AS TO THE ADMISSIBILITY OF

                      Application No. 27238/95

                      by Sally CHAPMAN

                      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 31 May 1994 by

Sally CHAPMAN against the United Kingdom and registered on 3 May 1995

under file No. 27238/95;

     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 1954 and resident in

Sarratt, Hertfordshire. She 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. Since her birth she has

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

in search of work. When she married, the applicant and her husband

continued to live in caravans. They have four children.

     The applicant and her husband used to stop for as long as

possible on temporary or unofficial sites while he found work as a

landscape gardener. They stayed for several years on an unofficial site

in St Albans. They travelled for some years in the Watford area. They

were on the waiting list for a permanent site but were never offered

a place. They were constantly moved from place to place by the police

and representatives of local authorities. Their children's education

was constantly interrupted because they had to move about.

     Due to harassment while she lived a travelling life, which was

detrimental to the health of the family and the education of the

children, the applicant bought a piece of land in 1985 with the

intention of living on it in a mobile home. The land is within the area

of Three Rivers District Council in Hertfordshire where there is no

official gypsy site. The applicant alleges that a County Council

official had told her in 1984 when she was encamped on the roadside

that if she bought land she would be allowed to live on it. The

Government state that there is no record of such a promise being made

and that it would be unlikely that such a promise would be made, since

it would be for the District Council, not the County Council, to decide

any application. The land was also subject to a 1961 Discontinuance

Order requiring the site not to be used for the stationing of three

caravans.

     The applicant and her family moved onto the land and applied for

planning permission. This was to enable the children to attend school

immediately. The District Council refused the application for planning

permission on 11 September 1986 and served enforcement notices.

     Appeals were lodged against the enforcement notices. In July 1987

a Public Enquiry was held by an Inspector appointed by the Department

of the Environment. He dismissed the appeal and upheld the decision of

the Council as the land was in the Metropolitan Green Belt and he

considered that the national and local planning policies should

override the needs of the appellant. Since there was no official gypsy

site in the Three Rivers district the family was  given fifteen months

to remove from their land, the reason being that by that time the

Council had stated that a suitable location was being sought for them

and they would be able to move to a new official site within a year.

     When the fifteen month period expired the family remained on the

site since they had nowhere else to go. The applicant applied for

planning permission for a bungalow as it had been stated at the Enquiry

that this would be a more appropriate use of the land than a mobile

home. Planning permission was refused and the Council's decision was

upheld at a further local enquiry. The family remained on the site and

the Council served summonses on the applicant and her husband for

failure to comply with an enforcement notice. They were both fined

£700 in the Magistrates' Court. To avoid further court action the

family returned to a nomadic life and were constantly moved from place

to place by Council officials. The applicant's eldest daughter had

started a hairdressing course at a College of Further Education and the

second daughter was about to start studying at college for a Diploma

in Forestry. Both of these courses had to be abandoned and the two

younger children could no longer attend school.

     During this period the applicant made a further planning

application for a bungalow on her land. Again her application was

refused and failed at an Enquiry. In August 1992 the applicant and her

family returned to their land in a caravan. Enforcement notices were

issued by the Council on 11 March 1993. The applicant appealed against

them and there was a Planning Enquiry on 2 November 1993.

     By a decision letter of 18 March 1994 the Inspector dismissed the

appeal on the grounds that such development was inappropriate in the

Green Belt area. He also considered that the stationing of a

residential caravan on the site would detract from the rural character

and appearance of the site and would be likely to encourage similar

schemes. He referred to the applicant's submissions that the County

Council were under a direction from the Secretary of State under

section 9 of the Caravan Sites Act 1968 to provide for further

accommodation for gypsies in the county but noted that the County

Council was unable to confirm progress in providing a 15 pitch site at

Langlebury. He further noted that the Council did not refute the

applicant's submission as to the lack of sites in the area but did not

find it of sufficient weight to overturn, in the absence of very

special circumstances, the cogent planning argument against

inappropriate development in the Green Belt. As regarded the

enforcement of the decision however, he granted the applicant fifteen

months to remove from the site since there was still no official gypsy

site in the area. He noted the comments of the Inspector of the 1987

appeal with regard to the lack of sites and commented that the

applicant had no better prospect of obtaining another pitch than in

1987.b.   Relevant domestic law and practice

i.   General planning law

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

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

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

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

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

caravans can constitute a development (Restormel Borough Council v.

