AS TO THE ADMISSIBILITY OF
Application No. 13341/87
by Philip and Annie LAY
against the United Kingdom
The European Commission of Human Rights sitting in private on
14 July 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 September
1987 by Philip and Annie LAY against the United Kingdom and registered
on 23 October 1987 under file No. 13341/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are British citizens resident in Upper
Bodington, Northamptonshire and born in 1912 and 1915 respectively.
They are married and the second applicant suffers from ill-health.
The facts as submitted by the applicants may be summarised as follows.
The applicants are owners of eleven acres of ground in
Upper Bodington. In 1978, they moved into a caravan on the holding,
where they keep a herd of twenty-five beef cattle. They pay domestic
rates in relation to their occupation of the caravan.
In May 1978, the South Northamptonshire District Council
(hereafter "the Council") served an enforcement notice on the
applicants alleging an unauthorised change of use from agricultural
purposes to use as a site for a caravan contrary to the Town and
Country Planning Act 1971 and requiring the applicants to remove the
caravan. The applicants' appeal against the notice was dismissed in
April 1979. The applicants then moved the caravan to an area of their
land omitted from the scope of the notice.
In January 1980 a second enforcement notice was served
concerning the whole of the holding. The applicants appeal was
dismissed on 6 November 1980, although the planning inspector
found the proper description of the present user was dual, for
agricultural purposes and as a site for a caravan, and gave the
applicants six months to remove their caravan. He also found that the
caravan detracted from the visual amenities of the area of open
countryside beyond the village.
The applicants then apparently moved the caravan on to land
adjacent to their holding and, on 15 January 1982, a third enforcement
notice was served concerning the new site of the caravan. The
applicants appealed and their appeal was heard before a planning
inspector. In a decision dated 2 September 1982, the inspector found
the Council had erred in the terms of their notice, which was
accordingly reworded to require removal of a residential caravan, a
caravan used for agricultural purposes not involving any change of
user. The inspector found that the caravan detracted from the rural
amenities and was contrary to policy. Under the question of special
need he took into consideration the age of the applicants and their
wish to continue to manage their holding but found that the size and
nature of their farming activity was not such as to require them to
reside permanently on the site. He therefore dismissed the
applicants' appeal and they were given nine months to remove the
caravan.
The applicants, at a date unknown, returned the caravan on to
their holding. On 5 December 1983, the Council issued three summons,
alleging breach of each of the three enforcement notices. These were
heard separately before the magistrates court and dismissed. On
13 June 1984, two further summonses were issued in relation to the
first two notices but these were either withdrawn or dismissed at a
hearing before the magistrates' court on 4 November 1984.
A third set of summonses was issued and on 22 May 1985 the
first applicant was found guilty and fined £250 in respect of the
summons relating to the 1980 notice. The first applicant appealed to
the Crown Court on the grounds that the prosecution was unjust and
oppressive. The first applicant's counsel sought to make the point
that when the notice was issued, in the event of a prosecution, the
notice could have been challenged on the basis that the steps required
to be taken exceeded what was necessary to remedy any breach of
planning control, namely, while the local authority could require the
applicants to cease residential use of the caravan, it had no power to
require removal of the caravan. However, due to a subsequent
legislative amendment in 1981, this method of challenge was no longer
available and counsel argued that the local authority were bringing a
prosecution in respect of a notice which they knew to be invalid but
the invalidity of which the applicant was now precluded from
challenging. The first applicant's appeal was dismissed by the Crown
Court on 11 October 1985.
The local authority proceeded to seek an injunction against
the applicants to enforce the removal of the caravan. Their
application was heard before the High Court on 30 March 1987 and an
injunction was granted, requiring the applicants to remove the caravan
by 30 June 1987.
In his judgment, the judge stated that the grant of an
injunction was a discretionary remedy and he took into consideration
the applicants' age, health and the history of the case in deciding
whether to exercise his discretion in granting an injunction. The
judge also considered again the argument of the applicants' counsel
that the prosecution was based on an invalid notice but came to the
conclusion that there was no substance in this. He found that the
applicants had acted in breach of the relevant legislation and that
there was no evidence that the local authority had not acted in good
faith or that it had been actuated by anything other than proper
planning considerations in refusing planning permission to the
applicants. He concluded:
"... as was explained by counsel for the plaintiff, the
plaintiff Council have taken the administrative view that
the best course here in everybody's interests would be to
come to this court for an injunction rather than to put
Mr. and Mrs. Lay to the trouble and expense and harassment
of a whole series of prosecutions in the magistrates' court.
