R (O'Byrne) v Secretary of State for the Environment Transport and the Regions and Another

Introduction

This appeal from the refusal of Mr Justice Goldring to grant judicial review of a decision of the Secretary of State for the Environment, Transport and the Regions [the Secretary of State] involves a consideration of the interrelation between two Acts of Parliament, the Green Belt (London and Home Counties) Act 1938 [the 1938 Act] and Part V of the Housing Act 1985 [the 1985 Act]. Miss O'Byrne, the appellant, is a secure tenant of a flat owned by the London Borough of Croydon [Croydon]. As such, she would in normal circumstances automatically be the beneficiary of the "right to buy" contained in the 1985 Act whereby, for the moment to put the matter very shortly, the local authority landlord is obliged to transfer the freehold or leasehold reversion to the tenant on the terms and according to the procedures laid down by the Act. However, Miss O'Byrne's flat lies within property that was purchased by Croydon under the terms of the 1938 Act. Section 5 of that Act provides that such land cannot be sold without the consent of the Secretary of State, in certain circumstances after a public enquiry into the sale proposal. Such an enquiry was held in this case, the Inspector recommended that consent should be witheld, and the Secretary of State adopted the Inspector's recommendation and the reasons that he gave for it.

Miss O'Byrne advances two quite different types of argument to establish that she is free to buy her flat under the ordinary 1985 provisions, untrammelled by the 1938 Act. The first two of these arguments assert that as a matter of law the 1938 Act does not apply to this case at all, so the consent of the Secretary of State was never required, and there should never have been a public enquiry in the first place. Those arguments, in the alternative, are:

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.

Either of those arguments, if correct, will secure to Miss O'Byrne the full right to buy under the 1985 Act. However, if they are wrong, and the consent of the Secretary of State was in principle required in this case, Miss O'Byrne further argues that on the facts it was not open to the Secretary of State to withold his consent. Here three alternative arguments are advanced:

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.

Before addressing these arguments in detail, it is necessary to say something both of the legislation and of the facts.

The legislation

When the 1938 Act was passed, the great extension of the public control of the use of land that was introduced by the Town and Country Planning Act 1947 was still some years away. It was therefore necessary to use other means to achieve the policy objective sought in the 1930s of providing an area of open space around London, in order to check urban sprawl and the unrestricted expansion of building and industry that was permitted by the then current planning legislation. The 1938 Act thus proceeded, not by compulsory control of land that was privately owned, but by enabling local authorities in and around London to enter into agreements with private owners restricting the use of their land; and, of more direct importance to this case, themselves to purchase land, or to finance the purchase of land by another authority, which would then be dedicated as Green Belt land. "Green Belt land" is not descriptively defined in the 1938 Act, but its nature can be collected from the long title of the 1938 Act, which describes the Act as making provision for the preservation from industrial or building development of areas of land in and around London.

By section 5 of the 1938 Act, before such Green Belt land held by a local authority is sold or exchanged the local authority must (subject to some exceptions that do not apply in this case) obtain the consent of the Secretary of State. He is obliged to hold a local inquiry "before consenting to the sale [or] exchange" if the consent of any "contributing local authority" cannot be obtained. The latter concept, and its implications for the construction arguments, will have to be considered later in this judgment. For the moment, it suffices to note that it is open to the Secretary of State to refuse his consent without holding any public inquiry at all. That indicates that the balance of the 1938 Act leans against the reduction of areas of Green Belt land. That balance, and the form taken by the involvement of the Secretary of State, demonstrates the importance attached by Parliament to the preservation of Green Belt land. In 1938 there were in place general provisions, in section 165 of the Local Government Act 1934, requiring the consent of the relevant Minister to sale of land by a local authority. There were no other statutory or other limitations on the giving of that consent. The 1938 Act did not consider that protection to be sufficient in the case of Green Belt land, but went further, in the directions indicated above.

London is the only conurbation whose green belt is subject to the provisions of the 1938 Act. The green belts that now exist in other parts of the country have been created by policy initiatives on the part of local authorities and ministers in formulating land-use policies under the Town and Country Planning legislation, by means of what are now structure plans. That approach enables green belts to be created, not by the purchase and retention of land for that purpose by local authorities, but by placing planning restrictions on privately-owned land. Such areas of land exist not only outside London, but also, concurrently with 1938 Act Green Belt land, around London itself.

Part V of the 1985 Act makes detailed provision for the enforcement by public sector tenants who fall into certain categories (a requirement that Miss O'Byrne satisfies) of a "right to buy". That (by section 118) is a right to have their landlord transfer to them the freehold of their dwelling house, if he owns it; or if he does not, to be granted by him a long lease. The transfer is subject to an obligation on the part of the tenant to make payment in respect of the (discounted) value of the dwelling-house; if he so wishes, under a (statutory) "rent to mortgage" scheme, the details of which need not detain us. The process is initiated by a tenant's notice claiming to exercise the right to buy (section 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.

The Secretary of State is given considerable powers to intervene in the process between local authority and tenant, in every instance in favour of promoting the effective exercise of the right to buy. He can give directions as to the types of covenant to be included in contracts, if the local authority is following practices in that regard that are more restrictive than the 1985 Act permits (section 167). He can seek information as to its practices and documents from a local authority (section 169). And, more generally, by sections 164 and 165, where it appears to the Secretary of State 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"

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 BristolCity 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...