AS TO THE ADMISSIBILITY OF

                     Application No. 26666/95

                      by Andrew 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 19 August 1994 by

Andrew SMITH against the United Kingdom and registered on 8 March 1995

under file No. 26666/95;

     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

     applicant on 22 April 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a British citizen born in 1937 and resident in

Iver, Buckinghamshire. He is represented before the Commission by

Messrs Lance Kent & Co. solicitors practising at Berkhamstead. The

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

a.   Particular circumstances of the case

     The applicant is a gypsy by birth. He was born into a large

family and they lived in a horse drawn wagon. He continued travelling

when he left the family home. After he married, the applicant and his

wife continued travelling, stopping on the roadside. The applicant made

a living by breeding and selling horses and from casual farm labour.

He found grazing in various places. He also took up scrap metal dealing

while they lived on a site in Iver. The applicant and his wife have six

children.

     In 1962, South Bucks District Council built a gypsy site at Iver,

Buckinghamshire and the applicant and his family moved onto it. After

a few years on the site, the applicant's wife decided that she wanted

to live in a house. The applicant unwillingly agreed and in 1968 the

family moved into a council house. The move was not a success because

the applicant never adjusted to house dwelling. In order to continue

his work as a scrap metal dealer, he required to park his lorry in the

neighbourhood but this caused problems. There was constant trouble with

neighbours. After four years in the house, the Council informed the

applicant and his wife that they would take possession proceedings

against them and they were, therefore, obliged to move.

     The applicant was not offered a place on an official site. He

was, however, advised by officials of the South Bucks District Council

to try to buy a piece of land where he could live. They also promised

to help and support him in obtaining planning permission to live on it.

     In 1973, at an auction, the applicant purchased the land on which

he is now living. It was advertised by the selling agents as having

planning permission for a residential caravan. The applicant states

that he did not discover until some time later that the permission was

restricted to a night watchman at the property, relating to previous

use of the land as a pig and poultry farm and later a riding stables.

     In 1975, Enforcement Notices were served on the applicant. He

appealed against them but the appeal failed. In 1978, summonses were

issued against the applicant in the Magistrates Court. He was convicted

of being in breach of the Enforcement Notices and was fined.

     In 1980, the applicant applied for planning permission to re-

establish the riding school but permission was refused and the

subsequent appeal was dismissed following a Public Inquiry.

     In 1982, further Enforcement Notices were served against the

applicant's residential caravan and the appeal was dismissed at a

Public Inquiry. In 1984, summonses in the Magistrates' Court were

issued against the applicant. He elected trial at the Crown Court where

he successfully defended the charge on the grounds that, for some

years, he had been living in a building already on the land and using

a caravan as ancillary accommodation. He was acquitted. A further

prosecution by the District Council in 1986 failed on the same grounds.

     In 1988, an Enforcement Notice was issued relating to the use of

the said building for residential purposes. The applicant appealed

against the Notice and a Public Inquiry was held by an inspector

appointed by the Secretary of State for the Environment. The inspector

dismissed the appeal by report dated 17 February 1989 on the ground,

principally, that the development was in a Green Belt area. His report

included, inter alia, a finding that the Council had offered

alternative accommodation on authorised gypsy sites to the applicant.

     In 1993, the applicant applied for planning permission for

residential use of the said building, now known as "The Bungalow". Also

in 1993, South Bucks District Council applied for an injunction for the

removal of the caravan and for the cessation of use of the bungalow for

residential purposes. On or about 16 June 1993, the first part of the

injunction was granted, but the second part was suspended pending

determination of the planning application.

     The applicant's application for planning permission was refused.

The applicant appealed and a Public Inquiry was held on 18 May 1994 by

an inspector appointed by the Secretary of State for the Environment.

