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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> O'Byrne v Secretary Of State For Environment, Transport & Regions & Anor [2001] EWCA Civ 499 (5 April 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/499.html Cite as: [2001] EWCA Civ 499, [2001] 16 EGCS 144, [2001] NPC 71, [2002] HLR 30

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
(MR JUSTICE GOLDRING)

		Royal Courts of Justice Strand, London WC2A 2LL Thursday, 5th April 2001

LORD JUSTICE BUXTON :

Introduction

1. This appeal from the refusal of Mr Justice Goldring to grant judicial review of a decision of the Secretary of State for the Environment, Transport and the Regions [the Secretary of State] involves a consideration of the interrelation between two Acts of Parliament, the Green Belt (London and Home Counties) Act 1938 [the 1938 Act] and Part V of the Housing Act 1985 [the 1985 Act]. Miss O'Byrne, the appellant, is a secure tenant of a flat owned by the London Borough of Croydon [Croydon]. As such, she would in normal circumstances automatically be the beneficiary of the "right to buy" contained in the 1985 Act whereby, for the moment to put the matter very shortly, the local authority landlord is obliged to transfer the freehold or leasehold reversion to the tenant on the terms and according to the procedures laid down by the Act. However, Miss O'Byrne's flat lies within property that was purchased by Croydon under the terms of the 1938 Act. Section 5 of that Act provides that such land cannot be sold without the consent of the Secretary of State, in certain circumstances after a public enquiry into the sale proposal. Such an enquiry was held in this case, the Inspector recommended that consent should be witheld, and the Secretary of State adopted the Inspector's recommendation and the reasons that he gave for it.
2. Miss O'Byrne advances two quite different types of argument to establish that she is free to buy her flat under the ordinary 1985 provisions, untrammelled by the 1938 Act. The first two of these arguments assert that as a matter of law the 1938 Act does not apply to this case at all, so the consent of the Secretary of State was never required, and there should never have been a public enquiry in the first place. Those arguments, in the alternative, are:

i) The reference to "sale" in the 1938 Act cannot include a compulsory sale or transfer such as occurs when the provisions of the 1985 Act are operated.

ii) The right to buy provisions of the 1985 Act impliedly repeal, pro tanto, such of the provisions of the 1938 Act as inhibit the exercise of the right to buy.

3. Either of those arguments, if correct, will secure to Miss O'Byrne the full right to buy under the 1985 Act. However, if they are wrong, and the consent of the Secretary of State was in principle required in this case, Miss O'Byrne further argues that on the facts it was not open to the Secretary of State to withold his consent. Here three alternative arguments are advanced:

i) In assessing the competing considerations affecting the proposed sale to Miss O'Byrne, the Inspector gave inadequate weight to the right conferred on her by the 1985 Act.

ii) The Inspector wrongly permitted himself to act on considerations in relation to the Green Belt land other than those permitted by the 1938 Act

iii) There was no or insufficient evidence to justify the Inspector in accepting the arguments against sale that were advanced by Croydon.

4. Before addressing these arguments in detail, it is necessary to say something both of the legislation and of the facts.

The legislation

5. When the 1938 Act was passed, the great extension of the public control of the use of land that was introduced by the Town and Country Planning Act 1947 was still some years away. It was therefore necessary to use other means to achieve the policy objective sought in the 1930s of providing an area of open space around London, in order to check urban sprawl and the unrestricted expansion of building and industry that was permitted by the then current planning legislation. The 1938 Act thus proceeded, not by compulsory control of land that was privately owned, but by enabling local authorities in and around London to enter into agreements with private owners restricting the use of their land; and, of more direct importance to this case, themselves to purchase land, or to finance the purchase of land by another authority, which would then be dedicated as Green Belt land. "Green Belt land" is not descriptively defined in the 1938 Act, but its nature can be collected from the long title of the 1938 Act, which describes the Act as making provision for the preservation from industrial or building development of areas of land in and around London.
6. By section 5 of the 1938 Act, before such Green Belt land held by a local authority is sold or exchanged the local authority must (subject to some exceptions that do not apply in this case) obtain the consent of the Secretary of State. He is obliged to hold a local inquiry "before consenting to the sale [or] exchange" if the consent of any "contributing local authority" cannot be obtained. The latter concept, and its implications for the construction arguments, will have to be considered later in this judgment. For the moment, it suffices to note that it is open to the Secretary of State to refuse his consent without holding any public inquiry at all. That indicates that the balance of the 1938 Act leans against the reduction of areas of Green Belt land. That balance, and the form taken by the involvement of the Secretary of State, demonstrates the importance attached by Parliament to the preservation of Green Belt land. In 1938 there were in place general provisions, in section 165 of the Local Government Act 1934, requiring the consent of the relevant Minister to sale of land by a local authority. There were no other statutory or other limitations on the giving of that consent. The 1938 Act did not consider that protection to be sufficient in the case of Green Belt land, but went further, in the directions indicated above.
7. London is the only conurbation whose green belt is subject to the provisions of the 1938 Act. The green belts that now exist in other parts of the country have been created by policy initiatives on the part of local authorities and ministers in formulating land-use policies under the Town and Country Planning legislation, by means of what are now structure plans. That approach enables green belts to be created, not by the purchase and retention of land for that purpose by local authorities, but by placing planning restrictions on privately-owned land. Such areas of land exist not only outside London, but also, concurrently with 1938 Act Green Belt land, around London itself.
8. Part V of the 1985 Act makes detailed provision for the enforcement by public sector tenants who fall into certain categories (a requirement that Miss O'Byrne satisfies) of a "right to buy". That (by section 118) is a right to have their landlord transfer to them the freehold of their dwelling house, if he owns it; or if he does not, to be granted by him a long lease. The transfer is subject to an obligation on the part of the tenant to make payment in respect of the (discounted) value of the dwelling-house; if he so wishes, under a (statutory) "rent to mortgage" scheme, the details of which need not detain us. The process is initiated by a tenant's notice claiming to exercise the right to buy (section 122). The landlord has, within a limited period, either to admit or deny that right (section 124), any denial being justiciable in the county court (section 181). If the right is admitted, a stepped statutory procedure follows for agreement or assessment of the purchase price and the transfer of the landlord's interest.
9. The Secretary of State is given considerable powers to intervene in the process between local authority and tenant, in every instance in favour of promoting the effective exercise of the right to buy. He can give directions as to the types of covenant to be included in contracts, if the local authority is following practices in that regard that are more restrictive than the 1985 Act permits (section 167). He can seek information as to its practices and documents from a local authority (section 169). And, more generally, by sections 164 and 165, where it appears to the Secretary of State that

