AS TO THE ADMISSIBILITY OF

Application No. 13341/87

by Philip and Annie LAY

against the United Kingdom

        The European Commission of Human Rights sitting in private on

14 July 1988, the following members being present:

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     S. TRECHSEL

                     F. ERMACORA

                     G. SPERDUTI

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     H. VANDENBERGHE

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

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

        Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 19 September

1987 by Philip and Annie LAY against the United Kingdom and registered

on 23 October 1987 under file No. 13341/87;

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

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicants are British citizens resident in Upper

Bodington, Northamptonshire and born in 1912 and 1915 respectively.

They are married and the second applicant suffers from ill-health.

The facts as submitted by the applicants may be summarised as follows.

        The applicants are owners of eleven acres of ground in

Upper Bodington.  In 1978, they moved into a caravan on the holding,

where they keep a herd of twenty-five beef cattle.  They pay domestic

rates in relation to their occupation of the caravan.

        In May 1978, the South Northamptonshire District Council

(hereafter "the Council") served an enforcement notice on the

applicants alleging an unauthorised change of use from agricultural

purposes to use as a site for a caravan contrary to the Town and

Country Planning Act 1971 and requiring the applicants to remove the

caravan.  The applicants' appeal against the notice was dismissed in

April 1979.  The applicants then moved the caravan to an area of their

land omitted from the scope of the notice.

        In January 1980 a second enforcement notice was served

concerning the whole of the holding.  The applicants appeal was

dismissed on 6 November 1980, although the planning inspector

found the proper description of the present user was dual, for

agricultural purposes and as a site for a caravan, and gave the

applicants six months to remove their caravan.  He also found that the

caravan detracted from the visual amenities of the area of open

countryside beyond the village.

        The applicants then apparently moved the caravan on to land

adjacent to their holding and, on 15 January 1982, a third enforcement

notice was served concerning the new site of the caravan.  The

applicants appealed and their appeal was heard before a planning

inspector.  In a decision dated 2 September 1982, the inspector found

the Council had erred in the terms of their notice, which was

accordingly reworded to require removal of a residential caravan, a

caravan used for agricultural purposes not involving any change of

user.  The inspector found that the caravan detracted from the rural

amenities and was contrary to policy.  Under the question of special

need he took into consideration the age of the applicants and their

wish to continue to manage their holding but found that the size and

nature of their farming activity was not such as to require them to

reside permanently on the site.  He therefore dismissed the

applicants' appeal and they were given nine months to remove the

caravan.

        The applicants, at a date unknown, returned the caravan on to

their holding.  On 5 December 1983, the Council issued three summons,

alleging breach of each of the three enforcement notices.  These were

heard separately before the magistrates court and dismissed.  On

13 June 1984, two further summonses were issued in relation to the

first two notices but these were either withdrawn or dismissed at a

hearing before the magistrates' court on 4 November 1984.

        A third set of summonses was issued and on 22 May 1985 the

first applicant was found guilty and fined £250 in respect of the

summons relating to the 1980 notice.  The first applicant appealed to

the Crown Court on the grounds that the prosecution was unjust and

oppressive.  The first applicant's counsel sought to make the point

that when the notice was issued, in the event of a prosecution, the

notice could have been challenged on the basis that the steps required

to be taken exceeded what was necessary to remedy any breach of

planning control, namely, while the local authority could require the

applicants to cease residential use of the caravan, it had no power to

require removal of the caravan.  However, due to a subsequent

legislative amendment in 1981, this method of challenge was no longer

available and counsel argued that the local authority were bringing a

prosecution in respect of a notice which they knew to be invalid but

the invalidity of which the applicant was now precluded from

challenging.  The first applicant's appeal was dismissed by the Crown

Court on 11 October 1985.

        The local authority proceeded to seek an injunction against

the applicants to enforce the removal of the caravan.  Their

application was heard before the High Court on 30 March 1987 and an

injunction was granted, requiring the applicants to remove the caravan

by 30 June 1987.

        In his judgment, the judge stated that the grant of an

injunction was a discretionary remedy and he took into consideration

the applicants' age, health and the history of the case in deciding

whether to exercise his discretion in granting an injunction.  The

judge also considered again the argument of the applicants' counsel

that the prosecution was based on an invalid notice but came to the

conclusion that there was no substance in this.  He found that the

applicants had acted in breach of the relevant legislation and that

there was no evidence that the local authority had not acted in good

faith or that it had been actuated by anything other than proper

planning considerations in refusing planning permission to the

applicants.  He concluded:

        "... as was explained by counsel for the plaintiff, the

        plaintiff Council have taken the administrative view that

        the best course here in everybody's interests would be to

        come to this court for an injunction rather than to put

        Mr. and Mrs.  Lay to the trouble and expense and harassment

        of a whole series of prosecutions in the magistrates' court.