By a decision letter dated 21 June 1994, the inspector dismissed the

appeal on the grounds that there were no very special circumstances to

permit the continuation of the residential use as an exception to the

general presumption against inappropriate development in the Green

Belt. He found that the applicant's use of the land detracted from its

open, rural appearance, and that the creation of a permanent

residential use on this land, in a fragmented area of Green Belt under

great pressure for further development, would harm the appearance of

the countryside. The inspector also made reference to the several

authorised gypsy sites in the area and the availability of pitches on

at least one of them and also, to the Council's statement that they

would consider offering alternative accommodation in the event of a

serious request being made.

     Since the appeal failed, the applicant and his wife state that

they may, at any time, be subject to enforcement measures requiring

them to leave their home. By letter dated 5 February 1997, the Council

informed the applicant that the Council may now proceed to obtain a

final injunction and that failure to comply with that order would

amount to a contempt, potentially leading to a fine or imprisonment.

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 applicant claims that his rights under Article 8 of the

Convention are being interfered with. He complains of being prevented

from living with his wife in a caravan on his own land despite the fact

that, since 1957, the land was in continuous occupation as a site for

a residential caravan. He claims that South Bucks District Council has

discriminated against him by refusing to allow him to continue this use

and to use an existing building as part of his family's accommodation.

He also claims that he is being prevented from pursuing the traditional

gypsy lifestyle and culture. The consequences of the decisions are

severe for the applicant and his wife. If they do not remove from their

land they face criminal prosecution and forcible eviction.

     The applicant alleges that his rights under Article 6 para. 1 of

the Convention have been violated. The decision to uphold South Bucks

District Council's refusal of planning permission was made by an

Inspector appointed by the Secretary of State for the Environment. No

appeal to a court of law against the Inspector's decision was possible

because the issues were of fact and not of law. It is claimed that in

these circumstances, since the Inspector is a salaried employee of the

Secretary of State, the Inquiry cannot be considered to be an

independent and impartial tribunal.

     The applicant invokes Article 14 in that he is being

discriminated against on the grounds of race, national or social

origin, association with a national minority and birth or other status.

     The applicant invokes Article 1 of Protocol No. 1 in respect of

being denied the right to live peacefully with his wife on his own

land.

     Finally, the applicant refers to lack of an effective remedy,

invoking Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 19 August 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

23 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 applicant's observations in reply were submitted on

22 April 1997 after two extensions in the time-limit.

     On 4 March 1997, the Commission decided to grant legal aid to the

applicant.

THE LAW

1.   The applicant complains of a violation of his right to respect

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

(Art. 8) of the Convention, in that he has been refused permission to

live on his own land and is subject to enforcement measures.

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

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

     family life, his home and his correspondence.

     2.    There shall be no interference by a public authority

     with the exercise of this right except such as is in

     accordance with the law and is necessary in a democratic

     society in the interests of national security, public

     safety or the economic well-being of the country, for the

     prevention of disorder or crime, for the protection of

     health or morals, or for the protection of the rights and

     freedoms of others."

     The Government submit that the applicant has given up his

traditional gypsy way of life, pointing out that his latest and

relevant application for planning permission related to occupation of

the bungalow on his land. They rely on the approach adopted 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 refer

in particular to the findings of the inspector that the applicant's

occupation of his land harmed the rural appearance of the Green Belt

area and that there was alternative accommodation available to the

applicant and his wife. 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).

     The applicant submits that he gave up his nomadic way of life in

1968 reluctantly and returned to living in a caravan within a short

time. He was obliged to remove his caravan, which he used for

travelling for short periods, by the enforcement action. He used the

building on his land only as ancillary to the caravan and submits that

the refusal of permission to occupy the building is the latest in a

series of decisions preventing him from pursuing his traditional

lifestyle. The applicant disputes that alternative official sites are

available pointing out that according to the statistics there is a

constant shortfall of 46-56 sites in the district. He points out that

his special needs as a gypsy were not taken into account in the

dismissal of his appeal in relation to use of the building on his land

and that he has been subject to a series of coercive measures,

including criminal prosecutions and an interim injunction. If, as the

Council threatens, it obtains a final order, failure to comply would

amount to contempt punishable by fine or imprisonment.