"tenants generally, a tenant or tenants of a particular landlord, or tenants of a description of landlords, have or may have difficulty in exercising effectively and expeditiously the right to buy"

then he can execute a "vesting deed", which has the same effect in transferring the property to the tenant as would a conveyance or lease granted by the local authority landlord. It was no doubt these provisions, added to the strict procedure imposed on local authorities, that led Lord Woolf MR in Bristol City Council v Lovell (1996) 29 HLR 528 at p544 to cite with approval the observation of Sir Thomas Bingham MR in Taylor v Newham LBC [1993] 1 WLR 444 at p452B that

"we should be doing great violence to the obvious intention of Parliament if we did not recognise that it was Parliament's intention to block to the maximum the opportunities open to reluctant landlords to obstruct the acquisition of title by their tenants."

It is necessary to mention a few further specific provisions of the 1985 Act. Section 120 and Schedule 5 set out a list of "exceptions to the right to buy". Those are all cases either of particular categories of landlord (for instance, certain housing associations) or particular categories of dwelling-house (for instance, those specifically adapted for use by the disabled). There are also two sections, important for the argument in this appeal, that address the cases of dwelling-houses in specific types of area of land that bear some similarities with Green Belt land. By section 157, where the dwelling-house subject to the right to buy is located in a National Park or area of outstanding natural beauty the local authority has power to include in its conveyance restrictions on the property's subsequent disposal, limiting that disposal to (very broadly stated) members of the tenant's family or persons working or already living in the Park or area. That is a significant limitation on the normal operation of the right to buy provisions, the objective of which is to transfer to the former tenant a freehold or leasehold that can be sold on the housing market just like any other private holding.

10. Section 179 (2) provides for the case of dwelling-houses that form part of land held either under section 164 of the Public Health Act 1875 (which authorises urban authorities to provide pleasure grounds) or under section 10 of the Open Spaces Act 1906 (which requires local authorities who hold open spaces or burial grounds to hold them in trust for the benefit of the public). In such cases

"the dwelling-house shall be deemed to be freed from any trust arising solely by virtue of its being land held in trust for enjoyment by the public [under the two sections]"

The facts of this case

11. In February 1948 Croydon bought Coombe Wood Park as Green Belt land, and has thereafter held and operated it as a public park. The park contained a stable building, originally used to accommodate horses for the park rangers, with a residential flat on the upper floor. The horses and rangers have long since departed. Part of the stables is now used as a café for visitors to the park. In 1993 Croydon granted a service tenancy of the flat to Miss O'Byrne, then employed by Croydon as a landscape gardener, "for the better performance of her duties as a gardener", and on condition that she undertook a general security role. In May 1994 Miss O'Byrne's employment with Croydon was "outsourced" to a private company, who thereupon became her employer, albeit that she was performing the same functions. As a result, she ceased to be a service tenant and became a secure tenant under the 1985 Act; and thus qualified for the right to buy.

The course of the proceedings

12. Miss O'Byrne served her section 122 notice on 6 December 1996. On 18 July 1997 Croydon wrote to Miss O'Byrne indicating its view that since the property was within Green Belt land the consent of the Secretary of State would have to be obtained. That letter envisaged that, because of the timetable for considering right to buy applications laid down by the 1985 Act, it would be necessary to respond to the section 122 notice before the issue thought to arise under the 1938 Act had been resolved; but contended that any apparent sale arising from that process could not be completed until the Secretary of State's consent had been obtained. Accordingly, on 1 September 1997 Croydon responded under section 124 admitting the right to buy and stipulating the price and terms of sale. On 13 January 1998 Croydon wrote to the Secretary of State saying that, as a result of the required public advertisement of the intended sale under section 5(1)(a) of the 1938 Act, Croydon itself wished to object to the sale.
13. It thus became, or was thought to become, the obligation of the Secretary of State to hold a public inquiry into the proposed sale. At no stage did those advising Miss O'Byrne object to Croydon's recourse to the 1938 Act, or seek to challenge that at least conditional refusal of the right to buy in the county court or elsewhere. At the Inquiry, duly held in July 1998, it was accepted on behalf of Miss O'Byrne that the right to buy was not an overriding consideration but only a balancing factor: a position from which she now resiles by contentions (i) and (ii) set out in paragraph 2 above. The Inspector upheld the objections of Croydon, and as already indicated recommended that consent should not be given.
14. Miss O'Byrne sought judicial review of the decision of the Secretary of State to adopt the Inspector's recommendation and reasoning. In broad terms the form 86A included all of the objections raised in this appeal, including those not raised previously as to whether the consent of the Secretary of State was required at all. However, in argument before Goldring J those latter contentions, the objections set out in (i) and (ii) in paragraph 2 above, were abandoned, Mr Craig, who appeared then as he did before us, accepting, as the judge expressed it, "that the Secretary of State does have a discretion under the 1938 Act when considering whether to consent under the 1985 Act". Mr Craig told us that he had taken that view because he thought, wrongly, that the issue was concluded at first instance by the decision of McNeill J in R v Secretary of State for the Environment ex p Enfield BC (1988) 86 LGR 549 [Enfield]. That is a case to which I shall have to return. Those points being out of the way, Goldring J rejected the criticisms of the Inspector's reasoning, held that his conclusions had been well within the permitted boundary of his judgement, and dismissed the application.
15. In his original notice of appeal Mr Craig continued not to pursue the implied repeal point (argument (ii) in paragraph 2 above). However, before us he sought permission to amend the notice to take the point, which involved contending that Enfield was wrongly decided. We granted that permission (which was not opposed by Mr Hobson QC appearing for the Secretary of State): not least because it appeared that the implied repeal issue was not only one of some importance, but also the only seriously arguable issue in the case.
16. I now turn to the appellant's arguments, identifying them using the numeration adopted in paragraphs 2 and 3 above.

2(i) The construction of section 5 of the 1938 Act

17. Mr Craig's argument was that the word "sold" in section 5 of the 1938 could not include a compulsory transfer of land, such as was imposed on the local authority landlord by the 1985 Act. He pointed to passages in Benjamin on Sale that emphasised that the nature of a sale was of a consensual agreement to transfer property; and to the decision of the House of Lords in Kirkness v Hudson [1955] AC 696 that a statutory vesting of a company's property in a nationalised body, even with compensation, was not a "sale" because, as Lord Tucker put it at p737, "mutual assent is an essential element in the transaction".
18. I fear that I was entirely unpersuaded by these submissions. The consensus that is seen as the mark of a contract of sale is the agreement between buyer and seller within the sale transaction to all the elements that are characteristic of a sale. As Benjamin (5^th edition, para 1-067) puts it:

"The seller must agree to transfer the property and the buyer to take it, and they must agree to do so in return for money which is paid and received as the price of the goods. Where the consent of the parties does not extend so far, or does not exist at all, there is no sale."

19. Under the 1985 Act, although the process has something of the same effect as a compulsory purchase or transfer under statutory provisions, the machinery to implement the statutory purpose uses the presumptions and the vocabulary of a contract of sale. The right is the right to buy; the payment by the tenant is, by section 125, referred to as the purchase price. The local authority may well not be a willing seller, any more than, for instance, a person realising his assets under threat of a bankruptcy order wants to sell. But that goes to the motivation for entering into the transaction, not to the consensual structure of the transaction itself. I accept that in the exceptional circumstances of intervention by the Secretary of State under section 164 (see paragraph 9 above) it is less easy to see the transaction as involving a sale; but that merely reinforces the conclusion that the general and ususal case envisaged by the 1985 Act is not one of forced transfer, but of, however reluctant, sale. The only aspect of this issue that has given me some pause is one that was not raised in argument. Section 5 requires the Secretary of State to hold a public enquiry where an objection to the proposed sale is raised by a "contributing authority". Such an authority is one that has contributed to the cost of acquiring the Green Belt land, as did the London County Council in the present case; but, by section 2 of the 1938 Act, the concept also includes the authority that made the actual expenditure, in this case Croydon. That provision however appears to assume that the objector will be an authority other than that proposing the sale; whereas here Croydon, although formally entitled to do so as a contributing authority, is objecting to its own "sale". I have however concluded that, although the paradigm case intended to be addressed was a voluntary sale by authority A to which a different authority B takes objection, nonetheless the language of sale used to implement that policy is wide enough to encompass a case such as the present, where the holding authority finds itself required to make a sale to which it nonetheless objects.
20. The argument of construction, based on consideration of the 1938 Act alone, therefore fails. A potentially much more promising argument is, however, to be found in an assessment of the position that is created if the 1938 provisions frustrate, to the extent of requiring implementation of the section 5 process, the apparently unlimited right to buy created by the 1985 Act. That outcome is avoided if the 1985 Act has pro tanto repealed the requirements of the1938 Act.

2(ii) Implied repeal

21. Mr Craig submitted that if dwelling houses situated in Green Belt land were still subjected to the section 5 procedure before the right to buy could be exercised, that, when compared with the universal and unlimited right to buy created for most other properties by the 1985 Act, produced a situation that was inconsistent, anomalous or absurd. He said that any one of those characterisations sufficed to demonstrate that it must have been Parliament's intention in the 1985 Act to repeal the limiting provisions of the 1938 Act. That was, without question, far too strong a submission. The case nonetheless demands careful consideration under this head.
22. The court will not lightly find a case of implied repeal, and the test for it is a high one. Mr Craig properly took us to two well-known statements of principle to that effect. In Seward v "Vera Cruz"(owner) (1884) 10 App Cas 59 the Earl of Selbourne LC said, at p68:

"Now, if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intent to do so."

