Human Rights Treaty — Gypsy caravan site — Breach of enforcement notice requiring removal of caravan home under national law — Whether caravan home protected by article 8 — Whether unlawful interference by public authority — Whether the Caravan Sites Act 1968 and the Criminal Justice and Public Order Act 1994 discriminatory and contravenes articles 8 and 14 of the Convention
In March 1990
the applicant gypsy was refused planning permission for the siting of three
caravans on a site she had owned and occupied since 1988. In April 1990 the
council served an enforcement notice requiring the removal of the caravans. The
applicant’s appeal to the Secretary of State for the Environment was dismissed.
Following criminal proceedings, for which the applicant was fined small sums, a
second application for planning permission to station caravans on her site was
refused in November 1994. On appeal to the Secretary of State the second
application was dismissed. In November 1992 the council opened an official
gypsy site some 700m away from the applicant’s land. The council’s offer to be
reallocated on to the official site was rejected by the applicant on the
grounds of unsuitability. On February 7 1992 the applicant lodged a complaint
to the European Commission of Human Rights contending that she was prevented
from living with her family in the caravans on her land and in pursuance of a
traditional gypsy lifestyle. The majority opinion of the Commission (report
dated January 11 1995) was that there had been a violation of article 8. Before
the European Court of Human Rights, the applicant complained that contrary to
article 8 and/or in conjunction with article 14 of the Convention the
designation system under the Caravan Sites Act 1968 and the criminalisation of
‘unauthorised camping’ under the Criminal Justice and Public Order Act 1994
discriminated against gypsies by preventing them from pursuing their
traditional gypsy lifestyle.
There was no
violation of article 8 (six votes to three). There had been no violation of
article 14 of the Convention taken together with article 8 (eight votes to
one).
(1)The court
considered that proper regard was had to the applicant’s predicament both under
the terms of the regulatory framework, which contained adequate procedural
safeguards protecting her interest under article 8, and by the responsible
planning authorities when exercising their discretion in relation to the
particular circumstances of her case. The
various competing interests in issue. The court was satisfied that the reasons
relied on by the responsible planning authorities were relevant and sufficient,
for the purposes of article 8, to justify the resultant interference with the
exercise by the applicant of her right to respect for her home. The means
employed to achieve the legitimate aims pursued cannot be regarded as
disproportionate. The court did not find that the national authorities exceeded
their margin of appreciation: see p26 et seq.
(2)The court
found that it could not consider any of the applicant’s claims based on the
Caravan Sites Act 1968 or the Criminal Justice and Public Order Act 1994. The
applicant was not at any time penalised or subjected to any detrimental
treatment for attempting to follow a traditional gypsy lifestyle. The relevant
national policy was aimed at enabling gypsies to cater for their own needs. The
applicant cannot claim to have been the victim of discrimination contrary to
article 14 taken together with article 8. There was no violation under this
head: see p28 et seq.
Dissenting
opinion of Judge Repik
Article 8 of
the Convention had been violated. The court was too hasty in invoking the
margin of appreciation left to the state. The fair balance between the
applicant’s rights and the interests of society had not been struck and the
interference had therefore not been justified under article 8.
Dissenting
opinions of Judge Lohmus and Judge Pettiti
Article 8 of
the Convention had been violated.
to in the opinions
Bellet v France December 4 1995 Series A no 333–B
Berrehab v Netherlands June 21 1988 Series A no 138
Bryan v United Kingdom November 22 1995 Series A no 335–A; [1996]
1 PLR 47
Davies
(John) v Secretary of State for the Environment
[1989] JPL 601
Erkner
& Hofauer v Austria April 23 1987 Series
A no 117
Gillow v United Kingdom November 24 1986 Series A no 109
Jacobsson
(Allan) v Sweden October 25 1989 Series A no
163
Klass v Germany September 6 1978 Series A no 28
Leander v Sweden March 26 1987 Series A no 116
McMichael v United Kingdom February 24 1995 Series A307–B
Miailhe v France (No 1) February 25 1993 Series A no 256–C
Olsson v Sweden (No 1) March 24 1998 Series A no 130
Philis v Greece August 27 1991 Series A no 209
Poiss v Austria April 23 1987 Series A no 117
R v Secretary of State for the Home Department, ex parte Brind
[1991] 1 AC 696; [1991] 2 WLR 588; [1991] 1 All ER720, HL
Restormel
Borough Council v Secretary of State for the
Environment [1982] JPL 785
Sporrong
and Lönnroth v Sweden September 23 1982
Series A no 52
Reference to
European Court of Human Rights
This was a
decision of the European Court of Human Rights following a reference from the
European Commission of Human Rights in relation to an application by Mrs June
Buckley lodged against the United Kingdom.
and Luke Clements (instructed by Luke Clements) appeared for the applicant, Mrs
June Buckley.
Pannick QC and Mark Shaw (instructed by the Treasury Solicitor) represented the
United Kingdom Government.
following opinion was delivered.
RUDOLF
BERNHARDT PRESIDENT OF THE CHAMBER:
As to the
facts
I.
Particular circumstances of the case
A. The
background
The applicant
is a British citizen and a gypsy. She lives with her three children in caravans
parked on land owned by her off Meadow Drove, Willingham, South Cambridgeshire,
England. She is married but separated from her husband in 1991.
As far back as
can be traced, the applicant’s family have been gypsies based in South
Cambridgeshire. She has lived in caravans all her life and as a child travelled
with her parents in this area. She continued this itinerant life until shortly
before the birth of her third child in 1988.
In 1988 the
applicant’s sister and brother-in-law acquired a one acre (approximately 4,000m2)
site off Meadow Drove, Willingham, and were granted personal, temporary
planning permission for one living unit, comprising two caravans.
At her
sister’s invitation she moved on to this site in November 1988 when she was
expecting her third child, because she had found it hard being constantly on
the move with young children. During this period of settled living the two
eldest children were able to attend a local school, where they integrated well.
On an
unspecified date in 1988, the applicant acquired part of her sister’s land
(0.16 ha) to the rear of the site, furthest away from Meadow Drove. She moved
her three caravans on to this plot.
Her land is
now part of a group of six adjacent sites which are occupied by gypsies. One
plot has received permanent planning permission for the residential use of
three caravans. The site occupied by the applicant’s sister enjoyed temporary
permission until August 4 1995. The remaining three sites have been occupied
without planning permission and the occupants have been subject to enforcement
proceedings. The occupants of two of those sites have also introduced
applications before the European Commission of Human Rights.
The applicant
has stated that she intends to resume her travelling life sometime in the future,
and to pass on this tradition to her children.
In 1993 she
travelled with her sister to Saint Neots in Cambridgeshire because her
father-in-law was dying. She was able to park on waste ground for two weeks,
but had to move on shortly after the funeral.
B. The
application for planning permission
On December 4
1989 the applicant applied retrospectively to South Cambridgeshire District
Council for planning permission for the three caravans on her site.
