THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34334/96 by Beatrice and John SMITH against the United Kingdom

The European Court of Human Rights, sitting on 3 May 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 23 April 1996 and registered on 20 December 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Beatrice and John Smith, are United Kingdom nationals , born in 1962 and 1960 respective ly and living in Headcorn, Kent. They are represented before the Court by Mr P. Kingshill, a lawyer practising in London. The respondent Government are represented by Mr H. Llewellyn of the Foreign and Commonwealth Office, London.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants are Romany gypsies.

Between 12 February 1990 and 15 August 1993, they were tenants in conventional housing in Swanley, in west Kent.

On or about 13 May 1993, they took up residence on their own land to the north west of Lenham Road, Headcorn, Kent, in two caravans with their four children.

On 18 May 1993, the applicants lodged a retrospective planning application for the stationing of a residential caravan on their land. Maidstone Borough Council (“the Council”) refused the application. On 2 July 1993 and 12 August 1993, the Council issued enforcement and stop notices.

The applicants appealed against the refusal of planning permission and against the enforcement notices. Those appeals were dismissed on 11 April 1994. In his decision of that date, the Inspector who had held a public planning inquiry, found that the development eroded the very rural character of the area and harmed the environment. He extended the period of compliance from two weeks to four months noting that it would not be in the interests of the children to be uprooted from school within the usual 14 day period.

On 10 June 1994, the applicants pleaded guilty to the offence of failing to comply with the stop notice. The first applicant was fined 3,000 pounds sterling (GBP) and ordered to pay costs of GBP 870. The second applicant was conditionally discharged. On appeal, the first applicant's fine was reduced by the Court of Appeal to GBP 500 and the costs order quashed.

On 29 June 1994, the applicants submitted a second application for planning permission, which was refused by the Council.

In August 1994, the applicants enquired about housing with the Council and homelessness application forms were sent to them. They were advised of a vacancy on the Stilebridge Caravan Site. This vacancy was again notified on 13 September 1994 and on 14 October 1994 a housing officer visited the applicants' land and offered them the pitch on the Stilebridge Caravan site. The applicants refused. On the applicants' evincing interest in housing options, the Council offered to them on 27 October 1994 a three bedroomed property at Mangravet.

On 26 April 1995, the applicants' appeal against the refusal of planning permission was dismissed after a public Inquiry by a Planning Inspector. The Inspector found the site constituted sporadic development in open countryside and was detrimental to the appearance of the rural area. He noted that the second applicant had been offered, but had declined, a site on a public site in the Maidstone district and was not satisfied that he would be led into breaking the law if planning permission was not granted.

On 7 July 1995, the Council issued proceedings in the High Court claiming an injunction, restraining the applicants, inter alia , from stationing caravans and continuing residential occupation on their land. An ex parte injunction was granted on the same day, restraining the applicants from stationing caravans on their land.

On 7 August 1995, the High Court adjourned the injunction proceedings. The Council subsequently withdrew the proceedings.

By letter dated 12 January 1996, the Council informed the applicants that it was considering exercising its powers under section 178 of the Town and Country Planning Act 1990. In that month, the applicants enquired of the Council as to the possibility of housing in Headcorn.

On 15 February 1996, the applicants made a third application for planning permission which was refused in or about late March/April 1996. The applicants appealed.

On 21 March 1996, the Council offered the applicants a three bedroomed house in Sutton Valence. The applicants refused.

On 15 April 1996, the Council sent a letter to the applicants' solicitors stating that the applicants had refused an offer of housing and that the Council would proceed shortly to action under section 178. On 16 April 1996, the Council evicted the applicants from their land pursuant to their powers under section 178. They again offered the applicants the possibility of moving to the house in Sutton Valance. The applicants refused.

Having nowhere else lawfully to station their caravans, the applicants moved their caravans onto the village green at Headcorn. This was an area of public amenity owned by the Parish Council, including a childrens' play area and equipment. Complaints were made by local residents inter alia concerning the coming and going of vehicles over the pavement and close to the childrens' play area.

On 17 April 1996, the Council served the applicants with a direction under section 77 of the Criminal Justice and Public Order Act 1994. The applicants complied with the direction, removing themselves from the green. They stationed their caravans on the unmade roadway leading to the village hall, which was also land owned by the Parish Council. A further direction was served under section 77 on 18 April 1996. The applicants complied with the order and moved to a car park in the centre of the village owned by a local firm and used as the main village car park by shoppers and visitors to the village. On 19 April 1996, the site owners decided to close the car park for reasons of public safety. This caused problems of congestion and traffic difficulties. A third direction under section 77 was served on the applicants on 22 April 1996, following which they moved to Parsonage Meadow. When a travelling circus arrived with permission to camp, the applicants left voluntarily and moved onto land adjoining Oak Farm Gardens. The Council received a complaint from the owner who said that he had not given permission. They took no action however as there were no issues of public safety involved. On 11 June 1996, complaints were received that the applicants had moved back onto Parsonage Meadow. On inspection the Council found that there were two other families with the applicants, and that three caravans, two transit vans, a pickup truck, a four wheel drive vehicle and a horsebox were stationed on the land. On 13 June 1996, a direction under section 77 was issued, forcing them to move on.

They were prevented from returning to their land by another court injunction obtained by the Council on 22 April 1996.

The applicants applied for leave to apply for judicial review of the Council's decision to take steps to secure compliance with the enforcement notices. Shortly before the hearing listed for 19 July 1996, the Council offered to treat the applicants as being unintentionally homeless persons to whom they owed a duty under the Housing Act 1985. The applicants were advised by their counsel and solicitors that there were minimal prospects of success in pursuing their application for judicial review and that the Legal Aid Board would cease to fund their application. In view of their lack of any viable alternative, the applicants reluctantly withdrew their application.

The Council offered the applicants a three bedroom flat which was available. The applicants did not consider that this was suitable accommodation. The applicants went to live in their caravan in the small rear garden of a relatives's house in Headcorn.

On 21 and 30 January 1997, a Planning Inspector held a public inquiry into the applicants' outstanding application for planning permission for their land. He had visited the site and also the applicants' present abode which he described as unsatisfactory for both the family and their neighbours although it allowed the children to continue with their schooling. The Inspector noted that the applicants' land had highway access and that the development would not harm existing housing. While due to the hollow in the ground the development would be less obvious than on the previous site, he found that it would nonetheless form an intrusive feature and would harm the character of appearance of the rural landscape. He noted that the applicants had purchased the land encouraged by Government policy and that it was necessary, partly for health reasons, to find a more satisfactory location for the family. While he acknowledged that gypsies were a special case and sites for residence could be acceptable in some rural locations, he was not satisfied that their case was so overriding as to outweigh the development plan policy requirement to protect the countryside in this particular location. He dismissed the appeal.

The applicants bought a house in Headcorn and are now resident there.

B. Relevant domestic law and practice

General planning law

The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (“the 1990 Act”) consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development ( Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601).

An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act).

The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, § 21). There is a further appeal to the High Court on the ground that the Secretary of State's decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288).

If a development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act).

There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia , that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector.

Again there is a further right of appeal on a point of law to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational ( R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector's decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority.

Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act).

Circular 1/94

New guidance on gypsy sites and planning, in the light of the 1994 Act, was issued to local authorities by the Government in Circular 1/94 (5 January 1994).

Councils were told that:

“In order to encourage private site provision, local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development. ... The aim should be as far as possible to help gypsies to help themselves, to allow them to secure the kind of sites they require and thus help avoid breaches of planning control.” (paragraph 20)

However:

“As with other planning applications, proposals for gypsy sites should continue to be determined solely in relation to land-use factors. Whilst gypsy sites might be acceptable in some rural locations, the granting of permission must be consistent with agricultural, archaeological, countryside, environmental, and Green Belt policies. ...” (paragraph 22).

It was indicated that as a rule it would not be appropriate to make provision for gypsy sites in areas of open land where development was severely restricted, for example Areas of Outstanding Natural Beauty or Sites of Special Scientific Interest. Nor were gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt (paragraph 13).

Circular 18/94

Further guidance issued by the Secretary of State dated 23 November 1994 concerned the unauthorised camping by gypsies and the power to give a direction to leave the land (CJPOA above). Paragraphs 6-9 required local authorities to adopt “a policy of toleration towards unauthorised gypsy encampments”:

“6. ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which cannot be effectively controlled, an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance. Accordingly, authorities should consider tolerating gypsies' presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites, for example by providing basic services for gypsies e.g. toilets, a skip for refuse and a supply of drinking water. ...

8. Where gypsies are unlawfully camped on Government-owned land, it is for the local authority, with the agreement of the land-owning Department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health. It will continue to be the policy of the Secretaries of State that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance.

9. The Secretaries of State continue to consider that local authorities should not use their powers to evict gypsies needlessly. They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land.”