23. In Kutner v Phillips [1891] 2 QB 267 at p 271 AL Smith J said:

"a repeal by implication is only effected when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one that the two cannot stand together…..Unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time a repeal will not be implied and special Acts are not repealed by general Acts unless there is some express reference to the previous legislation, or unless there is a necessary inconsistency in the two Acts standing together."

24. AL Smith J repeated that test in the following year in West Ham Wardens v Fourth City [1892] 1 QB 654 at p658:

"The test of whether there as been a repeal by implication by subsequent legislation is this: are the provisions of a later Act so inconsistent or repugnant with the provisions of an earlier Act that the two cannot stand together?"

25. In section 87 of his Statutory Interpretation (4^th edition) Mr Bennion cites that passage with approval, and continues:

"This principle is a logical necessity, since two inconsistent laws cannot both be valid without contravening the principle of contradiction. The possibility of implied repeal goes wider however than is indicated by the principle of contradiction. Other interpretative criteria may indicate implied repeal, for example the commonsense construction rule or the presumption that Parliament wishes to avoid an anomalous result"

26. No authority is cited for the latter proposition, and I am not able to act on it. The presumption against anomaly is, as Bennion makes clear in section 315, a principle of construction, applied as such within the boundaries of an individual Act, and going much wider than the case of absurdity or impossibility of reading two Acts together that is the characteristic of implied repeal. To hold that an implied repeal arose when the combined result of the two statutes could not be characterised as anything worse than anomaly would be to fly in the face of the strong statements of principle set out in paragraph 19 above.
27. Against this background, it is perhaps hardly surprising that when the very issue in this appeal arose before McNeil J in Enfield he refused to find that the 1938 Act had been impliedly repealed by the 1985 Act. McNeil J said, at 86 LGR p560:

I am unable to find any inconsistency or repugnance between the two statutory provisions. The provisions of section 5 are in no sense wholly incompatible with the provisions of the 'right to buy' legislation and to read the two statutes together does not lead to wholly absurd consequences. It seems to me entirely right and consistent with the intentions of Parliament that where the right to buy exists in respect of land in the green belt that the Secretary of State should continue to have the power to consent or withhold his consent to the sale…the two provisions …can work in harness with the other"