She was
refused on March 8 1990 on the grounds that: (1) adequate provision had been
made for gypsy caravans elsewhere in the South Cambridgeshire area, which had
in the council’s opinion reached ‘saturation point’ for gypsy accommodation;
(2) the planned use of the land would detract from the rural and quality of the
landscape, contrary to the aim of the local development plan which was to
protect the countryside from all but essential development, and (3) Meadow
Drove was an agricultural drove road which was too narrow to allow two vehicles
to pass in safety.
On April 9
1990 the council issued an enforcement notice requiring the caravans to be
removed within a month.
The applicant
appealed against the enforcement notice to the Secretary of State for the Environment.
An inspector
was appointed by the Secretary of State to report on the appeal. The inspector
visited the site and considered written representations submitted by the
applicant and the district council.
In her report,
issued on February 14 1991 the inspector observed that the local authority had
granted planning permission to two caravan sites between the applicant’s site
and Meadow Drove (the applicant’s sister’s site and another), and to an
agricultural workshop on land to the east of the site (which was occupied at
the time of the inspection by an unauthorised road haulage business). The
applicant’s caravans were screened from the road because of these authorised
and unauthorised developments. However, the inspector wrote that:
whether seen
or not, the development subject of these notices [ie the applicant’s caravan
site] extends development further from the road than that permitted. It thus
intrudes into the open countryside, contrary to the aim of the Structure Plan
to protect the countryside from all but essential development.
The inspector
also found that the access road to the site was too narrow for two vehicles to
pass, and thus that the use of the site for caravans would not be in the
interests of road safety.
She considered
the applicant’s special status as a gypsy and observed that in January 1990
there were over 60 gypsy families on unauthorised sites in the district of
South Cambridgeshire. She continued:
It is
therefore clear in my mind that a need exists for more authorised spaces … Nevertheless,
I consider it important to keep concentrations of sites for gypsies small,
because in this way they are more readily accepted by the local community …
[T]he concentration of gypsy sites in Willingham has reached the desirable
maximum and I do not consider that the overall need for sites should, in this
case, outweigh the planning objections.
She concluded
by recommending that the appeal be dismissed.
The Secretary
of State dismissed the appeal on April 16 1991. The reasons given included the
following:
The decisive
issue in regard to the planning merits of your appeals is considered to be
whether the undisputed need for additional gypsies’ caravan site provision, in
the administrative areas of the District Council, and of the County Council, is
so pressing that it should be permitted to override the objections on planning
policy and highway safety grounds to the retention of the use of the appeal
site as a residential caravan site for gypsies. On this approach, the view is
taken that the objections to the continued use of the appeal site as a
residential gypsy caravan site are so strong, on planning policy and highway
safety grounds, that a grant of planning permission could not be justified,
either on a temporary or personal basis. In reaching this conclusion, full
consideration has been given to policy advice in the Department’s Circular
28/77, giving guidance to Councils on the need to provide adequate
accommodation in the form of caravan sites, for gypsies residing in or
resorting to their area. However, on the available evidence, the view is taken,
in agreement with the officer’s appraisal, that the concentration of gypsy
caravan sites around the Willingham area has reached the desirable maximum, and
the overall need for additional sites should not outweigh the planning and
highway objections arising from the continued use of this particular site.
The applicant
did not appeal to the High Court because she was advised by counsel that no
grounds arose in her case.
C.
Criminal proceedings against the applicant
The applicant
has been prosecuted for failure to comply with the enforcement notice of May
1990. On January 7 1992 she was fined £50 and required to pay £10 costs.
She has again
been prosecuted on two occasions after the introduction of her application to
the Commission on February 7 1992.
On January 12
1994 the magistrates granted her an absolute discharge but ordered her to pay
the prosecution costs.
Finally, on
November 16 1994 she was fined £75 and ordered to pay £75 costs.
D.
Designation
By a letter
dated May 20 1993, the Department of the Environment informed the district
council that the Secretary of State had decided to designate the area of South
Cambridgeshire under section 12 of the Caravan Sites Act 1968. It was noted
that a small number of gypsies still remained on unauthorised sites but that,
in light of the provision made for sites which was greater than in any other
district, it was considered ‘not expedient for adequate accommodation to be
provided for gypsies residing in or resorting to South Cambridgeshire
District’.
The order
designating the district of South Cambridgeshire came into force on August 13
1993, but no longer applies because of the provisions of the Criminal Justice
and Public Order Act 1994.
E.
Subsequent developments
On September
19 1994 the applicant again applied for permission to station her caravans on
her site, in the light of a change in the law.
She was
refused on November 14 1994 on the grounds that: (1) local
restricted and no evidence to justify a departure from this policy had been
advanced; and (2) adequate provision for gypsies had been made along Meadow
Drove.
The applicant
(together with others occupying the neighbouring sites) appealed against this
decision to the Secretary of State. A report was prepared by an inspector in
May 1995.
The inspector
considered, first, whether the continued use of the land as a gypsy caravan
site would detract from the rural nature of the area, and, second, if so,
whether there were any special circumstances sufficient to outweigh this
objection. She found that the road safety objection, which had been one of the
grounds of refusal in April 1991, no longer applied.
With regard to
the first question, the inspector found that the applicant had a mobile home,
three touring caravans and three sheds on her site. These were hidden from the
road by the caravans on the sites in front and by an agricultural engineering
business, the same depth as the applicant’s site to the east. They were visible
from other vantage points but could be adequately screened by planting hedges.
However, she concluded that:
the continued
use of the rear plots considerably extends the depth of development south of
the road. This intensification of use in itself inevitably detracts from the
rural appearance and generally open character of the area, contrary to the
objectives of national and local countryside policy. I must therefore conclude
that the continued occupation of the land as gypsy caravan sites is harmful to
the character and appearance of the countryside.
With regard to
the special circumstances of the case, in particular the applicant’s gypsy
status, the inspector made the following observations. She described the applicant’s
site as ‘clean, spacious and well-ordered’. By contrast, the council-run site
on Meadow Drove was ‘isolated, exposed and somewhat uncared for’. Nevertheless,
it was
a relevant
consideration that there is available alternative accommodation close by, which
would enable the appellants to stay in the Willingham area and their children
to continue at the local schools.
On the other
hand,
little weight
[could] be given to the private sites at Cottenham. No substantive evidence was
given by either the Council or the appellants as to whether plots were actually
available there or their price.
The inspector
considered the impact of Circular 1/94 on the applicant’s case, but concluded
that, although it placed greater emphasis on the provision of sites by gypsies
themselves, it was government policy that proposals for gypsy sites should
continue to be determined solely in relation to land use factors.
She concluded
that there had been no material changes since the last appeal was heard and the
present appeal should therefore be dismissed.
Accepting the
inspector’s conclusions and recommendations, the Secretary of State dismissed
the appeal on December 12 1995.
The applicant
has filed an appeal to the High Court, which is now pending.
F.
Authorised gypsy sites in the district of South Cambridgeshire
In November
1992 the county council opened an official gypsy caravan site in Meadow Drove,
about 700m away from the applicant’s land. The site consists of 15 pitches,
each comprising a fenced, partially grassed area with hard standing for
caravans and its own brick building containing a kitchen, shower and toilet.
