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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 [2001] EWCA Civ 499 (5 April 2001) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2001/499.html Cite as: [2002] HLR 30, [2001] EWCA Civ 499, [2001] 16 EGCS 144, [2001] NPC 71 |
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2001 ] EWCA Civ 499![]() |
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2000 /2360/C |
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![]() |
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B e f o r e :
LORD JUSTICE BUXTON
and
LORD JUSTICE LAWS
____________________
| IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW CAROLINE MARTINA O'BYRNE |
Applicant |
|
- and - |
||
( 1 ) THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS( 2 ) THE LONDON BOROUGH OF CROYDON |
Respondents |
____________________
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 :
Introduction
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.
The legislation
122
). The landlord has, within a limited period, either to admit or deny that right (section 124), any denial being justiciable in the county court (section 181). If the right is admitted, a stepped statutory procedure follows for agreement or assessment of the purchase price and the transfer of the landlord's interest.
"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 [1993]
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.
2
) provides for the case of dwelling-houses that form part of land held either under section 164 of the Public Health Act 1875 (which authorises urban authorities to provide pleasure grounds) or under section
10
of the Open Spaces Act 1906 (which requires local authorities who hold open spaces or burial grounds to hold them in trust for the benefit of the public). In such cases
"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
122
notice on 6 December 1996. On 18 July 1997 Croydon wrote to Miss O'Byrne indicating its view that since the property was within Green Belt land the consent of the Secretary of State would have to be obtained. That letter envisaged that, because of the timetable for considering right to buy applications laid down by the 1985 Act, it would be necessary to respond to the section
122
notice before the issue thought to arise under the 1938 Act had been resolved; but contended that any apparent sale arising from that process could not be completed until the Secretary of State's consent had been obtained. Accordingly, on
1
September 1997 Croydon responded under section 124 admitting the right to buy and stipulating the price and terms of sale. On 13 January 1998 Croydon wrote to the Secretary of State saying that, as a result of the required public advertisement of the intended sale under section 5(
1
)(a) of the 1938 Act, Croydon itself wished to object to the sale.
2
above. The Inspector upheld the objections of Croydon, and as already indicated recommended that consent should not be given.
2
above, were abandoned, Mr Craig, who appeared then as he did before us, accepting, as the judge expressed it, "that the Secretary of State does have a discretion under the 1938 Act when considering whether to consent under the 1985 Act". Mr Craig told us that he had taken that view because he thought, wrongly, that the issue was concluded at first instance by the decision of McNeill J in R v Secretary of State for the Environment ex p Enfield BC (1988) 86 LGR 549 [Enfield]. That is a case to which I shall have to return. Those points being out of the way, Goldring J rejected the criticisms of the Inspector's reasoning, held that his conclusions had been well within the permitted boundary of his judgement, and dismissed the application.
2
above). However, before us he sought permission to amend the notice to take the point, which involved contending that Enfield was wrongly decided. We granted that permission (which was not opposed by Mr Hobson QC appearing for the Secretary of State): not least because it appeared that the implied repeal issue was not only one of some importance, but also the only seriously arguable issue in the case.
2
and 3 above.
2
(i) The construction of section 5 of the 1938 Act
1
-067) puts it:
"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
of the 1938 Act, the concept also includes the authority that made the actual expenditure, in this case Croydon. That provision however appears to assume that the objector will be an authority other than that proposing the sale; whereas here Croydon, although formally entitled to do so as a contributing authority, is objecting to its own "sale". I have however concluded that, although the paradigm case intended to be addressed was a voluntary sale by authority A to which a different authority B takes objection, nonetheless the language of sale used to implement that policy is wide enough to encompass a case such as the present, where the holding authority finds itself required to make a sale to which it nonetheless objects.
2
(ii) Implied repeal
10
App Cas 59 the Earl of Selbourne LC said, at p68:
"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."
2
QB 267 at p 271 AL Smith J said:
"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."
1
QB 654 at p658:
"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"
2
) with National Park, open space, or pleasure ground land, that outcome can hardly be characterised as absurd, or as producing a statutory regime that is impossible to operate.
22
- 23 above, that Parliament intended to repeal all other existing statutory provisions that might impede exercise of the right to buy: which is merely another way of expressing the contention that the 1985 Act is a "complete code."