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

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

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

601).

     An application for planning permission must be made to the local

planning authority, which has to determine the application in

accordance with the local development plan, unless material

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

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

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

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

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

representations to an inspector appointed by the Secretary of State.

It is established practice that each inspector must exercise

independent judgment and must not be subject to any improper influence

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

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

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

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

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

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

planning permission, the local authority may issue an "enforcement

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

provisions of the development plan and to any other material

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

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

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

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

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

must give each of the parties the opportunity of making representations

to an inspector.

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

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

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

identical to an application for judicial review.  It therefore includes

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

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

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

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

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

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

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

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

governing legislation or statutory instrument.  However, the court of

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

that of the decision-making authority.

ii.  Gypsy caravan sites provision

     The Caravan Sites Act 1968

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

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

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

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

Section 16 defined "gipsies" as:

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

     but does not include members of an organised group of travelling

     showmen, or of persons engaged in travelling circuses, travelling

     together as such".

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

local authorities:

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

     provide adequate accommodation for gipsies residing in or

     resorting to their area".

     The Secretary of State could direct local authorities to provide

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

      Where the Secretary of State was satisfied either that a local

authority had made adequate provision for the accommodation of Gypsies,

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

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

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

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

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

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

occupier (section 10).

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

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

order authorising them to remove caravans parked in contravention of

section 10.

     The Cripps Report

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

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

unauthorised encampments were leading to a number of social problems.

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

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

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

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

     Sir John estimated that there were approximately 40,000 Gypsies

living in England and Wales.  He found that:

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

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

     estimated total number of gypsy families with no sites of their

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

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

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

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

     The report made numerous recommendations for improving this

situation.

     Circular 28/77

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

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

with guidance on "statutory procedures, alternative forms of gypsy

accommodation and practical points about site provision and

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

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

     Among other advice, it encouraged local authorities to enable

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

flexible approach to [Gypsies'] applications for planning permission

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

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

that planning permission was not forthcoming, it recommended that in

such cases enforcement action not be taken until alternative sites were

available in the area.

     Circular 57/78

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

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

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

advised local authorities that "the special need to accommodate gypsies

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

reaching planning decisions".

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

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

authorities to cover the costs of creating Gypsy sites.

     The Criminal Justice and Public Order Act 1994

     Section 80 of the Criminal Justice and Public Order Act 1994

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

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

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

direct an unauthorised camper to move.  An unauthorised camper is

defined as

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

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

     occupied land without the owner's consent".

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

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

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

order authorising them to remove caravans parked in contravention of

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

     Circular 1/94

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

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

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

above).

     Councils were told that:

     "In order to encourage private site provision, local planning

     authorities should offer advice and practical help with planning

     procedures to gypsies who wish to acquire their own land for

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

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

     sites they require and thus help avoid breaches of planning

     control."

     However:

     "As with other planning applications, proposals for gypsy sites

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

     factors.  Whilst gypsy sites might be acceptable in some rural

     locations, the granting of permission must be consistent with

     agricultural, archaeological, countryside, environmental, and

     Green Belt policies ..."

COMPLAINTS

     The applicant claims that her rights under Article 8 of the

Convention are being interfered with. She complains of being prevented

from firstly, living with her family in a caravan on her own land and

secondly, from pursuing the traditional gypsy lifestyle and culture.

