THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47953/99 by Linda PORTER 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 on 23 December 1998 and registered on 7 May 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in 1941 and living in Buckinghamshire. She is represented before the Court by Mr T. Christie of the National Romani Rights Association.

A. The circumstances of the case

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

The applicant and her husband, who are both gypsies, purchased a plot of land in 1984 and moved to live there in their caravans. Applications made for planning permission for either of their caravans or for a dwelling were refused by the South Buckinghamshire District Council (the Council). The site lay within the Green Belt.

The applicant has been involved in procedures challenging the refusal of planning permission for some years. In the latest appeal against the refusal of planning permission, the Planning Inspector held in his decision of 6 October 1998 inter alia

“4. PPG2 makes it clear that development not falling within the categories of exceptions against development in the Green Belt is “inappropriate” development and should not be approved except in very special circumstances. Para. 3.2 of PPG2 makes it clear that the very special circumstances to justify inappropriate development will not exist unless the harm by reason of the inappropriateness and any other harm is clearly outweighed by other considerations...

5. Having regard to the above established planning policy background and the representations made, and from my inspection of the appeal property and its surroundings, I consider that the main issue in this case is whether the retention of the mobile home and its associated outbuildings would be inappropriate development in the Green Belt, and if so whether there are any very special circumstances which outweigh the harm caused by such development.

6. Inappropriate development comprises all development except for a limited number of specified exceptions. The proposed retention of a new residential unit and the associated outbuildings does not constitute one of the identified exceptions...

7. I turn now to whether there are very special circumstances in this case which outweigh the harm caused by such inappropriate development. You indicate... the fact that the development is unobtrusive in form and... the gypsy status of the . ...

9. The appeal site is located close to the boundary between the Green Belt and the north-western tip of the developed area of Iver. Given this location, I accept the Council's view that it is particularly vulnerable to pressure from the expansion of this adjoining area. As such, the continued openness of the site and that of the tract of land of which it forms part is of considerable importance in ensuring that the adjoining area does not expand and coalesce with the developed area of Slough to the west. Although the area contains a number of existing buildings it remains predominantly rural in character and largely undeveloped. However development, by virtue of its design, nature and siting constitutes a cluttered and urban form of development. This I consider... is both harmful to the rural and open character of the Green Belt and to the visual amenities and landscape of this part of Colne Valley Park. ...

10. ...With respect to the accommodation needs of , I have taken into account that there are 4 authorised gypsy caravan sites in South Bucks consisting of a total of 66 pitches having a capacity for accommodating 132 caravans. In January 1998, 109 caravans of an estimated 63 families were parked on these pitches.

13 ...I do not find the fact of infirmity or of the suitability of horse-keeping and breeding in the countryside to be very special reasons for allowing the retention of residential use in the Green Belt. There is no convincing reason why the use could not be carried out and secure permanent accommodation found elsewhere on land outside the Green Belt.

16. I have taken into account all other matters raised in the written representations including the support given to locally but there is nothing of sufficient substance to outweigh those considerations which led me to the decision in this case.

17. For the above reasons... I hereby dismiss the appeal...”

The Council took proceedings to obtain an injunction against the applicant and her husband. On 27 January 2000, the High Court ordered the applicant to remove the caravans.

Following the applicant's appeal, the Court of Appeal on 6 June 2000 adjourned the matter pending further argument and with a view to reviewing the matter in the light of the Human Rights Act 1998 entering into force on 2 October 2000.

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 complains under Article 8 of the Convention of being refused permission to live on her land in her caravan. She refers to the planning policies which penalise gypsies and to the fact that 87% of the land in the district is Green Belt, which is effectively a “no-go” area for gypsies.

The applicant also complains under Article 14 of the Convention that as a gypsy she has been disproportionately disadvantaged by the planning framework.

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 this 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 caravans 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 [GC], cited above, §§ 73-74).

Having regard to the facts of this case, the Court finds that the decisions of the planning authorities, refusing to allow the applicant to remain on her land with the two caravans 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 took up residence on her own land by way of finding a long-term and secure place to station her caravans. Planning permission has however been refused for this and she has been required to leave. Injunction proceedings are pending. 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 caravans 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 a series of procedures, including 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 concerned in the appeals saw the site themselves and considered the applicant's representations. The Inspector in the latest appeal noted in his decision of 6 October 1998 that the applicant's occupation of her land harmed the rural and open character of the Green Belt and damaged the visual amenity of the countryside. While he paid regard to her gypsy status, he observed that there were four authorised gypsy sites in the area catering for up to 132 caravans and on which 109 caravans were parked. He saw no convincing reason why the applicant could not find secure permanent accommodation outside the Green Belt. He concluded that there were accordingly no very special circumstances outweighing the environmental objections to her occupation of the site.

The Inspector's report 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 Chapman v. the United Kingdom, 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 discriminated against as a gypsy due to the operation of planning laws and procedures, invoking Article 14 of the Convention which provides:

“The enjoyment of the rights and freedoms set forth in this 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.”

Having regard to its findings above under Article 8 of the Convention that any interference with the applicant's 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 applicant.

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 by a majority

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President