O'Byrne v Secretary Of State For Environment, Transport & Regions & Anor

By a majority, the Court of Appeal held that the Housing Act 1985 impliedly repealed pro tanto the consent requirement in section 5 of the Green Belt (London and Home Counties) Act 1938 where a secure tenant exercised the right to buy. The detailed machinery of the 1985 Act left no proper place for the 1938 Act procedure to operate alongside it. The court applied the strict test for implied repeal: an earlier statute is displaced only where the later legislation is so inconsistent or repugnant that both cannot stand together. Mere anomaly or inconvenience is insufficient. The majority considered that the landlord could not both admit the right to buy and defer the statutory transfer pending a discretionary decision under the 1938 Act.

The appellant was a secure tenant of a flat situated within land acquired and held by the London Borough of Croydon under the Green Belt (London and Home Counties) Act 1938. She served a notice exercising the right to buy under Part V of the Housing Act 1985. Croydon admitted the right but pursued the section 5 procedure, leading to a public inquiry and refusal by the Secretary of State to consent to the sale.

Mr Justice Goldring dismissed the application for judicial review. The appeal concerned whether the 1938 Act applied to a statutory right-to-buy transfer and, principally, whether the 1985 Act had impliedly repealed section 5. The appeal also challenged the weight given to the right to buy, the relevance of the Inspector’s considerations and the evidential basis for refusing consent.

1. Majority disposition. Laws LJ and Thorpe LJ allowed the appeal. Buxton LJ dissented. The order allowed the appeal with costs of £13,899.68 against the first respondent; permission to appeal to the House of Lords was refused.
2. Implied repeal. The applicable test was whether the later statute and the earlier statute were so inconsistent or repugnant that they could not stand together. An anomaly, inconvenience or an outcome that might appear undesirable did not satisfy that stringent test.
3. Complete statutory code. The majority treated the opening provisions and limiting provisions of Part V of the Housing Act 1985 as supporting a comprehensive code for the right to buy. More importantly, the machinery in sections 122, 124, 125 and 138 could not accommodate the section 5 procedure. A landlord had to admit or deny the right within the statutory period. Admission established the right and engaged the subsequent duty to grant the freehold or lease once matters relating to the grant had been determined. The statute provided no lawful mechanism for suspending that process while the Secretary of State considered consent under the 1938 Act.
4. Consequent repeal. Since the two statutory schemes could not operate together consistently, section 5 of the 1938 Act was impliedly repealed to the extent necessary to permit exercise of the right to buy. The public inquiry and refusal of consent therefore could not stand.
5. Dissent. Buxton LJ considered that the two Acts could operate in parallel. In his view, the landlord should have denied the right under section 124, leaving the interaction of the statutes to be determined in the County Court under section 181. He would have dismissed the appeal.

• Court of Appeal (Civil Division) — [2001] EWCA Civ 499: appeal allowed, with costs against the first respondent; permission to appeal to the House of Lords refused.
• Queen's Bench Division, Administrative Court — Mr Justice Goldring dismissed the application for judicial review.