AS TO THE ADMISSIBILITY OF
Application No. 24876/94
by Thomas and Jessica COSTER
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 19 May 1994 by
Thomas and Jessica COSTER against the United Kingdom and registered on
10 August 1994 under file No. 24876/94;
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
13 February 1995 and 6 November 1996 and the observations
submitted by the applicants on 25 April 1996 and 13 November
1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are British citizens born in 1962 and 1964
respectively and resident in Headcorn, Kent. They are represented
before the Commission by Peter Kingshill & Co, solicitors practising
in London. The facts as submitted by the parties may be summarised as
follows.
a. Particular circumstances of the case
The applicants are gypsies by birth. As children, the applicants
lived and travelled with their respective families in and around the
area known as the Borough of Maidstone in Kent. From 1987, the Borough
was a designated area pursuant to section 12 of the Caravan Sites Act
1968 (see below).
In 1982, the applicants married. When the second applicant became
pregnant, the applicants decided to search for a permanent site on
which to site their caravan. There remained few stopping places upon
which they could lawfully park their caravan whilst travelling in the
area and they faced the threat of continual eviction. The applicants
wished for their children to be brought up in a stable environment
which would facilitate the continuity of their education.
The applicants state that they were refused a place on any local
authorised site. They camped outside one official site for 5-6 weeks
hoping to be offered a plot. No place was offered and court proceedings
were brought against them by the Borough to secure their eviction from
the land. The Government state that the Borough has no knowledge or
record of any request by the applicants for a pitch in 1982.
With the imminent birth of their first child, the applicants
moved into the caravan occupied by the first applicant's mother on a
permitted gypsy site and sold their own caravan. The caravan was
however small and conditions became intolerable. Having nowhere else
to go, the applicants in or about 1983 reluctantly applied for
permanent accommodation and accepted the offer of a council flat. They
commenced a tenancy in a fourth floor flat on 16 January 1984. Though
they were moved to a first floor flat after 10 months, they found the
flats totally unsuitable and alien to their traditional gypsy
lifestyle. On 18 April 1986, they requested a transfer to a house on
the grounds of the second applicant's health but were informed that
there was a waiting list and that a move would be conditional on
payment of outstanding rent. The applicants dispute that they owed any
rent and suggest that the Borough has mistaken them for the tenants of
a different flat, there being some confusion as to the addresses
involved. In late 1987, the applicants requested a site on an official
caravan site or more suitable accommodation but were told this was not
possible. The Government state that they did not wish to be placed on
the waiting list.
In 1988, the applicants purchased land known as Summerfields in
Headcorn, Kent and moved onto it, living in a caravan.
On 11 July 1988, the second applicant made a retrospective
planning application for permission to station a caravan on their site.
Permission was refused by the Borough on 13 October 1988.
On 23 September 1988, an enforcement notice was issued requiring
discontinuance of the unauthorised use.
In July 1989, the applicants were convicted for failure to comply
with the enforcement notice.
On 27 September 1989, a public enquiry was held by way of appeal
against the refusal of planning permission. The appeal was dismissed.
The inspector accepted that the applicants were gypsies for whom
conventional residence in permanent accommodation would lead to illness
and problems of adjustment. He found however that the development on
a site, well outside built-up areas, was clearly visible and would
constitute a significant intrusion into the attractive rural
surroundings and seriously harm the character and appearance of the
countryside, particularly since there was already an established gypsy
site a short distance along the same road. While he expressed his
concern for the serious consequences of a refusal for the applicants,
since they had nowhere to live for the foreseeable future apart perhaps
from unauthorised camping sites, he concluded that the factors relating
to the quality of the countryside outweighed the applicants' interests.
The applicants made a further application for planning permission
which was refused on 11 December 1989. Their appeal was refused after
a public inquiry on 24 April 1991 and the applicants penalised in costs
on the basis that it was identical to the previous application. The
inspector did not find the granting of permission for two caravans for
gypsies 300-400 metres away along the same road could be regarded as
a material difference. While he accepted that the applicants had a
pressing need for a site, he maintained the conclusion that their
caravan would remain intrusively visible and due to the location of the
site, with two long road frontages, the development caused demonstrable
harm to a countryside interests of acknowledged importance.
On 12 September 1990, the applicants had been convicted for
breach of enforcement notices and ordered to pay £275 each as a fine
and contribute £25 to the Borough's costs.
