Property located in green belt — Secure tenant exercising right to buy — Whether consent of Secretary of State required under statutory provisions — Section 5 of Green Belt (London and Home Counties) Act 1938 — Section 118 of Housing Act 1985 — Appeal by Secretary of State dismissed
The respondent was the secure tenant of a flat on the first floor of a building owned by Croydon London Borough Council. The flat was located in Coombe Wood Park, which formed part of the London green belt. In December 1996, the tenant served a notice on the council purporting to exercise her right to acquire a long lease of the flat under the right-to-buy provisions of the Housing Act 1985. The council took the point that the flat was part of green-belt land, and was accordingly subject to section 5 of the Green Belt (London and Home Counties) Act 1938, which obliged the council, inter alia, to obtain the Secretary of State’s consent before such land was “sold or… exchanged or… appropriated [for other purposes]”. A local inquiry was held, and the Secretary of State accepted his inspector’s recommendation that consent should be withheld. The tenant sought judicial review, contending that section 5 of the 1938 Act could not affect her right under section 118 of the 1985 Act “to be granted a lease of the dwelling house”. The tenant’s claim was upheld by the Court of Appeal, where the majority proceeded upon the basis that the 1938 Act was pro tanto impliedly repealed by the right-to-buy legislation. The Secretary of State appealed to the House of Lords.
Held: The appeal was dismissed.
On its true construction, section 5 of the 1938 Act was limited to instances where the decision to sell or otherwise dispose of the land lay with the council. It was never intended to apply to dispositions forced upon a local authority by statutory provisions for compulsory expropriation. Notwithstanding that Part V of the 1985 Act was headed “The Right to Buy”, it was plain that the relevant provisions fell into the latter category. The tenant’s right to acquire a long lease was an absolute right, subject only to the fulfilment of certain conditions that could not be affected by the council’s wishes. Having concluded that section 5 of the 1938 Act simply did not apply, it was neither necessary nor appropriate for the court to speak in terms of an implied repeal.
John Hobson QC and Jonathan Moffett (instructed by the Treasury Solicitor) appeared for the appellant; Peter Crampin QC and Alistair Craig (instructed by Bird Wilford & Sale, of Loughborough) appeared for the respondent.
Alan Cooklin, barrister
