AS TO THE ADMISSIBILITY OF
Application No. 26662/95
by Joseph and Mary VAREY
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 2 December 1994
by Joseph and Mary VAREY against the United Kingdom and registered on
8 March 1995 under file No. 26662/95;
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
applicants on 15 April 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are British citizens born in 1940 and 1944
respectively and resident in Featherstone, Staffordshire. They are
represented before the Commission by Hutsby Mees, solicitors practising
at Stafford. The facts as submitted by the parties may be summarised
as follows.
a. Particular circumstances of the case
The applicants are gypsies by birth. Throughout their lives they
have moved from place to place but mainly in the Stafford area, since
they were born in Stafford. The first applicant is a carpet seller and
obtains most of his wares from a local depot. The majority of his
trading is done in the Stafford and Wolverhampton districts. The
applicants' children have been educated locally. It was difficult
because of their nomadic lifestyle but the applicants did all they
could to ensure that their children received regular education. The
applicants have health problems requiring regular attention and have
been attending the same doctor in Stafford since 1975.
The area carries a very large population of gypsies and other
travellers and it became more and more difficult for the applicants to
find somewhere to stay. In desperation, the applicants bought a piece
of land. They were particularly attracted to it because it had been
used for several years as a stopping place for gypsies and, for a time,
this had been permitted by licence from the local planning authority.
The applicants therefore thought that they would have an especially
good chance of obtaining planning permission to enable them to set up
a residential caravan site there.
The applicants submitted an application to South Stafford
District Council ("the Council") for planning permission for use of the
major part of the land as a fifteen pitch gypsy caravan site. The
Council refused the application and issued an Enforcement Notice on
27 May 1988. Appeals were lodged against the refusal of planning
permission and the Enforcement Notice and a Public Inquiry was held on
7 February 1989. By letter dated 2 June 1989 the Secretary of State for
the Environment dismissed the appeals on the basis that the applicants'
needs did not override the stringent policies of development control
which apply to sites located within an area designated as Green Belt.
However, since there were no authorised gypsy sites to which the
applicants could move, the period for compliance with the Enforcement
Notice was increased from one month to nine months.
On 26 April 1990, the first applicant was convicted by the
Cannock Magistrates' Court for failing to comply with the requirements
of the Notice and he was fined £500 and required to pay costs. On
9 August 1990, the first applicant was convicted by the same court of
a further offence of failing to comply with the Notice and was fined
£500 and required to pay costs. This was reduced to £250 on appeal.
A fresh application had been submitted for twelve pitches in
respect of the eastern portion of the land only. The Council refused
the application on 6 March 1990. An appeal was lodged and an inspector
appointed by the Secretary of State for the Environment held a local
inquiry on 15 November 1990. The inspector recommended that the appeal
be allowed subject to conditions. He considered that a material change
of circumstances had taken place since the 1989 inquiry. He identified
an increase in the number of gypsies and a decline in site provision
in the area. He also concluded that the impact of the site on its
surroundings would be less significant due to improvements made in
screening the caravans from public view, the building of a prison and
the construction of a proposed orbital route nearby.
However, by letter dated 13 February 1992, the Secretary of State
dismissed the appeal on the ground that the need for gypsy
accommodation was insufficient to constitute the very special
circumstances necessary to override the strong policy presumption
against inappropriate and prejuducial development in the Green Belt.
The Secretary of State also decided that any change in circumstances
since the previous appeal in 1989 for gypsy accommodation on the site
was not sufficiently material to warrant allowing the appeal. In his
view, granting the appeal would inevitably result in demand for further
sites within the Belt and he was unable to agree with the Inspector
that the development in this case would not weaken the Council's stance
in resisting future development proposals.
On 2 July 1992 the first applicant was convicted for failing to
comply with said Notice and was fined £1000 and ordered to pay £50
costs.
The applicants submitted a third application, this time for a
three year temporary permission for one mobile home and three tourers
in respect of the western portion of the land. Again the Council
refused planning permission and the applicants appealed against the
decision. An inspector appointed by the Secretary of State for the
Environment held an inquiry on 13 October 1992 and recommended that the
appeal be allowed, subject to conditions. By letter dated 10 June 1993
the Secretary of State dismissed the appeal on the grounds that the
family's needs were not so compelling as to outweigh the national and
local policy objections against siting the development in the Green
Belt and that there had not been a material change of circumstances
since the previous inquiry. He considered that there was a crucial
danger that the development would harm the Green Belt and he placed
less importance than the inspector on any reduction of the
development's visual impact because it would prejudice the Belt's main
purpose. He also did not agree with the inspector that allowing the
appeal would not create any difficulty for the Council in protecting
the Green Belt, as there was a danger of a ribbon development being
created through pressure being brought to bear to infill land between
this site and others.
