Přehled
Rozhodnutí
THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 40435/98
by Eileen SMITH
against the United Kingdom
The European Court of Human Rights (Third Section), sitting on 30 January 2001 as a Chamber composed of
Mr J.-P. Costa, President,
Mr W. Fuhrmann,
Mr P. Kūris,
Mrs F. Tulkens,
Mr K. Jungwiert,
Sir Nicolas Bratza,
Mr K. Traja, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 20 February 1998 and registered on 25 March 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having deliberated, decides as follows:
THE FACTS
The applicant is a British national, born in 1935 and living in South Bedfordshire. She is represented before the Court by Ms White, a solicitor practising in Berkhamsted.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, a gypsy born in Luton, started travelling at the age of 21 years when she married a gypsy who travelled. After the marriage ended, the applicant married John Smith, a romany gypsy who had travelled with his parents widely. During their travelling together, they and their three children were moved on by the police many times for parking their caravan on the road side. They were frequently moved on week after week and escorted by the police outside the county.
In the 1970’s, the applicant and her family found a pitch on an official site at Stopsley, Luton. Her children and their caravan were attacked by other gypsies, and there were quarrels between the applicant and other gypsy parents. She and her husband decided to move off the pitch. After some years of travelling and making short term stays on gypsy sites, the applicant moved onto a private gypsy site in Wellingborough, Northamptonshire, where they stayed for six years. After this period, a new gypsy family moved onto the adjacent pitch, who were drunkards and kept the applicant and her family awake with brawls and quarrels. A neighbouring caravan was set on fire and another caravan vandalised. The applicant’s husband grew very depressed and in 1989 he developed a heart condition requiring quiet and rest.
After many years looking for a piece of land on which to settle, they found an affordable site at Half Moon Lane, Pepperstock, Bedfordshire. This was close to the applicant’s family and in a quiet lane full of mobile homes and adjacent to an official gypsy site. They purchased the site in summer 1996. A planning application was put in on 15 August 1996 for two mobile homes and two tourers.
The application was refused by South Bedfordshire District Council (‘the Council’) on 11 October 1996. An enforcement notice was issued on 12 December 1996. The applicant and her husband’s appeal against the refusal of planning permission and the enforcement notice was heard by a planning inspector on 14 and 15 October 1997.
In his decision letter of 22 December 1997, the inspector held inter alia:
“7. The site is located within the predominantly open countryside to the south of the settlement of Slip End… It is irregular in shape and approximately 0.251 hectares in extent. It adjoins a former chapel to the east, which is now used as a day care centre, and on its western side it adjoins a residential property,… and an open field. Opposite is a purpose built local authority gypsy site, Timberlands, and to the south east is the Half Moon public house. It falls within the South Bedfordshire Green Belt. …
12. The site is clearly visible from both Half Moon Lane and Front Street…
13. You claim that the site is well-screened and does not intrude into the open countryside. To my mind, the number of caravans, structures, vehicles and trailers, etc. effectively urbanises the site and results in a material loss of openness. The use detracts from the visual amenity of the site. The land north of Half Moon Lane is largely open. Development of the site intrudes into the open belt of land, south of Slip End, and consolidates the sporadic development in Pepperstock. It contributes to the coalescence of Pepperstock and Slip End. It involves an encroachment of residential use into the open countryside contrary to one of the main purposes of the Green Belt.
15. The site has a 40m boundary with a private dwelling which is positioned close to the boundary. I consider that the occupants of the dwelling have experienced a material loss of amenity due to the loss of openness and increased noise and disturbance from the intensified activity on the site. ...There is evidence of on site business activities. The appeal site consolidates gypsy site provision in the locality and extends the use on both sides of Half Moon Lane. The change of use results in an ad hoc extension to the consciously located official gypsy site opposite. It has resulted in loss of natural features and does not complement and harmonise with the local surroundings contrary to policy BE11. In my view the use diminishes the rural quality of the landscape in this area.