     Due to the provisions of the Criminal Justice and Public Order

Act 1994, the applicant submits that he faces prosecutions and

enforcement action if he stations his caravan on highways or other

unoccupied land. There are insufficient procedural safeguards, since

though appeal lies to the High Court, the High Court will not entertain

submissions that the Secretary of State failed to give any weight to

a factor, such as the special needs of gypsies. In conclusion, he

maintains that the ground of refusal, namely, prevention of harm to the

countryside was given disproportionate weight, bearing in mind his

gypsy status and the fact that he and his wife, now elderly, have lived

on their land for nearly 20 years.

     The Commission finds, first of all, that the measures taken in

respect of the applicant's occupation of his land, where he has lived

with his family for almost 20 years, constitute an interference with

his right to respect for his family and private life and his home. It

also notes in that respect that the applicant is a gypsy for whom

living in a caravan is an integral and deeply-felt lifestyle and that

this traditional lifestyle attracts the guarantees of Article 8

(Art. 8) as concerning their private life (see Buckley v. the United

Kingdom, No. 20348/92, Comm. Report 11.1.95, para. 64). While it

recalls that the recent decision refusing planning permission relates

in fact to occupation of a building on the land, the Commission

observes that the applicant's application was by way of last resort

since the enforcement procedures had resulted in an injunction being

issued concerning his occupation of his caravan on his land. It has

accordingly had regard, for the purposes of the present application,

to the enforcement proceedings as a whole, culminating in the refusal

of permission to occupy a building.

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

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

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

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

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

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

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

     As regards the criterion "in accordance with the law", the

Commission finds, and the applicant does not dispute, that the measures

were taken pursuant to the relevant provisions governing town and

country planning and the aims pursued by the measures included the

protection of the rights of others, in particular, the preservation of

the environment.

     The case-law of the Commission and Court establishes that the

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

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

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

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

general interest of the community and the requirements of the

protection of the individual's fundamental rights. In this context, the

importance of the right to respect for home, which is pertinent to

personal security and well-being, must be taken into account. The case-

law indicates that while there are no explicit procedural requirements

in Article 8 (Art. 8), the decision-making process leading to measures

of interference must be fair and such as to afford due respect to the

individual's interest (Eur. Court HR, Buckley v. the United Kingdom

judgment of 25 September 1996, Reports 1996-IV, p. 1292, para. 76).

Further, in determining whether an interference is justified the

Commission and Court will take into account that a margin of

appreciation is left to the Contracting States, which are in principle

in a better position to make an initial assessment of the necessity of

a given interference (see eg. Eur. Court HR, Olsson v. Sweden judgment

of 24 March 1988, Series A no. 130, p. 32, para. 68). In the area of

town planning which involves the exercise of discretionary judgment in

the implementation of policies adopted in the interest of the

community, the Court has stated that the national authorities enjoy a

wide margin of appreciation (Eur. Court HR, Buckley v. the United

Kingdom judgment, op. cit., p. 1292, para. 75).

     The Commission recalls that the applicant's latest appeal against

refusal of planning permission was considered by the planning inspector

who held a public inquiry. In his decision of 21 June 1994, the

inspector had regard to the applicant's arguments and his personal

circumstances noting the families' links with the district and

difficulties in their present situation but considered that these were

outweighed by the planning considerations, ie. that the development

would seriously harm the scenic qualities of the rural landscape.

     The Commission further observes that, according to the planning

inspector, at least one vacancy was available at official sites in the

district and the Council was prepared to offer alternative

accommodation if a serious request was made. Alternative accommodation

had previously found to be available during earlier proceedings (see

for example, the Inspector's report of 17 February 1989).

