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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> O'Byrne v Secretary Of State For Environment, Transport & Regions & Anor  EWCA Civ 499 (5 April 2001)
Cite as:  16 EGCS 144,  HLR 30,  NPC 71,  EWCA Civ 499
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
(MR JUSTICE GOLDRING)
Strand, London WC2A 2LL
Thursday, 5th April 2001
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE LAWS
| IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW CAROLINE MARTINA O'BYRNE
- and -
(1) THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS
(2) THE LONDON BOROUGH OF CROYDON
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
JOHN HOBSON QC (instructed by The Treasury Solicitor of London SW1H 9JS) appeared on behalf of the respondents
Crown Copyright ©
LORD JUSTICE BUXTON :
i) The reference to "sale" in the 1938 Act cannot include a compulsory sale or transfer such as occurs when the provisions of the 1985 Act are operated.
ii) The right to buy provisions of the 1985 Act impliedly repeal, pro tanto, such of the provisions of the 1938 Act as inhibit the exercise of the right to buy.
i) In assessing the competing considerations affecting the proposed sale to Miss O'Byrne, the Inspector gave inadequate weight to the right conferred on her by the 1985 Act.
ii) The Inspector wrongly permitted himself to act on considerations in relation to the Green Belt land other than those permitted by the 1938 Act
iii) There was no or insufficient evidence to justify the Inspector in accepting the arguments against sale that were advanced by Croydon.
"tenants generally, a tenant or tenants of a particular landlord, or tenants of a description of landlords, have or may have difficulty in exercising effectively and expeditiously the right to buy"
then he can execute a "vesting deed", which has the same effect in transferring the property to the tenant as would a conveyance or lease granted by the local authority landlord. It was no doubt these provisions, added to the strict procedure imposed on local authorities, that led Lord Woolf MR in Bristol City Council v Lovell (1996) 29 HLR 528 at p544 to cite with approval the observation of Sir Thomas Bingham MR in Taylor v Newham LBC  1 WLR 444 at p452B that
"we should be doing great violence to the obvious intention of Parliament if we did not recognise that it was Parliament's intention to block to the maximum the opportunities open to reluctant landlords to obstruct the acquisition of title by their tenants."
It is necessary to mention a few further specific provisions of the 1985 Act. Section 120 and Schedule 5 set out a list of "exceptions to the right to buy". Those are all cases either of particular categories of landlord (for instance, certain housing associations) or particular categories of dwelling-house (for instance, those specifically adapted for use by the disabled). There are also two sections, important for the argument in this appeal, that address the cases of dwelling-houses in specific types of area of land that bear some similarities with Green Belt land. By section 157, where the dwelling-house subject to the right to buy is located in a National Park or area of outstanding natural beauty the local authority has power to include in its conveyance restrictions on the property's subsequent disposal, limiting that disposal to (very broadly stated) members of the tenant's family or persons working or already living in the Park or area. That is a significant limitation on the normal operation of the right to buy provisions, the objective of which is to transfer to the former tenant a freehold or leasehold that can be sold on the housing market just like any other private holding.
"the dwelling-house shall be deemed to be freed from any trust arising solely by virtue of its being land held in trust for enjoyment by the public [under the two sections]"
The facts of this case
The course of the proceedings
2(i) The construction of section 5 of the 1938 Act
"The seller must agree to transfer the property and the buyer to take it, and they must agree to do so in return for money which is paid and received as the price of the goods. Where the consent of the parties does not extend so far, or does not exist at all, there is no sale."
2(ii) Implied repeal
"Now, if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intent to do so."
"a repeal by implication is only effected when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one that the two cannot stand together…..Unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time a repeal will not be implied and special Acts are not repealed by general Acts unless there is some express reference to the previous legislation, or unless there is a necessary inconsistency in the two Acts standing together."
"The test of whether there as been a repeal by implication by subsequent legislation is this: are the provisions of a later Act so inconsistent or repugnant with the provisions of an earlier Act that the two cannot stand together?"