They seek to have the matter determined once and for all by
the injunction, and I am bound to say, in the light of all
the circumstances known to me, that is a very understandable
decision to take. It seems to me I ought not to refuse an
injunction in the circumstances of this case, the Council
itself now standing in the place of the Attorney General,
merely because all other remedies have not been exhausted.
But what of the other matters? I am painfully aware that the
order restraining - or the effect of which is to restrain
Mr. and Mrs. Lay from living in the caravan on their own
land is going to cause them very great distress. It is
going to put them, temporarily at any rate, in very great
difficulties with regard to housing. They are old. They
are not well. They have persuaded themselves, wrongly I
think, that they are being persecuted. Weighing all these
matters and the observations in Mr. Scott's opinion as best
I can I come to the conclusion that this is a case in which
it would be right to make an order very broadly in the terms
sought by the Council. I think it is a case for an injunction
which is fully made out, and in the exercise of the court's
discretion I propose to make an order."
The applicants did not move the caravan and the local
authority applied to the High Court for an order to enter and remove
the caravan. The applicants were unable to attend the hearing on
10 December 1987 due to ill-health when the application was granted,
but were allowed to re-apply to the Court. Having been refused legal
aid, the applicants attended the High Court in person on 11 January
1988. After representations from both parties, the judge held that he
maintained the order.
During the course of these proceedings the applicants applied
on two occasions for planning permission to build a cottage on their
land, on the site of a previous cottage which was in ruins. Their
applications were refused on 3 October 1981 and 4 July 1985 on the
grounds that it would have constituted an unjustifiable extension of
development and intrusion into the open countryside beyond the
approved village framework.
By letter dated 22 January 1988, the applicants were informed
by the Council's housing officer that they were considered as falling
within a priority group for the purposes of housing. He mentioned
that the Council had already made 2 offers of alternative
accommodation which the applicants had refused but that the Council
were willing to offer a third possibility, namely, a 2 bedroomed
bungalow in Litchborough. By letter in reply, the applicants
explained that they had refused the first offer because it concerned a
house with steep stairs and the second because it concerned a
property 20 miles from their land, which would have caused them great
difficulties in continuing to manage their holding. The applicants
refused the third offer on the same grounds, the bungalow in question
being situated 12-14 miles from their land.
COMPLAINTS
The applicants complain that the Council is threatening to
remove the caravan in which they live from their land. The applicants
complain that the Council has treated them unjustly and oppressively.
They submit that the Council has granted permission to others to build
or have caravans on land outside the perimeter of the village: they
refer in particular to 3 farmers who were granted permission to build
housing on their land overside the village, which they then sold for
six-figure sums of money. They complain that the third accommodation
offered is unsuitable, since it is situated 12-14 miles from their
holding and would cause them great difficulties in continuing to farm
their land.
THE LAW
1. The applicants complain that the Council is threatening to
remove the caravan in which they live from their land. They also
complain of being refused permission to build on their land although
permission has been granted to others. The Commission has examined
these complaints under Articles 8 and 14 (Art. 8, Art. 14) of the Convention
and Article 1 of Protocol No. 1 (P1-1) to the Convention.
2. Article 8 (Art. 8) of the Convention provides that:
"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 Commission finds that the caravan in question, which the
applicants have lived in since 1978, must be considered as their
"home" and that the enforcement procedure pursued by the Council to
remove their caravan constitutes an interference with the applicants'
right to respect for their home.
The Commission must therefore consider whether this
interference is "in accordance with the law" and whether it is
"necessary in a democratic society" for one or more of the reasons
listed in paragraph 2 of Article 8 (Art. 8-2) of the Convention.
The Commission recalls that the applicants had not obtained
planning permission for using their land as a site for a residential
caravan and that this use was accordingly unauthorised. The
Council, which served enforcement notices and issued summonses
alleging breach of these notices, was acting in implementation of the
relevant planning legislation. The Commission notes that, although
the Council apparently made various procedural errors in the course of
the proceedings, the first applicant was found guilty of breach of an
enforcement notice, by a magistrates court and ordered to remove the
caravan. His appeal against this decision was dismissed. Further on
30 March 1987 the injunction requiring removal of the caravan and the
order permitting the Council to enter and remove the caravan were made
by the High Court. The Commission accordingly finds that the
enforcement procedure was "in accordance with the law".