Notwithstanding the applicant's submissions as to the shortfall of

official sites in the area, the Commission is not satisfied that it

would not have been possible to apply, with some prospect of success,

in respect of the vacancies which periodically arose. It is not

apparent that the applicant made any enquiries or took any steps with

a view to finding out alternative solutions.

     The Commission concludes that, notwithstanding the impact on the

applicant's home and private and family life of the refusal of planning

permission and the requirement to move elsewhere, it is not established

that he has no viable alternative or that it is disproportionate to the

legitimate aims pursued. The responsible planning authorities in

exercising their discretion had proper regard to the applicant's

interests, which were protected by adequate procedural safeguards (see,

mutatis mutandis, the Buckley judgment, op. cit., pp. 1294-5,

para. 84). Even though the applicant alleges pursuant to the Criminal

Justice and Public Order Act 1994 that stationing his caravan on the

highway or on other unoccupied land will place him at the risk of

criminal proceedings and enforcement measures, the Commission does not

find that the applicant has established that he has no alternative open

to him but to resort to the unauthorised stationing of his caravan. It

notes that the local authority has been engaged in enforcement

proceedings in respect of his  unlawful occupation over a considerable

period of time and finds that the difficulties which the applicant may

face on leaving his land at this stage do not in the circumstances of

this case render the measures disproportionate.

     Having regard to the wide margin of appreciation, the Commission

finds that the measures may be regarded as necessary in a democratic

society for the protection of the rights of others. It follows that

this complaint is manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

2.   The applicant has invoked Article 1 of Protocol No. 1 (P1-1), in

regard to being denied the right to live peacefully on his land.

Article 1 of Protocol No. 1 (P1-1) to the Convention provides:

     "Every natural or legal person is entitled to the peaceful

     enjoyment of his possessions.  No one shall be deprived of

     his possessions except in the public interest and subject

     to the conditions provided for by law and by the general

     principles of international law.

     The preceding provisions shall not, however, in any way

     impair the right of a State to enforce such laws as it

     deems necessary to control the use of property in

     accordance with the general interest or to secure the

     payment of taxes or other contributions or penalties."

     The Commission notes that the applicant is owner of the land on

which he has lived for almost 20 years. It has therefore examined

whether the decisions and enforcement measures which relate to his

occupation of the land may be considered as interfering with his

peaceful enjoyment of his possessions in violation of the first

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

     In this context, having regard to the Convention case-law, it has

considered whether a fair balance has been struck between the demands

of the general interest and the requirements of the protection of the

applicant's fundamental rights (Eur. Court HR, Sporrong and Lönnroth v.

Sweden judgment of 23 September 1982, Series A no. 52, p. 26,

para. 69). It recalls however its findings with respect to Article 8

(Art. 8) of the Convention and concludes, in the circumstances of the

present case,  having regard to the fact that the applicant took up

occupation on his land without the necessary permission and to the

findings of the various inspectors as to the detrimental impact on the

countryside of the unauthorised occupation and the availability of

alternative accommodation, that the measures cannot be said to be

incompatible with the fair balance required by Article 1 of Protocol

No. 1 (P1-1) to the Convention.

     It follows that this complaint must be rejected as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.   The applicant complains of a violation of Article 6 para. 1

(Art. 6-1) of the Convention in respect of the planning procedures

determining his right to occupy his land. Article 6 para. 1 (Art. 6-1)

provides as relevant:

     "In the determination of his civil rights and obligations

     ... everyone is entitled to a fair and public hearing... by

     an independent and impartial tribunal established by law."

     The applicant complains that his planning application appeal was

decided by an inspector, who, as an employee of the Secretary of State,

cannot be considered as independent or impartial. While an appeal lay

to the High Court on points of law, this could not provide review of

the issues of fact which arose in his case.