2001
]
2
WLR 15, in particular in the speech of Lord Bingham of Cornhill at p31G. This contention was, I have to say, entirely misconceived. First, the necessary preconditions of ambiguity, obscurity or absurdity are not present: indeed, as my Lord Laws LJ pointed out in the course of argument, Miss O'Byrne would be ill-advised to contend that the 1985 Act is ambiguous, because the court will only find implied repeal when driven to it, and a merely ambiguous statute cannot provide that cogency. Second, as is so often the case when Pepper v Hart is sought to be introduced, the passage from Hansard relied on, when looked at de bene esse, establishes the reverse of the point that it is supposed to support. On the report stage of the Bill in the House of Lords a question was raised as to the application of the right to buy provisions to dwellings situated in what was described as "open space or parkland". The Minister said that it was government policy that the right to buy should not be witheld simply because of that fact, and drew attention to an amendment to the Bill, which became section 179(
2
) of the 1985 Act, modifying provisions referred to in that section that might be thought otherwise to inhibit that policy. The Minister was far from saying that it was the intention or meaning of the Bill that the right to buy must prevail in all areas that could be characterised as "open space or parkland" irrespective of any existing statutory limitations on the use or disposal of that land.
2
), in respect of properties affected by the Public Health Act 1875 and the Open Spaces Act 1906, without doing anything about the 1938 Act. In fact, however, the difference is entirely rational. The Acts of 1875 and 1906 did not address any issue of the disposal of the land to which they relate. Parliament was originally content to leave that issue to be regulated by the general rules limiting the disposal of local authority property. Only when those rules were substantially modified, in favour of disposal, was it thought necessary to introduce some, modest, additional limitation on the disposal of land forming an open space: see paragraph 14 of Schedule 23 of the Local Government, Planning and Land Act 1980, inserting sections 123 2A and 2B into the Local Government Act 1972 (which, incidentally, uses exactly the same formula as section 179(
2
) of the 1985 Act to deal with the removal of trusts on disposal). Parliament took a quite different approach to Green Belt land under the 1938 Act. As indicated in paragraph 6 above, it was never content to rely on the general local government law, but introduced specific and more stringent provisions to inhibit the disposal of Green Belt land. Whatever may be the effect of section 179(
2
) of the 1985 Act on the disposal of "open space" land, the history of the various provisions makes it impossible to say that Parliament must have intended Green Belt land to fall under the same rules.
120
and Schedule 5. As indicated in paragraph
10
above, the cases addressed are ones of particular categories of landlord or particular categories of dwelling-house. Buildings in Green Belt land do not fall into either case. It is also important to note that section
120
addresses exceptions to the right to buy, in the sense of cases where the right to buy cannot be exercised at all. But that is not the situation created by the conjunction of the 1938 Act and the 1985 Act. In a case such as that of Miss O'Byrne the right to buy is not excluded, but only subjected to particular statutory controls that may or may not lead to its not being exercised. That point is, of course, far from conclusive as to Parliament's attitude to the 1938 Act limitations, but it does demonstrate that section
120
addresses a set of circumstances conceptually different from those that arise under the 1938 Act.
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.
122
notice.
122
notice, claiming to exercise the right to buy, the landlord is obliged, by section 124, within four weeks to serve a notice either admitting the right or denying it, and stating the landlord's reasons why the tenant does not have the right to buy. As indicated in paragraph 8 above, any such denial is, by section 181 of the 1985 Act, justiciable in the County Court. In the present case, Croydon served a notice admitting the right to buy, but qualifying the further process by reference to considerations arising under the 1938 Act: see paragraph
12
above. Mr Hobson submitted, on the restored hearing, that the admission of the right to buy had been an error on the part of Croydon. What the landlord should have done was to serve a notice denying the right to buy as envisaged by section 124(
1
)(b), on the ground that the right did not exist, or at least could not be exercised, until the completion of the 1938 Act procedures.
122
(
1
) is a notice claiming to exercise the right to buy; it is a rational and understandable response to such a claim that, until the 1938 Act procedures have been gone through, that right either does not exist or cannot be exercised. The tenant does not have the right to buy in accordance with the 1985 Act procedures because, until the 1938 Act procedures have been gone through, the local authority does not have the power to sell. That is only not the case if the inhibition on the landlord's powers imposed by the 1938 Act has been impliedly repealed; and thus, as in other instances, enquiry into the structure of the 1985 Act's machinery throws us back upon the general issues as to implied repeal that have already been examined.
