AS TO THE ADMISSIBILITY OF
Application No. 28370/95
by Charles MABEY
against the United Kingdom
The European Commission of Human Rights (Second Chamber) sitting
in private on 15 May 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, 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 16 June 1995 by
Charles MABEY against the United Kingdom and registered on
30 August 1995 under file No. 28370/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1943 and resident in
Corfe Mullen. The application is presented on his behalf by Mr. Reg
Cooper, a construction worker in Fordingbridge. The facts as submitted
may be summarised as follows.
The applicant comes of Romany (gypsy) stock. While it appears
that his grandparents lived in caravans, he did not however pursue the
traditional nomadic way of life. After leaving the army, he was
employed in driving and treeclearing jobs and at various times, lived
in a house and a flat.
In December 1972, the applicant and his wife bought a piece of
land at Corfe Mullen, Dorset. In January 1973, they stationed a caravan
on their land and pursued an agriculture related business. Following
a visit from the local authority planning official, the applicant
applied for planning permission for use of the caravan for residential
purposes. Permission was refused although a neighbour obtained
permission at that time on the basis of personal circumstances.
In 1974, the applicant and a neighbour ran a breakers' yard on
their land. An enforcement notice was issued against them. The
applicant appealed. The area was declared a Green Belt at around that
time. His appeal failed. He continued with his agricultural
contractors' business which involves keeping tractors on his land.
By 1984, eight applications by the applicant for permission for
a caravan or a dwelling had been refused, with appeals dismissed in
1975 and 1982. Various enforcement actions had been taken from 1973
onwards by the local authority.
In or about 1984, enforcement notices were issued, inter alia,
requiring the applicant to remove the residential caravan from his land
which was outside the area allocated for development. Following a
public inquiry in December 1985, the applicant's appeal against the
enforcement notices was dismissed and he was fined £1 by the
magistrates' court for failing to comply. The applicant made a renewed
appeal and a planning inquiry was held on 22 July 1988. In his report
of January 1989 (date unspecified), the Inspector noted that there had
been a history of previous appeals in this context (enforcement
proceedings dated back to 1973) and that this appeal raised a number
of new issues, including that of the applicant's gypsy background. He
found in that respect that the applicant had acknowledged that while
of Romany stock, he had never lived a traditional gypsy lifestyle,
being born in a house and living in a house and flat before moving to
this piece of land. There was no indication that his parents had lived
a traditional lifestyle either and he had stated that he would not
choose that way of life voluntarily. He concluded that no great weight
could be attached to the gypsy claim. He went on to find that
notwithstanding the fact that the applicant and his family had lived
on the site since 1972 (more than sixteen years) there was strong
presumption against development in a Green Belt area and the
development did not fall within any of the exceptions to the policy.
He recommended that planning permission should be refused.
By letter dated 25 July 1989, the Secretary of State agreed with
the Inspector's findings and dismissed the applicant's appeal.
By originating summons dated 2 June 1994, the local authority
applied to the High Court for an injunction ordering the applicant to
cease occupation of his land in his residential caravan and to cease
its use for the storage of vehicle parts etc. Such order was granted
on 8 August 1994. On 27 January 1995, on application by the local
authority, the applicant was found to be in contempt of court for
failing to comply with order and a committal to prison for 42 days was
issued suspended for 56 days to permit the applicant further time to
comply. The committal was suspended by the Court on 9 June 1995 for a
further seven days.
The applicant and his family ceased residential occupation of
their land. They moved onto land nearby on a temporary basis and
without permission. On 2 October 1995, the local authority obtained an
order from the County Court requiring the applicant to remove his
caravan from the land, enforcement to be suspended for 14 days to allow
the applicant to comply.
COMPLAINTS
The applicant complains of being forced to leave his land after
occupying it with his family for over 20 years. He submits that the
local authority accepted his payment of rates and taxes in respect of
his occupation and that there is no justification for evicting him and
rendering him homeless. He invokes Article 8 of the Convention.