Paragraphs 10-13 further require local authorities to consider their obligations under other legislation before taking any decisions under the 1994 Act. These obligations include their duties concerning pregnant women and newly-born children, the welfare and education of children and the housing of homeless persons. In a judgment of 22 September 1995 ( R. v. Lincolnshire County Council, ex parte Atkinson , R. v. Wealden District Council, ex parte Wales and R. v. Wealden District Council, ex parte Stratford , unreported), the High Court held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages.

The Criminal Justice and Public Order Act 1994

Section 77 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) gives to a local authority power to direct an unauthorised camper to move. An unauthorised camper is defined as

“a person for the time being residing in a vehicle on any land forming part of the highway, any other unoccupied land or any occupied land without the owner's consent”.

Failure to comply with such a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrates' court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act).

COMPLAINTS

1. The applicants invoke Article 3 of the Convention, submitting that they have been subject to inhuman and degrading treatment by the way in which their ethnic and traditional lifestyle has been effectively rendered unlawful.

2. The applicants complain under Article 8 of the Convention that they have been prosecuted, convicted, subject to injunctions, evicted and served with directions ordering them to move on. They submit that there is no alternative gypsy caravan accommodation available to them and that their eviction was disproportionate. The only two courses open to them as a result of the measures against them are the continual harassment and persecution of a totally nomadic life or assimilation into conventional housing.

3. The applicants submit that the actions of the State disclose an unreasonable deprivation of their possessions, rendering them without a base on which to station their caravan.

4. The applicants also complain that they are victims of discrimination.

THE LAW

1. The applicants invoke Article 3 of the Convention, which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The applicants submit that they have been subject to inhuman and degrading treatment by the way in which their traditional lifestyle of living in caravans has been effectively rendered unlawful.

The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, amongst other authorities, the Tekin v. Turkey judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, § 52).

Notwithstanding the difficulties which the applicants have faced in finding a lawful place to station their caravan, the Court is not persuaded that this discloses treatment of sufficient severity to fall within the scope of Article 3 of the Convention.

It follows that this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicants complain that the refusal of planning permission to station and live in a caravan on their land and the enforcement measures implemented against them disclose a violation of Article 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 submissions of the parties

The Government submit with reference to the Buckley case (judgment of 25 September 1996, Reports 1996-IV, pp. 1291-2, §§ 74-75) that in the context of town and country planning, which involved the exercise of discretionary judgment in implementing policies in the interests of the community, national authorities were in a better position to evaluate local needs and conditions than an international court. It was not for the Court to substitute its view of what would be the best planning policy or the most appropriate measure in a particular case. While the applicants were entitled to have their interests carefully considered by the national authorities and weighed in the balance as against the needs of planning control, an examination of the applicable system, and the facts of this case, showed that the procedural safeguards contained in national law as to the way in which planning judgments were made (an assessment by a qualified independent expert, an Inspector, followed by judicial review in the High Court) were such as to give due respect to their interests. The Government pointed out that local planning authorities were encouraged to adopt a sympathetic approach to any question of enforcement action under Circular 18/94 (see Relevant Domestic Law and Practice above). However, gypsies could not claim the right to live wherever they liked in defiance of planning control, particularly when they were now seeking to live a settled existence indefinitely on their own land.

The Government submit that the applicants had moved onto their land without planning permission and that three inspectors had found that their use of the site was damaging to the quality of the environment. It had always been open to them to provide a lawful site for themselves. They could have applied to local authority sites, and indeed an offer of a pitch had been made. Any enforcement action took into account the need to make planning controls effective and the requirements of public safety as well as the applicants' interests. The measures were therefore necessary and proportionate in compliance with Article 8 of the Convention.

The applicants submit that the needs of their family were not properly addressed in the planning and enforcement procedures. The persistent and aggressive enforcement action taken against them deprived them of the only means by which they could enjoy their right to family and private life and home. Their land was not situated in an area of outstanding natural beauty or scientific interest and there were no safety considerations or issues of nuisance or prejudice to public health. As they faced the threat of criminal sanctions and constant evictions if they left their land and they were not offered alternative accommodation on an authorised gypsy site when faced with eviction action, they submit that the measure used to drive them off their land could not be regarded as proportionate.

The applicants claim that their case can be distinguished from the case of Chapman ( Chapman v. the United Kingdom [GC], no. 27238/95, 18.01.01, ECHR 2001) as in that case the applicant had taken up residence on land in a Green Belt area and had not been victim to enforcement action under the 1994 Act. Their occupation of their land however did not give rise to any strong environmental concerns and they had been subject to four directions under section 77 of the 1994 Act and evicted by use of powers under section 178 of the 1990 Act without the domestic courts being given an opportunity to consider the merits of their case.

The Court's assessment

The Court recalls that it has already examined complaints about the planning and enforcement measures imposed on a gypsy family who occupied their own land without planning permission in the case of Buckley v. the United Kingdom (cited above). While the Court is not formally bound to follow any of its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases. Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see, amongst other authorities, the Cossey v. the United Kingdom judgment of 27 September 1990, Series A no. 184, p. 14, § 35). In the more recent cases decided before the Grand Chamber, the Court was not persuaded that any emerging consensus concerning the special needs of minority groups was sufficiently concrete for it to derive any guidance as to the conduct or standards which Contracting States consider desirable in any particular situation. This reinforced the Court's view that the complexity and sensitivity of the issues involved in policies balancing the interests of the general population, in particular with regard to environmental protection and the interests of a minority with possibly conflicting requirements, rendered the Court's role a strictly supervisory one (see e.g. Chapman v. the United Kingdom cited above, §§ 93-94).

Turning to the present application, the Court considers that the applicants' occupation of their caravan is an integral part of their ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. Measures which affect the applicants' stationing of their caravans have therefore a wider impact than on the right to respect for home. They also affect their ability to maintain their identity as gypsies and to lead their private and family life in accordance with that tradition. The applicants' right to respect for their private life, family life and home are therefore in issue in the present case (see Chapman v. the United Kingdom , cited above, §§ 73-74).

Having regard to the facts of this case, it finds that the decisions of the planning authorities, refusing to allow the applicants to remain on their land in a caravan and the measures of enforcement taken in respect of their continued occupation, constituted an interference with their right to respect for their private life, family life and home within the meaning of Article 8 § 1 of the Convention. It therefore examines below whether this interference was justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing a legitimate aim or aims and as being “necessary in a democratic society” in pursuit of that aim or aims.

It was not contested by the applicants that the measures to which they were subjected were “in accordance with the law”. It is also apparent that the reasons given for the interferences in the planning procedures in this case were expressed primarily in terms of environmental policy. In these circumstances, the Court finds that the measures pursued the legitimate aim of protecting the “rights of others” through preservation of the environment.

As regards the necessity of the measures, an interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, amongst other authorities, Smith and Grady v. the United Kingdom , [Section 3], nos. 33985/97 and 33986/97, 27.09.99, ECHR 1999-VI, § 88).

In this regard, a margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions (see the Dudgeon v. the United Kingdom judgment 22 October 1982, Series A no. 45, p. 21, § 52; the Gillow v. the United Kingdom judgment of 24 November 1986, Series A no. 109, p. 22, § 55). Hence, as the Court observed in Buckley v. the United Kingdom (cited above, p. 1292, § 75 in fine), “in so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation”, although it remains open to the Court to conclude that there has been a manifest error of appreciation by the national authorities. In these circumstances, the procedural safeguards available to the individual applicant will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, it must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see the Buckley judgment, cited above, pp. 1292-3, §§ 76-77).

Furthermore, although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of a society does not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckley judgment, the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases (judgment cited above, pp. 1292-95, §§ 76, 80, 84).

Applying those principles in the present case, the Court notes the seriousness of what was at stake for these applicants. They took up residence on their own land by way of finding a long-term and secure place to station their caravans. Planning permission was however refused for this and they were fined in enforcement proceedings, evicted by the local authority's exercise of their powers under section 178 of the 1990 Act and required to move on four times under threat of the criminal sanctions provided for in sections 77-78 of the 1994 Act (see Relevant Domestic Law and Practice above). It would appear however that the applicants do not in fact wish to pursue an itinerant lifestyle. They were resident on their land from about May 1993 to April 1996. Though it is accepted therefore that the applicants are gypsies, the present case is not concerned as such with traditional itinerant gypsy life styles.

The Court observes that the applicants moved onto their land in their caravan without obtaining the prior planning permission which they knew was necessary to render that occupation lawful. In accordance with the applicable procedures, the applicants' appeals against refusal of planning permission and enforcement notices were conducted at public inquiries by three Planning Inspectors, who were qualified independent experts. The applicants were provided with an opportunity to put before the Inspectors any material which they regarded as relevant to their arguments and in particular their personal, financial and other circumstances, their views as to the suitability of alternative sites and the length of time needed to find a suitable alternative site.

The Inspectors in each appeal saw the site themselves and considered the applicants' representations. As is evidenced by the extension of the time period for compliance in the 1994 decision, some notice was taken of the points which the applicants advanced.