28. The force of those observations cannot be gainsaid. Even if (which, for reasons that I will demonstrate, is not the case) it were to be thought to be surprising, or even productive of anomaly, that Parliament did not in the 1985 Act say anything about the position of Green Belt land, in contrast to its having specifically dealt, in one way or another, in sections 157 and 179(2) with National Park, open space, or pleasure ground land, that outcome can hardly be characterised as absurd, or as producing a statutory regime that is impossible to operate.
29. Faced with these difficulties, Mr Craig opened up another line of attack. He submitted that the 1985 Act was intended by Parliament to be a complete code, dealing with every eventuality that might arise in connexion with the right to buy; with the consequence that any other provision that might, however tangentially, impact on the right to buy must have been intended, to that extent, to have been rendered by the 1985 Act of no effect. This argument of course satisfies the requirement of logical inconsistency between the two statutes, referred to in paragraph 25 above, because if the premise is that the 1985 Act is a complete code for the right to buy, then the existence of any other statutory provision affecting the right to buy is by definition logically inconsistent with that premise. That outcome is, however, achieved by characterising the 1985 Act in terms that in themselves automatically answer the question of implied repeal. The issue therefore still remains of whether scrutiny of the 1985 Act demonstrates, to the high level of persuasion required by the statements of principle cited in paragraph 22 - 23 above, that Parliament intended to repeal all other existing statutory provisions that might impede exercise of the right to buy: which is merely another way of expressing the contention that the 1985 Act is a "complete code."
30. Mr Craig advanced a number of arguments in support of the thesis that the 1985 Act does indeed demonstrate such an intention.
31. First, he sought assistance from the familiar doctrine of Pepper v Hart [1993] AC 593, as recently importantly reviewed by the House of Lords in R v Environment Secretary ex p Spath Homes [2001] 2 WLR 15, in particular in the speech of Lord Bingham of Cornhill at p31G. This contention was, I have to say, entirely misconceived. First, the necessary preconditions of ambiguity, obscurity or absurdity are not present: indeed, as my Lord Laws LJ pointed out in the course of argument, Miss O'Byrne would be ill-advised to contend that the 1985 Act is ambiguous, because the court will only find implied repeal when driven to it, and a merely ambiguous statute cannot provide that cogency. Second, as is so often the case when Pepper v Hart is sought to be introduced, the passage from Hansard relied on, when looked at de bene esse, establishes the reverse of the point that it is supposed to support. On the report stage of the Bill in the House of Lords a question was raised as to the application of the right to buy provisions to dwellings situated in what was described as "open space or parkland". The Minister said that it was government policy that the right to buy should not be witheld simply because of that fact, and drew attention to an amendment to the Bill, which became section 179(2) of the 1985 Act, modifying provisions referred to in that section that might be thought otherwise to inhibit that policy. The Minister was far from saying that it was the intention or meaning of the Bill that the right to buy must prevail in all areas that could be characterised as "open space or parkland" irrespective of any existing statutory limitations on the use or disposal of that land.
32. A similar difficulty affects the next of Mr Craig's points, that it would be in some way inconsistent that Parliament had made special provision, in section 179(2), in respect of properties affected by the Public Health Act 1875 and the Open Spaces Act 1906, without doing anything about the 1938 Act. In fact, however, the difference is entirely rational. The Acts of 1875 and 1906 did not address any issue of the disposal of the land to which they relate. Parliament was originally content to leave that issue to be regulated by the general rules limiting the disposal of local authority property. Only when those rules were substantially modified, in favour of disposal, was it thought necessary to introduce some, modest, additional limitation on the disposal of land forming an open space: see paragraph 14 of Schedule 23 of the Local Government, Planning and Land Act 1980, inserting sections 123 2A and 2B into the Local Government Act 1972 (which, incidentally, uses exactly the same formula as section 179(2) of the 1985 Act to deal with the removal of trusts on disposal). Parliament took a quite different approach to Green Belt land under the 1938 Act. As indicated in paragraph 6 above, it was never content to rely on the general local government law, but introduced specific and more stringent provisions to inhibit the disposal of Green Belt land. Whatever may be the effect of section 179(2) of the 1985 Act on the disposal of "open space" land, the history of the various provisions makes it impossible to say that Parliament must have intended Green Belt land to fall under the same rules.
33. Nor is any assistance provided by of section 157 of the 1985 Act (see paragraph 9 bove). Parliament was clearly persuaded that completely unlimited exercise of the right to buy in such areas would be undesirable. That really tells us nothing at all about its attitude to Green Belt land. If any deduction is to be drawn, it is that it was recognised that some sensitive areas needed protection, and in the case of Green Belt land machinery to that end was already in place in the 1938 Act.
34. Mr Craig then contended that it was illogical, and cannot have been intended, that the right to buy in areas of "statutory" Green Belt land, created by the 1938 Act, was subject to limitations, when that was not the case in areas of green belt created merely by operation of the planning rules (see paragraph 7 above). Although that appears at first sight to be a cogent complaint, it is important to note that Parliament has never repealed or altered the provisions of the 1938 Act in the face of the extension of planning control. That is what Parliament might have been expected to do if (as the argument currently under review must contend) the availability of the "structure plan" green belt procedures rendered the 1938 Act provisions otiose. The general green belt policy therefore continues to have two limbs, that are significantly different both in their practical operation and, even more importantly, in their legal status. It does not follow from the fact that no special protection was given in the right to buy legislation to green belts created by extra-statutory structure plans that Parliament must thereby have intended to withdraw the formal statutory protection for other Green Belt land that is provided by the 1938 Act.
35. Somewhat similar considerations apply to the argument that Parliament cannot have intended council tenants, presumably individuals of comparatively modest means, who are prima facie the beneficiaries of the right to buy, to have to go through the process of investigation and public Inquiry that is required by the 1938 Act. The 1938 Act created the inhibitions on disposal without any limitation as to size of property or nature of purchaser. Should a local authority wish to sell small properties within Green Belt land for any reason, the same process is required. That is the inevitable consequence of the machinery to protect Green Belt land put in place by the 1938 Act. It simply goes too far to assume, with the necessary degree of confidence, that Parliament must have intended, in the particular case of a purchase under the right to buy scheme, that the protections created by the 1938 Act would not apply.
36. No assistance in the present case is obtained from section 120 and Schedule 5. As indicated in paragraph 10 above, the cases addressed are ones of particular categories of landlord or particular categories of dwelling-house. Buildings in Green Belt land do not fall into either case. It is also important to note that section 120 addresses exceptions to the right to buy, in the sense of cases where the right to buy cannot be exercised at all. But that is not the situation created by the conjunction of the 1938 Act and the 1985 Act. In a case such as that of Miss O'Byrne the right to buy is not excluded, but only subjected to particular statutory controls that may or may not lead to its not being exercised. That point is, of course, far from conclusive as to Parliament's attitude to the 1938 Act limitations, but it does demonstrate that section 120 addresses a set of circumstances conceptually different from those that arise under the 1938 Act.
37. The final argument was that the powers of intervention of the Secretary of State, under sections 164 and following, might be frustrated by an appeal by the local authority to the requirements of the 1938 Act. Parliament, it was said, cannot have intended that. That argument gives rise to two comments, one of detail, the other of importance in understanding the case. The point of detail is that section 164 is a provision against what might be called foot-dragging. It operates within the process laid down by the 1985 Act. It is perfectly possible for that process to operate in parallel with an enquiry into the 1938 Act position, as indeed this case itself shows . While a 1938 Act enquiry may well cause the whole process to be completed less quickly than would otherwise be the case, it does not prevent the Secretary of State, if so advised, from using the powers of section 164.
38. The point of more substance is, however, that section 164, and other parts of the 1985 Act, show that Parliament intended the Secretary of State to play a significant role in what in principle is a relationship between the tenant and the local authority, and gave him powers to intervene to promote the exercise of the right to buy. It was those considerations that evoked the comments in this court that are quoted in paragraph 9 above. But the Secretary of State to whom Parliament gave those powers is the very same Secretary of State who makes the decisions under section 5 of the 1938 Act. It is very hard indeed to conclude that a statute that lays such weight on the powers of the Secretary of State must be read as interfering in another aspect of the exercise of power by him, without there being any express indication that that was in fact Parliament's intention.
39. Having reviewed the case presented in this court on behalf of Miss O'Byrne, it is now time to take stock. My conclusion that the 1985 Act does not effect an implied repeal pro tanto of the 1938 Act is to some extent based simply on the conclusion that the two statutes are too different, and operate in too disparate areas, for it to be safe to say that the one was intended to intervene in the policy operated under other without Parliament having made that expressly clear. I do, however, find support for that general conclusion in the following specific considerations:

i) Parliament plainly attached importance to control of the disposal of Green Belt land, and introduced special limitations to achieve that end (paragraph 7 above). Those provisions had stood unaltered for over 40 years when the scheme now in the 1985 Act was first introduced in 1980. It is very difficult to assume that legislation on a completely different subject-matter was intended to repeal those provisions simply by implication.

