Right to buy: Green belt

Secure tenant seeking to exercise right to buy flat from council property within green belt secretary of states consent required for sale secretary of state refusing applicant appealing whether statutory provisions for green belt impliedly repealed by later right-to-buy provisions part V of Housing Act 1985 Green Belt (London and Home Counties) Act 1938 appeal allowedR (on the application of OByrne) v The Secretary of State for the Environment, Transport and the Regions and another: Court of Appeal: Thorpe LJ, Buxton LJ, Laws LJ: 5 April 2001The applicant was a secure tenant of a flat owned by the second respondent, Croydon London Borough Council.

Normally, the applicant would automatically be the beneficiary of the right-to-buy provisions contained in part V of the Housing Act 1985.However, the flat fell within the green belt and therefore came within the terms of the Green Belt (London and Home Counties) Act 1938.

Section 5 of that Act provides that such land cannot be sold without the consent of the secretary of state, who is obliged to hold a public inquiry into the sale proposal if the consent of the local authority cannot be obtained.The applicant sought to exercise her right to buy the flat and an inquiry was held.

The inspector recommended that consent be withheld; the secretary of state adopted his recommendation.The applicant sought judicial review of the secretary of states decision.

The judge applied R v Secretary of State for the Environment, ex parte Enfield London Borough Council (1988) 86 LGR 549, and held that the secretary of state had a discretion under the 1938 Act when considering whether to grant consent under the 1985 Act.

The application was dismissed.The applicant appealed, principally on the ground that the right-to-buy provisions of the 1985 Act impliedly repealed, to that extent, the provisions of the 1938 Act which inhibit the exercise of the right to buy.

It was submitted that if the two sets of provisions were allowed to stand together, it would mean that a sale under the right-to-buy legislation could not be stopped by the exercise of any public bodys discretionary power, but a sale caught by the green-belt legislation was liable to be stopped by the secretary of state.The applicant contended that this was inconsistent, absurd and anomalous.

She submitted that no sale could fall into both categories, and that the earlier statute should give way to the later.Held: The appeal was allowed by a majority.

An anomaly produced by the effect of two statutes could not properly give rise to the implied repeal of the earlier Act by the later.

It was not anomalous that the legislature had put into effect, side by side, the the right-to-buy legislation and the green-belt legislation.There could only be an implied repeal of the 1938 Act if the right-to-buy and green-belt legislation were mutually contradictory and could not stand together.

There was no place within the mechanics of the right-to-buy legislation where the green-belt legislation could properly be operated.

Applying West Ham Churchwardens v Fourth City Mutual Building Society [1892] 1 QB 654, the material provisions of the 1985 Act were so inconsistent with, or repugnant to, the material provisions of the 1938 Act that the two could not stand together.

Accordingly, the green belt legislation was pro tanto impliedly repealed by the right-to-buy legislation.

Enfield considered.Alistair Craig (instructed by Rich & Carr, of Leicester) for the applicant; John Hobson (instructed by the Treasury Solicitor) for the first and second respondents.