She submits that, due to planning regulations and the shortage of sites

built for gypsies, she had no option but to buy her own land. However,

she has been denied the right to live on her own land, in a caravan or

a bungalow, by both the local authority and the Secretary of State for

the Environment.

     The consequences of their decision are severe for the applicant

and her family. If they continue to remain on the land they face

criminal prosecution and forcible eviction. However, there is no

official gypsy caravan site in the Three Rivers District.

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

the Convention have been violated. The decision to uphold the

enforcement proceedings taken by Three Rivers District Council and to

refuse the applicant planning permission was made by an inspector

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

against the inspector's decision to a court of law 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 Enquiry cannot be considered to be an

independent and impartial tribunal.

     The applicant invokes Article 14 in that she is being

discriminated against on the grounds of race, national or social

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

It is alleged that such discrimination is caused by popular prejudice

against gypsies and a failure by local and national Government to act

despite that prejudice.

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

being denied the right to live peacefully with her family on her own

land.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 31 May 1994 and registered on

3 May 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 applicant's observations in reply were submitted on

22 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 applicant complains of a violation of her right to respect

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

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

live on her own land and is subject to enforcement measures. She also

invokes Articles 6 (Art. 6) (access to court) and 14 (Art. 14)

(prohibition of discrimination) of the Convention and Article 1 of

Protocol No. 1 (P1-1) (right to peaceful enjoyment of possessions) in

respect of these matters.

     The Government submits that any interference with the applicant's

rights under Article 8 (Art. 8) is proportionate to the legitimate aim

of protecting the environment, citing the approach adopted by the Court

in the Buckley case (Eur. Court HR, Buckley judgment of

25 September 1996, Reports 1996-IV, p. 1271). They point out that the

applicant's site lies withing the Metropolitan Green Belt, and is in

an area of great landscape value. They rely on the Inspector's

balancing of the very strong policy objections to the development

against the factors put forward by the applicant and submit that he

gave proper regard to the applicant's predicament, granting extra time

for her to relocate the family residence. As regards alternative

accommodation, they refer to the existence of private mobile home

parks, the possibility to apply for a pitch on the County Council sites

in areas of St Albans and Watford where she had previously travelled

and submit that the fact that the applicant has applied twice for

planning permission for a bungalow indicates that she is willing to

live in settled accommodation, of which a reasonable range is available

to her. 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 which was weighed against the applicant's personal

difficulties. 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.

     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 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 do what the settled population

would not be allowed to do, namely, settle in the Green Belt, cannot

disclose discrimination.

     The applicant submits that the interference with her home,

private and family life is disproportionate. She submits that there is

no alternative site available in the Three Rivers District, none having

been provided despite statements that an official site was being

planned. She points out that the time for relocation was extended by

the Inspector due to his recognition that no official site was

available. She submits that private mobile home parks are not a

feasible alternative for gypsies, due to high premiums and the fact

that they offer existing caravans for sale and make no provision for

towing or other vehicles to be stationed there. As regards alleged

availability of sites in Watford and St Albans, she states that sites

are normally limited to gypsies residing or resorting to the area,

where she has not been for many years and that in any event there is

no evidence of vacancies, given the shortfall of sites in the county

and the view expressed by the County Council to the Inspector. She

submits that while she applied for planning permission for a bungalow,

this was only because it was stated at the 1987 inquiry that the appeal

site was not suitable for a caravan due to the presence of housing in

the road.

     The applicant further points out that her special needs as a

gypsy were not taken into account in the proceedings and that she has

been subject to a series of coercive measures, including criminal

prosecutions which forced her onto the road for a period of months. Due

to the provisions of the Criminal Justice and Public Order Act 1994,

the applicant submits that she faces prosecutions and enforcement

action if she stations her 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 respect of Article 6 para. 1 (Art. 6-1), the applicant

complains that the appeals concerning the enforcement measures and

refusals of planning permission were 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 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 is not given any

weight in the planning decisions. The applicant submits that it is

being treated as if she 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.

     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