PROCEDURE

The case was referred to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”),0 by the European Commission of Human Rights (“the Commission”) on 30 October 1999 and by the United Kingdom of Great Britain and Northern Ireland (“the Government”), on 10 December 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention).

The case originated in an application (no. 24882/94) against the United Kingdom lodged with the Commission under former Article 25 of the Convention by two British nationals, Mr John Beard and Mrs Catherine Beard (“the first applicant” and “the second applicant” respectively), on 14 May 1994.

The applicants alleged that planning and enforcement measures taken against them in respect of their occupation of their land in their caravans violated their right to respect for home, family life and private life contrary to Article 8 of the Convention. They further complained that they were subject to discrimination as gypsies contrary to Article 14 of the Convention.

The Commission declared the application admissible on 4 March 1998. In its report of 25 October 1999 (former Article 31 of the Convention), it expressed the opinion that there had been no violation of Article 8 of the Convention (18 votes to 8) and that there had been no violation of Article 14 of the Convention (18 votes to 8).0

Before the Court, the applicants, who had been granted legal aid, were represented by Mr David Willshaw, a solicitor practising in Honiton. The United Kingdom Government were represented by their Agent, Mr Llewellyn of the Foreign and Commonwealth Office.

On 4 February 2000, the panel of the Grand Chamber determined that the case should be decided by the Grand Chamber (Rule 100 § 1 of the Rules of Court). The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. Sir Nicolas Bratza, the judge elected in respect of the United Kingdom, who had taken part in the Commission's examination of the case, withdrew from sitting in the Grand Chamber (Rule 28). The Government accordingly appointed Lord Justice Schiemann to sit as an ad hoc judge in his place (Article 27 § 2 of the Convention and Rule 29 § 1).

The applicants and the Government each filed a memorial. Third-party comments were also received from European Roma Rights Centre, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 61 § 3).

A hearing took place in public in the Human Rights Building, Strasbourg, on 24 May 2000 (Rule 59 § 2). There appeared before the Court: (a) for the Government Mr H. Llewellyn, Agent, Mr D. Pannick QC, Mr D. Elvin QC, Mr M. Shaw, Counsel, Mr D. Russell, Mr S. Marshall-Camm, Advisers; (b) for the applicants Mr R. Drabble QC, Mr T. Jones, Mr T. Eicke, Mr M.J. Beloff QC, Counsel, Mr D. Willshaw, Solicitor. The Court heard addresses by Mr Drabble and Mr Pannick.

On 29 November 2000, Mr Makarczyk, who was unable to take part in further consideration of the case, was replaced by Mr Bonello (Rules 24 § 5 (b) and 28).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants are gypsies by birth. All their lives, they have moved between official sites and unofficial stopping places, mostly in the Lancashire area.

The applicants regard themselves as being Lancashire folk. The first applicant is a carpet seller and does most of his business in Lancashire. Both their children were born in Lancashire, and at present their daughter lives with them and works nearby. Their son travels independently, but stays with them frequently.

Over the ten years before 1986, the applicants had to move between a number of sites in Lancashire, often staying in unofficial stopping places. As they wanted to set up a family site, in 1986 they bought a piece of land, known as Cinderbarrow Malt Kiln, Yealand Redmayne, Carnforth in Lancashire. The site is 0.365 hectares in area, and is positioned in the countryside between the M6 motorway and the London-Carlisle railway line. When the applicants bought it, they stated that it was generally regarded as being an eyesore. They referred to letters from local residents describing the site as having been used for car breaking and tipping rubbish, being littered and infested with rats. They spent two years cleaning it up and developing it. The Government disputed this assertion, stating that local authority records indicate that it was after the applicants had occupied it that complaints were received about its condition. They stated that the land was previously used for grazing and growing crops.

In August 1991, the applicants moved onto the site and on 17 September 1991 they applied for planning permission to Lancaster City Council (“the Council”) for a small close-knit gypsy family site for six caravans.

On 18 October 1991, they were prosecuted in Lancaster Magistrates' Court for being on the land unlawfully. They were convicted and fined 75 pounds sterling (GBP).

On 11 November 1991, the applicants' planning application was refused, by letter, on the grounds of adverse effect on highway safety and impact on visual amenity. On 17 December 1991, the applicants submitted an appeal to the Secretary of State.