19. …There are two purpose built gypsy sites in the district and three authorised sites. The Council claims that statistical evidence does not demonstrate a continuing or compelling need for further provision in the district, either permanent, temporary or transit. I note that a Designation Order for the district was made by the Secretary of State in 1982 as an area to which section 10 of the Caravan Sites Act 1968 applied. On the basis of official counts taken twice a year, the level of need in the district in recent years has been very low…
20. The Timberlands site opposite has recently been upgraded and accommodates twelve families. The other Council site, Eaton Bray, accommodates 29 families. There are three other local authority sites within the County. The current waiting list for Timberlands is three but there are eight vacancies at the Kempston Hardwick site. <The applicant’s husband> voluntarily moved to the site from an official gypsy site at Wellingborough, Northamptonshire. He has no local connections in Slip End or Pepperstock or particular links with South Bedfordshire. …
22. <The applicant’s husband> has a heart condition and is on pills for life, he had gout and a back problem… I appreciate that he needs a more peaceful and settled existence. Nevertheless, the site is not within easy reach of medical and pharmacy services. <He> is able to undertake some light work, such as erecting fencing and is able to drive; I am not persuaded that his medical condition amounts to such very special circumstances which would justify a breach of Green Belt policy.
23. <The applicant’s husband> approached other travellers to find a site and made informal inquiries about vacancies on the Timberlands site. His preference to live with his son complicates availability. He did not consult with the Council before he bought the site... the evidence indicates that the Council made every effort, both in writing and by personal visits, to inform <him> that planning permission was needed and that approval would be unlikely due to the site’s Green Belt status. …
25. The objections to the development in the Green Belt are serious ones which cannot be overcome by the imposition of planning conditions such as landscaping… The public interest can only be safeguarded by the cessation of the use...”
The Inspector granted a compliance period of one year in recognition that it might take some considerable time for a vacancy to be found on an appropriate site elsewhere.
Counsel advised that there was no error of law on which the applicant and her husband could appeal to the High Court. He did consider that the inspector had made an errors of fact, in particular, in setting out the local council criteria for gypsy sites. However, this did not assist the applicant as it was clear from the rest of the decision that the inspector would have found that the relevant criteria had not been met and would have reached the same result.
In 1995, the Secretary of State for the Environment approved the local plan for South Bedfordshire. This identified specific sites for 1,140 dwellings, planned to identify a further 8,500 dwelling sites and failed to identify a single site for gypsies. The local authority had zoned all rural land as Green Belt, excluding 80 hectares of quarries unsuitable for human habitation. Residential and agricultural land in the area was valued at between 300,000 and 500,000 pounds sterling (GBP) per acre.
In or about August 1999, the applicant’s husband was convicted of being in breach of an enforcement notice and fined 1000 GBP. He lodged a further application for planning permission which was dismissed after a public enquiry at a date unspecified.
B. Relevant domestic law and practice
1. 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.
Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act).
2. Green Belt policy
The purpose of Green Belts and the operation of the policy to protect them is set out in the national policy document PPG 2 (January 1995).
“1.1. The Government attaches great importance to Green Belts, which have been an essential element of planning policy for some four decades. …
1.4. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development.
1.5. There are five purposes in Green Belts:
– to check the unrestricted sprawl of large built-up areas;
– to prevent neighbouring towns from merging into one another;
– to assist in safeguarding the countryside from encroachment;
– to preserve the setting and special character of historic towns; and
– to assist in urban regeneration by encouraging the recycling of derelict and other urban land. …
2.1. The essential characteristic of Green Belts is their permanence. Their protection must be maintained as far as can be seen ahead. …
3.1. The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. …
3.2. Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.”
COMPLAINTS
The applicant complains under Article 8 that as a gypsy she is entitled to live with her husband in a caravan according to the tradition and culture of the gypsy race. However, due to planning regulations and the shortage of sites built for gypsies, there was no possibility of the applicant living this lifestyle without buying her own land. Moreover, she was denied the right to live on that land due to the decisions of the local authority and the Secretary of State. This also discloses a violation of Article 1 of Protocol No. 1 of the Convention as she has been denied the right live peacefully on her own land despite the lack of any alternative.
The applicant also complains under Article 6 that the decision refusing planning permission was made by an Inspector appointed by the Secretary of State. The applicant had no right of appeal against this decision even though he made a serious mistake of fact.
