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AS TO THE ADMISSIBILITY OF

Application No. 20348/92

by June BUCKLEY

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 3 March 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 7 February 1992

by June Buckley against the United Kingdom and registered on

22 July 1992 under file No. 20348/92;

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

8 April 1993 and the observations in reply submitted by the applicant

on 1 June 1993 and 8 October 1993;

- the further material submitted by the parties on 14 February 1994

- the observations submitted by the parties at the oral hearing on

3 March 1994;

THE FACTS

a. The particular circumstances of the case

The applicant is a British citizen born in 1964 and resident in

Willingham. She is represented before the Commission by Mr. Luke

Clements, a solicitor practising in Hereford.

The facts as submitted by the parties may be summarised as

follows.

The applicant is a gypsy by birth. Her family has for many

generations been based in the area of South Cambridgeshire near

Willingham. Until 1988, the applicant had no fixed abode but travelled

in caravans throughout the Willingham area.

In 1988 Mr. and Mrs. Buckley (who is the applicant's sister)

acquired a one acre site in the Willingham area from a Mr. and Mrs. S.,

who had applied for and been refused, retrospective planning permission

for a single caravan. In May 1988, Mr. and Mrs. Buckley applied

retrospectively for planning permission to have one residential caravan

on the frontage of their one acre site. Permission was given on a

personal temporary basis. In November 1988, a further retrospective

application was made for three caravans. These were occupied by the

applicant and her three children. Permission was given in January 1989

on a personal temporary basis.

On an unspecified date in 1988, the applicant acquired part of

the land belonging to Mr. and Mrs. Buckley. In October 1989 on the

part of the land acquired by the applicant, there were three caravans

occupied by the applicant, her children and her mother. A

retrospective planning application in respect of the three caravans was

submitted on 4 December 1989. While it was under consideration the

fourth caravan occupied by the applicant's brother moved on to the

site. The application was refused by the District Council on

8 March 1990 on the basis that adequate provision had been made for

gypsy caravans elsewhere, that the planned use of the land would

detract from the rural and open quality of the landscape and that the

access to the site was too narrow to allow two vehicles to pass.

An enforcement notice was issued by the District Council for the

caravans to be removed to take effect on 15 May 1990.

The applicant appealed against the enforcement notice to the

Secretary of State for the Environment.

In a decision dated 16 April 1991 based on an inspector's report,

the Secretary of State dismissed the appeal, finding that the

objections to the continued use of the site for caravans were so strong

on planning and highway safety grounds that the grant of permission

could not be justified. He found also that the concentration of gypsy

sites in the area had reached the desirable maximum and the need for

additional sites for gypsies should not outweigh the planning and

highway objections. The inspector also referred to the fact that the

applicant had planning permission to station a caravan on an adjoining

approved site.

The applicant did not appeal to the High Court since this appeal

lies only on points of law and she was advised that no grounds arose

in her case.

The applicant was served with a summons for failure to comply

with the enforcement notice on 9 September 1991. At the hearing in the

Magistrates' Court on 7 January 1992, the applicant pleaded guilty on

the advice of her solicitor and was fined £50 with £10 costs. The

applicant has not moved and another enforcement notice is imminent.

By letter dated 20 May 1993, the Department of the Environment

informed the District Council that the Secretary of State had decided

to designate the area of South Cambridgeshire under section 12 of the

Caravan Sites Act 1968. Designation was granted on the basis of the

Council's assurance that they will apply their powers humanely and give

sympathetic consideration to applications for gypsy sites. It was noted

that a small number of gypsies still remained on unauthorised sites but

that, in light of the provision made for sites which is greater than

in any other district, it was considered "not expedient for adequate

accommodation to be provided for gypsies residing in or resorting to

South Cambridgeshire District".

The Order designating the district of South Cambridgeshire came

into force on 13 August 1993.

The applicant was prosecuted for breach of an enforcement notice

on 12 January 1994. The magistrates' court granted her an absolute

discharge but ordered her to pay the prosecuting expenses.

b. Relevant domestic law and practice

Provision for gypsy sites

Section 16 of the Caravan Sites Act 1968 (the 1968 Act) defines

"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 on travelling circuses, travelling

together as such."

