CASE OF BEARD v. THE UNITED KINGDOM
No violation of Art. 8;No violation of Art. 14
Lord Justice Schiemann;Luzius Wildhaber;Nicolas Bratza
10. The applicants are gypsies by birth. All their lives, they have moved between official sites and unofficial stopping places, mostly in the Lancashire area. 11. 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. 12. 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. 13. 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. 14. 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). 15. 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. 16. 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. 17. On 30 December 1991, the applicants submitted a further appeal against the enforcement notice. 18. 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. 19. 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. ... 11. 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. 12. 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. ... 14. 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. 15. 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. 16. <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. 17. 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. 18. 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. 19. 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. 20. <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. 20. 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). 21. 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. 22. 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. 23. 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. 24. On 19 July 1993, their application was refused and they appealed against this decision. 25. 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. 12. 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.” 26. 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. 27. 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.” 28. 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. 29. 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.” 30. 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. 31. 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. 32. 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. II. RELEVANT DOMESTIC LAW AND PRACTICE 33. 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). 34. 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). 35. 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). 36. 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). 37. 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. 38. 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. 39. 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). 40. 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, in particular the closure of commons carried out by local authorities pursuant to section 23 of the Caravan Sites and Control of Development Act 1960. Section 16 of the 1968 Act 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”. 41. 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”. 42. The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9). 43. 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). 44. 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). 45. 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. 46. 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”). 47. 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.” 48. The report made numerous recommendations for improving this situation. 49. Circular 28/77 was issued by the Department of the Environment on 25 March 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 management”. It was intended to apply until such time as more final action could be taken on the recommendations of the Cripps Report. 50. 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. 51. Circular 57/78, which was issued on 15 August 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”. 52. In addition, approximately GBP 100 million was spent under a scheme by which one hundred per cent grants were made available to local authorities to cover the costs of creating gypsy sites. 53. Section 80 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), which came into force on 3 November 1994, repealed sections 6-12 of the 1968 Act and the grant scheme referred to above. 54. 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 “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”. 55. 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). 56. In the case of R. v. Lincolnshire County Council, ex parte Atkinson (22 September 1995), Sedley J. referred to the 1994 Act as “Draconic” legislation. He commented that: “For centuries the commons of England provided lawful stopping places for people whose way of life was or had become nomadic. Enough common land had survived the centuries of enclosure to make this way of life still sustainable, but by s.23 of the Caravan Sites and Control of Development Act 1960 local authorities were given the power to close the commons to travellers. This they proceeded to do with great energy, but made no use of the concomitant powers given them by s.24 of the same Act to open caravan sites to compensate for the closure of the commons. By the Caravans Act 1968, therefore Parliament legislated to make the s.24 power a duty, resting in rural areas upon county councils rather than district councils... For the next quarter of a century there followed a history of non-compliance with the duties imposed by the Act of 1968, marked by a series of decisions of this court holding local authorities to be in breach of their statutory duty, to apparently little practical effect. The default powers vested in central government to which the court was required to defer, were rarely, if ever used. The culmination of the tensions underlying the history of non-compliance was the enactment of ...the Act of 1994...” 57. 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), which cancelled Circular 57/78 (see above). 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.” (para. 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 ...” (para. 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, 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). 58. 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.” 59. 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. 