"This principle is a logical necessity, since two inconsistent laws cannot both be valid without contravening the principle of contradiction. The possibility of implied repeal goes wider however than is indicated by the principle of contradiction. Other interpretative criteria may indicate implied repeal, for example the commonsense construction rule or the presumption that Parliament wishes to avoid an anomalous result"
I am unable to find any inconsistency or repugnance between the two statutory provisions. The provisions of section 5 are in no sense wholly incompatible with the provisions of the 'right to buy' legislation and to read the two statutes together does not lead to wholly absurd consequences. It seems to me entirely right and consistent with the intentions of Parliament that where the right to buy exists in respect of land in the green belt that the Secretary of State should continue to have the power to consent or withhold his consent to the sale…the two provisions …can work in harness with the other"
i) Parliament plainly attached importance to control of the disposal of Green Belt land, and introduced special limitations to achieve that end (paragraph 7 above). Those provisions had stood unaltered for over 40 years when the scheme now in the 1985 Act was first introduced in 1980. It is very difficult to assume that legislation on a completely different subject-matter was intended to repeal those provisions simply by implication.
ii) The 1938 Act provisions do not exclude consideration of the right to buy, but simply require, before an actual sale takes place, that there should be a weighing-up of the policy considerations affecting Green Belt land against those informing the right to buy: as the Inspector's report in the present case demonstrated. That weighing-up is in the hands of the same man, the Secretary of State, on whom Parliament has conferred overall supervision and control of the operation of the right to buy scheme. It is hard to think that Parliament, however anxious to ease the operation of the right to buy scheme, must have thought that that arrangement was unacceptable, to the extent of entirely removing the Secretary of State's 1938 Act powers.
iii) In the 1985 Act Parliament did make specific provision about certain areas of land of public importance, albeit in different circumstances and in different terms from the provisions of the 1938 Act. The fact that in the course of that exercise nothing was said about the impact of the 1985 Act upon statutory Green Belt land is some indication that the 1938 Act provisions were intended to remain untouched, rather than that the intention must have been to repeal them by implication.
iv) As McNeil J said in Enfield, and as the present case demonstrates, there is no difficulty in practice in operating the 1938 Act and the 1985 provisions in parallel, and the outcome in the present case cannot be said to be absurd or irrational: however much it may be regretted by Miss O'Byrne.
3(i): the Inspector gave inadequate weight to Miss O'Byrne's 1985 Act right
"Whilst the disposal of the Stables Flat might not harm Green Belt policy, it appears to me that the effective use and management of Coombe Wood Park, which was purchased under the 1938 Green Belt Act would be adversely affected. This is one of the wider policy considerations which the Secretary of State should take into account in reaching a decision in this case. It must be balanced against the intentions of Part V of the Housing Act to afford secure tenants the right to buy their home. In this instance the disposal of part of a building which already fulfils a role in the functioning of the surrounding park, and which has the potential to enhance that role in future, in my view outweighs the considerations arising under the Housing Act 1985. I consider that consent should not be granted."
3(ii): The application of considerations irrelevant to the 1938 Act scheme
3(iii): The evidence before the Inspector
LORD JUSTICE LAWS :
"118(1) A secure tenant has the right to buy, that is to say, the right, in the circumstances and subject to the conditions and exceptions stated in the following provisions of this Part -
(a) if the dwelling-house is a house and the landlord owns the freehold, to acquire the freehold of the dwelling-house;(b) if the landlord does not own the freehold or if the dwelling- house is a flat (whether or not the landlord owns the freehold), to be granted a lease of the dwelling-house...
119(1) The right to buy does not arise unless the period which, in accordance with Schedule 4, is to be taken into account for the purposes of this section is at least two years…
120 The right to buy does not arise in the cases specified in Schedule 5 (exceptions to the right to buy)...
121(1) The right to buy cannot be exercised if the tenant is obliged to give up possession of the dwelling-house in pursuance of an order of the court or will be so obliged at a date specified in the order.
(2) The right to buy cannot be exercised if the person, or one of the persons, to whom the right to buy belongs -
(a) has a bankruptcy petition against him,...(c) is an undischarged bankrupt, or(d) has made a composition or arrangement with hiscreditors the terms of which remain to be fulfilled.
122(1) A secure tenant claims to exercise the right by written notice to that effect served on the landlord.
(2) In this Part "the relevant time", in relation to an exercise of the right to buy, means the date on which the notice is served.
(3) The notice may be withdrawn at any time by notice in writing served on the landlord.
124(1) Where a notice under section 122 (notice claiming to exercise right to buy) has been served by the tenant, the landlord shall, unless the notice is withdrawn, serve on the tenant within the period specified in subsection (2) a written notice either -
(a) admitting his right, or(b) denying it and stating the reasons why, in the opinion of the landlord, the tenant does not have the right to buy.