     Recalling the decision of the Court in Bryan v. the United

Kingdom (Eur. Court HR, judgment of 22 November 1995, Series A no. 335,

pp. 13-18, paras. 30-47) and having regard in particular to the Court's

finding that in the area of town planning full review of facts may not

be required by Article 6 para. 1, (Art. 6-1) the Commission finds that

the scope of the review of the planning decision available in the High

Court which enables, inter alia, challenge of a decision as being

perverse or irrational, or as having no basis in evidence or having

been made with reference to irrelevant factors or without regard to

relevant factors, was sufficient to comply with Article 6 para. 1

(Art. 6-1) of the Convention. While the applicant argues that the scope

of review is narrower than the Court has previously described (eg. Eur.

Court HR, Buckley v. the United Kingdom, op. cit., p. 1293, para. 79),

since the authorities show that domestic courts will not entertain

submissions that the Secretary of State gave undue or no weight to a

factor, the Commission notes that this does not contradict that the

position, as stated by the Court, that the domestic courts will examine

whether the Secretary of State had regard to all relevant factors.

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4.   The applicant complains of discrimination in that his status as

a gypsy was not given any weight in the planning decisions. He invokes

Article 14 (Art. 14) which provides:

     "The enjoyment of the rights and freedoms set forth in this

     Convention shall be secured without discrimination on any

     ground such as sex, race, colour, language, religion,

     political or other opinion, national or social origin,

     association with a national minority, property, birth or

     other status."

     The Government dispute that the applicant was subject to any

difference in treatment based on his gypsy status and that the refusal

to allow him to do what the settled population would not be allowed to

do, namely, settle in the Green Belt, cannot disclose discrimination.

     The applicant submits that he is being treated as if he were any

other developer applying for residential permission in a Green Belt,

without reference to the need for special provision for gypsies which

amounts to discrimination.

     Even assuming that the applicant can claim, as a person with the

special needs of a gypsy, to be penalised by the application of general

planning laws, the Commission recalls that whether a difference in

treatment constitutes discrimination in the sense of Article 14

(Art. 14) depends on whether or not there exists an objective and

reasonable justification (eg. Eur. Court HR, Fredin v. Sweden (No. 1)

judgment of 18 February 1991, Series A no. 192, p. 19, para. 60). This

requires that any difference pursues a legitimate aim and that there

is a reasonable relationship of proportionality between the means

employed and the aim sought to be realised. In this assessment of

whether and to what extent differences in otherwise similar situations

justify a different treatment, Contracting States enjoy a margin of

appreciation which will vary according to the circumstances, subject-

matter and background (eg. Eur. Court HR, Lithgow and Others v. the

United Kingdom judgment of 8 July 1986, Series A no. 102, pp. 66-67,

para. 177).

     To the extent that it is alleged that the applicant's gypsy

status was not adverted to directly in the latest planning appeal, the

Commission notes this concerned the applicant's application to occupy

a building and it finds that as regards the occupation of conventional

housing it was not unreasonable for the planning authority to treat the

case with regard to the criteria applied in other cases. The Commission

recalls that in this application and in previous ones the inspectors

did take into account the applicant's personal circumstances and had

found that the local planning authorities had made offers of

alternative accommodation to him at various times. It also notes the

importance of control of development and preservation of the

environment and the wide margin of appreciation enjoyed by the domestic

authorities in the area of town and country planning and control. It

concludes that the applicant's complaints do not disclose

discrimination contrary to Article 14 (Art. 14) of the Convention.

     It follows that this complaint must be dismissed as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5.   The applicant also invokes Article 13 (Art. 13) of the

Convention, which provides that:

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy

     before a national authority notwithstanding that the

     violation has been committed by persons acting in an

     official capacity."

     The Commission recalls however its findings above under Article 8

and 6 (Art. 8, 6) of the Convention, with regard to the procedural

safeguards and access to court furnished by the proceedings before the

inspector and the possibility of appeal to the High Court. It follows

that this complaint must be dismissed as manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

     M.F. BUQUICCHIO                            M.P. PELLONPÄÄ

        Secretary                                 President

   to the First Chamber                      of the First Chamber