        They seek to have the matter determined once and for all by

        the injunction, and I am bound to say, in the light of all

        the circumstances known to me, that is a very understandable

        decision to take.  It seems to me I ought not to refuse an

        injunction in the circumstances of this case, the Council

        itself now standing in the place of the Attorney General,

        merely because all other remedies have not been exhausted.

        But what of the other matters?  I am painfully aware that the

        order restraining - or the effect of which is to restrain

        Mr. and Mrs.  Lay from living in the caravan on their own

        land is going to cause them very great distress.  It is

        going to put them, temporarily at any rate, in very great

        difficulties with regard to housing.  They are old.  They

        are not well.  They have persuaded themselves, wrongly I

        think, that they are being persecuted.  Weighing all these

        matters and the observations in Mr.  Scott's opinion as best

        I can I come to the conclusion that this is a case in which

        it would be right to make an order very broadly in the terms

        sought by the Council.  I think it is a case for an injunction

        which is fully made out, and in the exercise of the court's

        discretion I propose to make an order."

        The applicants did not move the caravan and the local

authority applied to the High Court for an order to enter and remove

the caravan.  The applicants were unable to attend the hearing on

10 December 1987 due to ill-health when the application was granted,

but were allowed to re-apply to the Court.  Having been refused legal

aid, the applicants attended the High Court in person on 11 January

1988.  After representations from both parties, the judge held that he

maintained the order.

        During the course of these proceedings the applicants applied

on two occasions for planning permission to build a cottage on their

land, on the site of a previous cottage which was in ruins.  Their

applications were refused on 3 October 1981 and 4 July 1985 on the

grounds that it would have constituted an unjustifiable extension of

development and intrusion into the open countryside beyond the

approved village framework.

        By letter dated 22 January 1988, the applicants were informed

by the Council's housing officer that they were considered as falling

within a priority group for the purposes of housing.  He mentioned

that the Council had already made 2 offers of alternative

accommodation which the applicants had refused but that the Council

were willing to offer a third possibility, namely, a 2 bedroomed

bungalow in Litchborough.  By letter in reply, the applicants

explained that they had refused the first offer because it concerned a

house with steep stairs  and the second because it concerned a

property 20 miles from their land, which would have caused them great

difficulties in continuing to manage their holding.  The applicants

refused the third offer on the same grounds, the bungalow in question

being situated 12-14 miles from their land.

COMPLAINTS

        The applicants complain that the Council is threatening to

remove the caravan in which they live from their land.  The applicants

complain that the Council has treated them unjustly and oppressively.

They submit that the Council has granted permission to others to build

or have caravans on land outside the perimeter of the village: they

refer in particular to 3 farmers who were granted permission to build

housing on their land overside the village, which they then sold for

six-figure sums of money.  They complain that the third accommodation

offered is unsuitable, since it is situated 12-14 miles from their

holding and would cause them great difficulties in continuing to farm

their land.

THE LAW

1.      The applicants complain that the Council is threatening to

remove the caravan in which they live from their land.  They also

complain of being refused permission to build on their land although

permission has been granted to others.  The Commission has examined

these complaints under Articles 8 and 14 (Art. 8, Art. 14) of the Convention

and Article 1 of Protocol No. 1 (P1-1) to the Convention.

2.      Article 8 (Art. 8) of the Convention provides that:

"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 finds that the caravan in question, which the

applicants have lived in since 1978, must be considered as their

"home" and that the enforcement procedure pursued by the Council to

remove their caravan constitutes an interference with the applicants'

right to respect for their home.

        The Commission must therefore consider whether this

interference is "in accordance with the law" and whether it is

"necessary in a democratic society" for one or more of the reasons

listed in paragraph 2 of Article 8 (Art. 8-2) of the Convention.

        The Commission recalls that the applicants had not obtained

planning permission for using their land as a site for a residential

caravan and that this use was accordingly unauthorised.  The

Council, which served enforcement notices and issued summonses

alleging breach of these notices, was acting in implementation of the

relevant planning legislation.  The Commission notes that, although

the Council apparently made various procedural errors in the course of

the proceedings, the first applicant was found guilty of breach of an

enforcement notice, by a magistrates court and ordered to remove the

caravan.  His appeal against this decision was dismissed.  Further on

30 March 1987 the injunction requiring removal of the caravan and the

order permitting the Council to enter and remove the caravan were made

by the High Court.  The Commission accordingly finds that the

enforcement procedure was "in accordance with the law".