1
)(a) and (b)) failure to serve section 124 or 125 notices; or (by sub-section (
1
)(e)) "delays on the part of the landlord [that] are preventing him from exercising expeditiously his right to buy" [emphasis supplied].
122
notice.. Accordingly, faced with an application under section 138 in a 1938 Act case the court would have to consider whether the statutory obligation to pursue the 1938 Act process prevented the immediate granting of relief under section 138(3). That question would in such proceedings be decided in the same terms as the question before us: that is, whether the 1985 Act had impliedly repealed the 1938 Act.
122
notice. That issue would fall to be determined according to the principles and the approach set out earlier in this judgment: that is, whether the two Acts can live together. And it would, in my view, be conclusive against any finding of implied repeal that the two statutory schemes can in fact be operated together: by recognising the power, indeed the obligation, of the local authority to recognise the inhibition imposed on its powers of alienation by the 1938 Act when serving a notice under section 124 of the 1985 Act.
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
Conclusion
LORD JUSTICE LAWS :
THE LEGISLATION
"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 section10
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".
Then s.5:
"(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
1
),
120
,
121
, 125E(4), 157(
1
) of the 1985 Act (provisions to which I shall have to return). The Green Belt legislation would simply give rise to a further exception or qualification, albeit one found in the 1938 Act and not in the 1985 Act.
2
). In his supplementary skeleton argument it is put thus (paragraph 4):
"... 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.
10
App Cas 59, 68, and by A L Smith LJ in Kutner v Phillips [1891]
2
QB 267, 271 - 272. However with great deference I need not set out these passages, since the respondent inevitably accepts that if there is an inescapable logical contradiction between the earlier and the later statute, the former is repealed by implication. But the contradiction asserted must be inescapable; so that where (as here) an implied repeal is said to be based on the construction of the later statute, that construction must be shown to be the only rational interpretation which is available. (I think it worth noticing at this stage, in parenthesis, that there are exceptions to the doctrine of implied repeal. In Factortame (No
2
) [1991]
1
AC 603 the earlier European Communities Act 1972 was held to prevail over the later Merchant Shipping Act 1988. Upon a proper appreciation of European law the two were on their face irreconcilable; but the House of Lords held that s.
2
(4) of the 1972 Act effectively inserted a proviso into Part II of the 1988 Act, so that it yielded to the law of Europe. Implied repeal was, however, not argued. It is unlikely that the Human Rights Act 1998 could be repealed by later legislation save expressly. But none of the deep issues raised by these instances falls to be considered in the present case.)
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
1
),
120
(and Schedule 5),
121
, 125E(4) and 157(
1
). But the starting-point for this part of the case must be the opening words of s.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... to acquire..." The words are quite unqualified; there is no saving by reference to any such expression as "the provisions of any other enactment" or the like. It seems to me that the ordinary meaning of the opening words of s.118 supposes that "the conditions and exceptions stated" are the only conditions and exceptions intended. But this, I accept at once, is not conclusive. If an implied repeal is to be found based on the construction of the later statute, then as I have said the construction required must be shown to be the only rational interpretation which is available. I do not think that a reasonable appreciation of the sense of s.118(
1
) can go so far or carry such weight.
1
),
120
(and Schedule 5),
121
, 125E(4), 157(
1
)) which circumscribe the right to buy, or as I have put it set limits to the right, lend some support to what I regard as the ordinary meaning of s.118 and therefore to a view of the Right to Buy legislation as a comprehensive code. But they are by no means all of a piece. S.119 merely establishes a qualifying period. The instances excluded from the right by s.
120
and Schedule 5 are quite unlike the Green Belt case (as Buxton LJ says at paragraph 9 of his judgment, they are cases either of particular categories of landlord or of particular categories of dwelling-house). S.
121
is concerned with tenants who may be unable to pay. S.125E(4) is part of the mechanics of notice and counter notice. S.157(
1
) might be said to cut both ways: on one view its contents may be taken as the limit of the extent to which the Right to Buy legislation was intended to make special allowance for National Parks, etc; on the other hand the omission of any reference to the 1938 Act may be thought deliberate, exhibiting an intention to leave the Green Belt legislation intact. I prefer the former view; but the point is equivocal. And while as I have said this whole collection of provisions appearing in the 1985 Act lends support to a view of the Right to Buy legislation as a comprehensive code, still I do not consider that without more they establish that position so firmly as to give rise to an implied repeal of the Green Belt legislation.