60. In a letter dated 25 May 1998, the Department of the Environment drew to the attention of all local planning authorities in England that Circular 1/94 required local planning authorities to assess the need for gypsy accommodation in their areas and make suitable locational and/or criteria based policies against which to decide planning applications. The Government was concerned that this guidance had not been taken up. ACERT research (see below) had showed that 24% of local authorities (96) had no policy at all on gypsy sites and that many in the process of reviewing their plans at the time of the survey did not feel it necessary to include policies on gypsy provision. It was emphasised that it was important to include consideration of gypsy needs at an early stage in drawing up structure and development plans and that detailed policies should be provided. Compliance with this guidance was essential in fulfilling the Government's objective that gypsies should seek to provide their own accommodation, applying for planning permission like everyone else. It was necessary, therefore, that adequate gypsy site provision be made in development plans to facilitate this process. 61. The Advisory Council for the Education of Romany and Other Travellers (ACERT), which carried out research sponsored by the Department of the Environment, Transport and Regions, noted in this report that since 1994 private site provision had increased by 30 caravans per year while the pace of public site provision had declined by 100 caravans, disclosing that the pace of private site provision had not increased sufficiently to counterbalance decreases in public site provision. Noting the increase of gypsies in housing and the increased enforcement powers under the 1994 Act, it questioned, if these trends continued, the extent to which the ethnic, cultural and linguistic identity of Gypsy and Traveller people would be protected. 62. The research looked, inter alia, at 114 refused private site applications, which showed that 97% related to land within the countryside and that 96% were refused on grounds relating to the amenity value (e.g. Green Belt, conservation area locations). Of the 50 gypsy site applicants interviewed, for most acquiring permission for their own land was an important factor in improving the quality of life, gaining independence and providing security. For many, the education of their children was another important reason for private site application. All save one had applied for permission retrospectively. 63. The report stated that the figures for success rates in the 624 planning appeals looked at showed that before 1992 the success rate had averaged 35% but had decreased since. Having regard however to the way in which data was recorded, the actual success rate was probably between 35% and 10% as given as the figures in 1992 and 1996 by the gypsy groups and Department of the Environment respectively. Notwithstanding the objectives of planning policy that local authorities make provision for gypsies, most local authorities did not identify any areas of land as suitable for potential development by gypsies and reached planning decisions on the basis of land-use criteria in the particular case. It was therefore not surprising that most gypsies made retrospective applications and that they had little success in identifying land on which local authority would permit development. Granting of permission for private sites remained haphazard and unpredictable. 64. In January 2000, the Department of the Environment, Regions and Transport's survey on gypsy caravans in England disclosed that of 13,134 caravans counted, 6,118 were accommodated on local authority pitches, 4,500 on privately owned sites and 2,516 on unauthorised sites. Of the latter, 684 gypsy caravans were being tolerated on land owned by non-gypsies (mainly local authority land) and 299 gypsy caravans tolerated on land owned by gypsies themselves. On these figures, about 1,500 caravans were therefore on unauthorised and untolerated sites while over 80% of caravans were stationed on authorised sites. 65. Local authority duties to the homeless were contained in Part VII of the Housing Act 1996, which came fully into force on 20 January 1997. Where the local housing authority was satisfied that an applicant was homeless, eligible for assistance, had a priority need (e.g. the applicant was a person with whom dependant children resided or was vulnerable due to old age, physical disability etc), and did not become homeless intentionally, the authority was required, if it did not refer the application to another housing authority, to secure that accommodation was available for occupation by the applicant for a minimum period of two years. Where an applicant was homeless, eligible for assistance and not homeless intentionally, but was not a priority case, the local housing authority was required to provide the applicant with advice and such assistance as it considered appropriate in the circumstances in any attempt he might make to secure that accommodation became available for his occupation. 66. This Convention, opened for signature on 1 February 1995, provides inter alia: “Article 1 The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international co-operation. Article 4 1. The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited. 2. The parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority; In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities. 3. The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination. Article 5 1. The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage. 2. Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation.” 67. The Convention entered into force on 1 February 1998. The United Kingdom signed the Convention on the date it opened for signature and ratified it on 15 January 1998. It entered into force for the United Kingdom on 1 May 1998. By 9 February 2000, it had been signed by 37 of the Council of Europe's 41 member states and ratified by 28. 68. The Convention did not contain any definition of “national minority”. However the United Kingdom in its Report of July 1999 to the Advisory Committee concerned with the Convention accepted that gypsies are within the definition. 69. Recommendation 1203(1993) of the Parliamentary Assembly on Gypsies in Europe included the recognition that gypsies as one of the very few non-territorial minorities in Europe, “need special protection”. In its general observations, the Assembly stated inter alia: “6. Respect for the rights of Gypsies, individual, fundamental and human rights and their rights as a minority, is essential to improve their situation. 