Each pitch is designed to accommodate one permanent caravan, one touring
caravan, one lorry and one car. They are joined by a central road and the site stands
in open countryside.
Between
November 1992 (when the site opened) and August 1995, 28 vacancies have arisen
there. The district council contacted the applicant by letters dated February
17 1992 and January 20 1994, informing her of the possible availability of
pitches on this site and advising her to apply for one to the county council.
The applicant has never taken any action in this regard.
Since the site
opened the following incidents have reportedly taken place there: (1) an
unsubstantiated allegation in May 1993 that one of the residents was in
possession of a firearm; (2) a fight in December 1993 during which a resident
on the site was punched in the eye by another; (3) in 1994 a car was brought on
to the site and set alight; (4) in the same year there was an incident of
domestic violence; (5) also in 1994, the warden’s office on the site was
burgled and damaged when temporarily vacant; (6) in 1995 a site resident was
convicted of conduct likely to cause a breach of the peace after exchanging words
and threatening gestures with a district council refuse collector on the site;
(7) in March 1995 four pitches were damaged by vandalism and/or fire.
There are
authorised privately-run sites at Smithy Fen, Cottenham, about 7 km from
Willingham. In May 1995 the cost of purchasing a pitch on one of them
reportedly varied between £7,000 and £40,000.
II.
Relevant domestic law and practice
A. 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 [1982] JPL 785; John
Davies v Secretary of State for the Environment [1989] JPL 601.
An application
for planning permission must be made to the local planning authority, which have
to determine the application in accordance with the local development plan,
unless material considerations indicate otherwise: section 54A of the 1990 Act.
The local development plan in South Cambridgeshire restricts development in the
countryside to that
horticulture, agriculture and forestry.
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 United Kingdom1 judgment of November 22 1995,
Series A no 335–A, § 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.
1 [1996] 1 PLR 47
If a
development is carried out without the grant of the required planning
permission, the local authority may issue an ‘enforcement notice’, if they
consider 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] AC 696, pp764 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.
B. Gypsy
caravan sites provision
1. The
Caravans 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 ‘gypsies’ 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
gypsies 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.
2. 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.
3.
Circular 28/77
Circular 28/77
was issued by the Department of the Environment on March 25 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
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.
4.
Circular 57/78
Circular
57/78, which was issued on August 15 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 £100m was spent under a scheme by which 100% grants were made
available to local authorities to cover the costs of creating gypsy sites.
5. The
CriminaI 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 November 3 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
persons … for
the time being residing in a vehicle …
(a) on any land forming part of a highway;
(b) on any other unoccupied land; or
(c) on any occupied land without the consent of
the occupier
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.
6.
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 (January 5 1994), which cancelled circular
57/78.
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 …
Proceedings
before the commission
In her
application (no 20348/92) of February 7 1992 to the Commission, Mrs Buckley
alleged that she was prevented from living with her family in caravans on her
own land and from following the traditional lifestyle of a gypsy, contrary to
article 8 of the Convention.
On March 3
1994 the commission declared the application admissible. In its report of
January 11 1995 (article 31) the Commission expressed the opinion that there
had been a violation of article 8 (seven votes to five). The full text of the
Commission’s opinion and of the three separate opinions contained in the report
is reproduced as annex to this judgment.1
1 Note by the registrar. For practical reasons this annex will
appear only with the printed version of the judgment (in Reports of
Judgments and Decisions — 1996), but a copy of the Commission’s report is
obtainable from the registry.
Final
submissions to the court
In their
memorial the government requested the Court ‘to decide and declare that the
facts [disclosed] no breach of the Applicant’s rights under Article 8 of the
Convention’.
The applicant
requested the Court ‘to decide and declare that the facts [disclosed] a breach
of [her] rights under Article 8 and/or Article 8 in conjunction with Article
14’ and to award her just satisfaction.
As to the law
I. Scope
of the case before the court
A.
Applicant’s complaint under article 14 of the Convention taken together with
article 8
In her
application to the Commission, the applicant claimed that the designation
system under the 1968 Caravan Sites Act and the criminalisation of
‘unauthorised camping’ under the 1994 Criminal Justice and Public Order Act
discriminated against gypsies by preventing them from pursuing their
traditional lifestyle. In its report the Commission did not express an opinion
on this point. The Commission’s delegate, speaking at the court’s hearing,
stated that the Commission had come to the conclusion that it could not examine
the complaint as such because the applicant could not show that she had been
directly and immediately affected by either of the Acts in question.
Although the
Commission considered the case only under article 8 of the Convention, this
additional complaint is encompassed in the Commission’s decision declaring the
application admissible. The court accordingly has jurisdiction to examine it:
see the Philis v Greece judgment of August 27 1991, Series A no
209, p19, § 56).
B.
Applicant’s ‘formal objections’
At the court’s
hearing on February 19 1996, the government mentioned, in support of their
contention that the applicant had had available to her sufficient procedural
safeguards, that the applicant did not appeal to the High Court against the
Secretary of State’s decision of April 16 1991.
In a letter
received at the registry on February 21 1996, the applicant’s solicitor sought
to place on record ‘formal objections’ against the government’s reliance on
that fact. The government had based no preliminary objection on it at any time
prior to the court’s hearing. Accordingly, any such objection should be dismissed
as out of time (r 48 §1 of Rules of Court A) and barred by estoppel.
The court
observes that the applicant decided not to bring an appeal before the competent
court after being advised by counsel that such an appeal was bound to fail.
However, as
indicated above, the government have not framed their comment as a preliminary
objection. It is an argument going to the merits, to be considered by the court
at the appropriate juncture.
II.
Alleged violation of article 8 of the convention
The applicant
submitted that since she was prevented from living in caravans on her own land
with her family and from following a travelling life there had been, and
continued to be, a violation of her right to respect for her private and family
life and her home. She relied on article 8 of the Convention, which provides as
follows:
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 government
contested this argument, but the Commission accepted it.
A. Whether
a right protected by article 8 is at issue
The government
disputed that any of the applicant’s rights under article 8 was at issue. In
its contention, only a ‘home’ legally established could attract the protection
of that provision.
In the
submission of the applicant and the Commission there was nothing in the wording
of article 8 or in the case law of the court or Commission to suggest that the
concept of ‘home’ was limited to residences which had been lawfully
established. They considered, in addition, that since the traditional gypsy
lifestyle involved living in caravans and travelling, the applicant’s ‘private
life’ and ‘family life’ were also concerned.
The court, in
its Gillow v United Kingdom judgment of November 24 1986 (Series
A no 109), noted that the applicants had established the property in question
as their home, had retained ownership of it intending to return there, had
lived in it with a view to taking up permanent residence, had relinquished
their other home and had not established any other in the United Kingdom. That
property was therefore to be considered their ‘home’ for the purposes of
article 8 (loc cit, p19, §46).
