SMITH v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicants, Beatrice and John Smith, are United Kingdom nationals, born in 1962 and 1960 respectively and living in Headcorn, Kent. They are represented before the Court by Mr P. Kingshill, a lawyer practising in London. The respondent Government are represented by Mr H. Llewellyn of the Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are Romany gypsies. Between 12 February 1990 and 15 August 1993, they were tenants in conventional housing in Swanley, in west Kent. On or about 13 May 1993, they took up residence on their own land to the north west of Lenham Road, Headcorn, Kent, in two caravans with their four children. On 18 May 1993, the applicants lodged a retrospective planning application for the stationing of a residential caravan on their land. Maidstone Borough Council (“the Council”) refused the application. On 2 July 1993 and 12 August 1993, the Council issued enforcement and stop notices. The applicants appealed against the refusal of planning permission and against the enforcement notices. Those appeals were dismissed on 11 April 1994. In his decision of that date, the Inspector who had held a public planning inquiry, found that the development eroded the very rural character of the area and harmed the environment. He extended the period of compliance from two weeks to four months noting that it would not be in the interests of the children to be uprooted from school within the usual 14 day period. On 10 June 1994, the applicants pleaded guilty to the offence of failing to comply with the stop notice. The first applicant was fined 3,000 pounds sterling (GBP) and ordered to pay costs of GBP 870. The second applicant was conditionally discharged. On appeal, the first applicant's fine was reduced by the Court of Appeal to GBP 500 and the costs order quashed. On 29 June 1994, the applicants submitted a second application for planning permission, which was refused by the Council. In August 1994, the applicants enquired about housing with the Council and homelessness application forms were sent to them. They were advised of a vacancy on the Stilebridge Caravan Site. This vacancy was again notified on 13 September 1994 and on 14 October 1994 a housing officer visited the applicants' land and offered them the pitch on the Stilebridge Caravan site. The applicants refused. On the applicants' evincing interest in housing options, the Council offered to them on 27 October 1994 a three bedroomed property at Mangravet. On 26 April 1995, the applicants' appeal against the refusal of planning permission was dismissed after a public Inquiry by a Planning Inspector. The Inspector found the site constituted sporadic development in open countryside and was detrimental to the appearance of the rural area. He noted that the second applicant had been offered, but had declined, a site on a public site in the Maidstone district and was not satisfied that he would be led into breaking the law if planning permission was not granted. On 7 July 1995, the Council issued proceedings in the High Court claiming an injunction, restraining the applicants, inter alia, from stationing caravans and continuing residential occupation on their land. An ex parte injunction was granted on the same day, restraining the applicants from stationing caravans on their land. On 7 August 1995, the High Court adjourned the injunction proceedings. The Council subsequently withdrew the proceedings. By letter dated 12 January 1996, the Council informed the applicants that it was considering exercising its powers under section 178 of the Town and Country Planning Act 1990. In that month, the applicants enquired of the Council as to the possibility of housing in Headcorn. On 15 February 1996, the applicants made a third application for planning permission which was refused in or about late March/April 1996. The applicants appealed. On 21 March 1996, the Council offered the applicants a three bedroomed house in Sutton Valence. The applicants refused. On 15 April 1996, the Council sent a letter to the applicants' solicitors stating that the applicants had refused an offer of housing and that the Council would proceed shortly to action under section 178. On 16 April 1996, the Council evicted the applicants from their land pursuant to their powers under section 178. They again offered the applicants the possibility of moving to the house in Sutton Valance. The applicants refused. Having nowhere else lawfully to station their caravans, the applicants moved their caravans onto the village green at Headcorn. This was an area of public amenity owned by the Parish Council, including a childrens' play area and equipment. Complaints were made by local residents inter alia concerning the coming and going of vehicles over the pavement and close to the childrens' play area. On 17 April 1996, the Council served the applicants with a direction under section 77 of the Criminal Justice and Public Order Act 1994. The applicants complied with the direction, removing themselves from the green. They stationed their caravans on the unmade roadway leading to the village hall, which was also land owned by the Parish Council. A further direction was served under section 77 on 18 April 1996. The applicants complied with the order and moved to a car park in the centre of the village owned by a local firm and used as the main village car park by shoppers and visitors to the village. On 19 April 1996, the site owners decided to close the car park for reasons of public safety. This caused problems of congestion and traffic difficulties. A third direction under section 77 was served on the applicants on 22 April 1996, following which they moved to Parsonage Meadow. When a travelling circus arrived with permission to camp, the applicants left voluntarily and moved onto land adjoining Oak Farm Gardens. The Council received a complaint from the owner who said that he had not given permission. They took no action however as there were no issues of public safety involved. On 11 June 1996, complaints were received that the applicants had moved back onto Parsonage Meadow. On inspection the Council found that there were two other families with the applicants, and that three caravans, two transit vans, a pickup truck, a four wheel drive vehicle and a horsebox were stationed on the land. On 13 June 1996, a direction under section 77 was issued, forcing them to move on. They were prevented from returning to their land by another court injunction obtained by the Council on 22 April 1996. The applicants applied for leave to apply for judicial review of the Council's decision to take steps to secure compliance with the enforcement notices. Shortly before the hearing listed for 19 July 1996, the Council offered to treat the applicants as being unintentionally homeless persons to whom they owed a duty under the Housing Act 1985. The applicants were advised by their counsel and solicitors that there were minimal prospects of success in pursuing their application for judicial review and that the Legal Aid Board would cease to fund their application. In view of their lack of any viable alternative, the applicants reluctantly withdrew their application. The Council offered the applicants a three bedroom flat which was available. The applicants did not consider that this was suitable accommodation. The applicants went to live in their caravan in the small rear garden of a relatives's house in Headcorn. On 21 and 30 January 1997, a Planning Inspector held a public inquiry into the applicants' outstanding application for planning permission for their land. He had visited the site and also the applicants' present abode which he described as unsatisfactory for both the family and their neighbours although it allowed the children to continue with their schooling. The Inspector noted that the applicants' land had highway access and that the development would not harm existing housing. While due to the hollow in the ground the development would be less obvious than on the previous site, he found that it would nonetheless form an intrusive feature and would harm the character of appearance of the rural landscape. He noted that the applicants had purchased the land encouraged by Government policy and that it was necessary, partly for health reasons, to find a more satisfactory location for the family. While he acknowledged that gypsies were a special case and sites for residence could be acceptable in some rural locations, he was not satisfied that their case was so overriding as to outweigh the development plan policy requirement to protect the countryside in this particular location. He dismissed the appeal. The applicants bought a house in Headcorn and are now resident there. 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). New guidance on gypsy sites and planning, in the light of the 1994 Act, was issued to local authorities by the Government in Circular 1/94 (5 January 1994). 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.” (paragraph 20) 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. ...” (paragraph 22). It was indicated that as a rule it would not be appropriate to make provision for gypsy sites in areas of open land where development was severely restricted, for example Areas of Outstanding Natural Beauty or Sites of Special Scientific Interest. Nor were gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt (paragraph 13). Further guidance issued by the Secretary of State dated 23 November 1994 concerned the unauthorised camping by gypsies and the power to give a direction to leave the land (CJPOA above). Paragraphs 6-9 required local authorities to adopt “a policy of toleration towards unauthorised gypsy encampments”: “6. ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which cannot be effectively controlled, an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance. Accordingly, authorities should consider tolerating gypsies' presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites, for example by providing basic services for gypsies e.g. toilets, a skip for refuse and a supply of drinking water. ... 8. Where gypsies are unlawfully camped on Government-owned land, it is for the local authority, with the agreement of the land-owning Department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health. It will continue to be the policy of the Secretaries of State that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance. 9. The Secretaries of State continue to consider that local authorities should not use their powers to evict gypsies needlessly. They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land.” Paragraphs 10-13 further require local authorities to consider their obligations under other legislation before taking any decisions under the 1994 Act. These obligations include their duties concerning pregnant women and newly-born children, the welfare and education of children and the housing of homeless persons. In a judgment of 22 September 1995 (R. v. Lincolnshire County Council, ex parte Atkinson, R. v. Wealden District Council, ex parte Wales and R. v. Wealden District Council, ex parte Stratford, unreported), the High Court held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages. Section 77 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) gives to a local authority power to direct an unauthorised camper to move. An unauthorised camper is defined as “a person for the time being residing in a vehicle on any land forming part of the highway, any other unoccupied land or any occupied land without the owner's consent”. Failure to comply with such a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrates' court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act).