CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 28370/95                       by Charles MABEY                       against the United Kingdom        The European Commission of Human Rights (Second Chamber) sitting in private on 15 May 1996, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 16 June 1995 by Charles MABEY against the United Kingdom and registered on 30 August 1995 under file No. 28370/95;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen born in 1943 and resident in Corfe Mullen. The application is presented on his behalf by Mr. Reg Cooper, a construction worker in Fordingbridge. The facts as submitted may be summarised as follows.        The applicant comes of Romany (gypsy) stock. While it appears that his grandparents lived in caravans, he did not however pursue the traditional nomadic way of life. After leaving the army, he was employed in driving and treeclearing jobs and at various times, lived in a house and a flat.        In December 1972, the applicant and his wife bought a piece of land at Corfe Mullen, Dorset. In January 1973, they stationed a caravan on their land and pursued an agriculture related business. Following a visit from the local authority planning official, the applicant applied for planning permission for use of the caravan for residential purposes. Permission was refused although a neighbour obtained permission at that time on the basis of personal circumstances.        In 1974, the applicant and a neighbour ran a breakers' yard on their land. An enforcement notice was issued against them. The applicant appealed. The area was declared a Green Belt at around that time. His appeal failed. He continued with his agricultural contractors' business   which involves keeping tractors on his land.        By 1984, eight applications by the applicant for permission for a caravan or a dwelling had been refused, with appeals dismissed in 1975 and 1982. Various enforcement actions had been taken from 1973 onwards by the local authority.        In or about 1984, enforcement notices were issued, inter alia, requiring the applicant to remove the residential caravan from his land which was outside the area allocated for development. Following a public inquiry in December 1985, the applicant's appeal against the enforcement notices was dismissed and he was fined £1 by the magistrates' court for failing to comply.   The applicant made a renewed appeal and a planning inquiry was held on 22 July 1988. In his report of January 1989 (date unspecified), the Inspector noted that there had been a history of previous appeals in this context (enforcement proceedings dated back to 1973) and that this appeal raised a number of new issues, including that of the applicant's gypsy background. He found in that respect that the applicant had acknowledged that while of Romany stock, he had never lived a traditional gypsy lifestyle, being born in a house and living in a house and flat before moving to this piece of land.   There was no indication that his parents had lived a traditional lifestyle either and he had stated that he would not choose that way of life voluntarily. He concluded that no great weight could be attached to the gypsy claim. He went on to find that notwithstanding the fact that the applicant and his family had lived on the site since 1972 (more than sixteen years) there was strong presumption against development in a Green Belt area and the development did not fall within any of the exceptions to the policy. He recommended that planning permission should be refused.        By letter dated 25 July 1989, the Secretary of State agreed with the Inspector's findings and dismissed the applicant's appeal.        By originating summons dated 2 June 1994, the local authority applied to the High Court for an injunction ordering the applicant to cease occupation of his land in his residential caravan and to cease its use for the storage of vehicle parts etc. Such order was granted on 8 August 1994. On 27 January 1995, on application by the local authority, the applicant was found to be in contempt of court for failing to comply with order and a committal to prison for 42 days was issued suspended for 56 days to permit the applicant further time to comply. The committal was suspended by the Court on 9 June 1995 for a further seven days.        The applicant and his family ceased residential occupation of their land. They moved onto land nearby on a temporary basis and without permission. On 2 October 1995, the local authority obtained an order from the County Court requiring the applicant to remove his caravan from the land, enforcement to be suspended for 14 days to allow the applicant to comply.   COMPLAINTS        The applicant complains of being forced to leave his land after occupying it with his family for over 20 years. He submits that the local authority accepted his payment of rates and taxes in respect of his occupation and that there is no justification for evicting him and rendering him homeless. He invokes Article 8 of the Convention.     THE LAW        The applicant complains that he has been forced to leave the land where he and his family have lived for more than 20 years. He submits that this discloses a violation of Article 8 (Art. 8) of the Convention, which provides:        "1.    Everyone has the right to respect for his private and      family life, his home and his correspondence.        