THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39664/98 by Pamela EATSON against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 30 January 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr P. Kūris , Mrs F. Tulkens , Mr K. Jungwiert , Sir Nicolas Bratza , Mr K. Traja , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 19 November 1997 and registered on 4 February 1998,

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 deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in 1938 and living in Bedfordshire. She is represented before the Court by Mrs A. White, a solicitor practising in Berkhamsted.

A. The circumstances of the case

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

The applicant was born into a gypsy family and travelled in a caravan in a nomadic way of life throughout her childhood. This continued after her marriage at age 18 to her husband who is also a gypsy. They travelled mainly in Buckinghamshire and Bedfordshire, working on farms. They often stopped at a site in Leighton Buzzard, where their three children were born.

From 1970 to 1981, the applicant and her family were continually harassed by the police or local authority officials, being required to move on. They were able to obtain a place on a local authority site where they stayed until 1984. They were given notice to quit apparently due to her husband’s use of a lorry on the site.

After some weeks of travelling, the applicant and her family moved on to a site in Tilsworth which they had bought. They intended to develop the land as a commercial nursery garden. In 1986, their caravan was stolen and they moved into the workshop building on the land.

The applicant’s application for planning permission for a mobile home was refused but on appeal, in 1992, they were given three years’ temporary permission while they established their nursery business. In his decision of 27 March 1992, the Planning Inspector said, inter alia :

“the appeal site is in the South Bedfordshire Green Belt and it is located in open countryside beyond the confines of any village. The site is not in a location where residential accommodation would normally be allowed…

At my site visit, I saw little to demonstrate a productive nursery… Without clear evidence of a firm intention and ability to develop the business I do not consider that a permanent dwelling can be justified by such an enterprise… on agricultural grounds….

I now turn to the question of gypsy status and the matters which flow from that. There is no doubt that the Eatsons have impeccable gypsy antecedents … I have no hesitation in concluding that the and her husband are gypsies in statutory terms and entitled to the considerations which flow from that. …

South Bedfordshire District is a designated area under the 1968 Act which means that the Secretary of State was satisfied that adequate accommodation had been provided for gypsies residing in or resorting to the area. There is no evidence that a major problem of provision has developed in the area since designation. Within the district there are two council sites and one private site. There are 25 plots at Eaton Bray, 10 at Pepperstock and 4 mobile homes at Jockey farm. Between January 1989 and July 1990, the twice yearly counts showed no unauthorised sites in the district; this rose to 7 families in July 1990 and fell to one 6 months later. The Council consider that they can accommodate any genuine need within the existing sites, however there is a waiting list of 12 for Pepperstock and 8 at Eaton Bray. I appreciate that pitches do become available from time to time but there is no immediate prospect of one becoming available particularly in light of the waiting lists. I understand that there is a transit site at Wilstead about 20 miles away, which the Council use as a temporary expedient until a pitch on a permanent site becomes available. I understand that a move to the Wilstead site would mean that would not have the continuity of medical care which is advantageous to her. Moreover, it would put both of them at some considerable distance from what appears to be their source of income, the appeal site. I am therefore not satisfied that suitable alternative accommodation would be available to them were I to uphold even within an extended compliance period.

While I recognise that it might sometimes be necessary to allow gypsy sites in the Green Belt and that private site provision can be advantageous, I do not find the need for further permanent provision in this case to be such as to outweigh the strong planning policy objection to additional residential development in the countryside. I appreciate that the buildings on the land are likely to remain and the visual impact of a caravan would therefore be limited but, by itself, that is not a compelling argument for allowing a permanent residential use in the Green Belt. However, in the light of the lack of suitable alternative provision for the Eatsons on an official gypsy site in the near future I consider I would be justified in granting them a personal permission limited to 3 years to enable them to make proper alternative arrangements…”

In 1993, a fire broke out destroying much of the applicant’s office workshop and her stock in trade.

Before the expiry of the temporary permission, the applicant applied in March 1995 for planning permission to live on her land as a gypsy invoking the relevant government circulars.