Section 6 of the 1968 Act provides that it shall 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."

Pursuant to section 9 of the 1968 Act, the Secretary of State may

direct local authorities to provide sites:

"The Secretary of State may, if at any time it appears to him to

be necessary so to do, give directions to any local authority to

which subsection 1 of section 6 of this Act applies requiring

them to provide pursuant to that section, such sites or

additional sites, for the accommodation of such numbers of

caravans, as may be specified in the directions; and any such

directions shall be enforceable, on the application of the

Secretary of State, by mandamus."

The Secretary of State has made directions to a local authority

under section 9 on five occasions. No application has ever been made

to the courts to enforce any such directions.

The designation system

Pursuant to Section 12 of the 1968 Act, where the Secretary of

State is satisfied that the duty imposed by Section 6 has been carried

out, he may designate the area of that local authority as one to which

Section 10 applies.

Section 10 of the 1968 Act provides :

"Prohibition of unauthorised camping in designated areas

(1) In any area designated under the following provisions of this

Act as an area to which this section applies it shall be an

offence for any person being a gipsy to station a caravan for the

purpose of residing for any period -

(a) on any land situated within the boundaries of a

highway; or

(b) on any other unoccupied land; or

(c) on any occupied land without the consent of the

occupier.

(2) In proceedings against any person for an offence under this

section it shall be a defence to prove that the caravan was

stationed on the land in consequence of illness, mechanical

breakdown or other immediate emergency and that he removed it (or

intended to remove it) as soon as reasonably practicable.

(3) A person guilty of an offence under this section shall be

liable on summary conviction to a fine not exceeding [level 1 on

the standard scale]; and if the offence of which he is convicted

is continued after the conviction he shall be guilty of a further

offence and shall be liable in respect thereof to a fine not

exceeding £5 for every day on which the offence is so continued."

Section 11 of the Act provides:

"Orders for removal of unlawfully parked caravans and their

occupants

(1) In any area to which section 10 of this Act applies, a

magistrates' court may, on a complaint made by a local authority,

and if satisfied that a caravan is stationed on land within the

authority's area in contravention of that section, make an order

requiring any caravan (whether or not identified in the order)

which is so stationed on the land to be removed together with any

person residing in it.

(2) An order under this section may authorise the local authority

to take such steps as are reasonably necessary to ensure that the

order is complied with and in particular, may authorise the

authority, by its officers and servants -

(a) to enter upon the land specified in the order; and

(b) to take, in relation to any caravan to be removed

pursuant to the order, such steps for securing entry

and rendering it suitable for removal as may be so

specified ..."

COMPLAINTS

The applicant complains that she and her family are being

prevented from living in her caravans on her own land and from

following the traditional lifestyle of a gypsy. She refers to the

designation system which penalises gypsies and to the lack of official

sites for gypsies to resort to. She complains of a violation of her

rights under Article 8 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 February 1992 and registered

on 22 July 1992.

On 8 January 1993, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

The Government's observations were submitted on 8 April 1993 and

the applicant's observations in reply were submitted on 1 June 1993

after one extension in the time-limit.

On 5 July 1993, the Commission decided to grant legal aid to the

applicant.

The applicant obtained legal representation and further

observations were submitted on her behalf on 8 October 1993.

On 1 December 1993, the Commission decided to hold an oral

hearing.

On 14 February 1994, the applicant made further written

submissions. The Government submitted further material on the same

date.

At the oral hearing which took place before the First Chamber on

3 March 1994, the parties were represented as follows:

For the Government

Mr. Iain Christie Agent

Mr. David Pannick, Q.C. Counsel

Ms. Virginia Harrison, Miss Pauline Prosser and Ms. Jan Bird as

Advisers from the Department of the Environment.

For the applicant

Mr. Timothy Jones Counsel

Ms. Perdita Cargill-Thompson Counsel

Mr. Luke Clements Solicitor

THE LAW

The applicant complains that she is prevented from living with

her family in caravans on her land and from pursuing her traditional

way of life as a gypsy. She invokes 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."