ii) The 1938 Act provisions do not exclude consideration of the right to buy, but simply require, before an actual sale takes place, that there should be a weighing-up of the policy considerations affecting Green Belt land against those informing the right to buy: as the Inspector's report in the present case demonstrated. That weighing-up is in the hands of the same man, the Secretary of State, on whom Parliament has conferred overall supervision and control of the operation of the right to buy scheme. It is hard to think that Parliament, however anxious to ease the operation of the right to buy scheme, must have thought that that arrangement was unacceptable, to the extent of entirely removing the Secretary of State's 1938 Act powers.

iii) In the 1985 Act Parliament did make specific provision about certain areas of land of public importance, albeit in different circumstances and in different terms from the provisions of the 1938 Act. The fact that in the course of that exercise nothing was said about the impact of the 1985 Act upon statutory Green Belt land is some indication that the 1938 Act provisions were intended to remain untouched, rather than that the intention must have been to repeal them by implication.

iv) As McNeil J said in Enfield, and as the present case demonstrates, there is no difficulty in practice in operating the 1938 Act and the 1985 provisions in parallel, and the outcome in the present case cannot be said to be absurd or irrational: however much it may be regretted by Miss O'Byrne.

40. On the basis of the case as originally argued before us, therefore, I conclude that the 1938 Act is not impliedly repealed by the 1985 Act. However, mature reflection after the close of argument indicated that there was a different basis on which the appellant might succeed. That was, broadly, that set out under the heading of "the second dimension" in the judgment to be delivered by my Lord Laws LJ, which I have had the advantage of reading in draft. Since we had not received submissions on this point we restored the case for further argument. I fear that I was no more persuaded by that argument that this case falls within the stringent requirements of the doctrine of implied repeal than I had been by the arguments originally presented to us; but this approach to the problem is, with great respect, significantly more cogent than its predecessors, and must be addressed.
41. The basis of my Lord's conclusion, as stated in paragraph 85of his judgment, is that if the Green Belt legislation were to survive, it would disrupt the mechanics of the consideration of right to buy cases provided by the 1985 Act to the extent that there is no place within the mechanics of the Right to Buy legislation where the Green Belt legislation can properly be operated. I understand my Lord Thorpe LJ to be of the same opinion, when he says (in a judgment that I have equally had the advantage of reading) that the 1938 Act and the 1985 Act cannot be operated together without "a breakdown of the machinery created by the later Act".
42. I agree, with deference, that the argument has to be put that high: because unless it is impossible to operate the two Acts simultaneously; unless, as AL Smith J put it in the West Ham Wardens case, the two cannot stand together; the legal requirements of an implied repeal are not satisfied. I also conclude, with equal deference, that the two statutes that we have under consideration can indeed stand together.
43. Investigations of the mechanics of the 1985 Act, and the place or lack of place therein for 1938 Act considerations, have as their point of departure the obligations or potential reactions of a landlord when a tenant serves a section 122 notice.
44. When the tenant serves a section 122 notice, claiming to exercise the right to buy, the landlord is obliged, by section 124, within four weeks to serve a notice either admitting the right or denying it, and stating the landlord's reasons why the tenant does not have the right to buy. As indicated in paragraph 8 above, any such denial is, by section 181 of the 1985 Act, justiciable in the County Court. In the present case, Croydon served a notice admitting the right to buy, but qualifying the further process by reference to considerations arising under the 1938 Act: see paragraph 12 above. Mr Hobson submitted, on the restored hearing, that the admission of the right to buy had been an error on the part of Croydon. What the landlord should have done was to serve a notice denying the right to buy as envisaged by section 124(1)(b), on the ground that the right did not exist, or at least could not be exercised, until the completion of the 1938 Act procedures.
45. Had that step been taken, the contention as to implied repeal now raised by Miss O'Byrne would have been determined, at least in the first instance, in the County Court under section 181. That argument would have involved the same considerations as have been ventilated in this appeal. It is hard to see how it could have been part of that argument on Miss O'Byrne's part that the 1938 Act and the 1985 Act could not live together, since the relevance or otherwise of the 1938 Act requirements would be determined by the very procedure laid down by the 1985 Act.
46. That that would have been the correct process in a case affected by the 1938 Act seems to be clear. The tenant's notice under section 122(1) is a notice claiming to exercise the right to buy; it is a rational and understandable response to such a claim that, until the 1938 Act procedures have been gone through, that right either does not exist or cannot be exercised. The tenant does not have the right to buy in accordance with the 1985 Act procedures because, until the 1938 Act procedures have been gone through, the local authority does not have the power to sell. That is only not the case if the inhibition on the landlord's powers imposed by the 1938 Act has been impliedly repealed; and thus, as in other instances, enquiry into the structure of the 1985 Act's machinery throws us back upon the general issues as to implied repeal that have already been examined.