THE LAW
1. The applicant complains that the refusal of planning permission to station and live in a caravan on her land and the enforcement measures implemented in respect of her occupation of her land disclose a violation of Article 8 of the Convention, which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Court recalls that it has already examined complaints about the planning and enforcement measures imposed on a gypsy family who occupied their own land without planning permission in the case of Buckley v. the United Kingdom (judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1271). While the Court is not formally bound to follow any of its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases. Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see, amongst other authorities, the Cossey v. the United Kingdom judgment of 27 September 1990, Series A no. 184, p. 14, § 35). In the more recent cases decided before the Grand Chamber, the Court was not persuaded that any emerging consensus concerning the special needs of minority groups was sufficiently concrete for it to derive any guidance as to the conduct or standards which Contracting States consider desirable in any particular situation. This reinforced the Court’s view that the complexity and sensitivity of the issues involved in policies balancing the interests of the general population, in particular with regard to environmental protection and the interests of a minority with possibly conflicting requirements, rendered the Court’s role a strictly supervisory one (see e.g. Chapman v. the United Kingdom [GC], no. 27238/95, 18.01.01, ECHR 2001, §§ 93-94).
Turning to the present application, the Court considers that the applicant’s occupation of her caravan is an integral part of her ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. Measures which affect the applicant’s stationing of her caravans have therefore a wider impact than on the right to respect for home. They also affect her ability to maintain her identity as a gypsy and to lead her private and family life in accordance with that tradition. The applicant’s right to respect for her private life, family life and home are therefore in issue in the present case (see Chapman v. the United Kingdom [GC], cited above §§ 73-74).
Having regard to the facts of this case, it finds that the decisions of the planning authorities refusing to allow the applicant to remain on her land in a caravan and the measures of enforcement taken in respect of her continued occupation constituted an interference with her right to respect for her private life, family life and home within the meaning of Article 8 § 1 of the Convention. It therefore examines below whether this interference was justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing a legitimate aim or aims and as being “necessary in a democratic society” in pursuit of that aim or aims.
It was not contested by the applicant that the measures to which she was subjected were “in accordance with the law”. It is also apparent that the reasons given for the interferences in the planning procedures in this case were expressed primarily in terms of environmental policy. In these circumstances, the Court finds that the measures pursued the legitimate aim of protecting the “rights of others” through preservation of the environment.
As regards the necessity of the measures, an interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, amongst other authorities, Lustig-Prean and Beckett v. the United Kingdom, [Section 3], nos. 31417/96 and 32377/96, 27.09.99, ECHR 1999, §§ 80-81).
In this regard, a margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions (see the Dudgeon v. the United Kingdom judgment of 22 October 1982, Series A no. 45, p. 21, § 52; the Gillow v. the United Kingdom judgment of 24 November 1986, Series A no. 109, p. 22, § 55). Hence, as the Court observed in Buckley v. the United Kingdom (judgment of 25 September 1996, Reports of Decisions and Judgments 1996-IV, p. 1292, § 75 in fine), “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”, although it remains open to the Court to conclude that there has been a manifest error of appreciation by the national authorities. In these circumstances, the procedural safeguards available to the individual applicant will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, it must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see the Buckley judgment, cited above, p. 1292-93, §§ 76-77).
Furthermore, although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of a society does not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckley judgment, the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases (loc. cit., pp. 1292-95, §§ 76, 80 and 84).
Turning to the facts of the present case, the Court notes the seriousness of what is at stake for this applicant. She followed an itinerant lifestyle for many years, stopping on temporary or unofficial sites and being frequently moved on. She took up residence on her own land by way of finding a long-term and secure place to station her caravan. Planning permission has however been refused for this and she has been required to leave. It would appear that the applicant does not in fact wish to pursue an itinerant lifestyle. She was resident on the site from about 1996 to date. Thus the present case is not concerned as such with traditional itinerant gypsy life styles.
The Court observes that the applicant moved onto her land in her caravan without obtaining the prior planning permission which she knew was necessary to render that occupation lawful. In accordance with the applicable procedures, the applicant’s appeals against refusal of planning permission and enforcement notices were conducted in a public enquiry by a Planning Inspector, who was a qualified independent expert. The applicant was provided with an opportunity to put before the Inspector any material which she regarded as relevant to her arguments and in particular her personal, financial and other circumstances, her views as to the suitability of alternative sites and the length of time needed to find a suitable alternative site.
