AS TO THE ADMISSIBILITY OF
Application No. 27238/95
by Sally CHAPMAN
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 4 March 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 31 May 1994 by
Sally CHAPMAN against the United Kingdom and registered on 3 May 1995
under file No. 27238/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
19 December 1996 and the observations in reply submitted by the
applicant on 22 April 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1954 and resident in
Sarratt, Hertfordshire. She is represented before the Commission by
Messrs Lance Kent & Co., solicitors practising at Berkhamstead. The
facts as submitted by the parties may be summarised as follows.
a. Particular circumstances of the case
The applicant is a gypsy by birth. Since her birth she has
travelled constantly, mainly in the Hertfordshire area, with her family
in search of work. When she married, the applicant and her husband
continued to live in caravans. They have four children.
The applicant and her husband used to stop for as long as
possible on temporary or unofficial sites while he found work as a
landscape gardener. They stayed for several years on an unofficial site
in St Albans. They travelled for some years in the Watford area. They
were on the waiting list for a permanent site but were never offered
a place. They were constantly moved from place to place by the police
and representatives of local authorities. Their children's education
was constantly interrupted because they had to move about.
Due to harassment while she lived a travelling life, which was
detrimental to the health of the family and the education of the
children, the applicant bought a piece of land in 1985 with the
intention of living on it in a mobile home. The land is within the area
of Three Rivers District Council in Hertfordshire where there is no
official gypsy site. The applicant alleges that a County Council
official had told her in 1984 when she was encamped on the roadside
that if she bought land she would be allowed to live on it. The
Government state that there is no record of such a promise being made
and that it would be unlikely that such a promise would be made, since
it would be for the District Council, not the County Council, to decide
any application. The land was also subject to a 1961 Discontinuance
Order requiring the site not to be used for the stationing of three
caravans.
The applicant and her family moved onto the land and applied for
planning permission. This was to enable the children to attend school
immediately. The District Council refused the application for planning
permission on 11 September 1986 and served enforcement notices.
Appeals were lodged against the enforcement notices. In July 1987
a Public Enquiry was held by an Inspector appointed by the Department
of the Environment. He dismissed the appeal and upheld the decision of
the Council as the land was in the Metropolitan Green Belt and he
considered that the national and local planning policies should
override the needs of the appellant. Since there was no official gypsy
site in the Three Rivers district the family was given fifteen months
to remove from their land, the reason being that by that time the
Council had stated that a suitable location was being sought for them
and they would be able to move to a new official site within a year.
When the fifteen month period expired the family remained on the
site since they had nowhere else to go. The applicant applied for
planning permission for a bungalow as it had been stated at the Enquiry
that this would be a more appropriate use of the land than a mobile
home. Planning permission was refused and the Council's decision was
upheld at a further local enquiry. The family remained on the site and
the Council served summonses on the applicant and her husband for
failure to comply with an enforcement notice. They were both fined
£700 in the Magistrates' Court. To avoid further court action the
family returned to a nomadic life and were constantly moved from place
to place by Council officials. The applicant's eldest daughter had
started a hairdressing course at a College of Further Education and the
second daughter was about to start studying at college for a Diploma
in Forestry. Both of these courses had to be abandoned and the two
younger children could no longer attend school.
During this period the applicant made a further planning
application for a bungalow on her land. Again her application was
refused and failed at an Enquiry. In August 1992 the applicant and her
family returned to their land in a caravan. Enforcement notices were
issued by the Council on 11 March 1993. The applicant appealed against
them and there was a Planning Enquiry on 2 November 1993.