47. Let it be assumed, however, that the landlord does as Croydon did and, albeit relying on the 1938 Act, serves a section 124 notice admitting the right to buy. In the normal case, the service of such a section 124 notice is the first stage in a carefully stepped procedure, the object of which is clearly to ensure that that process of sale is carried through expeditiously and timeously: see the observations in this court quoted in paragraph 9 above. Once that process is put into operation, without regard to the competing claims of the 1938 Act, then I agree that in one respect at least the sale must follow according to the timetable.
48. First, however, I agree with my Lord (his paragraph 75) that the penal provisions against delay are provided by sections 153A and 153B of the 1985 Act do not assist. Those provisions did not appear in the original scheme, but were introduced by section 124 of the Housing Act 1988. To the extent, therefore, that these sections were relied on to demonstrate that the 1938 Act was repealed by the 1985 Act as it now stands, or rather by the original introduction of the right to buy procedure in the Housing Act 1980, that repeal cannot have occurred either in 1980 or in 1985. However, I set that point aside. Of more importance is to see what the tenant can complain of under section 153A. That is either (by sub-section (1)(a) and (b)) failure to serve section 124 or 125 notices; or (by sub-section (1)(e)) "delays on the part of the landlord [that] are preventing him from exercising expeditiously his right to buy" [emphasis supplied].
49. The short point is that implementation of the 1938 Act procedures cannot reasonably be called delay on the part of the landlord, as the obviously anti-foot-dragging provisions of section 153A of the 1985 Act use that expression, since when the terms of section 5 of the 1938 Act apply the local authority has no choice but to implement them. The delay is, rather, caused by the terms of a parallel statutory scheme. Whether the fact that there might be a delay in the 1985 Act procedures not specifically envisaged by section 153A and caused by the existence of the 1938 Act requires repeal of the 1938 Act is to be decided by the general considerations set out earlier in this judgment. It is not concluded by any difficulty about statutory mechanics, since for the reasons just indicated such difficulty does not exist.
50. More to the point, however, section 138 requires the making of a grant by the landlord once the right to buy has been "established". I take that to mean, as in section 125, "established (whether by the landlord's admission or otherwise)": that is to say, either by the service of a notice admitting the right under section 124(a), or by a decision of the County Court under section 181. I respectfully agree with my Lord (his paragraph 78) that once one or other of those steps has been achieved the terms of the 1985 Act require the making of a grant when, as section 138 puts it, "all matters relating to the grant" have been completed. There is no point in that process, taken on its own, at which 1938 Act considerations can be inserted. That, however, is because of the landlord's error in failing to give weight to his 1938 Act obligations when responding to the section 122 notice.. Accordingly, faced with an application under section 138 in a 1938 Act case the court would have to consider whether the statutory obligation to pursue the 1938 Act process prevented the immediate granting of relief under section 138(3). That question would in such proceedings be decided in the same terms as the question before us: that is, whether the 1985 Act had impliedly repealed the 1938 Act.
51. Thus, just as a denial by the landlord of a right to buy on grounds of the 1938 Act provisions (see paragraph 44 above) would raise issues of implied repeal, but in County Court proceedings, so a court seised of an application by Miss O'Byrne under section 138(3) would equally have to consider the issue of implied repeal, on the basis that it had not been open to the local authority landlord to respond as he did to the section 122 notice. That issue would fall to be determined according to the principles and the approach set out earlier in this judgment: that is, whether the two Acts can live together. And it would, in my view, be conclusive against any finding of implied repeal that the two statutory schemes can in fact be operated together: by recognising the power, indeed the obligation, of the local authority to recognise the inhibition imposed on its powers of alienation by the 1938 Act when serving a notice under section 124 of the 1985 Act.
52. I accordingly regret that I am not able to agree that scrutiny of the detailed mechanics of the 1985 Act determines the issue of implied repeal by demonstrating that the 1938 Act procedure simply cannot be operated alongside those mechanics. It can be so operated, for the reasons just indicated. Whether Parliament intended it to be so operated is determined by the general question of the implied repeal of the 1938 Act: on which question the appellant fails for the reasons summarised in paragraph 39 above.
53. In the event, therefore, the Public Inquiry was rightly held; and that therefore makes it necessary to go on to consider the arguments raised by the appellant in relation to the conduct and conclusions of the Inquiry, as set out in paragraph 3 above.

3(i): the Inspector gave inadequate weight to Miss O'Byrne's 1985 Act right

54. It will be convenient first to set out the Inspector's conclusion, in paragraph 50 of his report:

"Whilst the disposal of the Stables Flat might not harm Green Belt policy, it appears to me that the effective use and management of Coombe Wood Park, which was purchased under the 1938 Green Belt Act would be adversely affected. This is one of the wider policy considerations which the Secretary of State should take into account in reaching a decision in this case. It must be balanced against the intentions of Part V of the Housing Act to afford secure tenants the right to buy their home. In this instance the disposal of part of a building which already fulfils a role in the functioning of the surrounding park, and which has the potential to enhance that role in future, in my view outweighs the considerations arising under the Housing Act 1985. I consider that consent should not be granted."