Although in
the Gillow case the applicant’s home had initially been established
legally, similar considerations apply in the present case. The court is
satisfied that the applicant bought the land to establish her residence there.
She has lived there almost continuously since 1988 — save for an absence of two
weeks, for family reasons, in 1993 — and it has not been suggested that she has
established, or intends to establish, another residence elsewhere. The case therefore
concerns the applicant’s right to respect for her ‘home’.
In view of the
above conclusion it is unnecessary for the court to decide whether the case
also concerns the applicant’s right to respect for her ‘private life’ and
‘family life’.
B. Whether
there was an ‘interference by a public authority’
The applicant
asked the court to review the designation regime under the Caravan Sites Act
1968, which in her contention made it extremely difficult for gypsies to follow
their traditional lifestyle, and the criminalisation of ‘unauthorised campers’
by the Criminal Justice and Public Order Act 1994, which, she submitted, was
even more restrictive.
The Commission
considered that it was empowered only to examine the applicant’s complaints in
so far as she had been directly affected by the measures in question. Neither
the Caravan Sites Act 1968 nor the Criminal Justice and Public Order Act 1994
had ever been applied to the detriment of the applicant.
The government
submitted that ‘to the extent that there [had] been any interference with the
applicant’s rights under Article 8 §1’, such interference consisted of the
enforcement against her of planning controls.
It not being
the court’s task to review legislation in the abstract, the Court will confine
itself as far as possible to examining the specific issues raised by the case
before it (see, as a recent authority, the Bellet v France judgment
of December 4 1995, Series A no 333–B, p42, §34).
It does not
appear that any measures based on either the Caravan Sites Act 1968 or the
Criminal Justice and Public Order Act 1994 have ever been taken against the
applicant. What is more, the order designating South Cambridgeshire entered
into force only on August 13 1993, well after the enforcement notice (April 9
1990) and the decision of the Secretary of State (April 16 1991). It is not
therefore within the competence of the court to entertain those of the
applicant’s claims which are based on these Acts.
On the other
hand, the applicant was refused the planning permission which would have
allowed her to live in the caravans on her land, was required to remove the
caravans and prosecuted for failing to do so, all pursuant to the relevant
sections of the Town and Country Planning Act
the applicant’s exercise of her right to respect for her home: see, mutatis
mutandis, the above-mentioned Gillow judgment, p19, §47.
C. Whether
the interference was ‘in accordance with the law’
It was not
contested that the measures to which the applicant was subjected were ‘in
accordance with the law’.
The court
finds no cause to arrive at a different conclusion.
D. Whether
the interference pursued a ‘legitimate aim’
According to
the government, the measures in question were taken in the enforcement of
planning controls aimed at furthering highway safety, the preservation of the
environment and public health. The legitimate aims pursued were therefore
public safety, the economic well being of the country, the protection of health
and the protection of the rights of others.
The Commission
accepted this in substance but noted that the aspect of highway safety, which
figured prominently in the council’s decisions of March 8 1990, the inspector’s
report of February 14 1991 and, by implication, the Secretary of State’s
decision of April 16 1991, was no longer relied on in later decisions.
The applicant
did not dispute that the authorities had acted in the furtherance of a
legitimate aim.
On the facts
of the case the court sees no reason to doubt that the measures in question
pursued the legitimate aims stated by the government.
E. Whether
the interference was ‘necessary in a democratic society’
1.
Arguments before the court
(a) The applicant
The applicant
accepted that gypsies should not be immune from planning controls, but argued
that the burden placed on her was disproportionate. She stated that, seeking to
act within the law, she had purchased the site to provide a safe and stable
environment for her children and to be near the school they were attending.
She drew
attention to the fact that at the time of the events complained of, the
official site further down Meadow Drove had not yet opened. In any event, the
official site had since proved unsuitable for a single woman with children.
There had been reports of crime and violence there and the inspector’s report
of May 1995 had noted that the site was bleak and exposed. In the
circumstances, therefore, the official site could not be considered an
acceptable alternative for the applicant’s own site.
On the other
hand, the same report had noted that the applicant’s site was well maintained.
It could also be adequately screened by vegetation, which would lessen its
visual impact on the countryside.
Finally, the
applicant considered that there was no further alternative open to her as the
cost of stationing her caravans on a private site in the vicinity was
prohibitive.
(b) The
government
The government
noted that planning laws were necessary in a modern society for the
preservation of urban and rural landscape. This reflected the needs of the
entire population. In assessing the need for particular measures, the domestic
authorities required a wide margin of appreciation.
In the present
context, it was necessary to construe article 8 of the Convention consistently
with article 1 of protocol no 1, which allowed the state, among other things,
to enforce such laws as it deemed necessary to control the use of property in
accordance with the general interest.
National law
was designed to achieve a fair balance between the interests of individuals and
those of the community as a whole. In particular, it provided for a
quasi-judicial procedure allowing individuals to challenge planning decisions;
this procedure, moreover, had been found by the court in its Bryan v United
Kingdom judgment of November 22 1995 Series A no 335–A to meet the
requirements of article 6 of the Convention.
In so far as
it was necessary to afford gypsies special protection, this need had been taken
into account. The government had provided legislation and guidelines requiring
authorities involved in the planning process to have particular regard to the
specific constraints imposed by gypsy life. Moreover, gypsies’ accommodation
needs were met by local authorities through the provision of authorised caravan
sites and by advising gypsies on the prospects of planning permission for
private sites.
In the
applicant’s case, the reports of the inspectors showed that her gypsy status
had been weighed in her favour, as indeed was required by the pertinent
guidelines.
In any event,
it was unacceptable to exempt any section of the community from planning
controls, or to allow any group the benefit of more lenient standards than
those to which the general population was subject.
The applicant
had had sufficient alternative options open to her. She had been invited to
apply for a pitch on the official site further down Meadow Drove, both before
and after it opened. She had failed to do so on each occasion. The government
denied that crime and violence were rife there; in any event, in so far as the
applicant’s failure was based on such allegations, it was clear that they could
not have been material considerations before the site had even opened. Moreover,
in the government’s contention, sufficient private sites were available in the
area, most of them owned by gypsies. The true position was that the applicant
had consistently refused to countenance living anywhere else than on her own
land.
Finally, the
sanctions which had been applied to the applicant had been limited to small
fines.
(c) The
Commission
The Commission
submitted that gypsies following a traditional lifestyle required special
consideration in planning matters and
circumstances of the applicant’s case, however, a proper balance had not been
achieved.
The area in
question had not been singled out for special protection, whether as a national
park, as an area of outstanding natural beauty or as a green belt. The
stationing of caravans on the frontage on the site had been authorised, as had
the erection of buildings belonging to an agricultural engineering business on
neighbouring land. An official gypsy caravan site had been opened further down
Meadow Drove. Moreover, the inspector, in her report of May 1995, had found
that the applicant’s site could be adequately screened from view by planting
hedges.
For the same
reasons as given by the applicant, the Commission accepted that the applicant
could not be required to move to the official site further down Meadow Drove.