On 18 December 1991, they were served with an enforcement notice requiring them essentially to move the caravans off the land and to reinstate the land to its former condition. They were given 56 days to comply with the latter condition.

On 30 December 1991, the applicants submitted a further appeal against the enforcement notice.

On 9 June 1992, a public local inquiry was held to consider both appeals. These appeals were heard by an Inspector appointed by the Secretary of State for the Environment.

On 9 September 1992, these appeals were dismissed. In his report, the Inspector stated inter alia: “9. Planning policies for the area are contained in the 1990 Lancashire Structure Plan. Policy 6 seeks to limit development of land in the open countryside outside the Green Belt to that needed for the purposes of agriculture and forestry, or other uses appropriate to a rural area. ... Policy 14 refers to Areas of Special Landscape, the appeal site is within such an area. The object is to safeguard such areas from development that is not in keeping with the special character of the landscape and is a of a standard of design appropriate to the area. The site is in an area of open countryside, it is undulating pasture land with a few buildings in the locality and can be seen from a number of public viewpoints, including the canal towpath close at hand, and further afield, from points along Tarn Lane. In my opinion, the appearance of 6 caravans on the site would cause serious harm to the character of the landscape and be in conflict with Policy 14, even allowing for the proximity of the site to Cinderbarrow Cottage. ...

By all accounts the land was overgrown until 1990 or thereabouts; it is not overgrown now but I consider that the harm caused to the character of the area by using the site for stationing 6 caravans for residential purposes materially outweighs any benefits that may have accrued from [the applicant's] cleaning up operation. Hedging can reduce the visual impact of a development, [the first applicant] proposed to plant hedging along 3 of the boundaries and he has already done some of this. The types of hedging which are characteristic of the area would not provide much in the way of screening for many years, [the applicant's] approach is to plant quick growing conifers but I share the Council's view that these are not in keeping with the character of the area.

With regard to highway safety, you suggest that a common sense view be taken. Cinderbarrow Lane is an unclassified road approximately 2 km long, it is narrow for much of its length and contains a number of bends. In many places, 2 cars could not pass. The hedges along the lane obstruct the visibility at bends, alterations in the hedge line along the site would be a help but in my view such alterations would not go far towards improving the overall situation. The land leads to the A6070 at one end where visibility is significantly below the standards recommended in Planning Policy Guidance Note 13. At the other end, access to and from the A6 can be obtained via Tarn Lane, where visibility at the junction is adequate, and directly along Cinderbarrow lane; the visibility of the junction of this land with the main road is significantly below the recommended standards. [The first applicant] says he uses only the Tarn Lane junction, but I consider that others may well use the other junctions either because of convenience or because they do not appreciate the different standards of visibility at the 3 junctions. ...

Cinderbarrow lane and its junctions with the main roads clearly have hazards for traffic. [The first applicant's] use of the appeal site adds to those hazards, in my opinion, because of the increase in the number of traffic movements likely to result from the use and the increased likelihood of vehicles having to be reversed when meeting vehicles coming the other way. I accept that caravans are not likely to be towed onto and off the site on many occasions each year, and if that were the only consideration I would not have regarded the implications for highway safety to be so unacceptable as to warrant a refusal of permission. It is, however, one of a number of drawbacks and I consider that, overall, the highway objection is sustained.

The effect of Section 54(A) of the 1990 Act is that the determination of these appeals shall be made in accordance with the development plan, unless material considerations indicate otherwise. The development plan in this case is the Lancashire Structure Plan and on the basis of the evidence I consider that [the first applicant's] development does not accord with it. Highway safety is a material consideration but it is one, which in my view, weighs against his case. A further material consideration, an important one, namely a special need for accommodation to be provided for gypsies, remains to be considered.

[The first applicant's] gypsy status is not a matter of dispute, nor is the fact that, since April 1987, the Council's district is designated under the provisions of the Caravan Sites Act 1968, ..., as an area where adequate provision has been made for gypsies residing in, or resorting to the area. Circular 28/77 emphasises, at paragraph 23, that the additional power accruing from a designation order should be seen by Local Authorities as a means of ensuring that gypsies use the accommodation available to them rather that as a means of avoiding the need to provide further sites. Authorities may also have to be prepared to increase the provision they have made if there is a subsequent expansion of the gypsy population in their area. The Council say that provision has been made over and above that which led to the area being designated. Fourteen additional residential pitches and 4 pitches for touring caravans have been provided on 4 private sites ... The Council's own site at Mellishaw Park has 20 double pitches and can, therefore, accommodate 40 caravans.

