Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25289/94

by Thomas LEE

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 22 June 1994 by

Thomas LEE against the United Kingdom and registered on 23 September

1994 under file No. 25289/94;

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

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

submitted by the applicant on 4 October 1995 and 20 January 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1943 and resident in

Chartham, Kent. He is represented before the Commission by

Mr. T. Christie of the National Romani Rights Association. The facts

as submitted by the parties may be summarised as follows.

a. Particular circumstances of the case

The applicant and his wife are gypsies by birth. They were born

and bred in Kent. They have a nomadic lifestyle and have travelled

extensively around the south of England in pursuit of work and to

attend traditional gypsy social gatherings.

Throughout the years, the applicant has been prosecuted

frequently for illegal encampment. Over a four year period he claims

to have been evicted from more than 40 sites. To rectify this

situation in 1991 he bought a plot of land which measures approximately

0.4 hectares.

The applicant's land is situated on a hillside of the Stour

Valley to the east of the village of Chartham. The surrounding land

is mostly open agricultural land but in the valley bottom there is

mineral working and industrial development. The land contains three

caravans, which are occupied by the applicant, his wife, two children

and grandchildren. It also has an area for grazing horses and contains

a stable. The site is in an area designated within the relevant

development plan as a Special Landscape Area where special planning

policies apply.

The applicant's grandchildren attend school regularly receiving

an education that in the past they have frequently not had the

opportunity to receive.

The applicant and his family have mainly been employed in

agricultural work all their lives. He bought the site with the

intention that it would provide a settled home and also a living from

market garden produce and horticulture.

On 20 November 1992, an enforcement notice was issued by

Canterbury City Council ("the Council"), requiring the applicant to

cease the use of the land for the stationing of residential caravans.

He was given six months within which to remove the caravans.

In January 1993, the applicant lodged an appeal against the

enforcement notice. An inspector was appointed by the Secretary of

State for the Environment to determine the appeal.

On 20 September 1993, the inspector, in a decision letter, denied

planning permission and dismissed the appeal, on the basis that the

site was surrounded by agricultural land and was highly visible from

various surrounding areas. He noted that the Council had acknowledged

that there was a shortfall of about 22 pitches in the area. However,

he found, that in the circumstances, the consequences for the

environment outweighed the arguments in favour of allowing the

applicant and his family to live there in caravans. He did not consider

it unlikely that a less inappropriate site could be found. The

inspector found that there was no agricultural need for living on the

site as he doubted that the applicant's proposals to support himself

and his family through market-gardening were feasible. In addition, he

feared that even temporary planning permission would be a signal for

the establishment of other sites, which would have a detrimental effect

on the landscape of the valley.

The applicant then applied for permission to use the land for

winter stationing of three caravans for residential purposes.

On 1 March 1994, after having requested the applicant to explain

what change in material considerations had taken place, the Council

declined to determine the above application in accordance with

Section 70A of the Town and Country Planning Act 1990. The Council did

not consider that there were material differences between the planning

application for winter stationing of caravans and the applicant's

earlier application.

The applicant now lives under the threat of criminal prosecution

and forcible eviction.

While the applicant has been on a number of occasions offered

places on official sites, he has refused primarily because the sites

in question are in a very poor state. Further, one site, at Broomfield

is next to a rubbish tip and another at Vauxhall Road is built on an

old sewage bed and directly adjacent to an operational sewage works.

The applicant states that they are unfit for human habitation although

this is disputed by the Government. The Government also comment that

planning permission had been granted for the upgrading and extension

of a site at Vauxhall Road and that an application to the Secretary of

State for a grant has been made although they have not stated whether

or not any improvements have been carried out.

The applicant states that planning permission has been given to

a non-gypsy to station a caravan on the site adjacent to the

applicant's. Outline planning permission has also been given for a

development of 600 residential units 600 yards from his site. The

Government have stated that they are unable to comment on the reasons

for granting planning permission for other developments.

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 his right to respect for his private

and family life and his home, as guaranteed by Article 8, is being

unjustly interfered with. He alleges that he and his family are being

denied the right to live on their own land in caravans and are

prevented from pursuing their traditional gypsy lifestyle. The

applicant contends that the reasons for the Council's objections are

solely based, firstly, on aesthetic grounds and secondly, on the fear

that such a development will encourage other similar developments by

gypsies in the area.

The applicant alleges that the treatment he received during the

planning applications was despicable, bordering on defamation. He

claims it was implied, with malicious intent, that he was unfit and

incompetent, so as to deprive him of planning consent. He also invokes

Article 10 of the Convention.

The applicant believes he has been discriminated against, and was

refused planning permission, because of his gypsy status and the many

cases of illegal encampment summonses against him. He also invokes

Article 1 of Protocol No. 1 and refers to the disruptive effects moving

would have on the education of his grandchildren.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 June 1994 and registered on

23 September 1994.

On 6 April 1995, the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 30 June

1995. The applicant replied on 4 October 1995 after an extension of 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 on 6 November 1996.

The applicant submitted further observations on 20 January 1997.

On 13 September 1995 the Commission granted the applicant legal

aid.

