necessary to override the strong policy presumption

against inappropriate and prejuducial development in the Green Belt.

The Secretary of State also decided that any change in circumstances

since the previous appeal in 1989 for gypsy accommodation on the site

was not sufficiently material to warrant allowing the appeal. In his

view, granting the appeal would inevitably result in demand for further

sites within the Belt and he was unable to agree with the Inspector

that the development in this case would not weaken the Council's stance

in resisting future development proposals.

On 2 July 1992 the first applicant was convicted for failing to

comply with said Notice and was fined £1000 and ordered to pay £50

costs.

The applicants submitted a third application, this time for a

three year temporary permission for one mobile home and three tourers

in respect of the western portion of the land. Again the Council

refused planning permission and the applicants appealed against the

decision. An inspector appointed by the Secretary of State for the

Environment held an inquiry on 13 October 1992 and recommended that the

appeal be allowed, subject to conditions. By letter dated 10 June 1993

the Secretary of State dismissed the appeal on the grounds that the

family's needs were not so compelling as to outweigh the national and

local policy objections against siting the development in the Green

Belt and that there had not been a material change of circumstances

since the previous inquiry. He considered that there was a crucial

danger that the development would harm the Green Belt and he placed

less importance than the inspector on any reduction of the

development's visual impact because it would prejudice the Belt's main

purpose. He also did not agree with the inspector that allowing the

appeal would not create any difficulty for the Council in protecting

the Green Belt, as there was a danger of a ribbon development being

created through pressure being brought to bear to infill land between

this site and others.

Prior to the Secretary of State's decision, the local planning

authority issued injunction proceedings against the applicants in March

1993. On 26 May 1993, Wolverhampton County Court ordered that no Order

be made pending the applicants' undertaking to vacate the site by

27 September 1993.

Since the applicants had no place to which they could lawfully

go they remained on their land. In July 1993, a Notice of Motion was

lodged in the High Court seeking an order quashing the Secretary of

State's decision. On 26 August 1994 the High Court dismissed the Notice

of Motion and ordered the applicants to pay the costs.

The applicants continued to seek alternative accommodation. By

letters dated 3 and 13 January 1995 the local planning authority

indicated that they intended to apply for a Committal Order against the

first applicant. The applicants now face the threat of criminal

prosecution and forcible eviction.

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, § 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 claim that their rights under Article 8 of the

Convention are being interfered with. They complain of being prevented

from living in their own mobile home on their own land in the

traditional way of gypsy life. They submit that, due to planning

regulations and the shortage of sites built for gypsies, they had no

option but to buy their own land. However, they have been denied the

right to live on their own land in a mobile home by both the local

planning authority and the Secretary of State for the Environment.

The consequences of their decision are severe for the applicants

and their family. If they continue to remain on their land they face

criminal prosecution and forcible eviction. However, there is nowhere

to which they can legally move given the shortage of official gypsy

sites in the area.

In their observations in reply to the Government the applicants

submit that their complaints also disclose violations of Article 6

para. 1 due to the limited nature of court review of planning decisions

and of Article 14 since they are discriminated as gypsies.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 December 1994 and registered

on 8 March 1995.

On 29 November 1995, the Commission decided to communicate the

application to the Government but that the Government should not be

invited to submit written observations on the admissibility and merits

of the application pending the outcome of the Buckley case before the

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

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

By letter dated 28 October 1996, following the Court judgment,

the Government were invited to submit their observations on

admissibility and merits.

The Government's observations were submitted on 19 December 1996

and the applicants' observations in reply were submitted on 15 April

1997 after two extensions in the time-limit.

On 21 January 1997, the Commission decided to grant legal aid to

the applicant.

THE LAW

The applicants complain of a violation of their right to respect

for their private and family life and home contrary to Article 8

(Art. 8) of the Convention, in that they have been refused permission

to live on their own land and have been subject to, and risk further,

enforcement measures. They also invoke Articles 6 (Art. 6) (access to

court) and 14 (Art. 14) of the Convention (prohibition of

discrimination).

The Government submit that any interference with the applicant's

rights is proportionate to the legitimate aim of protecting the

environment, citing the approach adopted 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 applicant's site lies within a Green

Belt, and is in an area in which there is a disproportionately high

number of gypsies. They rely on the Secretary of State's balancing of

the very strong policy objections to the development against the

factors put forward by the applicants and submit that he gave proper

regard to the applicants' predicament, granting extra time for them to

relocate the family residence. As regards alternative accommodation,

they refer to the existence of private gypsy sites and mobile home

parks and note that the applicants have provided no details of any

alleged search for vacancies. 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). While the Government have not addressed the

complaints under Articles 6 and 14 (Art. 6, 14) of the Convention

raised by the applicants in their reply, the Commission notes their

submissions made in the context of similar applications (e.g.

Application Nos. 27238/95, Chapman v. the United Kingdom, Dec. 4.3.98;

25154/94, Smith v. the United Kingdom, Dec. 4.3.98).

The applicants submit that the interference with their home,

private and family life is disproportionate. They point out that they

are local gypsies with a long association with the area and that there

is no evidence that they can be accommodated on any site in the area,

no offer ever having been made to them or any vacancy having been

identified. They observe that the time for relocation was even extended

by the Secretary of State in 1989 due to his recognition that no

official site was available and that while their site is located in a

Green Belt two Planning Inspectors found that the circumstances were

sufficiently exceptional to permit the development. They point out that

they have been subject to a series of coercive measures, including

criminal prosecutions and have been threatened with an injunction,

failure to comply with which will place them at risk of committal to

prison, further fines and forcible eviction. There are insufficient

procedural safeguards, since although appeal lies to the High Court,

the courts have held that if a decision to give a factor no weight is

based on rational planning grounds the planning authority is entitled

to ignore it.

In respect of Article 6 para. 1 (Art. 6-1), the applicants

complain that the review of planning decisions by the High Court is

unduly limited and prevents any effective challenge.

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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VAREY v. THE UNITED KINGDOM

VAREY v. THE UNITED KINGDOM

LEXI