The larger picture for the County is that, under Policy 11 of the Structure Plan and in the context of residential development, the aim is to provide land for caravan sites for gypsies within, or close to, the main urban areas. There are 5 permanent gypsy sites in the County, including the one at Mellishaw Park. The County Council are actively pursuing the provision of 3 further sites, none of which are in Lancaster.

The half-yearly count of gypsy caravans since January 1990 discloses that there have been spaces available on authorised sites on every count, except the last one in January 1992. In July 1991, during the period when [the first applicant] was evidently clearing up the appeal site prior to moving onto it in August, the Council say there were 21 vacancies on authorised sites. The Council also say that on the day before the inquiry there were 17 vacancies.

In my view the special need for accommodation to be provided for gypsies is not so weighty in the present case as to outweigh the harm caused to the character of the area and the adverse effects on highway safety.

[The applicants] put forward a number of reasons why they did not wish to go onto authorised sites in the area. Some of the reasons related to incidents in recent years which led them to embrace the concept of self-help and moving onto the appeal site, which they bought in 1986. I have accorded some weight to these matters but I remain of the opinion that the Council's case is the one that should prevail. ...” The time period for compliance was extended to 6 months. The Inspector also revoked the condition of returning the land to its former condition finding it excessive due to the tidying work carried out by the applicants.

The applicants did not appeal against this decision to the High Court, as such appeals can only be made on limited grounds (see paragraph 38).

The applicants tried unsuccessfully to find an alternative site both in the Lancashire City Council area and in the nearby Cumbria City Council area. They were offered places on an authorised site, Mellishaw Park, which they turned down for strong personal reasons, namely, since this particular site was occupied by a large, violent gypsy family who had attacked them on more than one occasion. In May 1992, the first applicant received serious injury, being beaten with a baseball bat and being showered with glass as his car was smashed. His assailant was convicted of actual bodily harm. The applicants were advised by the police to stay away from the area.

On 28 May 1993, the applicants were prosecuted in Lancaster Magistrates' Court and given a conditional discharge for one year, which would expire on 28 May 1994.

On 7 June 1993, they applied for planning permission for a smaller gypsy site which would consist of one mobile home and a transit pitch.

On 19 July 1993, their application was refused and they appealed against this decision.

On 21 December 1993, a public local inquiry was held. On 25 January 1994, the appeal was dismissed again, on grounds of visual amenity and adverse effect on highway safety. Even though the applicants had offered to provide whatever form of screening was necessary, the Inspector considered that an effective screen would take too long to establish and would look alien. The use of the site for the stationing of a caravan and the addition of a second would “seriously harm the character and appearance of the surrounding area”. He gave weight to the highway authority evidence that the exit from Cinderbarrow Lane to the A6 suffered from lack of visibility. While he noted that the applicants'submission that they could use the alternative exit in Tarn Lane, he considered that the greater convenience of the shorter route would be likely to encourage its regular use. Given the lightly trafficked nature of the road, he did not find this to be a crucial matter however. As regarded the needs of the applicants, he stated: “11. Since 1987 Lancaster District has been designated under the provisions of the Caravan Sites Act 1968, as amended, as an area where adequate provision has been made for gypsies residing in or resorting to the area. The current level of authorised provision within the district is 100 caravan pitches of which 20 pitches are on a council-owned site. Surveys taken during 1993 show that an average of 29 vacancies existed each month on private sites in the district, and an average of 7 vacancies on the council owned site.

Circular 28/77 states that it may be necessary to accept the establishment of gypsy sites within areas of open land where the land use policies which apply are severely restrictive to development, but in such cases there will be a special obligation to ensure that the arguments in favour of a departure from the development plan are convincing. [The applicants] put forward reasons why they did not wish to go to authorised sites in the area. Although these reasons were understandable, these are essentially personal reasons which do not, in my opinion, outweigh the harm caused to the character of the area and the adverse effects on highway safety. In my judgment the provision made within the district and the site availability revealed by survey is sufficient for me to conclude that the special need for accommodation to be provided for gypsies is not so weighty in this case as to justify a departure from established planning policy.”