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        The Commission recalls that whether or not a particular habitation constitutes a "home" for the purposes of Article 8 paragraph 1 (Art. 8-1) will depend on the factual circumstances of the particular case, namely, the existence of sufficient and continuous links. It is not limited necessarily to those homes which have been lawfully occupied or lawfully established (see Nos. 20348/92, Buckley v. United Kingdom, Comm. Rep. 11.1.95 pending before the Court, and No. 7456/76, dec. 8.2.78, D.R. 13 p. 40, and Eur. Court H.R., Gillow judgment of 24 November 1986, Series A no. 109). While the applicant in this case did not establish his home in a caravan on his land with the necessary planning permission, the Commission has had regard to the length of his occupation there, namely, over 20 years. In the Commission's view, this is sufficient to bring his complaints within the scope of the first paragraph of Article 8 (Art. 8) of the Convention.        The Commission has therefore examined whether the measures taken against the applicant requiring him to cease occupation of his land comply with the requirements of Article 8 paragraph 2 (Art. 8-2), ie. whether they were in accordance with law, pursued an aim that is legitimate under this provision and were necessary in a democratic society for the aforesaid aim (see, inter alia, Eur. Court H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 27 para. 60 (a)).        The applicant has not contested the lawfulness of the planning procedures taken to enforce the planning regulations in force (ie. the enforcement notices, appeal and inquiry, the court orders requiring the cessation of occupation) and the Commission sees no indication of lack of conformity with the requirement that these measures be "in accordance with the law".        The Commission notes that the applicant's land lies within an area subject to rural conservation, a Green Belt, and that the measures have been taken to preserve the character and appearance of the countryside. The measures can be said to relate to preservation of the environment (which includes amenity for the general public) and thus pursue the legitimate aims of safeguarding the economic well-being of the country and the protection of the health and rights of others as provided for in the second paragraph of Article 8 (Art. 8) of the Convention.        As regards the criterion "necessary in a democratic society", the case-law of the Commission and Court establishes that the notion of "necessity" implies that the interference corresponds to a pressing social need and that it is proportionate to the aim or aims pursued. In assessing proportionality regard must be had to whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. Further, the Convention organs must take into account that a   margin of appreciation is left to the Contracting States which are in principle in a better position to make an initial assessment of the necessity of a given interference (see eg. Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130 p. 32 para. 68).        The Commission recalls that the applicant was made aware from a very early stage that his occupation of his land was not in conformity with the applicable planning regulations. Although he continued to live there for more than 20 years, it is not apparent that he was ever given an indication that his failure to comply with those regulations was accepted or acquiesced in by the local authority.        The Commission notes the reference in the domestic proceedings to the "gypsy" background of the applicant. It observes the findings of the Inspector however that the applicant, and his parents, had not followed the traditional life of his Romany grandparents and that he had no wish to do so. He had previously lived in a house and a flat. This applicant's circumstances are therefore materially different from those of the applicant in the Buckley case (No. 20348/92 Comm. Rep. 11.1.95 loc. cit.) where the applicant, as a gypsy who had pursued throughout her life a traditional lifestyle, on the threatened eviction from her land had as a result a restricted number of options open to her as regards finding other accommodation.   Furthermore, the Commission in the Buckley case found that there was no reasonable alternative available to her and that the planning considerations applicable to the area were not of any countervailing strength. In this case, the Commission is not persuaded that the present applicant, who has had not inconsiderable warning of the enforcement of measures against him, would have had no other reasonable alternatives open to him. The character of the countryside in the present case would also appear to attract not insignificant considerations of public interest in environmental preservation.        In conclusion, the Commission finds that the enforcement of the planning measures in this case does not, having regard to the Contracting State's margin of appreciation, offend the principle of proportionality nor does it fail to strike an acceptable balance between the requisite interests.        Accordingly, the interference in this case can be said to be justified as necessary in a democratic society in pursuit of the aims identified above. The application must therefore be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Second Chamber       President of the Second Chamber         (M.-T. SCHOEPFER)                        (H. DANELIUS)