THE LAW
The applicant complains that he has been forced to leave the land
where he and his family have lived for more than 20 years. He submits
that this discloses a violation of Article 8 (Art. 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 Commission recalls that whether or not a particular
habitation constitutes a "home" for the purposes of Article 8 paragraph
1 (Art. 8-1) will depend on the factual circumstances of the particular
case, namely, the existence of sufficient and continuous links. It is
not limited necessarily to those homes which have been lawfully
occupied or lawfully established (see Nos. 20348/92, Buckley v. United
Kingdom, Comm. Rep. 11.1.95 pending before the Court, and No. 7456/76,
dec. 8.2.78, D.R. 13 p. 40, and Eur. Court H.R., Gillow judgment of 24
November 1986, Series A no. 109). While the applicant in this case did
not establish his home in a caravan on his land with the necessary
planning permission, the Commission has had regard to the length of his
occupation there, namely, over 20 years. In the Commission's view, this
is sufficient to bring his complaints within the scope of the first
paragraph of Article 8 (Art. 8) of the Convention.
The Commission has therefore examined whether the measures taken
against the applicant requiring him to cease occupation of his land
comply with the requirements of Article 8 paragraph 2 (Art. 8-2), ie.
whether they were in accordance with law, pursued an aim that is
legitimate under this provision and were necessary in a democratic
society for the aforesaid aim (see, inter alia, Eur. Court H.R., W. v.
the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 27
para. 60 (a)).
The applicant has not contested the lawfulness of the planning
procedures taken to enforce the planning regulations in force (ie. the
enforcement notices, appeal and inquiry, the court orders requiring the
cessation of occupation) and the Commission sees no indication of lack
of conformity with the requirement that these measures be "in
accordance with the law".
The Commission notes that the applicant's land lies within an
area subject to rural conservation, a Green Belt, and that the measures
have been taken to preserve the character and appearance of the
countryside. The measures can be said to relate to preservation of the
environment (which includes amenity for the general public) and thus
pursue the legitimate aims of safeguarding the economic well-being of
the country and the protection of the health and rights of others as
provided for in the second paragraph of Article 8 (Art. 8)
of the Convention.
As regards the criterion "necessary in a democratic society", the
case-law of the Commission and Court establishes that the notion of
"necessity" implies that the interference corresponds to a pressing
social need and that it is proportionate to the aim or aims pursued.
In assessing proportionality regard must be had to whether a fair
balance has been struck between the demands of the general interest of
the community and the requirements of the protection of the
individual's fundamental rights. Further, the Convention organs must
take into account that a margin of appreciation is left to the
Contracting States which are in principle in a better position to make
an initial assessment of the necessity of a given interference (see eg.
Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130 p.
32 para. 68).
The Commission recalls that the applicant was made aware from a
very early stage that his occupation of his land was not in conformity
with the applicable planning regulations. Although he continued to live
there for more than 20 years, it is not apparent that he was ever given
an indication that his failure to comply with those regulations was
accepted or acquiesced in by the local authority.
The Commission notes the reference in the domestic proceedings
to the "gypsy" background of the applicant. It observes the findings
of the Inspector however that the applicant, and his parents, had not
followed the traditional life of his Romany grandparents and that he
had no wish to do so. He had previously lived in a house and a flat.
This applicant's circumstances are therefore materially different from
those of the applicant in the Buckley case (No. 20348/92 Comm. Rep.
11.1.95 loc. cit.) where the applicant, as a gypsy who had pursued
throughout her life a traditional lifestyle, on the threatened eviction
from her land had as a result a restricted number of options open to
her as regards finding other accommodation. Furthermore, the
Commission in the Buckley case found that there was no reasonable
alternative available to her and that the planning considerations
applicable to the area were not of any countervailing strength. In this
case, the Commission is not persuaded that the present applicant, who
has had not inconsiderable warning of the enforcement of measures
against him, would have had no other reasonable alternatives open to
him. The character of the countryside in the present case would also
appear to attract not insignificant considerations of public interest
in environmental preservation.
In conclusion, the Commission finds that the enforcement of the
planning measures in this case does not, having regard to the
Contracting State's margin of appreciation, offend the principle of
proportionality nor does it fail to strike an acceptable balance
between the requisite interests.
Accordingly, the interference in this case can be said to be
justified as necessary in a democratic society in pursuit of the aims
identified above. The application must therefore be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy