Regina v Secretary of State for the Environment, Transport and the Regions, Ex p O'Byrne

Section 5 of the Green Belt (London and Home Counties) Act 1938 regulates voluntary disposals proposed by a local authority. It does not apply when Part V of the Housing Act 1985 compels the authority to convey a freehold or grant a long lease in exercise of a secure tenant’s right to buy.

The statutory right to buy is a right to acquire property, rather than an ordinary contractual sale. It is subject only to the conditions and exceptions stated in Part V. A transfer does not remove existing Green Belt restrictions, which ordinarily continue to bind the property after it passes into private ownership.

A secure tenant occupied a flat above a café in a public park. The premises formed part of Green Belt land owned by the London Borough of Croydon. After the tenant claimed a long lease under Part V of the Housing Act 1985, the council admitted her right but treated the transaction as requiring ministerial consent under section 5 of the Green Belt (London and Home Counties) Act 1938. The Secretary of State withheld consent following a public inquiry.

The tenant sought judicial review and a declaration that the 1938 Act did not deprive her of the right to buy. Goldring J decided that section 5 applied and had not been disapplied. The Court of Appeal, by a majority, found for the tenant on the ground of implied repeal, Buxton LJ dissenting. The central issue before the House was whether section 5 applied at all to a compulsory right-to-buy transaction.

1. Appeal dismissed unanimously. Lord Scott of Foscote delivered the principal speech. Lord Hope and Lord Hutton agreed with it. Lord Bingham agreed with Lord Scott’s conclusions and gave additional reasons. Lord Rodger agreed and added observations. The House declared that the Green Belt (London and Home Counties) Act 1938 did not deprive the tenant of her right to buy under section 118 of the Housing Act 1985.

2. Per Lord Scott, section 5 of the 1938 Act concerns dispositions which the local authority itself proposes and desires to make. Its requirements to advertise the proposal, seek other authorities’ consent and obtain ministerial consent presuppose a voluntary disposition. Sections 6 and 8 separately addressed compulsory acquisitions existing when the legislation was enacted. Section 5 was therefore neither intended nor apt to govern a transfer forced upon an authority by statutory expropriation provisions.

3. Per Lord Scott and Lord Rodger, a transaction under Part V of the 1985 Act is not an ordinary consensual sale. The tenant’s right is created wholly by statute, while the authority’s willingness is irrelevant. No contract of sale is deemed to arise. The expression “right to buy” is a convenient description of the statutory right to acquire a freehold or obtain a long lease. The ordinary meaning of “sold” in section 5 did not encompass that sui generis transaction.

4. Per Lord Bingham and Lord Rodger, section 118 defines the right by reference to the conditions and exceptions stated in Part V. The statutory language and procedures are inconsistent with an additional, unexpressed and unpredictable condition requiring ministerial consent. The two enactments pursue different purposes: preservation of open land and conferral of home-ownership rights. Properly construed, their regimes do not overlap.

5. Per Lord Scott, if it had been necessary to resolve the case through implied disapplication, section 118 would have disapplied section 5. Applying section 5 would reduce the defined statutory right to a lesser, conditional right dependent upon a future ministerial decision. This was an alternative ground.

6. The possible exception in paragraph 5 of Schedule 5 to the 1985 Act could not be determined because the relevant facts had not been investigated and the council had not relied upon it. Existing Green Belt covenants and restrictions would prima facie continue after the grant of the lease. Questions about the terms of the lease and the future application of those restrictions were not decided.

1. House of Lords: The Secretary of State’s appeal was dismissed unanimously. The House declared that the Green Belt (London and Home Counties) Act 1938 did not deprive the tenant of her right to buy under section 118 of the Housing Act 1985.

2. Court of Appeal: By a majority, Laws LJ and Thorpe LJ found for the tenant, holding that the right-to-buy legislation had pro tanto impliedly repealed the inconsistent operation of the 1938 Act. Buxton LJ dissented.

3. High Court: Goldring J held that section 5 of the 1938 Act applied and had not been repealed or disapplied. The right to buy was therefore treated as dependent upon ministerial consent.