Regina v Secretary of State for the Environment, Transport and the Regions; ex parte O'Byrne

The House held that section 5 of the Green Belt (London and Home Counties) Act 1938 does not apply to a secure tenant's "right to buy" under Part V of the Housing Act 1985. The 1938 Act procedural regime in section 5 was directed at voluntary dispositions by a local authority, requiring advertising and ministerial consent; by contrast the Part V right is a statutory, compulsory-type acquisition right conferred on secure tenants and defined within the 1985 Act (notably section 118). Accordingly, the Part V regime is self-contained and the existence or exercise of the right to buy is to be determined by the 1985 Act and its schedules rather than subordinated to the section 5 consent procedure.

The court emphasised statutory construction: section 5, read in context with section 6, contemplates voluntary dispositions and separate machinery for compulsory acquisitions; reading section 5 to apply to Part V would undermine the clear terms and purpose of section 118 and impose an unstated condition (ministerial consent) on the right. The appeal was dismissed and a declaration made that the 1938 Act does not deprive the tenant of the section 118 right.

This is an appeal by the Secretary of State against a decision in favour of a secure tenant, Miss O'Byrne, who sought to exercise the statutory "right to buy" a long lease of a flat occupied by her, where the flat formed part of local authority land subject to Green Belt restrictions under the Green Belt (London and Home Counties) Act 1938.

Background and parties:

• The flat was part of Coombe Wood, designated Green Belt land in 1948 and subject to restrictive covenants; the local authority (the London Borough of Croydon) was both owner and, initially at least, covenantor. The tenant had a secure tenancy under the Housing Act 1985 and served a notice under section 122 claiming the section 118 right to a long lease.
• The council admitted the right to buy but maintained that section 5 of the 1938 Act applied, triggering the section 5 publicity and ministerial consent procedures; a public inquiry was held and the Secretary of State refused consent. The tenant sought judicial review and a declaration that the 1938 Act did not operate to deprive her of her section 118 right.

Procedural history:

• At first instance Goldring J held that section 5 applied and had not been disapplied.
• On appeal to the Court of Appeal the judges were divided; the majority found for the tenant (the Secretary of State then appealed to the House of Lords).

Issues framed:

1. Whether section 5 of the 1938 Act applies to dispositions effected by exercise of the Part V "right to buy" under the Housing Act 1985.
2. If section 5 does in principle apply, whether Part V of the 1985 Act impliedly repealed or disapplied section 5 so as to preserve the tenant's statutory right.

Court’s reasoning and conclusion:

• The House concluded that section 5 was aimed at voluntary disposals by local authorities and that section 6 of the 1938 Act addressed compulsory acquisitions; the statutory context and mandatory procedural obligations in section 5 indicate it was not intended to apply to statutory, non‑voluntary disposals such as those created by Part V.
• The right created by section 118 of the 1985 Act is defined by reference to the circumstances, conditions and exceptions stated within Part V itself; importing an unstated ministerial consent condition would contradict the statutory scheme and was not Parliament's intention. The House therefore dismissed the appeal and declared that the 1938 Act does not operate to deprive the tenant of the right to buy under section 118.

Additional notes: The House observed unresolved factual questions about the applicability of paragraph 5 of Schedule 5 to the tenancy and noted practical issues (for example covenants in the new lease to respect Green Belt restrictions) which remained for further consideration; those matters were not finally determined on the appeal.

The appeal is dismissed. The House held that section 5 of the Green Belt (London and Home Counties) Act 1938 does not apply to the exercise of the "right to buy" under Part V of the Housing Act 1985 because section 5 targets voluntary dispositions by local authorities while the Part V right is a statutory compulsory‑type acquisition right defined and governed within the 1985 Act; applying section 5 would impose an unstated ministerial consent condition inconsistent with section 118.

Administrative Court (Goldring J) held that section 5 applied and had not been disapplied; Court of Appeal (majority) ruled for the tenant (disagreeing on the construction or implied repeal issue); appeal to the House of Lords ([2002] UKHL 45) — appeal by the Secretary of State dismissed.