Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28370/95

by Charles MABEY

against the United Kingdom

The European Commission of Human Rights (Second Chamber) sitting

in private on 15 May 1996, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

Ms. M.-T. SCHOEPFER, 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 16 June 1995 by

Charles MABEY against the United Kingdom and registered on

30 August 1995 under file No. 28370/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

Corfe Mullen. The application is presented on his behalf by Mr. Reg

Cooper, a construction worker in Fordingbridge. The facts as submitted

may be summarised as follows.

The applicant comes of Romany (gypsy) stock. While it appears

that his grandparents lived in caravans, he did not however pursue the

traditional nomadic way of life. After leaving the army, he was

employed in driving and treeclearing jobs and at various times, lived

in a house and a flat.

In December 1972, the applicant and his wife bought a piece of

land at Corfe Mullen, Dorset. In January 1973, they stationed a caravan

on their land and pursued an agriculture related business. Following

a visit from the local authority planning official, the applicant

applied for planning permission for use of the caravan for residential

purposes. Permission was refused although a neighbour obtained

permission at that time on the basis of personal circumstances.

In 1974, the applicant and a neighbour ran a breakers' yard on

their land. An enforcement notice was issued against them. The

applicant appealed. The area was declared a Green Belt at around that

time. His appeal failed. He continued with his agricultural

contractors' business which involves keeping tractors on his land.

By 1984, eight applications by the applicant for permission for

a caravan or a dwelling had been refused, with appeals dismissed in

1975 and 1982. Various enforcement actions had been taken from 1973

onwards by the local authority.

In or about 1984, enforcement notices were issued, inter alia,

requiring the applicant to remove the residential caravan from his land

which was outside the area allocated for development. Following a

public inquiry in December 1985, the applicant's appeal against the

enforcement notices was dismissed and he was fined £1 by the

magistrates' court for failing to comply. The applicant made a renewed

appeal and a planning inquiry was held on 22 July 1988. In his report

of January 1989 (date unspecified), the Inspector noted that there had

been a history of previous appeals in this context (enforcement

proceedings dated back to 1973) and that this appeal raised a number

of new issues, including that of the applicant's gypsy background. He

found in that respect that the applicant had acknowledged that while

of Romany stock, he had never lived a traditional gypsy lifestyle,

being born in a house and living in a house and flat before moving to

this piece of land. There was no indication that his parents had lived

a traditional lifestyle either and he had stated that he would not

choose that way of life voluntarily. He concluded that no great weight

could be attached to the gypsy claim. He went on to find that

notwithstanding the fact that the applicant and his family had lived

on the site since 1972 (more than sixteen years) there was strong

presumption against development in a Green Belt area and the

development did not fall within any of the exceptions to the policy.

He recommended that planning permission should be refused.

By letter dated 25 July 1989, the Secretary of State agreed with

the Inspector's findings and dismissed the applicant's appeal.

By originating summons dated 2 June 1994, the local authority

applied to the High Court for an injunction ordering the applicant to

cease occupation of his land in his residential caravan and to cease

its use for the storage of vehicle parts etc. Such order was granted

on 8 August 1994. On 27 January 1995, on application by the local

authority, the applicant was found to be in contempt of court for

failing to comply with order and a committal to prison for 42 days was

issued suspended for 56 days to permit the applicant further time to

comply. The committal was suspended by the Court on 9 June 1995 for a

further seven days.

The applicant and his family ceased residential occupation of

their land. They moved onto land nearby on a temporary basis and

without permission. On 2 October 1995, the local authority obtained an

order from the County Court requiring the applicant to remove his

caravan from the land, enforcement to be suspended for 14 days to allow

the applicant to comply.

COMPLAINTS

The applicant complains of being forced to leave his land after

occupying it with his family for over 20 years. He submits that the

local authority accepted his payment of rates and taxes in respect of

his occupation and that there is no justification for evicting him and

rendering him homeless. He invokes Article 8 of the Convention.