By a decision letter of 18 March 1994 the Inspector dismissed the
appeal on the grounds that such development was inappropriate in the
Green Belt area. He also considered that the stationing of a
residential caravan on the site would detract from the rural character
and appearance of the site and would be likely to encourage similar
schemes. He referred to the applicant's submissions that the County
Council were under a direction from the Secretary of State under
section 9 of the Caravan Sites Act 1968 to provide for further
accommodation for gypsies in the county but noted that the County
Council was unable to confirm progress in providing a 15 pitch site at
Langlebury. He further noted that the Council did not refute the
applicant's submission as to the lack of sites in the area but did not
find it of sufficient weight to overturn, in the absence of very
special circumstances, the cogent planning argument against
inappropriate development in the Green Belt. As regarded the
enforcement of the decision however, he granted the applicant fifteen
months to remove from the site since there was still no official gypsy
site in the area. He noted the comments of the Inspector of the 1987
appeal with regard to the lack of sites and commented that the
applicant had no better prospect of obtaining another pitch than in
1987.
b. Relevant domestic law and practice
i. 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, para. 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.
ii. Gypsy caravan sites provision
The Caravan Sites Act 1968
Part II of the Caravan Sites Act 1968 ("the 1968 Act") was
intended to combat the problems caused by the reduction in the number
of lawful stopping places available to Gypsies as a result of planning
and other legislation and social changes in the post-war years.
Section 16 defined "gipsies" as:
"persons of nomadic habit of life, whatever their race or origin,
but does not include members of an organised group of travelling
showmen, or of persons engaged in travelling circuses, travelling
together as such".
Section 6 of the 1968 Act provided that it should be the duty of
local authorities:
"to exercise their powers ... so far as may be necessary to
provide adequate accommodation for gipsies residing in or
resorting to their area".
The Secretary of State could direct local authorities to provide
caravan sites where it appeared to him to be necessary (section 9).
Where the Secretary of State was satisfied either that a local
authority had made adequate provision for the accommodation of Gypsies,
or that it was not necessary or expedient to make such provision, he
could "designate" that district or county (section 12 of the 1968 Act).
The effect of designation was to make it an offence for any Gypsy
to station a caravan within the designated area with the intention of
living in it for any period of time on the highway, on any other
unoccupied land or on any occupied land without the consent of the
occupier (section 10).
In addition, section 11 of the 1968 Act gave to local authorities
within designated areas power to apply to a magistrates' court for an
order authorising them to remove caravans parked in contravention of
section 10.
The Cripps Report
By the mid-1970s it had become apparent that the rate of site
provision under section 6 of the 1968 Act was inadequate, and that
unauthorised encampments were leading to a number of social problems.
In February 1976, therefore, the Government asked Sir John Cripps to
carry out a study into the operation of the 1968 Act. He reported in
July 1976 (Accommodation for Gypsies: A report on the working of the
Caravan Sites Act 1968, "the Cripps Report").
Sir John estimated that there were approximately 40,000 Gypsies
living in England and Wales. He found that:
"Six-and-a-half years after the coming into operation of Part II
of the 1968 Act, provision exists for only one-quarter of the
estimated total number of gypsy families with no sites of their
own. Three-quarters of them are still without the possibility
of finding a legal abode ... Only when they are travelling on
the road can they remain within the law: when they stop for the
night they have no alternative but to break the law."
The report made numerous recommendations for improving this
situation.
Circular 28/77
Circular 28/77 was issued by the Department of the Environment
on 25 March 1977. Its stated purpose was to provide local authorities
with guidance on "statutory procedures, alternative forms of gypsy
accommodation and practical points about site provision and
management". It was intended to apply until such time as more final
action could be taken on the recommendations of the Cripps Report.
Among other advice, it encouraged local authorities to enable
self-help by gypsies through the adoption of a "sympathetic and
flexible approach to [Gypsies'] applications for planning permission
and site licences". Making express reference to cases where gypsies
had bought a plot of land and stationed caravans on it only to find
that planning permission was not forthcoming, it recommended that in
such cases enforcement action not be taken until alternative sites were
available in the area.