Prior to the Secretary of State's decision, the local planning
authority issued injunction proceedings against the applicants in March
1993. On 26 May 1993, Wolverhampton County Court ordered that no Order
be made pending the applicants' undertaking to vacate the site by
27 September 1993.
Since the applicants had no place to which they could lawfully
go they remained on their land. In July 1993, a Notice of Motion was
lodged in the High Court seeking an order quashing the Secretary of
State's decision. On 26 August 1994 the High Court dismissed the Notice
of Motion and ordered the applicants to pay the costs.
The applicants continued to seek alternative accommodation. By
letters dated 3 and 13 January 1995 the local planning authority
indicated that they intended to apply for a Committal Order against the
first applicant. The applicants now face the threat of criminal
prosecution and forcible eviction.
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, § 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 claim that their rights under Article 8 of the
Convention are being interfered with. They complain of being prevented
from living in their own mobile home on their own land in the
traditional way of gypsy life. They submit that, due to planning
regulations and the shortage of sites built for gypsies, they had no
option but to buy their own land. However, they have been denied the
right to live on their own land in a mobile home by both the local
planning authority and the Secretary of State for the Environment.
The consequences of their decision are severe for the applicants
and their family. If they continue to remain on their land they face
criminal prosecution and forcible eviction. However, there is nowhere
to which they can legally move given the shortage of official gypsy
sites in the area.
In their observations in reply to the Government the applicants
submit that their complaints also disclose violations of Article 6
para. 1 due to the limited nature of court review of planning decisions
and of Article 14 since they are discriminated as gypsies.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 2 December 1994 and registered
on 8 March 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 applicants' observations in reply were submitted on 15 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 applicants complain of a violation of their right to respect
for their private and family life and home contrary to Article 8
(Art. 8) of the Convention, in that they have been refused permission
to live on their own land and have been subject to, and risk further,
enforcement measures. They also invoke Articles 6 (Art. 6) (access to
court) and 14 (Art. 14) of the Convention (prohibition of
discrimination).
The Government submit that any interference with the applicant's
rights is proportionate to the legitimate aim of protecting the
environment, citing the approach adopted 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 applicant's site lies within a Green
Belt, and is in an area in which there is a disproportionately high
number of gypsies. They rely on the Secretary of State's balancing of
the very strong policy objections to the development against the
factors put forward by the applicants and submit that he gave proper
regard to the applicants' predicament, granting extra time for them to
relocate the family residence. As regards alternative accommodation,
they refer to the existence of private gypsy sites and mobile home
parks and note that the applicants have provided no details of any
alleged search for vacancies. 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). While the Government have not addressed the
complaints under Articles 6 and 14 (Art. 6, 14) of the Convention
raised by the applicants in their reply, the Commission notes their
submissions made in the context of similar applications (e.g.
Application Nos. 27238/95, Chapman v. the United Kingdom, Dec. 4.3.98;
25154/94, Smith v. the United Kingdom, Dec. 4.3.98).
The applicants submit that the interference with their home,
private and family life is disproportionate. They point out that they
are local gypsies with a long association with the area and that there
is no evidence that they can be accommodated on any site in the area,
no offer ever having been made to them or any vacancy having been
identified. They observe that the time for relocation was even extended
by the Secretary of State in 1989 due to his recognition that no
official site was available and that while their site is located in a
Green Belt two Planning Inspectors found that the circumstances were
sufficiently exceptional to permit the development. They point out that
they have been subject to a series of coercive measures, including
criminal prosecutions and have been threatened with an injunction,
failure to comply with which will place them at risk of committal to
prison, further fines and forcible eviction. There are insufficient
procedural safeguards, since although appeal lies to the High Court,
the courts have held that if a decision to give a factor no weight is
based on rational planning grounds the planning authority is entitled
to ignore it.
In respect of Article 6 para. 1 (Art. 6-1), the applicants
complain that the review of planning decisions by the High Court is
unduly limited and prevents any effective challenge.
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