However, all three Inspectors found that their use of the land was out of character with the rural nature of the area and that this intrusive development was harmful to the appearance of the pleasant countryside area. The second Inspector who considered the case in 1995 noted that the local authority had offered the applicants a place on a public site and was not persuaded that the applicants had no alternative to risking criminal sanctions through unauthorised parking on the highway or other unoccupied land. While the Inspectors paid regard to the applicants' gypsy status and the fact the children were being educated in the local school, they did not find that their interests were in the circumstances sufficient to outweigh the harm caused by the development to the countryside.

The Inspectors' reports showed therefore that there were strong, environmental reasons for the refusal of planning permission and that the applicants' personal circumstances had been taken into account in the decision-making process. The Court also notes that appeal to the High Court was available in so far as the applicants felt that the Inspectors, or Secretary of State, had not taken into account a relevant consideration or had based the contested decision on irrelevant considerations.

Though it was acknowledged in the planning proceedings that it might not be easy for the applicants to find alternative accommodation, sites did exist and the Court is therefore not persuaded that there were no alternatives available to the applicants besides remaining in occupation on land without planning permission in a countryside area. As stated in the Buckley case, Article 8 does not necessarily go so far as to allow individuals' preferences as to their place of residence to override the general interest (judgment cited above, p. 1294, § 81).

In the circumstances, the Court considers that proper regard was had to the applicants' predicament both under the terms of the regulatory framework, which contained adequate procedural safeguards protecting their interests under Article 8, and by the responsible planning authorities when exercising their discretion in relation to the particular circumstances of their case. The decisions were reached by those authorities after weighing in the balance the various competing interests. It is not for this Court to sit in appeal on the merits of those decisions, which were based on reasons which were relevant and sufficient, for the purposes of Article 8, to justify the interferences with the exercise of the applicants' rights.

The humanitarian considerations which might have supported another outcome at national level cannot be used as the basis of a finding by the Court which would be tantamount to exempting the applicants from the implementation of the national planning laws and obliging governments to ensure that every gypsy family has available for its use accommodation appropriate to its needs (see the Chapman v. the United Kingdom case cited above, § 115). Furthermore, the effect of these decisions cannot on the facts of this case be regarded as disproportionate to the legitimate aim being pursued.

The Court accordingly finds that the measures may be regarded as having been necessary in a democratic society for the purpose of protecting the rights of others. This part of the application must therefore be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

3. The applicants claim that they have been denied the right to live on their land, invoking Article 1 of Protocol No. 1 to the Convention which 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.”

Having regard to the reasoning given above under Article 8 of the Convention, the Court finds that any interference with the applicants' peaceful enjoyment of their property was proportionate and struck a fair balance, in compliance with the requirements of Article 1 of Protocol No. 1 of the Convention. Their complaint is therefore to be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

4. The applicants invoke Article 2 of Protocol No. 1 to the Convention which provides as relevant:

“No person shall be denied the right to education. ...”

The applicants refer to the fact that their children attend local schools and would be disrupted by any move.

The Court does not find it substantiated however that on the facts of this case the planning measures taken against the applicants have effectively denied the right to education to those children. There has, accordingly, been no appearance of a violation of Article 2 of Protocol No. 1 to the Convention and this complaint must be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

5. The applicants claim that they have been discriminated against, invoking Article 14 of the Convention which provides:

“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government submitted that the applicants could not claim that others in a similar situation had been treated more preferentially than themselves. The aim of the planning system was designed inter alia to protect the environment and this applied to anyone, gypsy or non-gypsy, who wished to settle in the countryside. To the extent that there was any difference in treatment, they argued that there would be a reasonable and objective justification, namely, the preservation of the countryside.

The applicants state that they are Romany gypsies who have tried to carry on living in accordance with their traditional way of life. In such circumstances, the authorities ought to have treated them differently and more sympathetically than other persons in breach of planning control. However, rather than react with tolerance to the applicants' occupation of their land, they took extreme action and evicted them from their land.

Having regard to its findings above under Article 8 of the Convention that any interference with the applicants' rights was proportionate to the legitimate aim of preservation of the environment, the Court concludes that there has been no discrimination contrary to Article 14 of the Convention. While discrimination may arise where States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different ( Thlimmenos v. Greece [GC], no. 34369/97, ECHR 2000-IV, § 44), the Court does not find, in the circumstances of this case, any lack of objective and reasonable justification for the measures taken against the present applicants.

This part of the application must therefore also be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. D ollé              J.-P. Costa Registrar President