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. 24876/94) against the United Kingdom lodged with the Commission under former Article 25 of the Convention by two British nationals, Mr Thomas Coster and Mrs Jessica Coster (“the first applicant” and “the second applicant” respectively), on 19 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 complained that these measures also disclosed an interference with the peaceful enjoyment of their possessions contrary to Article 1 of Protocol No. 1 to the Convention and deprived their children of education contrary to Article 2 of Protocol No. 1. 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), that there had been no violation of Article 1 of Protocol No. 1 (19 votes to 7), that there had been no violation of Article 2 of Protocol No. 1 (21 votes to 5) 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 Peter Kingshill and Co., solicitors practising in London. 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 respondent Government Mr H. Llewellyn, Agent, Mr D. Pannick Q.C., Mr D. Elvin Q.C., Mr M. Shaw, Counsel, Mr D. Russell, Mr S. Marshall-Camm, Advisers; (b) for the applicant Mr R. Drabble Q.C., Mr M. Willers, Counsel, Mr P. Kingshill, Solicitor, Mrs J. Kingshill, Adviser. 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. As children, the applicants lived and travelled with their respective families in and around the area known as the Borough of Maidstone in Kent. From 1987, the Borough was a designated area pursuant to section 12 of the Caravan Sites Act 1968 (see paragraphs 43-48 below).

In 1982, the applicants married. When the second applicant became pregnant, the applicants decided to search for a permanent site on which to site their caravan. There remained few stopping places upon which they could lawfully park their caravan whilst travelling in the area and they faced the threat of continual eviction. The applicants wished for their children to be brought up in a stable environment which would facilitate the continuity of their education. The applicants now have four children, Jody born in 1983, Tommy in 1984, Jessica in 1991 and Joshua in 1993.

The applicants stated that they were refused a place on any local authorised site. They camped outside one official site for 5-6 weeks hoping to be offered a plot. No place was offered and court proceedings were brought against them by the Borough to secure their eviction from the land. The Government stated that the Borough has no knowledge or record of any request by the applicants for a pitch in 1982.

With the imminent birth of their first child, the applicants moved into the caravan occupied by the first applicant’s mother on a permitted gypsy site and sold their own caravan. The caravan was however small and conditions became intolerable. Having nowhere else to go, the applicants in or about 1983 reluctantly applied for permanent accommodation and accepted the offer of a council flat. They commenced a tenancy in a fourth floor flat on 16 January 1984. Though they were moved to a first floor flat after 10 months, they found the flats totally unsuitable and alien to their traditional gypsy lifestyle. On 18 April 1986, they requested a transfer to a house on the grounds of the second applicant’s health but were informed that there was a waiting list and that a move would be conditional on payment of outstanding rent. The applicants disputed that they owed any rent and suggested that the Borough has mistaken them for the tenants of a different flat, there being some confusion as to the addresses involved. In late 1987, the applicants requested a site on an official caravan site or more suitable accommodation but were told this was not possible. The Government stated that they did not wish to be placed on the waiting list.

In 1988, the applicants purchased land known as Summerfields in Headcorn, Kent and moved onto it, living in a caravan.

On 11 July 1988, the second applicant made a retrospective planning application for permission to station a caravan on their site. Permission was refused by the Borough on 13 October 1988.

On 23 September 1988, an enforcement notice was issued requiring discontinuance of the unauthorised use.

In July 1989, the applicants were convicted for failure to comply with the enforcement notice.

On 27 September 1989, a public enquiry was held by way of appeal against the refusal of planning permission. The appeal was dismissed. The Inspector accepted that the applicants were gypsies for whom conventional residence in permanent accommodation would lead to illness and problems of adjustment. They had therefore not lost their status as gypsies as a result of their residence in a flat. He found however that the development on a site, well outside built-up areas, was clearly visible and would constitute a significant intrusion into the attractive rural surroundings and seriously harm the character and appearance of the countryside contrary to the aims of the local development plans. The proximity of another established gypsy site a short distance along the same road was a further consideration for rejecting the application, since there would be a cumulative effect. Though there were hedges and trees providing partial screening, these would have less effect in the winter and the site was still a significant intrusion in the landscape. While he expressed his concern for the serious consequences of a refusal for the applicants and their two children, since they had nowhere to live for the foreseeable future apart perhaps from unauthorised camping sites, he concluded: “It is all a matter of weighing opposing considerations, and although both national and local policies envisage circumstances where the special needs of gypsies can outweigh the general objective of protecting the countryside, my view is that, because of such factors as the quality of this countryside, they do not prevail here.”