The second dimension
122
, 124, 125, 125D and 125E, and (importantly) the landlord's duty under s.138, enforceable by injunction, to make the transfer. On the facts of the present case, the local authority landlord admitted the appellant's right to buy. Mr Hobson QC for the Secretary of State was at first disposed to accept that that was the correct course, although when the case was restored for further argument on 7 March
2001
upon the implied repeal issue, he submitted that a local authority which appreciates that the 1938 Act might be engaged in the case ought to give a notice under s.124 denying the right. I by no means criticise Mr Hobson for what may appear to be a shift of ground. If the 1938 Act survives the 1985 Act, the authority's position is, to say the least, somewhat delicate. S.124 only allows for a notice admitting the tenant's right, or denying it; it does not contemplate a notice indicating that the right depends on the views of the Secretary of State, of necessity not yet ascertained, under the 1938 Act. This circumstance, to which I shall return directly, serves to emphasise that the real question here is whether there is any point or place in the process between, as it were, ss.
122
and 138 where there might exist any legitimate space for the intervention of s.5 of the 1938 Act.
122
, sees that the Green Belt legislation will bite on the case. Absent implied repeal the landlord must then comply both with s.124 of the 1985 Act and with s.5 of the 1938 Act. It cannot defer compliance with s.124 until the s.5 issue has been sorted out, save on pain of breach of the s.124(
2
) time limit for service of its notice. Apart from the general common sense of the thing - the s.5 procedures will plainly take some time: they may involve a local inquiry, as happened here - one notes the particular reference in s.5(
1
)(a), dealing with publication of notices, to a period of "not less than 28 days". If the local authority fails to meet the s.124(
2
) time limit, it is liable to have to convey at a reduced purchase price: see ss.153A and 153B. It cannot be its duty to expose itself to that consequence. But if on receipt of the s.
122
notice the local authority proceeds to apply s.5 of the 1938 Act (and the Secretary of State in due course permits the sale to go ahead) the tenant's right to compensation under ss.153A and 153B will fall in - unless the time limit for the s.124 notice is 8 weeks under s.124(
2
) and the whole s.5 process is completed within that time, which I should have thought is impossible or hopelessly unlikely.
1
)(a)? The right is thereby and without more "established" (see the opening words of s.125(
1
)). The machinery of ss.125 – 138 is at once engaged, including the time limits for service of the landlord's notice under s.125 (see s.125(
1
)(a) and (b)). Obviously the matters required to be set out in the s.125 notice include no reference to the Green Belt legislation. If after admitting the tenant's right the authority engages s.5 of the 1938 Act and withholds service of the s.125 notice until the s.5 process is complete, the s.125 notice will inevitably or almost inevitably be late (and the same scenario as to time and compensation will arise as in the case of late service of the notice under s.124).
1
) then takes effect. Once the tenant's right to buy is "established", s.138(
1
) imposes a duty enforceable by injunction (subs.(3)) upon the authority to make the grant of freehold or lease "as soon as all matters relating to the grant have been agreed or determined". As I have said the right is "established" by the landlord's acceptance of it by notice under s.124(
1
)(a). The phrase "all matters relating to the grant" must surely refer to conveyancing matters (cf. "relevant matters" in s.140(
1
) and (4), defined by s.140(5) to mean "matters relating to the grant"); I cannot think it is apt to include the putative impact of the Green Belt legislation, and Mr Hobson did not so submit. The only other qualification to the right is that given by subs.(
2
).
1
) duty: not just for the time being but altogether, because the s.138(
1
) duty is to make the grant as soon as the conveyancing matters are sorted out. A duty to make the grant if and when the Secretary of State gives consent under s.5 would be a different duty which in my judgment cannot be read into or got out of s.138.
120
and Schedule 5), following the landlord's notice denying the right the issue would go before the county court. In all such instances the timetable does not run while the matter is being dealt with.