(2) The period for serving a notice under this section is four weeks where the requirement of section 119... is satisfied by a period or periods during which the landlord was the landlord on which the tenant's notice under section 122 was served, and eight weeks in any other case.
125(1) Where a secure tenant has claimed to exercise the right to buy and that right has been established (whether by the landlord's admission or otherwise), the landlord shall -
(a) within eight weeks where the right is that mentioned in section 118(1)(a) (right to acquire freehold), and(b) within twelve weeks where the right is that mentioned in section 118(1)(b) (right to acquire leasehold interest), serve on the tenant a notice complying with this section.
(2) The notice shall describe the dwelling-house, shall state the price at which, in the opinion of the landlord, the tenant is entitled to have the freehold conveyed or, as the case may be, the lease granted to him...
(3) The notice shall state the provisions which, in the opinion of the landlord, should be contained in the conveyance or grant.
(4) Where the notice states provisions which would enable the landlord to recover from the tenant –
(a) service charges, or(b) improvement contributions, the notice shall also contain the estimates and other information required by section 125A (service charges) or 125B (improvement contributions).
(4A) The notice shall contain a description of any structural defect known to the landlord affecting the dwelling-house or the building in which it is situated…
(5) The notice shall also inform the tenant of –
(a) the effect of sections 125D and 125E(1) and (4) (tenant's notice of intention, landlord's notice in default and effect of failure to comply),(b) the right under section 128 to have the value of the dwelling-house at the relevant time determined or re-determined by the district valuer,…
125D(1) Where a notice under section 125 has been served on a secure tenant, he shall within the period specified in subsection (2) either –
(a) serve a written notice on the landlord stating either that he intends to pursue his claim to exercise the right to buy or that he withdraws that claim...
(2) The period for serving a notice under subsection (1) is the period of twelve weeks beginning with whichever of the following is the later -
(a) the service of the notice under section 125, and(b) where the tenant exercises his right to have the value of the dwelling-house determined or re-determined by the district valuer, the service of the notice under section 128(5) stating the effect of the determination or re-determination.
125E(1) The landlord may, at any time after the end of the period specified in section 125(D)(2)…, serve on the tenant a written notice –
(a) requiring him, if he has failed to serve the notice required by section 125D(1), to serve that notice within 28 days, and(b) informing him of the effect of this subsection and subsection (4)…
(4) If the tenant does not comply with a notice under this section, the notice claiming to exercise the right to buy shall be deemed to be withdrawn at the end of that period…
126(1) The price payable for a dwelling-house on a conveyance or grant in pursuance of this Part is –
(a) the amount which under section 127 is to be taken as its value at the relevant time, less(b) the discount to which the purchaser is entitled under this Part…
[S.127 gives details of certain assumptions to be made, and other matters, for the purpose of ascertaining the value of the dwelling-house; s.128 concerns valuation by the district valuer, and ss.129 – 131 deal with the purchaser's discount]
138(1) Where a secure tenant has claimed to exercise the right to buy and that right has been established then, as soon as all matters relating to the grant... have been agreed or determined, the landlord shall make to the tenant -
(a) if the dwelling-house is a house and the landlord owns the freehold, a grant of the dwelling-house for an estate in fee simple absolute, or(b) if the landlord does not own the freehold or if the dwelling-house is a flat (whether or not the landlord owns the freehold), grant of a least of the dwelling-house, in accordance with the following provisions of this Part.
(2) If the tenant has failed to pay the rent or any other payment due from him as a tenant for a period of four weeks after it has been lawfully demanded from him, the landlord is not bound to comply with subsection (1) while the whole or part of that payment remains outstanding.
(3) The duty imposed on the landlord by subsection (1) is enforceable by injunction.
140(1) The landlord may, subject to the provisions of this section, serve on the tenant at any time a written notice requiring him -
(a) if all relevant matters have been agreed or determined, to complete the transaction within a period stated in the notice, or(b) if any relevant matters are outstanding, to serve on the landlord within that period a written notice to that effect specifying the matters...
(2) The period stated in a notice under this section shall be such period (of at least 56 days) as may be reasonable in the circumstances.