In February 1990, the Government state that the applicants made
enquiries from the Borough about rehousing but no formal application
was made until 21 May 1990. On 23 July 1990, the applicants were
formally informed by the Borough that they were considered as
intentionally homeless since they had terminated their council tenancy
to move onto land not permitted for residential use contrary to the
advice of the Housing and Planning Departments.
In 1991, the applicants enquired about alternative accommodation
on a private site but were informed that they were excluded due to the
size of their family.
On 6 March 1992, the applicants state that they were told that
there was a waiting list for places on official sites but that since
they were intentionally homeless they could not put their names on it
for 2 years. According to the Government, in March 1992, the applicants
applied to the Borough for housing on the grounds of homelessness and
that contrary to the policy of refusing registration within two years
after a finding of intentional homelessness the Borough agreed to
re-register them as homeless on condition that they paid their arrears
of rent for the council tenancy. The applicants did not pay the
arrears.
According to the records of the Borough, at a meeting on 26 June
1992, its officials repeated offers of temporary accommodation to give
the applicants time to find permanent accommodation. The applicants
were recorded as stating that they would not accept a place on an
official site and that they would only accept temporary accommodation
in their own caravan, which the Borough could not provide. The
applicants state that they have no recollection of making the former
statement.
A third prosecution resulted in conviction and sentence was
deferred to enable the applicants to move. On 24 July 1992, a fine of
£350 was imposed on each applicant.
The Borough took the decision to seek an injunction in the
High Court restraining the applicants from stationing their caravan on
their land and gave notice to the applicants. On 16 October 1992, the
applicants left their land and travelled to Whitstable, Kent close to
where some of the second applicant's family had stationed their
caravans. On the site there was no sanitation or electricity and there
was an infestation of rats. The applicants contacted the Borough's
housing officer in the hope that he could offer more suitable
alternative accommodation but he could not. He suggested that they
apply for Housing Association accommodation which they did but were
told that nothing would be available for six months. The applicants
heard nothing after that. The Government state that the applicants'
names were placed on the waiting list at the end of 1992 but they
removed their names from that list in January 1993. The applicants
dispute that they removed their names.
On 17 December 1992, the applicants returned to their land, where
the children could resume their education at their previous school.
The Borough commenced its proceedings for an injunction by
summons dated 22 December 1993.
On 24 February 1994, the second applicant was convicted and fined
for a continued breach of the enforcement notices.
The applicants applied for judicial review to quash the
injunction proceedings on the basis that the decision to pursue the
injunction against them was unreasonable. Leave was refused by the High
Court. On 6 May 1994, the Court of Appeal dismissed the applicants'
appeal.
In May 1994 the applicants applied to the Borough for
accommodation and were again offered temporary accommodation. The
applicants state that this was unsuitable bed and breakfast
accommodation which would have entailed separating the first applicant
from the rest of the family. The applicants were informed, the
Government state, of vacant plots on council and private gypsy sites
in the county. The applicants recall that these vacancies related to
areas outside the Borough. One site which they visited at Aylesford was
infested with rats and a dangerous place for children.
On 19 February 1996, the applicants received notice that the
Borough had decided to withdraw the injunction proceedings commenced
in 1993 and to enter their land and enforce the enforcement notice
using its powers under section 178 of the Town and Country Planning Act
1990. The applicants lodged an application for judicial review of that
decision. On or about 30 October 1996 the applicants withdrew their
application on the basis that they would be given 6 weeks to vacate
their land.
The applicants now have four children, Jody born in 1983, Tommy
in 1983, Jessica in 1991 and Joshua in 1993.
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 applicants complain of being prevented from living in a
caravan on their own land and pursuing the traditional gypsy lifestyle.
They wish to enjoy a settled life with good education for their four
children while living and passing on the tradition of the gypsy
lifestyle and culture. They submit that there is no justification for
the interference with their Article 8 rights, the Borough's objections
being based solely on aesthetic grounds. They point out that they face
criminal prosecution and forcible eviction for remaining on their land
and if they leave they have nowhere else lawfully to station their
caravan. The Borough is a designated area and there is an acknowledged
shortfall of official gypsy sites available. By 5 January 1993, the
number of unauthorised caravans in the county was 283.
The applicants also invoke Article 14 of the Convention in
conjunction with Article 8; Article 1 of Protocol No. 1 in respect of
being denied the right to live peacefully in their caravan on their
own land and Article 2 of Protocol No. 1 in that the applicants'
children would be denied education if they were forced to leave their
own land and move constantly from one place to another trying to avoid
prosecution or eviction.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 May 1994 and registered on
10 August 1994.
On 30 November 1994, the Commission decided to communicate the
application to the respondent Government.