THE LAW

The applicant complains that he has been forced to leave the land

where he and his family have lived for more than 20 years. He submits

that this discloses a violation of Article 8 (Art. 8) of the

Convention, which 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 Commission recalls that whether or not a particular

habitation constitutes a "home" for the purposes of Article 8 paragraph

1 (Art. 8-1) will depend on the factual circumstances of the particular

case, namely, the existence of sufficient and continuous links. It is

not limited necessarily to those homes which have been lawfully

occupied or lawfully established (see Nos. 20348/92, Buckley v. United

Kingdom, Comm. Rep. 11.1.95 pending before the Court, and No. 7456/76,

dec. 8.2.78, D.R. 13 p. 40, and Eur. Court H.R., Gillow judgment of 24

November 1986, Series A no. 109). While the applicant in this case did

not establish his home in a caravan on his land with the necessary

planning permission, the Commission has had regard to the length of his

occupation there, namely, over 20 years. In the Commission's view, this

is sufficient to bring his complaints within the scope of the first

paragraph of Article 8 (Art. 8) of the Convention.

The Commission has therefore examined whether the measures taken

against the applicant requiring him to cease occupation of his land

comply with the requirements of Article 8 paragraph 2 (Art. 8-2), ie.

whether they were in accordance with law, pursued an aim that is

legitimate under this provision and were necessary in a democratic

society for the aforesaid aim (see, inter alia, Eur. Court H.R., W. v.

the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 27

para. 60 (a)).

The applicant has not contested the lawfulness of the planning

procedures taken to enforce the planning regulations in force (ie. the

enforcement notices, appeal and inquiry, the court orders requiring the

cessation of occupation) and the Commission sees no indication of lack

of conformity with the requirement that these measures be "in

accordance with the law".

The Commission notes that the applicant's land lies within an

area subject to rural conservation, a Green Belt, and that the measures

have been taken to preserve the character and appearance of the

countryside. The measures can be said to relate to preservation of the

environment (which includes amenity for the general public) and thus

pursue the legitimate aims of safeguarding the economic well-being of

the country and the protection of the health and rights of others as

provided for in the second paragraph of Article 8 (Art. 8)

of the Convention.

As regards the criterion "necessary in a democratic society", 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 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. Further, the Convention organs must

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 H.R., Olsson judgment of 24 March 1988, Series A no. 130 p.

32 para. 68).

The Commission recalls that the applicant was made aware from a

very early stage that his occupation of his land was not in conformity

with the applicable planning regulations. Although he continued to live

there for more than 20 years, it is not apparent that he was ever given

an indication that his failure to comply with those regulations was

accepted or acquiesced in by the local authority.

The Commission notes the reference in the domestic proceedings

to the "gypsy" background of the applicant. It observes the findings

of the Inspector however that the applicant, and his parents, had not

followed the traditional life of his Romany grandparents and that he

had no wish to do so. He had previously lived in a house and a flat.

This applicant's circumstances are therefore materially different from

those of the applicant in the Buckley case (No. 20348/92 Comm. Rep.

11.1.95 loc. cit.) where the applicant, as a gypsy who had pursued

throughout her life a traditional lifestyle, on the threatened eviction

from her land had as a result a restricted number of options open to

her as regards finding other accommodation. Furthermore, the

Commission in the Buckley case found that there was no reasonable

alternative available to her and that the planning considerations

applicable to the area were not of any countervailing strength. In this

case, the Commission is not persuaded that the present applicant, who

has had not inconsiderable warning of the enforcement of measures

against him, would have had no other reasonable alternatives open to

him. The character of the countryside in the present case would also

appear to attract not insignificant considerations of public interest

in environmental preservation.

In conclusion, the Commission finds that the enforcement of the

planning measures in this case does not, having regard to the

Contracting State's margin of appreciation, offend the principle of

proportionality nor does it fail to strike an acceptable balance

between the requisite interests.

Accordingly, the interference in this case can be said to be

justified as necessary in a democratic society in pursuit of the aims

identified above. The application must therefore be rejected 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.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

Menu

MABEY v. THE UNITED KINGDOM

MABEY v. THE UNITED KINGDOM

LEXI