Judgments - Regina v Secretary of State for the Environment, Transport and the Regions (Appellant) and others Ex Parte O'Byrne (Respondent)

(back to preceding text)

    78. The conclusion that section 5 of the 1938 Act does not apply to 1985 Act transactions would be unsatisfactory if it appeared to be inconsistent with the overall approach of the 1985 Act or if it seemed likely to undermine the operation of the 1938 Act. In fact, however, neither possible objection has any force.

    79. As I have suggested already, the key section in the 1985 Act is section 118, declaring the right to buy. It unequivocally declares that secure tenants have that right "subject to the conditions and exceptions stated in the following provisions of" Part V of the Act. The original version of this straightforward declaration opened the 1980 Act. Parliament must have intended to say to secure tenants that, if they or their advisers study the provisions of the 1985 Act and apply them to their particular situation, they can discover whether they enjoy the right to buy: they need look no further. And a secure tenant might well wish to know whether he had such a right, even if he had no present intention of exercising it. Of course, in any given case, certain questions of fact might arise, especially as to whether one of the exceptions from the right set out in Schedule 5 applied. These questions would have to be resolved - if need be, by proceedings in the county court. But section 118 makes it clear that, once the facts are ascertained, the answer as to whether the tenant has a right to buy is to be found in the 1985 Act. In that sense the Act is designed to be a complete code. As my noble and learned friend, Lord Bingham of Cornhill, pointed out during the hearing, the note to the tenant on form RTB2 in schedule 2 to the Housing (Right to Buy)(Prescribed Forms) Regulations 1986 ("Your right to buy can only be denied in the circumstances set out in the Housing Act 1985, as amended") suggests that this is indeed how the Secretary of State himself interpreted the legislation in 1986. It would therefore be wholly inconsistent with the language and approach of section 118 if the tenant's right to buy not only depended on some provision to be found outside the 1985 Act but, even more importantly, on some future and unpredictable grant or refusal of consent by the Secretary of State. Counsel for the appellant pointed to no other relevant matter that would so drastically undermine the clear terms of section 118.

    80. The 1985 Act distinguishes sharply between circumstances where a secure tenant's right to buy does not arise (sections 119 and 120 and Schedule 5) and circumstances where a secure tenant has the right to buy but cannot exercise it (section 121). When a secure tenant serves notice on the landlord under section 122, he "claims to exercise the right to buy". By notice under section 124, the landlord may admit the tenant's right to buy or deny it and state the reason why, in his view, the tenant does not have the right. The precise language of section 122 indicates that it is concerned with the tenant's claim to exercise a right which, depending on the facts, has already either arisen or not arisen. Similarly, under section 124, depending on the facts, the landlord either admits or denies that, in the circumstances, the tenant's right to buy has (already) arisen. I respectfully agree with Laws LJ that section 124 does not give the landlord power, at one and the same time, both to admit the tenant's right to buy and to deny his right to exercise that right. As Laws LJ points out, this would be tantamount to suspending the operation of the tenant's right to buy until the Secretary of State's decision under section 5 of the 1938 Act was known. Similarly, the idea that the existence of a tenant's right to buy could be dependent on such a contingency is wholly inconsistent with the scheme of the 1985 Act. These considerations tend to confirm that Parliament would never have intended or envisaged that section 5 should be interpreted as applying to 1985 Act transactions.

    81. In the present case, as can be seen from subsequent correspondence, on 17 December 1996 Croydon replied to the respondent's section 122 notice by issuing a section 124 notice denying her right to buy - apparently on the basis that the terms on which she occupied the flat made it exempt from the right to buy provisions. Presumably, this objection related to paragraph 5(1)(b) of schedule 5 to the 1985 Act. On 6 June 1997, however, Croydon wrote to the respondent indicating that on reconsideration of the evidence they no longer adhered to that objection and that a further notice would be issued under section 124, admitting her right to buy. That was duly done and the second section 124 notice now regulates the position. Understandably, counsel for the parties to the appeal could cast no light on precisely why Croydon had eventually concluded that the respondent's case fell outside the scope of paragraph 5. But it is plain that Croydon considered at length various factual and legal matters and reached a view, from which they have not sought to depart in these proceedings even though they were joined as a party. The House must proceed on the basis of that view.

    82. Nevertheless, the fact that the respondent's case has at least some of the characteristics of one where no right to buy would arise under paragraph 5 of Schedule 5 makes it somewhat different from the run-of-the-mill case of a secure tenant acquiring his council house. More particularly, the fact that the flat is situated in a small complex of buildings near to where the public have access gave some scope for Croydon to argue at the public inquiry that the security and convenient running of the park and neighbouring premises might be adversely affected if the flat passed from their ownership and control. These and similar considerations appear to lie at the heart of the inspector's recommendation, which the Secretary of State accepted, that consent to the "sale" should be refused.

    83. My Lords, it would not be appropriate, in a case where the House has decided that section 5 of the 1938 Act does not apply, to seek to define precisely which issues the Secretary of State may take into account when deciding whether to grant or refuse consent under that section. None the less, it is important to remember that Parliament's aim in enacting the 1938 Act was essentially to maintain open space around London. It did so, in terms of the long title, by making provision "for the preservation from industrial or building development of areas of land in and around the administrative county of London". Section 10 in particular prohibited the erection of any building on Green Belt land without the necessary consents. There were, of course, necessary exceptions to this prohibition, but it went a long way towards achieving Parliament's aim of keeping the landscape open. That landscape would be made up, for the most part, of private land to which the public would have no right of access, but in which they could still take delight when walking or cycling or on a motor or charabanc excursion from the city. Other sections, such as section 22, envisaged a system of covenants restricting the use of particular areas of land, while section 27 set out various purposes, such as recreation, camping and agriculture, for which Green Belt land could be used without infringing the Act. In essence, therefore, the 1938 Act was concerned to establish both public and private Green Belt land around London and to prevent industrial or building development on it. By contrast, the Act was not concerned with prescribing what should actually be done with the land. That was left to the owners, whether private individuals or companies or public authorities, to decide. Croydon duly decided to open Coombe Wood as a public park.


continue previous