In June 1994, further prosecution was adjourned to 7 October 1994. On that date, the applicants were convicted of failing to comply with the enforcement notice and were fined GBP 300 plus costs.

In January 1995, the applicants appeared once more in the magistrates' court charged with failing to comply with the enforcement notice. The proceedings were adjourned until 12 May 1995, when the applicants elected to be tried in Preston Crown Court by judge and jury. At a hearing on 8 December, the applicants were directed by the judge that they had no alternative but to plead guilty as they did not have a defence to the charges. He deferred sentence and granted leave to appeal to the Court of Appeal. On 10 May 1996, the Court of Appeal dismissed the appeal, inter alia, endorsing the judge's finding that: “Subsection 3 [of the Town and Country Planning Act 1996] is not concerned with a balance of social factors. It is not concerned with the policy issues as arise in relation to the circumstances in which gypsies live.”

The case was remitted to the Crown Court judge, who took the view that there was “powerful mitigation” and sentenced the applicants to a fine of GBP 150 and GBP 100 costs. He observed that it would have been inappropriate to commence a third prosecution and that it would have been more appropriate to commence civil injunctive proceedings in the County Court.

On 14 October 1996, the Council decided to take injunctive action against the applicants. At the hearing on 27 February 1997, the County Court had before it an affidavit from the first applicant and two affidavits from the Council. In the affidavit of Mr Dennison for the Council, it was accepted that the applicants had not been able to secure accommodation within the area for their caravan elsewhere but it was suggested that insufficient efforts had been made. In his affidavit, to which were annexed refusals from 25 sites, the first applicant stated that: “Since 1992 my wife and I have been making extensive enquiries about alternative situations... It is wrong for the Council to suggest that we have only tried holiday sites thereby implying that we knew they would fail; to the best of my knowledge and belief all the sites we tried had some residential accommodation. We repeated these efforts prior to the most recent proceedings.”

Due to the pressure of the proceedings, the first applicant made an undertaking to the Court to remove his caravans from his land and to break up the hard surface laid out on the land by 1 January 1998. On 26 August 1997, the applicants applied for a variation of the undertaking, seeking an extension of the time for compliance as they had been unable to find anywhere else to site their caravan and due to the first applicant's ill health. The second applicant submitted in an affidavit to the County Court that they had made continuous and strenuous enquiries since February 1997, but had been met with refusals – letters from 22 sites were enclosed. The application was refused and the applicants ordered to pay the Council's costs.

On 7 November 1997, the Council served on the first applicant a “Notice to Show Good Reason why an Order for Your Committal to Prison should not be made” which applied for the first applicant to be committed to prison. At the hearing on 14 November 1997, the judge committed the first applicant to prison for three months but suspended the imprisonment on condition that the applicant complied with his undertaking by 21 February 1998. Counsel's notes of the judge's judgment indicated that the order was made to enforce the law as fining had achieved nothing – “If it means that the applicants have to seek something other than static caravan accommodation, so be it”. In order to avoid committal and the ensuing deleterious consequences on the first applicant's health and the applicants' family, the applicants vacated their land and are currently without a fixed address. They have been unable to find alternative accommodation elsewhere.

As regards the availability of pitches elsewhere, the Government submitted that during the period of May 1993–June 1995 12 vacancies arose on Mellishaw Park, the official site in the district. There was a waiting list but the applicants would only have had to wait 4–6 months for a vacancy to occur. The conditions on this site were closely monitored by weekly inspections by a resident warden. In the local authority's area, there were also, according to the figures given to the Commission by the Government, space for 99 caravans on seven authorised private sites, where there were currently 31 vacant pitches and a further 107 private authorised/touring and residential sites, comprising, respectively, 4,834 and 561 pitches, with substantial numbers of vacancies. Some of these sites were used by travellers particularly in the winter months. The applicants stated that these sites are largely seasonal for tourists and that gypsies were not welcome. Only one of them has been designated as official gypsy site but is still inhabited mostly by non-gypsies. This site had 40 pitches. According to the 1999 statistics of the Department of the Environment however, the number of authorised private sites had increased by six (from 68 to 74), while the number of public sites had decreased by the same number (from 25 to 19). However, the total number of unauthorised encampments in the area had almost doubled from 11 to 21.