The Inspector saw the site for himself and considered the applicant’s representations. As is evidenced by the extension of the time period for compliance in the decision of 22 December 1997, some notice was taken of the points which the applicant advanced.
However, the Inspector noted that the applicant’s occupation of her land urbanised the site and detracted from the visual amenity of the countryside. While he paid regard to her gypsy status and the compassionate health grounds relating to her husband, he observed that there were several local authority sites in the area on which vacancies arose and that the applicant’s husband had only made informal enquiries about vacancies on one of those sites. He concluded that there were accordingly no very special circumstances outweighing the environmental objections to her occupation of the site.
The Inspector’s report showed that there were strong, environmental reasons for the refusal of planning permission and that the applicant’s personal circumstances had been taken into account in the decision-making process. The Court also notes that appeal to the High Court was available in so far as the applicant felt that the Inspector, or Secretary of State, had not taken into account a relevant consideration or had based the contested decision on irrelevant considerations.
Though it was acknowledged in the planning proceedings that it might not be easy for the applicant to find alternative accommodation, sites did exist and the Court is therefore not persuaded that there were no alternatives available to the applicant besides remaining in occupation on land without planning permission in a Green Belt area. As stated in the Buckley case, Article 8 does not necessarily go so far as to allow individuals’ preferences as to their place of residence to override the general interest (judgment cited above, p. 1294, § 81).
In the circumstances, 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 interests under Article 8, and by the responsible planning authorities when exercising their discretion in relation to the particular circumstances of her case. The decisions were reached by those authorities after weighing in the balance the various competing interests. It is not for this Court to sit in appeal on the merits of those decisions, which were based on reasons which were relevant and sufficient, for the purposes of Article 8, to justify the interferences with the exercise of the applicant’s rights.
The humanitarian considerations which might have supported another outcome at national level cannot be used as the basis of a finding by the Court which would be tantamount to exempting the applicant from the implementation of the national planning laws and obliging governments to ensure that every gypsy family has available for its use accommodation appropriate to its needs (see the Chapman v. the United Kingdom case cited above, § 115). Furthermore, the effect of these decisions cannot on the facts of this case be regarded as disproportionate to the legitimate aim being pursued.
The Court accordingly finds that the measures may be regarded as having been necessary in a democratic society for the purpose of protecting the rights of others. This part of the application must therefore be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicant claims that she has been denied the right to live on her land and has therefore suffered a breach of the right to the peaceful enjoyment of her possessions contrary to Article 1 of Protocol No. 1 to the Convention which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Having regard to the reasoning given above under Article 8 of the Convention, the Court finds that any interference with the applicant’s peaceful enjoyment of her property was proportionate and struck a fair balance, in compliance with the requirements of Article 1 of Protocol No. 1 of the Convention. Her complaint is therefore to be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
3. The applicant invoked Article 6 of the Convention, complaining that she had no access to a court to determine the merits of her claims that she should have permission to occupy her land. Article 6 § 1 provides as relevant:
“1. In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …”
The applicant complained in particular that the planning appeals in her case were decided by an Inspector who was appointed by the Secretary of State and could not be regarded as impartial. Nor was it possible to appeal against errors of fact made by an Inspector. The Court observes that a planning inspector cannot indeed be regarded as a court or tribunal in the sense of Article 6 § 1 of the Convention. However, appeals lie from the decisions of such inspectors to the High Court, which is a competent judicial organ. While it is true that appeals are limited to points of law, the Court held in the case of Bryan v. the United Kingdom (judgment of 22 November 1995, Series A no. 335-A, §§ 34-47) that, in the specialised area of town planning law, full review of the facts may not be required by Article 6 of the Convention. In this case, the applicant’s counsel advised that the error of fact made by the Inspector in her case did not in any event affect the overall reasoning.
The Court finds therefore that the scope of review by the High Court, which was available to the applicant after a public procedure before an Inspector, was sufficient in this case to comply with Article 6 § 1. It enabled a decision to be challenged on the basis that it was perverse, irrational, had no basis on the evidence or had been made with reference to irrelevant factors or without regard to relevant factors. This may be regarded as affording adequate judicial control of the administrative decisions in issue.
There has therefore been no appearance of a violation of Article 6 § 1 in this case and this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
S. Dollé J.-P. Costa
Registrar President