The Government's initial written observations were submitted on
13 February 1995. The applicants submitted observations in reply on
25 April 1995 after an extension in the time-limit.
On 16 April 1996, the Commission decided to adjourn the case
pending the case of Buckley v. the United Kingdom before the Court (see
below).
By letter dated 25 September 1996, following the Court judgment
in Buckley v. the United Kingdom (Eur Court HR, judgment of
25 September 1996, Reports 1996-IV, No. 16, p. 1271), the Commission
invited the Government and the applicant to submit further observations
on the admissibility and merits of the application.
The Government submitted further observations on 6 November 1996
and the applicants on 13 November 1996.
On 24 May 1995 the Commission granted the applicants legal aid.
THE LAW
The applicants complain that the measures taken in relation to
their occupation of their land in their caravan disclose violations of
their right to respect for their private and family life and home
(Article 8 (Art. 8)), discrimination (Article 14 (Art. 14)), an
interference with peaceful enjoyment of their possessions (Article 1
of Protocol No. 1 (P1-1)) and with their children's right to education
(Article 2 of Protocol No. 1 (P1-2)).
The Government submit that any interference with the applicants'
rights is proportionate to the legitimate aims of protecting the
environment, citing the approach taken by the Court in the Buckley case
(Eur Court HR, judgment of 25 September 1996, Reports 1996-IV,
p. 1271). They point out that the applicants occupied their land in
full knowledge that planning permission had not been granted. They rely
on the balancing exercise undertaken by various inspectors in weighing
the strong policy objections to the development in a rural area with
the needs of the applicants and their family. They note with reference
to Article 26 (Art. 26) of the Convention that the decisions relating
to the refusal of planning permission and dismissal of appeals in 1989
and 1991 occurred long before the applicants introduced their complaint
before the Commission and these matters must be barred from
consideration. They observe that the applicants' problems have largely
been caused by their own actions. In those circumstances, they submit
that proper regard has been had by the authorities to the applicants'
individual circumstances and that the measures are compatible with
Article 8 (Art. 8) of the Convention. On the same basis, the measures
may be justified under Article 1 of Protocol No. 1 (P1-1) to the
Convention.
Under Article 14 (Art. 14), the Government dispute that the
applicants were subject to any difference in treatment based on their
gypsy status. As regards Article 2 of Protocol No. 1 (P1-2), the
Government submit that specific funds have been allocated to provide
for the education of gypsy children. Moreover, the itinerant nature of
gypsy culture means that gypsy parents have a duty to ensure that they
stay in contact with local authorities to ensure that their children
can receive an education.
The applicants argue that the interference with their home,
private and family life is excessive and disproportionate and part of
a continuing situation. They submit that there is no alternative site
available in the Borough, where they have been settled and the children
attend school and that the shortage of official sites in Kent as a
whole renders it unfair on other gypsy families that they should seek
vacancies beyond their own area. They emphasise that they have never
been offered a pitch on an authorised gypsy site and that they have
been subject to injunctions and more recent action designed to evict
them from their land. There is nowhere else to lawfully station their
caravan and continue their traditional way of life. Relying on the same
factors, they submit the measures interfere unjustifiably with the
peaceful enjoyment of their possessions.
As regards Article 2 of Protocol No. 1 (P1-2), the applicants
argue that being denied permission to stay on their own land,
threatening them with removal, undermines the stability of their
childrens' education and will inevitably have a severely deleterious
effect on their future education and emotional welfare. The applicants
further submit that the situation to which they have been exposed as
a result of planning and enforcement policies and measures discloses
serious issues of discrimination.
As regards the Government's reference to Article 26 (Art. 26) of
the Convention, the Commission notes that this seeks to restrict the
examination of the applicants' complaints to matters occurring within
six months of the introduction of the application on 19 May 1994. While
it recalls that the decisions relating to the refusals of planning
permission, and the relevant appeals, occurred in 1989 and 1991, the
Commission observes that the applicants continued to occupy their land
until at least the end of 1996 and that the more recent enforcement
steps taken against them may be regarded as directly linked to these
earlier planning measures. It considers that the planning and
enforcement proceedings relating to their occupation of their land may
be regarded as a continuing situation. Accordingly, the Commission
finds that it is not appropriate to make any finding under Article 26
(Art. 26) that any part of the application must be excluded from its
examination as out of time.
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