Home > yourrights > rights of gypsies and travellers/planning permission for caravan sites > planning permission for caravan sites
> Human Rights
The Europan Convention on Human Rights
Local authorities, planning inspectors, the Secretary of State and the courts are all public bodies for the purposes of section 6(3) of the HRA 1998 and are therefore subject to the duty imposed by section 6(1) of the HRA 1998 to act compatibly with the Convention when dealing with applications for planning permission made by Gypsies and Travellers.
In 2001 the European Court of Human Rights (ECtHR) gave its judgment in Chapman v United Kingdom, a case brought by a Gypsy family that had been prosecuted for breach of planning laws in circumstances where they had developed a site in the Green Belt without planning permission. The applicants complained that the enforcement action taken against them breached their rights protected by Article 8 of the Convention. This 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 ECtHR said:
‘… the applicant’s occupation of her caravan is an integral part of her ethnic identity as a Gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or from their own volition, many Gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children. Measures which affect the applicant’s stationing of her caravans have therefore a wider impact than on the right to respect for home. They also affect her ability to maintain her identity as a Gypsy and to lead her private and family life in accordance with that tradition.’
The judges of the ECtHR disagreed on whether the interference by the State was justified as ‘necessary in a democratic society’. A majority of 10 of the 17 judges held that it was and dismissed the application. The dissenting judges disagreed and when giving their judgment referred to the difficulties faced by Gypsies, stating:
‘The long-term failures of local authorities to make effective provision for Gypsies in their planning policies is evident from the history of implementation of measures concerning Gypsy sites, both public and private … the Government is already well aware that the legislative and policy framework does not provide in practice for the needs of the Gypsy minority and that their policy of leaving it to local authorities to make provision for Gypsies has been of limited effectiveness … it is in our opinion disproportionate to take steps to evict a Gypsy family from their home on their own land in circumstances where there has not been shown to be any other lawful, alternative site reasonably open to them. It would accordingly be for the authorities to adopt such measures as they consider appropriate to ensure that the planning system affords effective respect for the home, private life and family life of Gypsies such as the applicant.’
Significantly, however, all the Judges of the ECtHR agreed that:
‘… the vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases … To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the Gypsy way of life …’
Though the applicants in Chapman were unsuccessful, the principles derived from that case are of general application and will be relevant in almost every case where Gypsies and Travellers seek planning permission for use of land as a caravan site.
The case of Chichester BC v FSS and Doe proves the point. In that case the Court of Appeal upheld a planning inspector’s decision to allow a Gypsy family’s appeal against the refusal of planning permission; and supported the inspector’s view that the refusal of planning permission would breach the family’s rights protected by Article 8 of the Convention.
In 2001 the European Court of Human Rights (ECtHR) gave its judgment in Chapman v United Kingdom, a case brought by a Gypsy family that had been prosecuted for breach of planning laws in circumstances where they had developed a site in the Green Belt without planning permission. The applicants complained that the enforcement action taken against them breached their rights protected by Article 8 of the Convention. This 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 ECtHR said:
‘… the applicant’s occupation of her caravan is an integral part of her ethnic identity as a Gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or from their own volition, many Gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children. Measures which affect the applicant’s stationing of her caravans have therefore a wider impact than on the right to respect for home. They also affect her ability to maintain her identity as a Gypsy and to lead her private and family life in accordance with that tradition.’
The judges of the ECtHR disagreed on whether the interference by the State was justified as ‘necessary in a democratic society’. A majority of 10 of the 17 judges held that it was and dismissed the application. The dissenting judges disagreed and when giving their judgment referred to the difficulties faced by Gypsies, stating:
‘The long-term failures of local authorities to make effective provision for Gypsies in their planning policies is evident from the history of implementation of measures concerning Gypsy sites, both public and private … the Government is already well aware that the legislative and policy framework does not provide in practice for the needs of the Gypsy minority and that their policy of leaving it to local authorities to make provision for Gypsies has been of limited effectiveness … it is in our opinion disproportionate to take steps to evict a Gypsy family from their home on their own land in circumstances where there has not been shown to be any other lawful, alternative site reasonably open to them. It would accordingly be for the authorities to adopt such measures as they consider appropriate to ensure that the planning system affords effective respect for the home, private life and family life of Gypsies such as the applicant.’
Significantly, however, all the Judges of the ECtHR agreed that:
‘… the vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases … To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the Gypsy way of life …’
Though the applicants in Chapman were unsuccessful, the principles derived from that case are of general application and will be relevant in almost every case where Gypsies and Travellers seek planning permission for use of land as a caravan site.
The case of Chichester BC v FSS and Doe proves the point. In that case the Court of Appeal upheld a planning inspector’s decision to allow a Gypsy family’s appeal against the refusal of planning permission; and supported the inspector’s view that the refusal of planning permission would breach the family’s rights protected by Article 8 of the Convention.