It further accepted that the space available on other official caravan sites in
the South Cambridgeshire area was insufficient. Nor could the applicant be
required to move to a private authorised site, the inspector herself having
expressed doubts as to the availability of plots on such sites and their price.
2. The
court’s assessment
(a)
General principles
As is well
established in the court’s case law, it is for the national authorities to make
the initial assessment of the ‘necessity’ for an interference, as regards both
the legislative framework and the particular measure of implementation: see, inter
alia, and mutatis mutandis, the Leander v Sweden judgment
of March 26 1987, Series A no 116, p25, §59, and the Miailhe v France
(No 1) judgment of February 25 1993, Series A no 256–C, p89, §36. Although
a margin of appreciation is thereby left to the national authorities, their
decision remains subject to review by the court for conformity with the
requirements of the Convention.
The scope of
this margin of appreciation is not identical in each case but will vary
according to the context: see, inter alia and mutatis mutandis,
the above-mentioned Leander judgment, ibid. Relevant factors
include the nature of the Convention right in issue, its importance for the
individual and the nature of the activities concerned.
The court has
already had the occasion to note that town and country planning schemes involve
the exercise of discretionary judgment in the implementation of policies
adopted in the interest of the community: in the context of article 6 §1, see
the Bryan v United Kingdom judgment of November 22 1995, Series A
no 335–A, p18, §47; in the context of article 1 of protocol no 1, see the Sporrong
and Lönnroth v Sweden judgment of September 23 1982, Series A no 52,
p26, §69; the Erkner & Hofauer v Austria judgment of April 23
1987, Series A no 117, pp65–66, §§74–75 and 78; the Poiss v Austria
judgment of April 23 1987, Series A no 117, p108,§§64–65, and p109, §68; the Allan
Jacobsson v Sweden judgment of October 25 1989, Series A no 163,
p17, §57, and p19, §63. It is not for the court to substitute its own view of
what would be the best policy in the planning sphere or the most appropriate
individual measure in planning case: see, mutatis
Series A no 28, p23, §49. By reason of their direct and continuous contact with
the vital forces of their countries, the national authorities are in principle
better placed than an international court to evaluate local needs and
conditions. In so far as the exercise of discretion involving a multitude of
local factors is inherent in the choice and implementation of planning
policies, the national authorities in principle enjoy a wide margin of
appreciation.
The court
cannot ignore, however, that in the instant case the interests of the community
are to be balanced against the applicant’s right to respect for her ‘home’, a
right which is pertinent to her and her children’s personal security and well
being: see the above mentioned Gillow judgment, p22, §55. The importance
of that right for the applicant and her family must also be taken into account
in determining the scope of the margin of appreciation allowed to the
respondent state.
Whenever
discretion capable of interfering with the enjoyment of a Convention right such
as the one at issue in the present case is conferred on national authorities,
the procedural safeguards available to the individual will be especially
material in determining whether the respondent state has, when fixing the
regulatory framework, remained within its margin of appreciation. Indeed it is
settled case law that, while article 8 contains no explicit procedural
requirements, the decision-making process leading to measures of interference
must be fair and such as to afford due respect to the interests safeguarded to the
individual by article 8: see the McMichael v United Kingdom
judgment of February 24 1995, Series A no 307–B, p55, §87.
The court’s
task is to determine, on the basis of the above principles, whether the reasons
relied on to justify the interference in question are relevant and sufficient
under article 8 §2.
(b)
Application of the above principles
The applicant
complained about the rejection of her appeal against the enforcement notice.
The law
governing the decision-making process leading to the contested decision
entitled the applicant to appeal to the Secretary of State on the ground, inter
alia, that planning permission ought to be granted. Moreover, the appeal
procedure comprised an assessment by a qualified independent expert, the
inspector, to whom the applicant was entitled to make representations. The
court is satisfied that the procedural safeguards provided for in the
regulatory framework were therefore such as to afford due respect to the
applicant’s interests under article 8.
Subsequent
judicial review by the High Court was also available, notably in so far as the
applicant felt that the inspector (or the Secretary of State) had not taken
into account relevant considerations or had based the contested decision on
irrelevant considerations. In the event, the applicant declined to appeal to
the High Court on the advice of counsel that such an appeal was bound to fail.
In the instant
case, an investigation was carried out by the inspector, who actually saw the
land for herself and considered written
conformity with government policy, as set out in Circulars 38/77 and 57–78, the
special needs of the applicant as a gypsy following a traditional lifestyle
were taken into account. The inspector and later the Secretary of State had
regard to the shortage of gypsy caravan sites in the area and weighed the
applicant’s interest in being allowed to continue living on her land in
caravans against the general interest of conforming to planning policy. They
found the latter interest to have greater weight given the particular
circumstances pertaining to the area in question.
Thus, in her
report the inspector stated:
… [the
applicant’s caravan site] extends development further from the road than that
permitted. It thus intrudes into the open countryside, contrary to the aim of
the Structure Plan to protect the countryside from all but essential
development.
and:
It is … clear
in my mind that a need exists for more authorised spaces … Nevertheless, I
consider it important to keep concentrations of sites for gypsies small,
because in this way they are more readily accepted by the local community …
[T]he concentration of gypsy sites in Willingham has reached the desirable
maximum and I do not consider that the overall need for sites should, in this
case, outweigh the planning objections.
The Secretary
of State’s reasoning in his decision included the following:
The decisive
issue in regard to the planning merits of your appeals is considered to be whether
the undisputed need for additional gypsies’ caravan site provision, in the
administrative areas of the District Council, and of the County Council, is so
pressing that it should be permitted to override the objections on planning
policy and highway safety grounds to the retention of the use of the appeal
site as a residential caravan site for gypsies. On this approach, the view is
taken that the objections to the continued use of the appeal site as a
residential gypsy caravan site are so strong, on planning policy and highway
safety grounds, that a grant of planning permission could not be justified,
either on a temporary or personal basis. In reaching this conclusion, full
consideration has been given to policy advice in the Department’s Circular 28/77,
giving guidance to Councils on the need to provide adequate accommodation in
the form of caravan sites, for gypsies residing in or resorting to their area.
The applicant
was offered the opportunity, first in February 1992 and again in January 1994,
to apply for a pitch on the official caravan site situated about 700m from the
land which she currently occupies. Evidence has been adduced which tends to
show that the alternative accommodation available at this location was not as
satisfactory as the dwelling which she had established in contravention of the
legal requirements. However, article 8 does not necessarily go so far as to
allow
interest.
It is also
true that subsequently, in her report of July 1995, the second inspector found
that the applicant’s caravans could have been adequately screened from view by
planting hedges; this would have hidden them from view but, so the inspector
concluded, would not have reduced their intrusion into open countryside in a
way which national and local planning policy sought to prevent.
After the
refusal of planning permission the applicant was fined relatively small sums
for failing to remove her caravans. To date she has not been forcibly evicted
from her land but has continued to reside there.
