Applicant tenant seeking to exercise right to buy flat from council – Flat within green belt – Council objecting to consent to sale given by Secretary of State – Inquiry held – Secretary of State refusing consent – Applicant seeking to quash decision – Whether Secretary of State taking into account matters he was not entitled to take into account – Application dismissed
The applicant was a secure tenant, under the Housing Act 1985, of a flat above an old stable block in Coombe Wood Park, Croydon. The park and flat were on green belt land. Section 118 of the 1985 Act provided the applicant with a right to buy the flat from Croydon Borough Council, and in 1997 her application to do so was accepted. The council stated that, as the flat was within the green belt, the consent of the Secretary of State was needed pursuant to section 5(1) of the Green Belt (London and Home Counties) Act 1938, which applied to sales of green belt land owned by local authorities. The section also required that the minister hold a public inquiry before giving consent if the authority were dissatisfied with the sale.
Objections to consent were made and, accordingly, a local inquiry was held. In his report, the inspector concluded, inter alia, that the disposal of the stable flats would not harm green belt policy but would, however, adversely affect the effective use and management of Coombe Wood Park. He stated that the latter was one of the “wider policy considerations” that the Secretary of State should take into account in reaching his decision, and he recommended that consent to the sale be withheld. The Secretary of State agreed with the inspector’s conclusions and refused consent.
The applicant sought to quash the Secretary of State’s decision, principally on the ground that, in the light of the relationship between the 1938 Act and the 1985 Act, the inspector and, therefore, the Secretary of State had taken into account matters that they were not entitled to take into account. The applicant accepted that the Secretary of State did have a discretion under the 1938 Act when considering whether to grant consent under the 1985 Act. It was submitted that, when exercising that discretion, the Secretary of State was required to have regard to: (i) the limited purpose of the 1938 Act; and (ii) the overriding purpose of the 1985 Act. It was submitted that the Secretary of State was only entitled to take account of whether a particular sale would have an effect on industrial or building development in the green belt. Other matters, such as “wider policy considerations” were irrelevant to the proper exercise of his discretion.
Held: The application was dismissed.
Parliament did not repeal section 5 of the 1938 Act on passing the 1985 Act, and it must have been its deliberate intention not to do so. The consent of the Secretary of State was required before green belt land held under the 1938 Act could be sold. Section 5 gave the Secretary of State a discretion, which had to be given effect. Having given such a discretion, parliament could not have intended the Secretary of State to have such a narrow area of consideration as the applicant suggested, namely, that he ignore other consequences on the green belt. Applying R v Secretary of State for the Environment, ex parte Enfield Borough Council (1988) 86 LGR 549, the Secretary of State was entitled to take into account green belt, or, more broadly, planning considerations. Further, parliament’s intention was that the Secretary of State carry out a balancing exercise between the right to buy and section 5 of the 1938 Act. If section 5 of the 1938 Act was anomalous with the 1985 Act right to buy provisions, that simply reflected parliament’s intention.
Alistair Craig (instructed by Rich & Carr, of Leicester) appeared for the applicant; John Hobson QC (instructed by the Treasury Solicitor) appeared for the respondent.
Sarah Addenbrooke, barrister