In September 1995, planning permission was refused by the local authority. On appeal, a Planning Inspector held a public inquiry on 3 and 4 March 1997. On 21 April 1997, he upheld the refusal of planning permission, stating inter alia :

“The site is within confirmed Green Belt, and at the inquiry it was accepted on behalf of that the development now under consideration is not “appropriate” in terms of Green Belt policy. Therefore having regard to the development plan and national planning guidance, I consider that the main issue in these appeals is whether there are very special circumstances which could justify making an exception to the normal, firm presumption against inappropriate development within the Green Belt. …

For the heavy reliance was placed on Circular 1/94…It was pointed out that the current development plan… does not…’identify locations suitable for gypsy sites’ or set out ‘… clear, realistic criteria for suitable locations, as a basis for site provision policies.’

That is so. However, even if the development plan were fully in accord with the Circular, it is highly unlikely that the appeal site would be among the pieces of land identified for a gypsy caravan site, either on a site specific basis or ‘criteria’ basis…

In South Bedfordshire, there are two local authority sites, on which from time to time vacancies do arise. … it appears to me, on the basis of the regular six monthly official counts, that the level of need for additional authorised sites in the district is low. …

A linked issue is the extent of the difficulty the would personally have in finding another private gypsy site, if they had to leave their present one. I accept I would be difficult to find a site in South Bedfordshire. .. The

It was claimed that since the temporary planning permission was granted in 1992 the have made ‘strenuous efforts’ to find alternative accommodation. I do not agree that this is the case. From the evidence I was given, the main efforts appear to have been two telephone calls to the council and a number of letters to local estate agents since the appeals were lodged. … I do not regard these efforts as anything like sufficient to establish that there is no prospect of finding some alternative accommodation which it would be reasonable to expect the to accept.”

The inspector noted that the applicant received injections twice a day for diabetes and that her husband suffered from chronic bronchitis and asthma. This indicated that they would benefit from a more settled lifestyle within a reasonable distance of medical services. He observed that these conditions could also be fulfilled in a mobile home park, of which there were several located within the district. Nor did he find that the agricultural use of their land was such as to require that they live on the site. He did however extend the period of compliance by eighteen months with reference to their organising what they would do with regard to accommodation, etc.

On 3 November 1997, the applicant’s appeal against that decision under section 289 of the Town and Country Planning Act 1990 was dismissed by the High Court.

Counsel advised against appeal to the Court of Appeal on grounds of lack of prospects of success.

B. Relevant domestic law and practice

1. 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).

2. Green Belt policy

The purpose of Green Belts and the operation of the policy to protect them is set out in the national policy document PPG 2 (January 1995).

“1.1. The Government attaches great importance to Green Belts, which have been an essential element of planning policy for some four decades. …

1.4. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development.

1.5. There are five purposes in Green Belts:

- to check the unrestricted sprawl of large built-up areas;

- to prevent neighbouring towns from merging into one another;

- to assist in safeguarding the countryside from encroachment;

- to preserve the setting and special character of historic towns; and

- to assist in urban regeneration by encouraging the recycling of derelict and other urban land. …

2.1. The essential characteristic of Green Belts is their permanence. Their protection must be maintained as far as can be seen ahead. …

3.1. The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. …

3.2. Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.”

COMPLAINTS

The applicant complained under Article 8 of the Convention that as gypsies she and her husband had a right to live in a caravan according to their tradition and culture. However, due to planning regulations and the shortage of sites, there was no place for her to live this way of life without acquiring her own land. Moreover, she was denied the right to live on her land in a caravan by the authorities.

The applicant also complained under Article 1 of Protocol No. 1 that she had been denied the right to live on her own land despite the lack of any alternative.

Finally, the applicant complained under Article 6 of the Convention that the decision to uphold the local authority’s enforcement notice was taken by a Planning Inspector, who was appointed by the Secretary of State for the Environment and cannot be regarded as impartial. She had no right of appeal against this decision on questions of fact, only on points of law.

THE LAW

1. The applicant complains that the refusal of planning permission to station and live in a caravan on her land and the enforcement measures implemented in respect of her occupation of her land 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 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 (judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1271). 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 [GC], no. 27238/95, 18.01.01, ECHR 2001, §§ 93-94).