(3) A notice under this section shall not be served earlier than twelve months after -
(a) the service of the landlord's notice under section 125...
(5) In this section 'relevant matters' means matters relating to the grant.
141(1) If the tenant does not comply with a notice under section 140..., the landlord may serve on him a further written notice -
(a) requiring him to complete the transaction within a period stated in the notice, and(b) informing him of the effect of this section in the event of his failing to comply.
(2) The period stated in a notice under this section shall be such period (of at least 56 days) as may be reasonable in the circumstances...
(4) If the tenant does not comply with a notice under this section the notice claiming to exercise the right to buy shall be deemed to be withdrawn at the end of that period...
153A(1) Where a secure tenant has claimed to exercise the right to buy, he may serve on his landlord a notice (in this section referred to as an 'initial notice of delay') in any of the following cases, namely, -
(a) where the landlord has failed to serve a notice under section 124 within the period appropriate under subsection (2) of that section;(b) where the tenant's right to buy has been established and the landlord has failed to serve a notice under section 125 within the period appropriate under subsection (1) of that section;…(e) where the tenant considers that delays on the part of the landlord are preventing him from exercising expeditiously his right to buy…
[Subss.(3) and (4) provide for a landlord's counter notice]
(5) At any time when -
(a) the response period specified in an initial notice of delay has expired, and(b) the landlord has not served a counter notice under subsection (3), the tenant may serve on the landlord a notice (in this section and section 153B referred to as an 'operative notice of delay') which shall state that section 153B will apply to payments of rent made by the tenant on or after the default date or, if the initial notice of delay specified the case in subsection (1)(e), the date of the service of the notice…
[S.153B provides subject to certain qualifications that where an operative notice of delay is served, a later payment of rent shall be treated both as a payment of rent and as a payment going in reduction of the purchase price]
157(1) Where in pursuance of this Part a conveyance or grant is executed by a local authority, the Development Board for Rural Wales or a housing association ("the landlord") of a dwelling-house situated in -
(a) a National Park,(b) an area designated under section 87 of the National Parks and Access to the Countryside Act 1949 as an area of outstanding natural beauty, or(c) an area designated by order of the Secretary of State as a rural area, the conveyance or grant may contain a covenant limiting the freedom of the tenant (including any successor in title of his and any person deriving title under him or such a successor) to dispose of the dwelling-house in the manner specified below....
164(1) The Secretary of State may use his powers under this section where it appears to him that tenants generally, a tenant or tenants of a particular landlord, or tenants of a description of landlords, have or may have difficulty in exercising effectively and expeditiously the right to buy…
(2) The powers may be exercised only after he has given the landlord or landlords notice in writing of his intention to do so and while the notice is in force.
(3) Such a notice shall be deemed to be given 72 hours after it has been sent.
(4) Where a notice under this section has been given to a landlord or landlords, no step taken by the landlord or any of the landlords while the notice is in force or before it was given has any effect in relation to the exercise by a secure tenant of the right to buy,… except in so far as the notice otherwise provides.
(5) While a notice under this section is in force the Secretary of State may do all such things as appear to him necessary or expedient to enable secure tenants of the landlord or landlords to which the notice was given to exercise the right to buy…; and he is not bound to take the steps which the landlord would have been bound to take under this Part.
165(1) For the purpose of conveying a freehold or granting a lease in the exercise of his powers under section 164 the Secretary of State may execute a document, to be known as a vesting order, containing such provisions as he may determine; and for the purposes of stamp duty the vesting order shall be treated as document executed by the landlord...
179(2) Where a dwelling-house let on a secure tenancy is land held -
(a) for the purposes of section 164 of the Public Health Act 1875 (pleasure grounds), or(b) in accordance with section 10 of the Open Spaces Act 1906 (duty of local authority to maintain open spaces and burial grounds), then, for the purposes of this Part, the dwelling-house shall be deemed to be freed from any trust arising solely by virtue of its being land held in trust for enjoyment by the public in accordance with section 164 or, as the case my be, section 10."
"An Act to make provision for the preservation from industrial or building development of areas of land in and around the administrative county of London to confer powers for that purpose upon the London County Council and certain other authorities and persons and for other purposes".