The applicants made a further application for planning permission which was refused on 11 December 1989, seeking inter alia to argue that they had resited the caravan and provided more screening to minimise any visual impact on the landscape and that their site was less harmful than the two poorly screened sites nearby which were authorised by the Borough.

A public enquiry was held before a Planning Inspector on 26 March 1991. The Inspector refused their appeal on 24 April 1991 and the applicants were penalised in costs on the basis that it was identical to the previous application. The Inspector did not find the granting of permission for caravans for two gypsy families some 300-400 metres away along the same road could be regarded as a material difference. “On the contrary, in my opinion three gypsy caravan sites within some 600 m of the length of Lenham Road would amount to an overconcentration of caravan sites in these rural surroundings.” The Inspector went on: “14. As to … alleged intentional homelessness, Counsel for the [Borough], on instructions, assured the inquiry that the [applicants’] family would be offered short-term housing. This is the position the family have faced for a long time. [The applicants] conceded that the only action taken since the 1989 decision by or on behalf of the family to find another site or accommodation, was a telephone call … to the [Borough] in mid-December 1989. …

I have given sympathetic consideration to all of [the applicants] case. I accept that the family have a pressing local need for a caravan site. The provision of private sites should be encouraged. Kent County Council support the provision of private sites. So does Government policy. There should be a flexible attitude to such planning applications. As was said in a Parliamentary answer in 1987, well-run gypsy sites, once established, seldom give cause for serious complaints. ‘Designated’ authorities like Maidstone may still need to make extra provision in their area if the demand for gypsy accommodation increases. There are still gypsy families parked on unauthorised sites in the Maidstone area, including [the applicants]… No new gypsy sites have been opened in Maidstone since 1967.

In spite of [the applicants] planting and intended further planting, however, I find as a fact that the mobile home would remain intrusively visible from Lenham Road and Baker lane. The only way in which it could be made virtually invisible, …, would be to provide physical screening which would in itself be an intrusive feature in the countryside. From the point of view of passers-by, the visual impact of the mobile home is made especially serious because of this being a corner site, with two long road frontages through which the site can be seen by the public. Having regard to the quality of the rural landscape, I consider that this development seriously damages the appearance and character of the surroundings. As this land is between the two authorised sites, this development results in an incipient loose ribbon of suburban-type development strung out along Lenham Road. This conflicts with generally well-respected policies aimed at protecting the landscape and at limiting residential development mainly to towns and villages.

Whilst the position towards the eastern corner is an improvement on the previous siting in the northern corner, the mobile home still causes demonstrable harm to countryside interests of acknowledged importance. There is nowhere within the site at which a mobile home or caravan could be positioned without causing equally serious harm.

I have taken into account the extent to which this site could satisfy the site-selection criteria… Rather than introducing minimum conflict with planning policies, this development is in serious conflict with the Structure Plan policies … aimed as protecting the character of the open countryside from development not demonstrated to be necessary for agriculture etc. There is also serious conflict with Policy C15 of the draft Local Plan, aimed at ensuring that permitted gypsy sites should not be intrusive features in the countryside.”

On 12 September 1990, the applicants were convicted for breach of enforcement notices and ordered to pay GBP 275 each as a fine and contribute GBP 25 to the Borough’s costs.

In February 1990, the Government stated that the applicants made enquiries from the Borough about rehousing but no formal application was made until 21 May 1990. On 23 July 1990, the applicants were formally informed by the Borough that they were considered as intentionally homeless since they had terminated their council tenancy to move onto land not permitted for residential use contrary to the advice of the Housing and Planning Departments.

In 1991, the applicants enquired about alternative accommodation on a private site but were informed that they were excluded due to the size of their family.

On 6 March 1992, the applicants stated that they were told that there was a waiting list for places on official sites but that since they were intentionally homeless they could not put their names on it for 2 years. According to the Government, in March 1992, the applicants applied to the Borough for housing on the grounds of homelessness and that contrary to the policy of refusing registration within two years after a finding of intentional homelessness the Borough agreed to re-register them as homeless on condition that they paid their arrears of rent for the council tenancy. The applicants did not pay the arrears.

The records of the Borough noted that, at a meeting on 26 June 1992, its officials repeated offers of temporary accommodation to give the applicants time to find permanent accommodation. The applicants were recorded as stating that they would not accept a place on an official site and that they would only accept temporary accommodation in their own caravan, which the Borough could not provide. The applicants state that they have no recollection of making the former statement.

A third prosecution resulted in conviction and sentence was deferred to enable the applicants to move. On 24 July 1992, a fine of GBP 350 was imposed on each applicant.

The Borough took the decision to seek an injunction in the High Court restraining the applicants from stationing their caravan on their land and gave notice to the applicants. On 16 October 1992, the applicants left their land and travelled to Whitstable, Kent close to where some of the second applicant’s family had stationed their caravans. On the site there was no sanitation or electricity and there was an infestation of rats. The applicants contacted the Borough’s housing officer in the hope that he could offer more suitable alternative accommodation but he could not. He suggested that they apply for Housing Association accommodation which they did but were told that nothing would be available for six months. The applicants heard nothing after that. The Government stated that the applicants’ names were placed on the waiting list at the end of 1992 but they removed their names from that list in January 1993. The applicants disputed that they removed their names.

On 17 December 1992, the applicants returned to their land, where the children could resume their education at their previous school.

The Borough commenced its proceedings for an injunction by summons dated 22 December 1993.

On 24 February 1994, the second applicant was convicted and fined for a continued breach of the enforcement notices.

The applicants applied for judicial review to quash the injunction proceedings on the basis that the decision to pursue the injunction against them was unreasonable. Leave was refused by the High Court. On 6 May 1994, the Court of Appeal dismissed the applicants’ appeal.

In May 1994 the applicants applied to the Borough for accommodation and were again offered temporary accommodation. The applicants stated that this was unsuitable bed and breakfast accommodation which would have entailed separating the first applicant from the rest of the family. The applicants were informed, the Government stated, of vacant plots on council and private gypsy sites in the county. The applicants recalled that these vacancies related to areas outside the Borough. One site which they visited at Aylesford was infested with rats and a dangerous place for children.

On 19 February 1996, the applicants received notice that the Borough had decided to withdraw the injunction proceedings commenced in 1993 and to enter their land and enforce the enforcement notice using its powers under section 178 of the Town and Country Planning Act 1990. The applicants lodged an application for judicial review of that decision. On or about 30 October 1996 the applicants withdrew their application on the basis that they would be given 6 weeks to vacate their land.

The applicants stated that they looked for an alternative private or official site on which to station their caravan but no such site could be found. In February 1997, the applicants sold their land. They also sold their caravan at a substantial undervalue. They went to live temporarily in the caravan occupied by the second applicant’s brother, which involved a family of six sharing with a family of five. This became intolerable. The applicants stated that they were faced with the choice of returning to the road, with the risk of further criminal sanctions or abandoning their traditional way of life by accepting the provision of conventional Council accommodation. On 14 May 1997, the applicants reluctantly decided to take the latter course, moving into conventional housing in the form of rented accommodation supplied by the Council at No. 18 Chancery Road, Marden, Kent. As a result, their two younger children had to change schools. The two older children gave up school and began working. While the move disrupted the children’s education, it did not appear to have affected their health. The applicants suffered headaches, anxiety, claustrophobia and depression requiring them to seek medical treatment. They were both prescribed medication which did not however resolve their physical sense of confinement. The applicants bought a touring caravan, which they stationed on the land of the second applicant’s brother. They took every opportunity they could to travel in the traditional style during school holidays, attending traditional gypsy fairs to continue horse trading activities and for the first applicant to find work landscaping and tree-felling. They have bought another plot of land in Yalding, Kent, with the intention of resuming their traditional life and intend to apply for planning permission.

The Department of the Environment statistics for gypsy caravan sites for January 1998 indicated that in the Maidstone area there were two local authority sites comprising 34 pitches. In addition, there were 96 caravans on authorised private sites and eight caravans on unauthorised sites, two of which were tolerated by the local authority. The July 1999 gypsy count showed that the number of unauthorised encampments had remained at eight, while the number of public authorised sites had decreased from 34 to 32 and the number of authorised private sites had decreased from 96 to 89. The January 2000 figures showed that there were six unauthorised sites, 31 authorised public sites and 87 authorised private sites.