        The Commission also finds that the interference pursues a

legitimate aim, namely, the protection of the rights of others through

the operation of planning controls which is recognised as necessary in

a democratic society throughout the member States of the Council of

Europe.  The Commission recalls that in previous case-law it has

recognised that the existence and operation of planning controls

which delimit areas where domestic development may be extended is

a legitimate measure to protect the amenity value of rural areas

and thereby to protect the rights of others (see No. 11185/84,

Dec. 11.3.85, to be published in D.R. 42).

        It remains to be examined whether the interference was

"necessary in a democratic society" for this legitimate aim.  In

making the assessment of the necessity of a given interference the

national authorities enjoy a margin of appreciation.  It is

established case-law that an interference with a Convention right

cannot be regarded as "necessary" unless it is proportionate to the

legitimate aim pursued (see e.g.  Eur.  Court H.R., Gillow judgment of

24 November 1986, Series A no. 109, p. 22, para. 55).  Concerning the

necessity and the proportionality of the measures, the Commission

recalls that the applicants moved on to their land in their caravan

without obtaining permission for the change of user and that it was

found by the planning inspectors in the various appeals that the

caravan detracted from the visual amenities of the rural landscape

outside the village area.  The Commission recalls that the inspector,

in the decision dated 2 September 1982, took into consideration the

age of the applicants and their desire to farm the land but found that

the size and nature of their farming activity was not such as to

render it essential for anyone to reside on the site.  The Commission

further recalls that the Council has endeavoured to find alternative

accommodation for the applicants, although the applicants have so far

rejected these offers on the basis, inter alia, that the housing was

situated too far away from their land.

        The Commission notes that the position of the applicants was

also considered by the High Court, when on 30 March 1987, it decided

whether to grant the local authority an injunction to enforce the

removal of the caravan.  The judgment of the court took into account

the age and circumstances of the applicants and the possible legal

arguments in their favour but found that the applicants had acted in

breach of the planning legislation and that there was no evidence that

the local authority had been actuated by other than proper planning

considerations in refusing planning permission.  Having weighed all

these matters, the court decided to grant the injunction.

        In light of these circumstances and in particular the fact

that the use of the land for residential purposes was originally

illegal, the Commission finds that the measures taken can be

considered as "necessary in a democratic society".

        The Commission therefore finds that the interference in the

present case is justified under paragraph 2 of Article 8 (Art. 8-2) of the

Convention and that this part of the application must be rejected as

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

the Convention.

3.      Article 1 of Protocol No. 1 (P1-1) to the Convention provides:

        "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."

        Insofar as the applicants complain of the enforcement

proceedings which endeavour to remove their caravan from their land,

the Commission finds that this amounts to a control of use of property

within the meaning of the second paragraph of Article 1 of Protocol

No. 1 (P1-1).  However, even assuming that the applicants have complied with

the six months time-limit provided for in Article 26 (Art. 26) of the

Convention, the Commission considers that this control of use of the

land is necessary in accordance with the general interest of

safeguarding rural areas from unsuitable development.  The Commission

refers in this respect to its reasons given above in the context of

Article 8 (Art. 8) of the Convention, the requirements of which are more

stringent than those of Article 1 of Protocol No. 1 (P1-1).

        The Commission finds that an examination under Article 1 of

Protocol No. 1 (P1-1) of this aspect of the applicants' complaints does not

disclose any appearance of a violation of this provision.  It follows

that, in this respect, the application is manifestly ill-founded

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

4.      It is true that the applicants have also complained that they

were discriminated against in that other land owners were permitted to

have caravans on their property.  However, they have failed to show

that the local situation in these cases was comparable to their own.

        The Commission therefore finds no indication of discrimination

contrary to Article 14 (Art. 14) of the Convention.

        It follows that, in this respect, the application is also

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

the Convention.

5.      Insofar as the applicants complain of the refusals of planning

permission to build a cottage upon their land, the Commission is not

required to decide whether or not the facts alleged by the applicants

disclose any appearance of a violation of the Convention as, under

Article 26 (Art. 26) of the Convention, it may only deal with a matter after

all domestic remedies have been exhausted according to the generally recognised

rules of international law.

        In the present case the applicants have failed to appeal

against these decisions to the Secretary of State in accordance with

S. 36 of the Town and Country Planning Act 1971 and have therefore not

exhausted the remedies available to them under United Kingdom law.

Moreover, an examination of the case does not disclose the existence

of any special circumstances which might have absolved the applicants,

according to the generally recognised rules of international law, from

exhausting the domestic remedies at their disposal.

        It follows that, in this respect, the applicants have not

complied with the condition as to the exhaustion of domestic remedies

and this complaint must be rejected under Article 27 para. 3 (Art. 27-3) 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)