Applicant secure tenant seeking to exercise right to buy flat from council – Property within green-belt – Secretary of State’s consent required for sale – Secretary of State refusing consent – Applicant appealing – Whether statutory provisions relating to green belt impliedly repealed by later right-to-buy provisions – Part V of Housing Act 1985 – Green Belt (London and Home Counties) Act 1938 – Appeal allowed
The applicant was a secure tenant of a flat owned by the second respondents, Croydon London Borough Council (the council). Normally, the applicant would automatically have been the beneficiary of the right-to-buy provisions contained in Part V of the Housing Act 1985. However, the flat fell within the green belt and therefore came within the terms of the Green Belt (London and Home Counties) Act 1938. Section 5 of that Act provided that such land could not be sold without the consent of the Secretary of State, who was obliged to hold a public inquiry into the sale proposal if the consent of the local authority could not be obtained. The applicant sought to exercise her right to buy the flat and an inquiry was held. The inspector recommended that consent for the sale should be withheld, and the Secretary of State adopted his recommendation.
The applicant sought judicial review of the Secretary of State’s decision. The judge applied R v Secretary of State for the Environment, ex parte Enfield London Borough Council (1988) 86 LGR 549 and dismissed the application, holding that the Secretary of State had a discretion under the 1938 Act when considering whether to grant consent under the 1985 Act. The applicant appealed, principally upon the ground that the right-to-buy provisions of the 1985 Act impliedly repealed, pro tanto, the provisions of the 1938 Act that inhibited the exercise of the right to buy. It was submitted that if the two sets of provisions were allowed to stand together, it would mean that a sale under the right-to-buy legislation could not be stopped by the exercise of any public body’s discretionary power, but that a prospective sale caught by the green-belt legislation was liable to be stopped by the Secretary of State. The applicant contended that this situation would be inconsistent, absurd and anomalous. She submitted that no sale could fall into both categories and that the earlier statute should give way to the later.
Held: The appeal was allowed by a majority.
The existence of an “anomaly” produced by the effect of two statutes could not properly give rise to the implied repeal of the earlier Act by the later. There would be no absurdity or anomaly in a state of affairs in which the legislature had put into effect, side by side, although at different times, the respective aims and purposes of the right-to-buy legislation and the green-belt legislation. Thus, there could be only an implied repeal of the 1938 Act if a logical inconsistency between the provisions existed, namely that although their purposes might be harmonised, the right-to-buy legislation and green-belt legislation were mutually contradictory and could not stand together. There was no place within the mechanics of the right-to-buy legislation in which the green-belt legislation could properly be operated. Applying West Ham Churchwardens v Fourth City Mutual Building Society [1892] 1 QB 654, the material provisions of the 1985 Act were so inconsistent with, or repugnant to, the material provisions of the 1938 Act that the two could not stand together. Accordingly, the green-belt legislation was pro tanto impliedly repealed by the right-to-buy legislation: Enfield considered.
Alistair Craig (instructed by Rich & Carr, of Leicester) appeared for the applicant; John Hobson (instructed by the Treasury Solicitor) appeared for the first and second respondents.
Sarah Addenbrooke, barrister