Circular 57/78
Circular 57/78, which was issued on 15 August 1978, stated, inter
alia, that "it would be to everyone's advantage if as many gypsies as
possible were enabled to find their own accommodation", and thus
advised local authorities that "the special need to accommodate gypsies
... should be taken into account as a material consideration in
reaching planning decisions".
In addition, approximately £100 million was spent under a scheme
by which one hundred per cent grants were made available to local
authorities to cover the costs of creating Gypsy sites.
The Criminal Justice and Public Order Act 1994
Section 80 of the Criminal Justice and Public Order Act 1994
("the 1994 Act"), which came into force on 3 November 1994, repealed
sections 6-12 of the 1968 Act and the grant scheme referred to above.
Section 77 of 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).
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), which cancelled Circular 57/78 (see
above).
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."
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 ..."
COMPLAINTS
The applicant claims that her rights under Article 8 of the
Convention are being interfered with. She complains of being prevented
from firstly, living with her family in a caravan on her own land and
secondly, from pursuing the traditional gypsy lifestyle and culture.
She submits that, due to planning regulations and the shortage of sites
built for gypsies, she had no option but to buy her own land. However,
she has been denied the right to live on her own land, in a caravan or
a bungalow, by both the local authority and the Secretary of State for
the Environment.
The consequences of their decision are severe for the applicant
and her family. If they continue to remain on the land they face
criminal prosecution and forcible eviction. However, there is no
official gypsy caravan site in the Three Rivers District.
The applicant alleges that her rights under Article 6 para. 1 of
the Convention have been violated. The decision to uphold the
enforcement proceedings taken by Three Rivers District Council and to
refuse the applicant planning permission was made by an inspector
appointed by the Secretary of State for the Environment. No appeal
against the inspector's decision to a court of law was possible because
the issues were of fact and not of law. It is claimed that in these
circumstances, since the inspector is a salaried employee of the
Secretary of State, the Enquiry cannot be considered to be an
independent and impartial tribunal.
The applicant invokes Article 14 in that she is being
discriminated against on the grounds of race, national or social
origin, association with a national minority and birth or other status.
It is alleged that such discrimination is caused by popular prejudice
against gypsies and a failure by local and national Government to act
despite that prejudice.
The applicant invokes Article 1 of Protocol No. 1 in respect of
being denied the right to live peacefully with her family on her own
land.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 31 May 1994 and registered on
3 May 1995.
On 29 November 1995, the Commission decided to communicate the
application to the Government but that the Government should not be
invited to submit written observations on the admissibility and merits
of the application pending the outcome of the Buckley case before the
Court (Eur. Court HR Buckley v. the United Kingdom judgment of
25 September 1996, Reports 1996-IV, No. 16, p. 1271).
By letter dated 28 October 1996, following the Court judgment,
the Government were invited to submit their observations on
admissibility and merits.
The Government's observations were submitted on 19 December 1996
and the applicant's observations in reply were submitted on
22 April 1997 after two extensions in the time-limit.
On 21 January 1997, the Commission decided to grant legal aid to
the applicant.
THE LAW
The applicant complains of a violation of her right to respect
for her private and family life and home contrary to Article 8
(Art. 8) of the Convention, in that she has been refused permission to
live on her own land and is subject to enforcement measures. She also
invokes Articles 6 (Art. 6) (access to court) and 14 (Art. 14)
(prohibition of discrimination) of the Convention and Article 1 of
Protocol No. 1 (P1-1) (right to peaceful enjoyment of possessions) in
respect of these matters.