In the light
of the foregoing, the court considers that proper regard was had to the
applicant’s predicament both under the terms of the regulatory framework, which
contained adequate procedural safeguards protecting her interest under article
8, and by the responsible planning authorities when exercising their discretion
in relation to the particular circumstances of her case. The latter authorities
arrived at the contested decision after weighing in the balance the various
competing interests at issue. As pointed out above, it is not the court’s task
to sit in appeal on the merits of that decision. Although facts were adduced
arguing in favour of another outcome at national level, the court is satisfied
that the reasons relied on by the responsible planning authorities were
relevant and sufficient, for the purposes of article 8, to justify the
resultant interference with the exercise by the applicant of her right to
respect for her home. In particular, the means employed to achieve the
legitimate aims pursued cannot be regarded as disproportionate. In sum, the
court does not find that in the present case the national authorities exceeded
their margin of appreciation.
(c)
Conclusion
In conclusion,
there has been no violation of article 8.
III.
Alleged violation of article 14 of the Convention taken together with article 8
The applicant
claimed to be the victim of discrimination on the ground of her gypsy status,
contrary to article 14 of the Convention taken together with article 8. Article
14 of the Convention provides:
The enjoyment
of the rights and freedoms set forth in the Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a
national minority, property, birth or other status.
In her
contention, both the 1968 Act and the 1994 Criminal Justice and Public Order
Act prevented gypsies from pursuing their traditional lifestyle by making it
illegal for them to locate their caravans on unoccupied land.
The government
denied that the applicant had been the victim of any difference of treatment.
The Commission
confined itself to noting that she had never been
The court has
already found that it cannot consider any of the applicant’s claims based on
the 1968 Caravan Sites Act or the 1994 Criminal Justice and Public Order Act.
More
generally, it does not appear that the applicant was at any time penalised or
subjected to any detrimental treatment for attempting to follow a traditional
gypsy lifestyle. In fact, it appears that the relevant national policy was
aimed at enabling gypsies to cater for their own needs.
That being so,
the applicant cannot claim to have been the victim of discrimination contrary
to article 14 taken together with article 8. Accordingly, there has been no
violation under this head.
For these
reasons the court
1. Holds,
unanimously, that article 8 of the Convention is applicable in the present
case;
2. Holds,
by six votes to three, that there has been no violation of article 8 of the
Convention;
3. Holds,
by eight votes to one, that there has been no violation of article 14 of the
Convention taken together with article 8.
Done in
English and in French, and delivered at a public hearing in the Human Rights
Building, Strasbourg, on September 25 1996.
Herbert PETZOLD
Registrar
In accordance
with article 51 §2 of the Convention and r 53 §2 of Rules of Court A, the
following dissenting opinions are annexed to this judgment:
(a) partly
dissenting opinion of Mr Repik;
(b) partly
dissenting opinion of Mr Lohmus;
(c) dissenting
opinion of Mr Pettiti.
JUDGE REPIK: I voted with the majority in favour of finding that article 8 was
applicable in this case and that there had been no violation of article 14.
However, I regret that I am unable to agree with the majority finding that
there has been no violation of article 8. It is with the majority’s finding
that the interference in issue was necessary in a democratic society that I
disagree.
The
observations which I make in this partly dissenting opinion are strictly
limited to the instant case. I have no intention of questioning the United
Kingdom’s policy towards the gypsy minority or that minority’s position, which
seems to be incomparably more favourable than that in many other states, in
particular in certain new member states of the Council of Europe. However, it
must be borne in mind that this is the first case before the court concerning
the right of a member of the gypsy minority; I am concerned about how the
court’s first judgment on this subject will be interpreted and how it will be
received by the gypsy minority.
The concept of
necessity implies a pressing social need; in particular, the measure taken must
be proportionate to the legitimate aim pursued. It
pursued and the right concerned, regard being had to the latter’s importance
and to the seriousness of the infringement. All that is well known and has been
reiterated by the court on a number of occasions in its case law: see, in
particular, the following judgments: Gillow v United Kingdom,
November 24 1986, Series A no 109, p22, §55; Olsson v Sweden (no 1), March 24 1988, Series A no
130, p32, §67; Berrehab v Netherlands, June 21 1988, Series A no
138, p16, §29).
In the present
case the national authorities did not properly assess whether the aim pursued
was proportionate to the applicant’s right to respect for her home and to
the seriousness of the infringement of that right. At no stage during the
domestic proceedings was the problem before the authorities considered in terms
of a right of the applicant protected by the Convention, for the government
denied throughout that a right to respect for the home was in issue and
therefore that there had been any interference with that right. The applicant’s
interests, confronted with the requirements of the protection of the
countryside, were only taken into account in abstract, general terms, such as
‘the undisputed need for additional gypsies’ caravan site provision’ or ‘the
applicant’s gypsy status’. There was never any mention of the applicant’s right
to respect for her home or of the importance of that right to her given her
financial and family situation. Nor was any account taken of the possible
consequences for the applicant and her children were she to be evicted from her
land.
In these
circumstances the court, in order to fulfil its supervisory role, ought itself
to have considered whether the interference was proportionate to the right in
issue and to its importance to the applicant, all the more so as where a
fundamental right of a member of a minority is concerned, especially a minority
as vulnerable as the gypsies, the court has an obligation to subject any such
interference to particularly close scrutiny. In my opinion, the court has not
fully performed its duty as it has not taken into account all the relevant matters
adduced by the Commission and was too hasty in invoking the margin of
appreciation left to the state.
Respect for
planning policy, in particular protection of the countryside, has been placed
on one side of the scales. The court has not taken into account that the weight
of that interest is considerably reduced by the fact, reported by the
Commission, that the applicant did not park her caravans either on land under
special protection or in unspoilt open countryside. There are in fact already a
number of buildings on neighbouring land and the applicant’s caravans could
have been adequately screened from view by planting hedges. In any event, the
fact that the applicant’s caravans were parked there there did not impair the
rural, open character of the countryside any more than it had been impaired
previously.
Much
importance was attached to the fact that the applicant could have moved to a
different site. The Commission considered that it was not reasonably open to
the applicant to move to a private site and that the official Meadow Drove site
was not suitable for her. As regards the possibility of moving to Meadow Drove,
the court found that from the applicant’s point of view the question was merely
one of individual
protected by article 8. The court underestimates the cogency of the arguments
advanced by the Commission, which reported in detail on the condition of the
Meadow Drove site and the numerous incidents which have occurred there. The
safety of the applicant’s family is not guaranteed there and it is an
unsuitable place for bringing up her children. The applicant did not,
therefore, refuse to move there out of sheer capriciousness.
Moreover, that
argument cannot apply to the measures taken before 1992, which were the matters
primarily complained of in the application lodged with the Commission on
February 7 1992, as the Meadow Drove site was only opened in November 1992.
While the
applicant wishes to find a safe and stable place to set up home, she also
wishes to retain the possibility of travelling during school holidays — a
legitimate objective given the traditional way of life and culture of the gypsy
minority.1 However, she would not be sure of finding a vacant pitch
on the official site on returning from her travels.