7. Guarantees for equal rights, equal chances, equal treatment and measures to improve their situation will make a revival of Gypsy language and culture possible, thus enriching the European cultural diversity.” Its recommendations included: “xiv. member states should alter national legislation and regulations which discriminate directly or indirectly against Gypsies; ... xviii. further programmes should be set up in the member states to improve the housing situation, education... of those Gypsies who are living in less favourable circumstances. ...” 70. In 1998, the European Commission against Racism and Intolerance issued General Policy Recommendation No. 3: Combating Racism and Intolerance against Roma/Gypsies. Its recommendations included: “... to ensure that discrimination as such, as well as discriminatory practices, are combated through adequate legislation and to introduce into civil law specific provisions to this end, particularly in the fields of ... housing and education. ... ... to ensure that the questions relating to 'travelling' within a country, in particular, regulations concerning residence and town planning, are solved in a way which does not hinder the life of the persons concerned; ...” 71. On 21 April 1994, the European Parliament passed a Resolution on the situation of Gypsies in the Community, calling on the governments of member states “to introduce legal, administrative and social measures to improve the social situation of Gypsies and Travelling People in Europe”; and recommending that “the Commission, the Council and the governments of Member States should do everything in their power to assist in the economic, social and political integration of Gypsies, with the objective of eliminating the deprivation and poverty in which the great majority of Europe's Gypsy population still lives at the present time.” 72. Protection of minorities has become one of the preconditions for accession to the European Union. In November 1999, the European Union adopted “Guiding Principles” for improving the situation of Roma in candidate countries, based expressly on the recommendations of the Council of Europe's Specialist Group of Roma/Gypsies and the OSCE High Commissioner on National Minorities' recommendations. 73. The situation of Roma and Sinti has become a standard item on the Human Dimension section of the agenda of OSCE Review Conferences. Two structural developments – the Office of Democratic Institutions and Human Rights (ODIHR) and the appointment of a High Commissioner for National Minorities – also concerned protection of Roma and Sinti as minorities. 74. On 7 April 2000, the High Commissioner's Report on the Situation of Roma and Sinti in the OSCE Area was published. Part IV of the Report deals with the living conditions of Roma, noting that while nomadism had been central to Romani history and culture a majority of Roma are now sedentary (one estimation gave 20% as nomadic, 20% as semi-nomadic, moving seasonally, while 60% were sedentary). This was particularly true of Central and Eastern Europe, where there had been in the past policies of forced sedentarization: “It must be emphasised that whether an individual is nomadic, semi-nomadic or sedentary should, like other aspects of his or her ethnic identity, be solely a matter of personal choice. The policies of some OSC participating States have at times breached this principle, either by making a determination of a group's fundamental lifestyle that is inconsistent with its members' choices or by making it virtually impossible for individuals to pursue the lifestyle that expresses their group identity.” (pp. 98-99) 75. The Report stated that for those Roma who maintained a nomadic or semi-nomadic lifestyle the availability of legal and suitable parking was a paramount need and precondition to the maintenance of their group identity. It observed however that even in those countries that encouraged or advised local authorities to maintain parking sites, the number and size of available sites was insufficient in light of the need: “... The effect is to place nomadic Roma in the position of breaking the law – in some countries, committing a crime – if they park in an unauthorized location, even though authorized sites may not be available.” (pp. 108-109) 76. The Report dealt specifically with the situation of Gypsies in the United Kingdom (pp. 109-114). It found: “Under current law, Gypsies have three options for lawful camping: parking on public caravan sites – which the Government acknowledges to be insufficient; parking on occupied land with the consent of the occupier; and parking on property owned by the campers themselves. The British Government has issued guidance to local authorities aimed at encouraging the last approach. In practice, however, and notwithstanding official recognition of their special situation and needs, many Gypsies have encountered formidable obstacles to obtaining the requisite permission to park their caravans on their own property...” (pp. 112-113). 77. Concerning the planning regime which requires planning permission for the development of land disclosed by the stationing caravans, it stated: “... This scheme allows wide ply for the exercise of discretion – and that discretion has repeatedly been exercised to the detriment of Gypsies. A 1986 report by the Department of the Environment described the prospects of applying for planning permission for a Gypsy site as 'a daunting one laced with many opportunities for failure'. In 1991, the last years in which the success of application rates was evaluated, it was ascertained that 90 per cent of applications for planning permission by Gypsies were denied. In contrast, 80 per cent of all planning applications were granted during the same period. It is to be noted that, as a category, Gypsy planning applications are relatively unique insofar as they typically request permission to park caravans in areas or sites which are subject to restriction by local planning authorities. As such, virtually all Gypsy planning applications are highly contentious. Nonetheless, the fact remains that there is inadequate provision or availability of authorized halting sites (private or public), which the high rate of denial of planning permission only exacerbates. Moreover, there are indications that the situation has deteriorated since 1994. ... In face of these difficulties, the itinerant lifestyle which has typified the Gypsies is under threat.” (pp. 113-114) 78. The report's recommendations included the following: “... in view of the extreme insecurity many Roma now experience in respect of housing, governments should endeavour to regularize the legal status of Roma who now live in circumstances of unsettled legality.” (pp. 126 and 162)