The Government submits that any interference with the applicant's
rights under Article 8 (Art. 8) is proportionate to the legitimate aim
of protecting the environment, citing the approach adopted by the Court
in the Buckley case (Eur. Court HR, Buckley judgment of
25 September 1996, Reports 1996-IV, p. 1271). They point out that the
applicant's site lies withing the Metropolitan Green Belt, and is in
an area of great landscape value. They rely on the Inspector's
balancing of the very strong policy objections to the development
against the factors put forward by the applicant and submit that he
gave proper regard to the applicant's predicament, granting extra time
for her to relocate the family residence. As regards alternative
accommodation, they refer to the existence of private mobile home
parks, the possibility to apply for a pitch on the County Council sites
in areas of St Albans and Watford where she had previously travelled
and submit that the fact that the applicant has applied twice for
planning permission for a bungalow indicates that she is willing to
live in settled accommodation, of which a reasonable range is available
to her. They refer in particular to the findings of the Inspector that
the applicant's occupation of his land harmed the rural appearance of
the Green Belt area which was weighed against the applicant's personal
difficulties. In those circumstances, they submit that proper regard
has been had by the authorities to the applicant's individual
circumstances and that the measures are compatible with Article 8
(Art. 8) and, on the basis of the same reasoning, with the right to
peaceful enjoyment of possessions guaranteed under Article 1 of
Protocol No. 1 (P1-1) to the Convention.
As regards Article 6 para. 1 (Art. 6-1), the Government submit
that the opportunity to apply to the High Court provided access to
court, referring to the Court's judgment in the Bryan v. the United
Kingdom (Eur. Court HR judgment of 22 November 1995, Series A no. 335).
Under Article 14 (Art. 14), the Government dispute that the applicant
was subject to any difference in treatment based on her gypsy status
and that the refusal to allow her to do what the settled population
would not be allowed to do, namely, settle in the Green Belt, cannot
disclose discrimination.
The applicant submits that the interference with her home,
private and family life is disproportionate. She submits that there is
no alternative site available in the Three Rivers District, none having
been provided despite statements that an official site was being
planned. She points out that the time for relocation was extended by
the Inspector due to his recognition that no official site was
available. She submits that private mobile home parks are not a
feasible alternative for gypsies, due to high premiums and the fact
that they offer existing caravans for sale and make no provision for
towing or other vehicles to be stationed there. As regards alleged
availability of sites in Watford and St Albans, she states that sites
are normally limited to gypsies residing or resorting to the area,
where she has not been for many years and that in any event there is
no evidence of vacancies, given the shortfall of sites in the county
and the view expressed by the County Council to the Inspector. She
submits that while she applied for planning permission for a bungalow,
this was only because it was stated at the 1987 inquiry that the appeal
site was not suitable for a caravan due to the presence of housing in
the road.
The applicant further points out that her special needs as a
gypsy were not taken into account in the proceedings and that she has
been subject to a series of coercive measures, including criminal
prosecutions which forced her onto the road for a period of months. Due
to the provisions of the Criminal Justice and Public Order Act 1994,
the applicant submits that she faces prosecutions and enforcement
action if she stations her caravan on highways or other unoccupied
land. There are insufficient procedural safeguards, since, though
appeal lies to the High Court, the High Court will not entertain
submissions that the Secretary of State failed to give any weight to
a factor, such as the special needs of gypsies.
In respect of Article 6 para. 1 (Art. 6-1), the applicant
complains that the appeals concerning the enforcement measures and
refusals of planning permission were decided by an Inspector, who as
an employee of the Secretary of State cannot be considered as
independent or impartial. While an appeal lay to the High Court on
points of law, this could not provide review of the issues of fact
which arose in her case. The applicant has invoked Article 1 of
Protocol No. 1 (P1-1), in regard to being denied the right to live
peacefully on her land and complains of discrimination contrary to
Article 14 (Art. 14) in that her status as a gypsy is not given any
weight in the planning decisions. The applicant submits that it is
being treated as if she were any other developer applying for
residential permission in a Green Belt, without reference to the need
for special provision for gypsies, which amounts to discrimination.
The Commission considers, in light of the parties' submissions,
that the case raises serious issues of fact and law under the
Convention, the determination of which should depend on an examination
of the merits of the application as a whole. The Commission concludes,
therefore, that the application is not manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No
other ground for declaring it inadmissible has been established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy