AS TO THE ADMISSIBILITY OF
Application No. 14837/89
by Cornelius JONES
against the United Kingdom
The European Commission of Human Rights sitting in private
on 7 May 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 December
1988 by Cornelius JONES against the United Kingdom and registered on
30 March 1989 under file No. 14837/89;
Having regard to the information submitted by the respondent
Government on 20 October 1989 in reply to the Rapporteur's request of
11 July 1989 (Rule 40 para. 2 (a) of the Rules of Procedure of the
Commission) and the applicant's replies;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a United Kingdom citizen born in 1953. He is
a gypsy, is married and has seven children and he lives in Shelfanger,
Norfolk. He is represented before the Commission by Mrs. K. Sampson,
Gypsy Liaison Officer for the area, and by Messrs Watkins, Stewart and
Ross, Sudbury, Suffolk.
The facts submitted may be summarised as follows.
In order to provide a better life for his family, the
applicant bought a piece of land on 11 March 1987 with a view to
settling on it. The land fell, and falls, within the area of the
Shelfanger Supplementary Planning Guidance (adopted on 2 February
1983) for the purposes of applying Norfolk Structure Plan policies.
The general purpose of the relevant policies is to allow limited
developments within villages whilst restricting new dwellings outside.
The applicant's plot falls outside the village guideline of 1983.
On 16 February 1988 the applicant applied for planning
permission for the construction of a bungalow on his plot. The
application was refused on 8 April 1988, and on 18 May 1988
Enforcement Notices were served in respect of the caravan the
applicant had put on the land and an access he had created. The
applicant appealed against the refusal of planning permission and the
Enforcement Notices. The appeal was rejected by an inspector on 5
December 1988 because (a) development "would represent a notable
exension of [the] built-up frontage into the countryside which would
seriously harm the character of [the] immediate surroundings"; (b) the
(village) guideline included the then existing developed frontages,
but was anxious to avoid further extension of the ribbon of
development away from the centre and (c) notwithstanding the
applicant's personal circumstances, including the emphasis he placed
on the education of his children, and notwithstanding policies
specifying that special considerations should be given to the
provision of gypsy accommodation, the applicant's particular
circumstances were not such as justified setting aside "compelling
country-side policy and rural environmental objections" (they
frequently stayed outside the area; sites were occasionally available
in the district and there was a possibility that the applicant would
become eligible for council accommodation).
COMPLAINTS
The applicant alleges violations of Articles 8 and 14 of the
Convention, Articles 1 and 2 of Protocol No. 1 and Article 2 of
Protocol No. 4 to the Convention.
THE LAW
The Commission has considered the applicant's complaint under
Article 1 of Protocol No. 1 (P1-1). It considers that the other complaints
are dependent on the principal allegation, that he was wrongly denied
the planning permission to erect a bungalow on his own land.
Article 1 of Protocol No. 1 (P1-1) provides as follows:
"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."
The Commission considers that the restrictions on the
applicant's use of property (i.e. that he is not allowed to build a
bungalow on it) must be examined under "the control of use" rule in
the second paragraph of Article 1 (Art. 1). The question of the justification
for the interference resulting from the refusal of planning permission
must therefore be examined under that paragraph, to establish whether
the interference was "lawful", whether it served the "general interest"
and whether it was proportionate and therefore could be "deemed
necessary".
The applicant does not contest that the refusal of planning
permission was lawful and indeed, if he did contest its lawfulness, he
would have been required to appeal to the High Court in this respect.
The condition of "general interest" leaves a wide margin of
appreciation to the national authorities. The Convention organs
will respect the domestic authorities' judgments as to what is
"general interest" unless that judgment is manifestly without
reasonable foundation or is arbitrary.
The function of planning legislation in the United Kingdom is
to balance the protection of the natural and the built environment
with the pressures of economic and social change. Again, the
applicant does not contest this "general interest", which the
Commission finds to be reasonable.
As to proportionality, the Commission recalls that, under
the second paragraph of Article 1 (Art. 1), the State may enforce
such laws as it "deems necessary". In the application of this test
of necessity regard must be had to the principle of respect for
peaceful enjoyment of possessions which is enunciated in the opening
sentence of Article 1 (Art. 1). For this reason the Commission must
also examine "whether a reasonable relationship of proportionality
existed between the means employed and the aim sought to be realised",
or in other words, "whether a fair balance was struck between the
demands of the general interest in this respect and the interest of
the individual or individuals concerned" (Eur. Court H.R., Agosi
judgment of 24 October 1986, Series A no. 108, p. 18, para. 52 and
Sporrong and Lönnroth judgment, loc. cit., p. 26, para. 69).
The Commission notes that the restriction on development
applied when the applicant bought his property. The applicant's
argument is that because there exist Government circulars setting
out guidelines for preferential treatment of gypsies in housing
matters, and because the applicant is a gypsy, the domestic
authorities should have granted him planning permission to erect a
bungalow outside the normal guideline. The applicant does not contend
that others, who are not gypsies, have been granted planning
permission in similar circumstances to him, although he does state
that a number of local developers have approached him with offers to
buy the plot, and he submits that these offers would not have been
made if the developers had not received intimation from the District
Council that planning permission would be granted to them.
The Convention does not guarantee the right to develop
property purchased in an area outside a development guideline, and,
bearing in mind that the inspector in his appeal report considered at
length the question of whether the applicant's individual
circumstances were sufficient to outweigh this basic policy position,
and the State's wide margin of appreciation in this area, the
Commission finds that any interference with the applicant's property
right cannot be held to be disproportionate.
Accordingly, any interference with the applicant's property
rights was justified in the terms of the second paragraph of Article
1 of Protocol No. 1 (P1-1) and this part of the application is therefore
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The Commission has also examined the applicant's other
complaints as they have been submitted by him. It notes that they are
all consequential upon the refusal of planning permission, and further
finds no indication that his appeals against the refusal of planning
permission were rejected for any reason which may have been connected
to the fact that he is a gypsy. After considering these remaining
complaints as a whole, the Commission finds that they do not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention.
It follows that these complaints are also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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