Insofar as the applicant complains of the alleged shortfall of

official sites for gypsies in the Willingham area, the Government

submit that the applicant has not exhausted domestic remedies as

required by Article 26 (Art. 26) of the Convention since she has not

applied to the Secretary of State to exercise his power under section

9 of the Caravan Sites Act 1968 to direct a local authority to comply

with its statutory duty to provide such sites and if necessary, to

enforce such directions in the courts.

The applicant submits there are no effective remedies which she

is obliged to exhaust. The Secretary of State's power under section 9

is, she contends, discretionary and rarely exercised.

The Commission recalls that Article 26 (Art. 26) of the

Convention only requires the exhaustion of such remedies which relate

to the breaches of the Convention alleged and at the same time can

provide effective and sufficient redress. An applicant does not need

to exercise remedies which, although theoretically of a nature to

constitute remedies, do not in reality offer any chance of redressing

the alleged breach (cf. No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78).

It is furthermore established that the burden of proving the

existence of available and sufficient domestic remedies lies upon the

State invoking the rule (cf. Eur. Court. H.R., Deweer judgment of 27

February 1980, Series A no. 35, p. 15, para. 26, and No. 9013/80, Dec.

11.12.82, D.R. 30 p. 96, at p. 102).

The Commission notes that in the context of the section 9 powers

the Secretary of State has a very wide discretion. It appears that he

has only exercised his discretion under section 9 in five cases and

that there is no example of any enforcement of those directions being

pursued in the courts. The Commission recalls that in the case of

Temple v. the United Kingdom (No. 10530/83, Dec. 16.5.85, D.R. 42 p.

171) the Commission held that recourse to a purely discretionary power

on the part of the Secretary of State did not constitute an effective

domestic remedy. The Commission finds that the suggested application

for discretionary relief in the instant case cannot do so either. In

these circumstances, the Commission finds that the application cannot

be declared inadmissible for non-exhaustion of domestic remedies.

The Government contend that the applicant cannot be considered

a victim of any violation of her rights under Article 8 paragraph 1

(Art. 8-1) since as a matter of fact she was and is able to live either

on the neighbouring land lawfully occupied by her sister or to apply

for a place on one of the many other local authority and private gipsy

caravan sites throughout Cambridgeshire. She also has not been subject

to any of the criminal sanctions which may applied under the

designation system. Further, they point out that applicant took up

residence on her land without prior planning permission. They consider

that the applicant cannot claim as a member of a minority group to be

immune from general planning control.

To the extent that there might have been any interference with

her rights under Article 8 para. 1 (Art. 8-1), the Government consider

that the refusal of planning permission and issue of the enforcement

notices are justified by the interests of public safety on the road,

the economic well-being of the country and the protection of the

environment. As for the framework of regulation, including the

designation system, this is stated to represent a proportionate

response to the need to protect public safety on the roads as well as

the rights of others.

The applicant complains of a violation of her right to respect

for her family life, private life and home under Article 8 (Art. 8) of

the Convention. She complains that she is prohibited from living on her

own land where her children can grow up in a stable environment and

receive a continuous education and that she is also prevented from

pursuing the traditional lifestyle of a gypsy. She submits that there

is an acknowledged shortfall of sites for gypsies in South

Cambridgeshire and that local authorities are failing to fulfil their

statutory duty to provide sites.

The applicant also contends that it is a practical impossibility

for her to station her caravans on her sister's site and that even if

there were vacant pitches on the nearby official site, it is

overcrowded and has a reputation for violence which renders it an

unsafe location for a single woman living alone with her children.

Further, the designation system which discriminates against gypsies

prevents her moving onto unoccupied land or stationing her caravans

near the highway. As a result, the applicant contends that she has

nowhere she can legally or safely go.

The Commission has taken cognizance of the submissions of the

parties. It considers that the applicant's complaints raise serious

issues of fact and law under the Convention, the determination of which

should depend on an examination of the merits. It follows that the

application cannot be dismissed as manifestly ill-founded. 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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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BUCKLEY v. THE UNITED KINGDOM

BUCKLEY v. THE UNITED KINGDOM

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