THE LAW

1. The applicant complains that the measures taken in relation to

his occupation of his land in his caravans discloses violations of his

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

(Art. 8)), an interference with his freedom of expression (Article 10

(Art. 10)), discrimination (Article 14 (Art. 14)), an interference with

peaceful enjoyment of his possessions (Article 1 of Protocol No. 1

(P1-1)) and with his grandchildren's right to education (Article 2 of

Protocol No. 1 (P1-2)).

Concerning exhaustion of domestic remedies

The Government contend initially that the applicant has failed

to exhaust domestic remedies as he did not seek judicial review of the

decision by the Council in March 1994 to decline to make a finding in

his second planning application for winter accommodation of his

caravans.

The applicant submits that the domestic courts do not in judicial

review applications address the wider implications of the situation and

that they have failed, save on one occasion, to find that the Secretary

of State has acted unreasonably in such cases.

The Commission recalls from the judgment of Akdivar v. Turkey

(Eur. Court HR, judgment of 16 September 1996, Reports-IV, No. 15,

p. 1210, para. 66) that Article 26 (Art. 26) requires an applicant to

have exhausted all remedies which are available and sufficient to

afford redress in respect of the breaches alleged. The existence of the

remedies must be sufficiently certain not only in theory but in

practice, failing which they will lack the requisite accessibility and

effectiveness. There is no obligation to have recourse to remedies

which are inadequate or ineffective. Moreover, it is incumbent upon the

Government to satisfy the Court that the remedy was an effective one

available in theory and in practice at the relevant time.

The Commission observes that judicial review of the Council's

refusal to determine the applicant's planning application would, if

successful, simply have resulted in the matter being remitted to the

Council for a determination; the High Court would not have been able

to determine the planning application itself. The Commission notes that

in the Council's letter of March 1994 the Director of Planning stated

that he did not consider that the proposals to use the site as a winter

site were materially different from the planning considerations which

formed part of the previous appeal. The Commission is therefore of the

view that had the Council been required to determine the second

planning application it would in all probability have been rejected.

The Commission consequently considers that judicial review of the

Council decision would not have amounted to an effective remedy.

It follows that the application cannot be rejected pursuant to

Article 26 and 27 para. 3 (Art. 26, 27-3) of the Convention for failure

to exhaust domestic remedies.

Concerning the substance of the applicant's complaints

The Government submit under Article 8 (Art. 8) that any

interference with the applicant's rights was 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). The Government point out

that the site is in a Special Landscape Area where particular policies

apply and note that the Inspector considered that the applicant's

development represented a "conspicuous and alien form of development"

in an "exposed rural location" which conflicted with the policies

designed to conserve the countryside. He also found that the

development could not be justified on agricultural reasons. The

Government rely upon the fact that the Inspector balanced the policy

objections to the development against the applicant's arguments and

found that, although the loss of the present site would create the need

for an alternative, the complete unsuitability of the applicant's site

outweighed that need. The Inspector also considered that the grant of

even temporary planning permission would result in a precedent being

set which would have a harmful effect on the landscape of the valley.

The Government also contest the applicant's assertions that the

sites on which he had been offered vacancies in the past were unfit for

human habitation. They remark that the Vauxhall Road site had received

planning permission for improvements and an application had been made

for a grant. The importance of the margin of appreciation afforded to

the State is also emphasised by the Government who contend that, in all

the circumstances, proper regard was had to the applicant's

circumstances, thereby making the decision compatible with Article 8

(Art. 8).

As regards Article 14 (Art. 14), they dispute that there has been

any discrimination. They submit that the factors above apply equally

to the complaints under Article 1 of Protocol No. 1 (P1-1). In the

context of Article 2 of Protocol No. 1 (P1-2), they submit that there

is adequate provision for the children of gypsies to attend school, the

onus resting on their parents to maintain contact with education

authorities and that the applicant cannot claim a right for the

children to attend any particular school.

The applicant submits that the interference with his home and

family life is disproportionate. He disputes the findings of the

inspector both in terms of his assessment of the harm which would be

caused by the development and his decision that, agriculturally, the

development was neither necessary nor feasible. The applicant further

points out that, although he has have been offered alternative sites

in the past, these have all been unsuitable as being unfit for human

habitation. Photographs of one site, at Broomfield, reveal it to be

squalid and situated next to an unpleasant rubbish dump. The applicant

argues that if enforcement measures are successful he will have no

alternative but to return to travelling on the roads where he will be

subject to possible prosecution under the Criminal Justice and Public

Order Act 1994. On the same basis, the measures constitute a

disproportionate interference with the peaceful enjoyment of his

property.

In respect of Article 14 (Art. 14) the applicant points to the

fact that planning permission has been obtained by a non-gypsy

neighbour for a residential caravan on land adjacent to that of the

applicant which, the applicant alleges, would have a more damaging

environmental impact than his own development. Additionally, it appears

that planning permission has been granted for a development of 600

homes within one kilometre of the applicant's property. The applicant

alleges that his failure to obtain planning permission is the result

of his gypsy status and suggests that there has been an element of

social engineering in the planning applications.

With regard to the education of his grandchildren, which

complaints were communicated to the respondent Government under

Article 2 of Protocol No. 1 (P1-2), the applicant submits that it is

essential for his grandchildren to continue to receive regular

schooling and that if he is forced to move from his land to a more

nomadic lifestyle, the children will lose this benefit.

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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LEE v. THE UNITED KINGDOM

LEE v. THE UNITED KINGDOM

LEXI