Lexploria

Application No. 25938/94

by Edward Witney

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

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 1 August 1994 by

Edward Witney against the United Kingdom and registered on 14 September

1994 under file No. 25938/94;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 29 November 1995 to communicate the

application without requesting observations;

- the letter dated 7 October 1996 from the applicant's legal

representatives;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1931 and resident in

Hemel Hempstead. He is represented before the Commission by

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

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

The applicant is a gypsy by birth. His family travelled in search

of work and he had no education. When he married, the applicant and his

wife continued travelling together. They have eight children. The

applicant was a scrap metal dealer, roof repairer and tree lopper.

The applicant and his wife obtained a pitch on an official gypsy

site at Stockwell, Luton. They experienced harassment from other

travellers and decided that such behaviour was a bad influence on their

children. As a result, they reverted to travelling on the roadside from

place to place.

Due to continuous harassment by the police while on the roadside,

the applicant decided to purchase some land where he could settle down

permanently. He had developed arthritis and had been forced to give up

his work and to seek lighter work. He was unable to find any land and

accepted a pitch on an official gypsy site at Hemel Hempstead. The

applicant and his wife lived there for seven years. As a result of

harassment from other gypsies on the site, the applicant looked for

suitable land to purchase.

Eventually, the applicant found a piece of land at 50 Sheepcote

Dell Road, Holmer Green, Buckinghamshire which was no longer required

for farming purposes. He was advised by his solicitors that he had a

real chance of obtaining planning permission to reside there and so he

purchased the land on 26 March 1990. The applicant's wife had developed

asthmatic and bronchial problems and the applicant was glad to have

found such a healthy, country location.

Initially, the applicant erected a barn and used the land for

grazing horses. When he had sufficient money, he put down hardcore and

in 1992 he moved his caravan onto the land and began living there with

his wife. In January 1993 he applied for planning permission to site

a mobile home on the land as their residence. Chiltern District Council

refused the application on 25 March 1993 on the grounds that the

development was inappropriate in the Metropolitan Green Belt, the

appearance of the development would not be in keeping with the rural

character of the locality, which is designated as part of the Chilterns

Area of Outstanding Natural Beauty, and that the development would

create a precedent for other similar proposals.

The applicant appealed against the refusal of planning

permission. On 22 March 1994 a Public Inquiry was held by an Inspector

appointed by the Secretary of State for the Environment. In a decision

letter dated 20 May 1994, he dismissed the appeal and upheld the

Council's decision. He concluded that the needs of the applicant and

his wife did not represent very special circumstances sufficient to

overcome the strong policy objection to, and the general presumption

against, inappropriate development in the Green Belt. Appeals to the

High Court against a decision of the Secretary of State are competent

on a point of law only. The applicant sought Counsel's opinion on this

question and Counsel confirmed that no error on a point of law had been

made by the Inspector.

In March 1994, the applicant and his wife moved onto their

daughter's pitch at Hemel Hempstead. They moved there temporarily

because Mrs. Witney has advanced stomach cancer and requires intensive

nursing. Her daughter helps provide the care she needs.

The local planning authority are requiring removal of the

applicant's mobile home from his land. The applicant and his wife are

living with their daughter as visitors and could be required to leave

the site at any time. Although the area was designated under the

Caravan Sites Act 1968, it appears that there are insufficient official

gypsy pitches in the area to satisfy demand. Since the applicant has

nowhere he can legally place his caravan, he faces the threat of

criminal prosecution. The applicant is anxious to return to his own

land, as soon as his wife is well enough to do so, as she finds the

noise, lack of privacy and overcrowding at her daughter's site

difficult to cope with. He would also be able to provide a home for his

other daughter who is unmarried.

COMPLAINTS

The applicant claimed that his rights under Article 8 of the

Convention are being interfered with. He complained of being prevented

from firstly, living with his family in a mobile home on his own land

and secondly, from pursuing the traditional gypsy lifestyle and

culture. He submitted that due to planning regulations and the shortage

of sites built for gypsies, he had no option but to buy his own land.

However, he has been denied the right to live on his own land in a

mobile home by both the local planning authority and the Secretary of

State for the Environment.

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

the Convention have been violated. The decision to uphold the 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 was 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 invoked Article 14, claiming that he was being

discriminated against on the grounds of race, national or social

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

It was 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 also invoked Article 1 of Protocol No. 1 in respect

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

land.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 August 1994 and registered

on 14 September 1994.

On 29 November 1995, the Commission decided to communicate the

application to the Government, without asking for written observations

on the admissibility and merits of the application, pending the outcome

of the proceedings before the Court in the case of Buckley v. the

United Kingdom (No. 20348/92, Comm. Rep. 11.1.95) and in the case of

Bryan v. the United Kingdom (No. 19178/92, Comm. Rep. 28.6.94).

The Court delivered its judgment in the Bryan case on 22 November

1995 (Eur. Court HR, Series A no. 335-A) and in the Buckley case on 25

September 1996 (Eur. Court HR, to be published in Reports 1996).

On 7 October 1996, the applicant's representatives wrote to the

Commission stating that in light of the Court's judgment in Buckley,

they wished to withdraw the application.

REASONS FOR THE DECISION

The Commission recalls that the applicant's representatives wish

to withdraw the application in light of the Court's judgment in the

Buckley case, where it found no violation of Article 8 of the

Convention in relation to the refusal of planning permission to the

applicant, a gypsy, to reside in caravans on her own land.

In these circumstances, the Commission finds that the applicant

does not intend to pursue his application before the Commission. The

Commission further considers that respect for Human Rights as defined

in the Convention does not require it to continue the examination of

the application.

It follows that the application may be struck out of the list of

cases pursuant to Article 30 para. 1 of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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WITNEY v. THE UNITED KINGDOM

WITNEY v. THE UNITED KINGDOM

LEXI