The Commission also finds that the interference pursues a
legitimate aim, namely, the protection of the rights of others through
the operation of planning controls which is recognised as necessary in
a democratic society throughout the member States of the Council of
Europe. The Commission recalls that in previous case-law it has
recognised that the existence and operation of planning controls
which delimit areas where domestic development may be extended is
a legitimate measure to protect the amenity value of rural areas
and thereby to protect the rights of others (see No. 11185/84,
Dec. 11.3.85, to be published in D.R. 42).
It remains to be examined whether the interference was
"necessary in a democratic society" for this legitimate aim. In
making the assessment of the necessity of a given interference the
national authorities enjoy a margin of appreciation. It is
established case-law that an interference with a Convention right
cannot be regarded as "necessary" unless it is proportionate to the
legitimate aim pursued (see e.g. Eur. Court H.R., Gillow judgment of
24 November 1986, Series A no. 109, p. 22, para. 55). Concerning the
necessity and the proportionality of the measures, the Commission
recalls that the applicants moved on to their land in their caravan
without obtaining permission for the change of user and that it was
found by the planning inspectors in the various appeals that the
caravan detracted from the visual amenities of the rural landscape
outside the village area. The Commission recalls that the inspector,
in the decision dated 2 September 1982, took into consideration the
age of the applicants and their desire to farm the land but found that
the size and nature of their farming activity was not such as to
render it essential for anyone to reside on the site. The Commission
further recalls that the Council has endeavoured to find alternative
accommodation for the applicants, although the applicants have so far
rejected these offers on the basis, inter alia, that the housing was
situated too far away from their land.
The Commission notes that the position of the applicants was
also considered by the High Court, when on 30 March 1987, it decided
whether to grant the local authority an injunction to enforce the
removal of the caravan. The judgment of the court took into account
the age and circumstances of the applicants and the possible legal
arguments in their favour but found that the applicants had acted in
breach of the planning legislation and that there was no evidence that
the local authority had been actuated by other than proper planning
considerations in refusing planning permission. Having weighed all
these matters, the court decided to grant the injunction.
In light of these circumstances and in particular the fact
that the use of the land for residential purposes was originally
illegal, the Commission finds that the measures taken can be
considered as "necessary in a democratic society".
The Commission therefore finds that the interference in the
present case is justified under paragraph 2 of Article 8 (Art. 8-2) of the
Convention and that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
3. Article 1 of Protocol No. 1 (P1-1) to the Convention 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."
Insofar as the applicants complain of the enforcement
proceedings which endeavour to remove their caravan from their land,
the Commission finds that this amounts to a control of use of property
within the meaning of the second paragraph of Article 1 of Protocol
No. 1 (P1-1). However, even assuming that the applicants have complied with
the six months time-limit provided for in Article 26 (Art. 26) of the
Convention, the Commission considers that this control of use of the
land is necessary in accordance with the general interest of
safeguarding rural areas from unsuitable development. The Commission
refers in this respect to its reasons given above in the context of
Article 8 (Art. 8) of the Convention, the requirements of which are more
stringent than those of Article 1 of Protocol No. 1 (P1-1).
The Commission finds that an examination under Article 1 of
Protocol No. 1 (P1-1) of this aspect of the applicants' complaints does not
disclose any appearance of a violation of this provision. It follows
that, in this respect, the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. It is true that the applicants have also complained that they
were discriminated against in that other land owners were permitted to
have caravans on their property. However, they have failed to show
that the local situation in these cases was comparable to their own.
The Commission therefore finds no indication of discrimination
contrary to Article 14 (Art. 14) of the Convention.
It follows that, in this respect, the application is also
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
5. Insofar as the applicants complain of the refusals of planning
permission to build a cottage upon their land, the Commission is not
required to decide whether or not the facts alleged by the applicants
disclose any appearance of a violation of the Convention as, under
Article 26 (Art. 26) of the Convention, it may only deal with a matter after
all domestic remedies have been exhausted according to the generally recognised
rules of international law.
In the present case the applicants have failed to appeal
against these decisions to the Secretary of State in accordance with
S. 36 of the Town and Country Planning Act 1971 and have therefore not
exhausted the remedies available to them under United Kingdom law.
Moreover, an examination of the case does not disclose the existence
of any special circumstances which might have absolved the applicants,
according to the generally recognised rules of international law, from
exhausting the domestic remedies at their disposal.
It follows that, in this respect, the applicants have not
complied with the condition as to the exhaustion of domestic remedies
and this complaint must be rejected under Article 27 para. 3 (Art. 27-3) 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)