11
of Schedule 5, to which reference was made at the further hearing on 7 March
2001
. That deals primarily (I summarise) with the case where the dwelling-house in question is particularly suitable for occupation by elderly persons. Notwithstanding s.181, paragraphs
11
(3) and (4) give jurisdiction to the Secretary of State to determine any question arising under the paragraph if application for that to be done is made by the tenant within 56 days of the landlord's notice under s.124; and (paragraph
11
(5)) "[i]f no such application is so made, the question shall be deemed to have been determined in favour of the landlord". Now, it might be thought that the procedure under s.5 of the 1938 Act is no more nor less than an analogous process, arising of course under another statute and having a different subject-matter, but a process just as consistent with ss.118 – 138 of the 1985 Act as is paragraph
11
of that very statute.
11
case the landlord must of necessity have given notice denying the tenant's right. The landlord's positive stance on the particular facts will be that the dwelling-house is particularly suitable for occupation by elderly persons: note paragraph
11
(5), to which I have just referred. In my judgment Mr Hobson's submission that a landlord faced with a potential s.5 case should likewise give notice under s.124 denying the tenant's right is erroneous. The right may at length be satisfied if after all the Secretary of State consents to the sale under s.5. The landlord, for its own reasons, may actually favour the right's being made good in the particular case. Or the landlord may be neutral; or it may be opposed to the establishment of the tenant's right – whether on grounds to do with s.5 of the 1938 Act or other grounds altogether. But the submission must be that none of this matters: the landlord must serve notice denying the right purely so as to make room for the operation of s.5, whatever its own attitude. In my judgment the machinery of s.124, and the words there used by the draftsman, are wholly inapt to be treated as a vehicle for the operation of s.5 in tandem with the Right to Buy provisions. What would in truth be required would be a measure which suspended the operation of the 1985 Act in the particular case until the s.5 issue had been resolved. That cannot in my judgment be got out of s.124, or any other provision contained in the 1985 Act. A notice under s.124(
1
)(b) is (with great respect to what I understand to be a contrary suggestion contained in the reasoning of my Lord Buxton LJ at paragraphs 45 and 46 of his judgment) not a notice denying the right to exercise the right to buy for the time being; it denies the existence of the right in the particular case and states "the reasons why, in the opinion of the landlord, the tenant does not have the right to buy".
CONCLUSION
1
QB 654, 658 (cited by Buxton LJ) the material provisions of the 1985 Act are so inconsistent with or repugnant to the material provisions of the 1938 Act that the two cannot stand together. I would accordingly hold that the Green Belt legislation is pro tanto impliedly repealed by the Right to Buy legislation. That conclusion is in my judgment supported by the provisions I have discussed as "the first dimension"; and to some extent supported also, I think, by the role of the Secretary of State within the Right to Buy legislation itself: see ss.164 and 165; but those points would not on their own give rise to the implied repeal, and I will not discuss them further.
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.
000
acres are all in the ownership of local authorities whereas little otherwise within the London green belt will be in public ownership. He also emphasises that the designation of the greater part is for the sole purpose of inhibiting development whereas the land acquired under the 1938 Act was so acquired for the additional positive purpose of providing Londoners with recreational spaces. But leaving aside the 3.3M acres of green belt land around other cities (where the operation of the right to buy mechanism is solely regulated by the 1985 Act) can it be that there are two regimes for tenancies within the London green belt: one controlling the vast majority of the acreage on all fours with the rest of the country and another operating only within 35,
000 acres where the legitimate aspiration of the tenant to buy his home is then subjected to the elaborate procedure conceived in 1938 for the necessary fortification of the capital's green lung? Furthermore precisely because the procedure is elaborate it is likely to be expensive and those that the 1985 Act intended to benefit are least equipped and provided for such struggles. Finally it is a procedure of uncertain outcome. Having survived the trials of a public local enquiry the tenant may well find, as did Miss O'Byrne, that her statutory right has been denied. I cannot accept Mr Hobson's submission that those whose tenancies are caught by the 1938 Act are in like condition to those tenants affected by the National Parks and Access to the Countryside Act 1949, the Public Health Act 1875 or the Open Spaces Act 1906. He further submits that whilst express provision is made for the latter class by section 157 and section 179, no provision is made for the former since they are already catered for by the 1938 Act itself. Neither submission attracts me. First the invasion of the rights provided by the 1985 Act is of a different character and degree for each class. Second the import of the 1938 Act procedure into the 1985 Act procedure is theoretically complementary but, for the reasons given by my lord, Laws LJ, not achievable without a breakdown of the machinery created by the later Act. I therefore agree with him that this appeal should be allowed.