Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14837/89

by Cornelius JONES

against the United Kingdom

The European Commission of Human Rights sitting in private

on 7 May 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 December

1988 by Cornelius JONES against the United Kingdom and registered on

30 March 1989 under file No. 14837/89;

Having regard to the information submitted by the respondent

Government on 20 October 1989 in reply to the Rapporteur's request of

11 July 1989 (Rule 40 para. 2 (a) of the Rules of Procedure of the

Commission) and the applicant's replies;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a United Kingdom citizen born in 1953. He is

a gypsy, is married and has seven children and he lives in Shelfanger,

Norfolk. He is represented before the Commission by Mrs. K. Sampson,

Gypsy Liaison Officer for the area, and by Messrs Watkins, Stewart and

Ross, Sudbury, Suffolk.

The facts submitted may be summarised as follows.

In order to provide a better life for his family, the

applicant bought a piece of land on 11 March 1987 with a view to

settling on it. The land fell, and falls, within the area of the

Shelfanger Supplementary Planning Guidance (adopted on 2 February

1983) for the purposes of applying Norfolk Structure Plan policies.

The general purpose of the relevant policies is to allow limited

developments within villages whilst restricting new dwellings outside.

The applicant's plot falls outside the village guideline of 1983.

On 16 February 1988 the applicant applied for planning

permission for the construction of a bungalow on his plot. The

application was refused on 8 April 1988, and on 18 May 1988

Enforcement Notices were served in respect of the caravan the

applicant had put on the land and an access he had created. The

applicant appealed against the refusal of planning permission and the

Enforcement Notices. The appeal was rejected by an inspector on 5

December 1988 because (a) development "would represent a notable

exension of [the] built-up frontage into the countryside which would

seriously harm the character of [the] immediate surroundings"; (b) the

(village) guideline included the then existing developed frontages,

but was anxious to avoid further extension of the ribbon of

development away from the centre and (c) notwithstanding the

applicant's personal circumstances, including the emphasis he placed

on the education of his children, and notwithstanding policies

specifying that special considerations should be given to the

provision of gypsy accommodation, the applicant's particular

circumstances were not such as justified setting aside "compelling

country-side policy and rural environmental objections" (they

frequently stayed outside the area; sites were occasionally available

in the district and there was a possibility that the applicant would

become eligible for council accommodation).

COMPLAINTS

The applicant alleges violations of Articles 8 and 14 of the

Convention, Articles 1 and 2 of Protocol No. 1 and Article 2 of

Protocol No. 4 to the Convention.

THE LAW

The Commission has considered the applicant's complaint under

Article 1 of Protocol No. 1 (P1-1). It considers that the other complaints

are dependent on the principal allegation, that he was wrongly denied

the planning permission to erect a bungalow on his own land.

Article 1 of Protocol No. 1 (P1-1) provides as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it deems

necessary to control the use of property in accordance with the

general interest or to secure the payment of taxes or other

contributions or penalties."

The Commission considers that the restrictions on the

applicant's use of property (i.e. that he is not allowed to build a

bungalow on it) must be examined under "the control of use" rule in

the second paragraph of Article 1 (Art. 1). The question of the justification

for the interference resulting from the refusal of planning permission

must therefore be examined under that paragraph, to establish whether

the interference was "lawful", whether it served the "general interest"

and whether it was proportionate and therefore could be "deemed

necessary".

The applicant does not contest that the refusal of planning

permission was lawful and indeed, if he did contest its lawfulness, he

would have been required to appeal to the High Court in this respect.

The condition of "general interest" leaves a wide margin of

appreciation to the national authorities. The Convention organs

will respect the domestic authorities' judgments as to what is

"general interest" unless that judgment is manifestly without

reasonable foundation or is arbitrary.

The function of planning legislation in the United Kingdom is

to balance the protection of the natural and the built environment

with the pressures of economic and social change. Again, the

applicant does not contest this "general interest", which the

Commission finds to be reasonable.

As to proportionality, the Commission recalls that, under

the second paragraph of Article 1 (Art. 1), the State may enforce

such laws as it "deems necessary". In the application of this test

of necessity regard must be had to the principle of respect for

peaceful enjoyment of possessions which is enunciated in the opening

sentence of Article 1 (Art. 1). For this reason the Commission must

also examine "whether a reasonable relationship of proportionality

existed between the means employed and the aim sought to be realised",

or in other words, "whether a fair balance was struck between the

demands of the general interest in this respect and the interest of

the individual or individuals concerned" (Eur. Court H.R., Agosi

judgment of 24 October 1986, Series A no. 108, p. 18, para. 52 and

Sporrong and Lönnroth judgment, loc. cit., p. 26, para. 69).

The Commission notes that the restriction on development

applied when the applicant bought his property. The applicant's

argument is that because there exist Government circulars setting

out guidelines for preferential treatment of gypsies in housing

matters, and because the applicant is a gypsy, the domestic

authorities should have granted him planning permission to erect a

bungalow outside the normal guideline. The applicant does not contend

that others, who are not gypsies, have been granted planning

permission in similar circumstances to him, although he does state

that a number of local developers have approached him with offers to

buy the plot, and he submits that these offers would not have been

made if the developers had not received intimation from the District

Council that planning permission would be granted to them.

The Convention does not guarantee the right to develop

property purchased in an area outside a development guideline, and,

bearing in mind that the inspector in his appeal report considered at

length the question of whether the applicant's individual

circumstances were sufficient to outweigh this basic policy position,

and the State's wide margin of appreciation in this area, the

Commission finds that any interference with the applicant's property

right cannot be held to be disproportionate.

Accordingly, any interference with the applicant's property

rights was justified in the terms of the second paragraph of Article

1 of Protocol No. 1 (P1-1) and this part of the application is therefore

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The Commission has also examined the applicant's other

complaints as they have been submitted by him. It notes that they are

all consequential upon the refusal of planning permission, and further

finds no indication that his appeals against the refusal of planning

permission were rejected for any reason which may have been connected

to the fact that he is a gypsy. After considering these remaining

complaints as a whole, the Commission finds that they do not disclose

any appearance of a violation of the rights and freedoms set out in

the Convention.

It follows that these complaints are also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)

of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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JONES v. the UNITED KINGDOM

JONES v. the UNITED KINGDOM

LEXI