Turning to the present application, the Court considers that the applicant’s occupation of her caravan is an integral part of her ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. Measures which affect the applicant’s stationing of her caravans have therefore a wider impact than on the right to respect for home. They also affect her ability to maintain her identity as a gypsy and to lead her private and family life in accordance with that tradition. The applicant’s right to respect for her 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 applicant to remain on her land in a caravan and the measures of enforcement taken in respect of her continued occupation constituted an interference with her right to respect for her 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 applicant that the measures to which she was 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, Lustig-Prean and Beckett v. the United Kingdom , [Section 3], nos. 31417/96 and 32377/96, 27.09.99, ECHR 1999, §§ 80-81).

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 Dudgeon v. the United Kingdom judgment 22 October 1982, Series A no. 45, p. 21, § 52; 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 Kigdom (judgment 25.09.96, Reports of judgments and decisions 1996-IV, 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, p. 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 ( loc. cit. , pp. 1292-95, §§ 76, 80, 84).

Turning to the facts of the present case, the Court notes the seriousness of what is at stake for this applicant. She followed an itinerant lifestyle for many years, stopping on temporary or unofficial sites. She took up residence on her own land by way of finding a long-term and secure place to station her caravan. Planning permission has however been refused for this and she has been required to leave. It would appear that the applicant does not in fact wish to pursue an itinerant lifestyle. She was resident on the site from about 1984 to date. Thus the present case is not concerned as such with traditional itinerant gypsy life styles.

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

The Inspectors in both appeals saw the site themselves and considered the applicant’s representations. As is evidenced by the temporary permission granted in 1992, and the extension of the time period for compliance in the decision of 21 April 1997, some notice was taken of the points which the applicant advanced.

However, the second Inspector noted that the applicant conceded that the use of land was not appropriate for the Green Belt. While he paid regard to her gypsy status and the compassionate health grounds, he did not consider that the applicant had made any great effort to find alternative lawful placement for her caravan and observed that there were two local authority sites on which vacancies arose and several private mobile home parks in the district. He concluded that there were accordingly no very special circumstances outweighing the environmental objections to her occupation of the site.

The Inspectors’ reports showed that there were strong, environmental reasons for the refusal of planning permission and that the applicant’s 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 applicant 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 applicant to find alternative accommodation, sites did exist and the Court is therefore not persuaded that there were no alternatives available to the applicant besides remaining in occupation on land without planning permission in a Green Belt 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 applicant’s predicament both under the terms of the regulatory framework, which contained adequate procedural safeguards protecting her interests under Article 8, and by the responsible planning authorities when exercising their discretion in relation to the particular circumstances of her 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 applicant’s 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 applicant 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.

2. The applicant claims that she has been denied the right to live on her land and has therefore suffered a breach of the right to the peaceful enjoyment of her possessions contrary to 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 applicant’s peaceful enjoyment of her property was proportionate and struck a fair balance, in compliance with the requirements of Article 1 of Protocol No. 1 of the Convention. Her complaint is therefore to be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

3. The applicant invoked Article 6 of the Convention, complaining that she had no access to a court to determine the merits of her claims that she should have permission to occupy her land. Article 6 § 1 provides as relevant:

“1. In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.  …”

The applicant complained in particular that the planning appeals in her case were decided by inspectors who were appointed by the Secretary of State and could not be regarded as impartial. The Court observes that the planning inspector cannot indeed be regarded as a court or tribunal in the sense of Article 6 § 1 of the Convention. However, appeals lie from the decisions of such inspectors to the High Court, which is a competent judicial organ. While it is true that appeals are limited to points of law, the Court held in the case of Bryan v. the United Kingdom (judgment of 22 November 1995, Series A no. 335-A, §§ 34-47) that, in the specialised area of town planning law, full review of the facts may not be required by Article 6 of the Convention.

The Court finds in this case that the scope of review by the High Court, which was available to the applicant after a public procedure before an inspector, was sufficient in this case to comply with Article 6 § 1. It enabled a decision to be challenged on the basis that it was perverse, irrational, had no basis on the evidence or had been made with reference to irrelevant factors or without regard to relevant factors. This may be regarded as affording adequate judicial control of the administrative decisions in issue.

There has therefore been no appearance of a violation of Article 6 § 1 in this case and this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President