"(1) Subject to the provisions of section 6 (Saving for certain statutory powers of acquisition of land) of this Act before Green Belt land vested in a local authority or a parish council is sold or… is exchanged or… is appropriated under section 163 (Power to appropriate land) of the Local Government Act 1933 or under any other enactment the local authority or parish council in whom the land is vested shall -
(a) publish in one or more newspapers circulating in the locality in which the land proposed to be sold given in exchange or appropriated is situate a notice of the proposal containing a description of the land proposed to be sold given in exchange or appropriated and specifying a place with the said locality where a plan indicating the boundaries of the land may be inspected and the time (being not less than twenty-eight days after the date or latest date of such publication) within which and the manner in which objections to such sale exchange or appropriation can be made;(b) serve a copy of such notice on every contributing local authority and on the county council;(c) seek the consent of every contributing local authority and of the county council to such sale exchange or appropriation;(d) send to the Minister a copy of every such notice and of every consent which has been obtained to such sale exchange or appropriation; and(e) obtain the consent of the Minister.
(2) The Minister before giving his consent under this section shall consider any objections which he has received to the proposed sale exchange or appropriation.
(3) If the consent of any contributing local authority [defined by s.2 of the 1938 Act as any local authority which for purposes of the 1938 Act has contributed or agreed to contribute to the cost incurred in the acquisition of the land in question] or of the county council is not obtained by the local authority or the parish council in whom the land is vested or if such consent can only be obtained upon terms with which such local authority or parish council are dissatisfied the Minister shall before consenting to the sale exchange or appropriation cause a local inquiry to be held.
(4) Any consent of the Minister under this section shall be given by an order and shall for all purposes and in all respects have effect as if it were the consent of every contributing local authority and of the county council.
(5) An order of the Minister made under this section may contain such terms and conditions (if any) as shall appear to him to be just and where such order is made with reference to the sale or appropriation of Green Belt land may also provide that the land to which the order relates shall as from such date as the Minister may specify be free (to such extent as may be specified in such order) from the restrictions imposed upon it whether by this Act or by any declaration made or covenant entered into in manner provided by and for the purposes of this Act."
THE ISSUE PRECISELY STATED
"... the 1938 Act cannot reasonably be construed or interpreted as imposing greater restrictions in respect of land held for the limited purposes of that Act than for land held for the purposes of recreational public parks, open spaces and cemeteries in respect of which section 179(2) of the 1985 Act expressly provided for the existence of an unqualified right to buy. Parliament must, on any reasonable interpretation, be taken to have regarded the latter land as more sensitive and requiring greater protection than land held under the limited ambit and purpose of the 1938 Act, nevertheless, in respect of that land it provided that qualifying tenants should have an unfettered right to buy."
However, it is perfectly possible to envisage a view taken by the legislature to the effect that as a matter of general policy there exist pressing considerations such as to favour tighter protection of the green belt than the subject-matter of s.179(2). The court is certainly in no position to say that such a view would be so absurd that it cannot have been within Parliament's contemplation. In fact the reason why the provisions referred to in s.179(2) are singled out for mention is not far to seek: it is to release the statutory trusts which would otherwise constitute a potential impediment upon the transfer of the property in question in pursuance of the right to buy.
THE CORRECT CONSTRUCTION OF THE RIGHT TO BUY LEGISLATION
"At the end of the day, I am unable to find any inconsistency or repugnance between the two statutory provisions. The provisions of section 5 are in no sense wholly incompatible with the provisions of the 'right to buy' legislation and to read the two statutes together does not lead to wholly absurd consequences. It seems to me entirely right and consistent with the intentions of Parliament that where the right to buy exists in respect of land in the green belt that the Secretary of State should continue to have the power to consent or withhold his consent to the sale, applying to his decision what might be described as green belt or more broadly 'planning' considerations. There is to my mind no repugnance between the two provisions: each can work in harness with the other."
Although McNeill J states that he finds no inconsistency, I read this passage as indicating a conclusion reached on the footing that the respective aims and purposes of the two sets of legislation are perfectly compatible; and with this, as I have made clear, I agree. But McNeill J does not with respect embark upon any analysis of the terms of the Right to Buy legislation so as distinctly to decide whether it constitutes a complete and comprehensive code.
The first dimension
The second dimension
LORD JUSTICE THORPE:
i) in England 4.5M acres are held within urban green belts:
ii) the London green belt accounts for 1.2M of those acres:
iii) but only 35,000 acres within the London green belt are so designated by the 1938 Act.