1 Travelling is a need that is deeply rooted in gypsy psychology.
‘The traveller who loses the possibility, and the hope, of travelling on, loses
with it his very reason for living. N Extract from ‘Roma Gypsies and
Travellers’ by Jean-Pierre Liégeois, Council of Europe Press, Strasbourg,
(1994), p79.
If the
applicant were obliged to leave her land, she would be exposed to the constant
worry of having to find a place where she could lawfully stay, her children’s
education would be jeopardised and so on: see the precarious situation of
travelling gypsies described in the Cripps report,
cited in the judgment.
Last, as
regards the extent of the interference, the court only takes into account the
relatively small amount of the fines imposed on the applicant for failing to
remove her caravans not her overall position; she still faces prosecution,
further fines and eviction from her land, with all that entails in the way of
insecurity and disruption of her family life.
To my mind,
the fair balance between the applicant’s rights and the interests of society
has not been struck and the interference has therefore not been justified under
article 8 §2. That does not mean to say that gypsies, as a group, are exempt
from lawful constraints under town and country planning law. The question
whether a fair balance has been struck between the relevant opposing interests
depends on the particular facts of each case.
In sum, there
has been a violation of article 8 of the convention.
JUDGE
LOHMUS: Unlike the majority of the court I am of
the opinion that in the present case article 8 of the Convention has been
violated.
The majority
of the court did not find that the national authorities exceeded their margin
of appreciation in the present case.
My opinion
coincides with the conclusions of the Commission. Living in a caravan and
travelling are vital parts of gypsies’ cultural heritage and
the correct balance has been struck between the rights of a gypsy family and
the general interest of the community. The Council of Europe Committee of
Ministers Resolution (75) 13 noted the need to safeguard the cultural heritage
and identity of nomads. It has been stated before the court that the applicant
as a gypsy has the same rights and duties as all the other members of the
community. I think that this is an over-simplification of the question of
minority rights. It may not be enough to prevent discrimination so that members
of minority groups receive equal treatment under the law. In order to establish
equality in fact, different treatment may be necessary to preserve their
special cultural heritage.
Even allowing the
existence of genuine and substantial planning objections to the continuing
occupation of the land, the factors weighing in favour of the public interest
in planning controls are of a slight and general nature.
Mrs Buckley
lives with her three children in caravans parked on land owned by her since
1988. In 1994 the inspector described the applicant’s site as ‘clean, spacious
and well-ordered’. By contrast, the council-run site on Meadow Drove was
‘isolated, exposed and somewhat uncared for’. Although alternative
accommodation is available on the official site, it appears doubtful whether it
is suitable for Mrs Buckley’s needs.
JUDGE
PETTITI: I have not voted with the majority of the
court as I consider that there has been a violation of article 8 and of article
14 in this case.
Before
analysing the reasons that have led me to this opinion, I have a general
observation to make. This is the first time that a problem concerning gypsy
communities and ‘travellers’ has been referred to the European Court. Europe
has a special responsibility towards gypsies. During the second world war
states concealed the genocide suffered by gypsies. After the second world war
this direct or indirect concealment continued (even with regard to
compensation). Throughout Europe, and in member states of the Council of
Europe, the gypsy minority have been subject to discrimination, and rejection
and exclusion measures have been taken against them. There has been a refusal
to recognise gypsy culture and the gypsy way of life. In eastern Europe the
return to the democracy has not helped them. Can the European Convention
provide a remedy for this situation? The answer must be yes, since the purpose
of the Convention is to impose a positive obligation on the states to ensure
that fundamental rights are guaranteed without discrimination. Did the
present case afford the opportunity for a positive application of the
Convention in this sphere?
That is the
question which the court had to answer in the Buckley case.
In order to
conclude that there has been no violation of article 8, the court partly adopts
an initial analysis of the facts similar to the Commission’s, that is to say the
findings of fact set out in particular in paras 76 to 78 of its report,
although the court makes a number of changes to the wording. However, the court
rejects the reasoning in paras 79 to 84 of the report, which led the Commission
to express the opinion that there
the report cited at p13D ante than to the one cited at p15B ante,
which is equally substantiated.
The Strasbourg
institutions’ difficulty in identifying this type of problem is that the
deliberate superimposition and accumulation of administrative rules (each of
which would be acceptable taken singly) result, first, in its being totally
impossible for a gypsy family to make suitable arrangements for its accommodation,
social life and the integration of its children at school and, second, in
different government departments combining measures relating to town planning,
nature conservation, the viability of access roads, planning permission
requirements, road safety and public health that, in the instant case, mean the
Buckley family are caught in a ‘vicious circle’.
In attempting
to comply with the disproportionate requirements of an authority or a rule, a
family runs the risk of contravening other rules. Such unreasonable
combinations of measures are in fact only employed against gypsy families to
prevent them living in certain areas.
The British
Government denied that their policy was discriminatory. Yet a number of legal
provisions expressly refer to gypsies in order to restrict their rights by
means of administrative rules. However, the only acceptable discrimination
under article 14 is positive discrimination, which implies that in order to
achieve equality of rights through equality of opportunity it is necessary in
certain cases to grant additional rights to the deprived members of the
population such as the underclasses of developed countries, and the gypsy and
Jenische1 communities.
1 A nomadic community in Alsace.
The
discrimination results equally from the fact that if in similar circumstances a
British citizen who was not a gypsy wished to live on his land in a caravan,
the authorities would not raise any difficulties, even if they considered his
conduct to be unorthodox.
If the Buckley
case were transposed to a family of ecologists or adherents of a religion
instead of gypsies, the harassment to which Mrs Buckley was subjected would not
have occurred; even supposing that it had, domestic remedies or an application
under the European Convention of Human Rights would have allowed such an
interference with family life to be brought to an end, which was not so under
the domestic law in the case of gypsy families.
If the facts
of the case are analysed, not by combining the different areas of law and legal
provisions concerned, but taking them individually under the Convention, the
Commission’s report and the factors relating to article 8 and protocol no 1
lead to the following conclusions:
(a) with
regard to the free movement of persons and the individual’s freedom of
establishment with his family, the obstacles placed in the way of gypsies go
beyond the general law. Forcing them to live in a designated area is equivalent
to placing them or assigning them to a territory, all the more so
where the area proves to be unhealthy or not adapted to the children’s
schooling needs.
(b) with
regard to the right to family property, there is a breach of the right
to family life — in respect of which reference could have been made to the use
of property within the meaning of protocol no 1 — on account of the systematic
refusal to convert retrospective planning permission into permanent permission
to park the caravans. The fact that there had been an exchange of occupation of
the land by the families (two sisters) could not justify such a refusal.
(c) with
regard to the minimum right to accommodation, one of the constituents of
article 8, where the accommodation is a substantial and essential part of
family life, the authority’s requirement that an owner move because of the
concentration of gypsy sites in the area amounts to an unacceptable or
disproportionate interference, since the owner is not liable for the acts or
omissions of others;
(d) with
regard to the impairment of the ‘rural and open quality of the landscape’
and environment protection which, in the government’s submission, would justify
an interference even under article 8, the fact that the authorities rely on
this argument only against gypsy families also amounts to a disproportionate
interference for, in the hierarchy of the state’s positive obligations, the
survival of families must come before bucolic or aesthetic concerns.
The court was
asked to consider this case under articles 8 and 14 of the Convention only, but
in this sphere and in situations similar to the Buckley family’s the aspects of
discrimination and breach of the right to accommodation and a home, inasmuch as
they necessarily have an impact on the right to respect for family life, are
indissociable from such respect.
In my view,
therefore, the court is wrong to restrict the scope of its review and analysis.
The
government’s reliance on the lawful aim pursued was not justified, because the
grounds of public safety, economic well being of the country and protection of
health and of the rights of others were not established and should not
therefore have been accepted.
The question
of the sites was an important consideration. The government had, moreover,
recognised that gypsies following a traditional way of life required special
consideration. However, as the Commission noted, a proper balance had not been
achieved although the Buckley family had been living on the site without
incident since 1988. The official Meadow Drove site was quite unsuitable. The capacity
of other official sites was insufficient and no other privately owned site
offering acceptable conditions was available. Other private sites were likewise
unavailable.
On the other
hand, Mrs Buckley’s site was properly maintained. In her report of July 1995
the second inspector found that the objection relating to protection of the
site could have been overcome by planting hedges, but the government concluded
that that ‘would not have reduced [the] intrusion into [the] countryside’.
The court,
which rightly recalls that it cannot act as an appeal court, none the less
states its conviction that the authority’s grounds were
not be relevant under the Convention as the government’s approach is to give
priority to protection of the landscape over respect for family life. The
ranking of fundamental rights under article 8 and protocol no 1 is thereby
reversed and, moreover, the traditional aptitude for travel is impeded. In addition,
in the present case, there was no effective procedural safeguard to enable a
remedy for the administrative harassment to be provided under article 8: cf
the McMichael v United Kingdom judgment of February 24 1995,
Series A no 307–B, p57, §§91 and 92.
With regard to
the reasons for the interference, the court relies on the inspector’s report
from which it quotes extracts that are favourable to the government’s case; but
there are other passages in the report that support the applicants’ case. It
suffices to refer to the passages from the reports quoted in the applicant’s
memorial to see that the passages relied on were not necessarily the most
relevant ones.
Reasons are
given in the judgment which would have been justified under protocol no 1, but
which, in my opinion, are not valid because what is at stake is family life,
not planning considerations.
The demands of
family life have consequently not been taken into consideration. The following
passage quoted from the inspector’s report is revealing: ‘… in this way they
are more readily accepted by the local community’ (sic)!!
It is not in
keeping with the spirit of article 8 to subordinate respect for the applicant’s
right to family life, as the government maintain, to the greater convenience of
the local community and its greater willingness to accept others, or to give
the applicant’s special needs lower priority than the objectives of government
policy. The Bryan and Sporrong and Lönnroth judgments were
concerned with different situations in international law, in particular
protocol no 1. The court afforded greater protection of the home and
accommodation in the Niemietz and Gillow judgments, situations in
which there was in fact less risk to family life. Essentially, the Convention
ought, in the case of gypsy families, to inspire the greatest possible respect
for family life, transcending planning considerations.
With regard to
article 14 taken together with article 8, the court holds that there has been
no violation because it considers that the 1968 and 1994 Acts had not been
applied to the applicant’s detriment. However, in the general context of
article 14 and article 8 all of the applicant’s complaints relate to the effect
of the de jure and de facto measures, which, in being
discriminatory prevented respect for family life.
With regard to
article 14 of the Convention, relied on here but also included in the
assessment of the case under article 8, section 16 of the Caravan Sites Act
1968 expressly refers to gypsies, thereby discriminating in its treatment of
them compared with other nationals.
The apparent
aim of the British legislation is to promote acceptance of gypsies in towns and
villages (section 6 of the 1968 Act) but the use made of this section has
achieved the opposite result. The same occurs in other Council of Europe states
where the family life of gypsy groups is frustrated by various administrative
constraints — for instance, allowing
caravan sites for travellers does not meet the real needs. It is this which has
given rise to the numerous proposals made by the international movement ATD Fourth
World in Europe, a non-governmental organisation consulted by states.
Mrs Buckley’s
position is comparable to that of this category of deprived groups (travellers,
gypsies and Jenische).
The paragraphs
from the inspectors’ reports on which the government relied are contradicted by
other paragraphs from the reports cited by the Commission and the applicants.
To my mind, it is therefore not possible to conclude that the interference was
justified.
The Commission
rightly found that it was impossible to live on a private site (other than the
one originally purchased by Mrs Buckley or her sister). It was similarly
impossible to live on waste ground. The Commission recognised that the proposal
that they live on the neighbouring official site came up against the problems
of the various incidents that had occurred there, which would give rise to a
situation incompatible with family life within the meaning of article 8 and
lead to discriminatory treatment affecting only travellers.
Thus either
there are too many administrative obstacles or else the alternative proposals
are inadequate, and this considerably destabilises the family and makes the
children’s future unsettled. The pretexts of planning controls and road safety
appear to be unfounded or derisory in comparison with the major problem of
preserving family life.
Admittedly,
only articles 8 and 14 are in issue, but the failure to comply with those
provisions in this case could, in similar cases, be considered also under
article 1 of protocol no 1. When article 8 is being interpreted, the
discriminatory aspects serve indirectly to show that the claimed justification
for the interference is unfounded.
In any event,
the findings taken as a whole should not, in my view, allow the harassment and
alleged safety measures directed at the Buckley family to be considered
proportionate to the aim pursued, and necessary in a democratic society such as
the Council of Europe has the role of consolidating through the guarantees
provided by articles 8 and 14 taken individually or together.
The court uses
the notion of margin of appreciation in formulations which appear to me to
extend that concept too far when compared with the court’s previous case law
and without laying down any precise criteria. The practice established under
the court’s case law has been to restrict the states’ margin of appreciation by
making it subject to review by the court by reference to the criteria which the
court has laid down by virtue of its autonomous power to interpret the
Convention. The comprehensive wording adopted also seems to me to be different
from that used in the court’s judgments concerning the application of protocol
no 1.
In the present
case, moreover, there was no necessity for the measures in a democratic state
(on the contrary) and the interference was, at the very least,
disproportionate.
International
organisations have been very attentive to the situation of
1995/15).
The European
Union and the Council of Europe have examined the problem on a number of
occasions, while noting the indifference of both west and east European states.
Many studies have been carried out which come to the same conclusion (cf
Droit du quart monde, Revue Editions Centre ATD nos 1 to 9).
In my view,
the European Court had, in the Buckley case, an opportunity to produce, in the
spirit of the European Convention, a critique of national law and practice with
regard to gypsies and travellers in the United Kingdom that would have been
transposable to the rest of Europe, and thereby partly compensate for the
injustices they suffer.