55. That extract in itself answers the first criticism directed against the Inspector. He makes it quite clear that he has indeed taken the 1985 Act rights into the balance, but reached a conclusion on balance adverse to them. In the absence of any allegation of bad faith on the part of the Inspector or the Secretary of State in making that claim, which of course has never been suggested, a court cannot and should not go behind it.
56. Further, to the extent that the argument was that in any balance the 1985 Act considerations must necessarily be paramount, it collapses into the implied repeal argument, and fails for the same reason as that argument fails.

3(ii): The application of considerations irrelevant to the 1938 Act scheme

57. This criticism turned on the description of the 1938 Act in its long title as being concerned with the preservation of Green Belt land from industrial or building development (see paragraph 5 above). Mr Craig said that the Inspector had not confined himself to those considerations as he should have done, but had trespassed into more general considerations, including the effective management of Coombe Wood as part of what the Inspector, at paragraph 49 of his report, described as "an important recreational asset for London". Mr Craig agreed that his argument amounted to saying that the Inspector could only reach a conclusion adverse to a disposal if persuaded that that disposal would lead directly to industrial or building development: which in the case of an existing building such as the Stables Flat plainly could not be the case.
58. There are two reasons why this criticism is misplaced. First, although no doubt the local authority can only use the purchase powers of the 1938 Act for the purposes set out in the long title, Parliament must be taken to have understood that it was enabling the purchase of probably large areas of open or recreational land, which must then be properly managed. When it comes to an issue of disposal, no express limitations are placed on the discretion of the Secretary of State, and it takes far too narrow a view of Parliament's intentions to assume that the Secretary of State, when considering the disposal of part of Green Belt land land, could not take into account the effect of that disposal on the proper management of the rest of the land. Second, as the extract from the Inspector's report that is cited in paragraph 47 above shows, he did indeed direct his concerns at the use and management of Coombe Wood park as 1938 Act Green Belt land. That was a legitimate concern on his part.

3(iii): The evidence before the Inspector

59. The Inspector received evidence from Croydon as to the effect on security at the Park of the flat being in private hands, largely uncontrollable by Croydon; the difficulty of effectively using the stable buildings to enhance the use of the Park by the public if part of the building was privately owned; and the possible inhibition on such use of the stable block if the interests of a private owner of the flat had to be taken into account. Mr Craig complained that there had been no firm evidence of current plans for such activities, nor any evidence of current security problems. That, however, is not the point. The Inspector was concerned about the long-term effect of a single private dwelling in the middle of the stable block. He was entitled to act on that concern; and in my view was plainly entitled to act on the evidence that he received about it. Like Goldring J I do not find any of the criticisms of the Inspector at all persuasive.

Conclusion

60. I would therefore dismiss this appeal.

LORD JUSTICE LAWS :

61. I have had the opportunity to read my Lord Buxton LJ's judgment in draft, and I gratefully adopt the account of the facts of this case, and the history of the litigation, which he has given. As he makes plain this appeal requires the court to determine whether what may in shorthand be called the 'Right to Buy' legislation contained in the Housing Act 1985 ('the 1985 Act') effected by implication a partial repeal of s.5 of the Green Belt (London and Home Counties) Act 1938 ('the 1938 Act'). In this judgment I deal only with this question as to implied repeal, upon which with great respect I differ from the conclusion arrived at by Buxton LJ. I agree with him, for the reasons he has given, that there is nothing whatever in the other points which were canvassed in the course of argument by Mr Craig for the appellant.

THE LEGISLATION

62. The most convenient course is at once to set out the relevant legislation. I will first cite the material provisions of the 1985 Act (hereafter 'the Right to Buy legislation').

"118(1) A secure tenant has the right to buy, that is to say, the right, in the circumstances and subject to the conditions and exceptions stated in the following provisions of this Part -

(a) if the dwelling-house is a house and the landlord owns the freehold, to acquire the freehold of the dwelling-house;

(b) if the landlord does not own the freehold or if the dwelling- house is a flat (whether or not the landlord owns the freehold), to be granted a lease of the dwelling-house...

119(1) The right to buy does not arise unless the period which, in accordance with Schedule 4, is to be taken into account for the purposes of this section is at least two years…

120 The right to buy does not arise in the cases specified in Schedule 5 (exceptions to the right to buy)...

121(1) The right to buy cannot be exercised if the tenant is obliged to give up possession of the dwelling-house in pursuance of an order of the court or will be so obliged at a date specified in the order.

(2) The right to buy cannot be exercised if the person, or one of the persons, to whom the right to buy belongs -

(a) has a bankruptcy petition against him,

...

(c) is an undischarged bankrupt, or

(d) has made a composition or arrangement with his

creditors the terms of which remain to be fulfilled.

122(1) A secure tenant claims to exercise the right by written notice to that effect served on the landlord.

(2) In this Part "the relevant time", in relation to an exercise of the right to buy, means the date on which the notice is served.

(3) The notice may be withdrawn at any time by notice in writing served on the landlord.

124(1) Where a notice under section 122 (notice claiming to exercise right to buy) has been served by the tenant, the landlord shall, unless the notice is withdrawn, serve on the tenant within the period specified in subsection (2) a written notice either -

(a) admitting his right, or

(b) denying it and stating the reasons why, in the opinion of the landlord, the tenant does not have the right to buy.

(2) The period for serving a notice under this section is four weeks where the requirement of section 119... is satisfied by a period or periods during which the landlord was the landlord on which the tenant's notice under section 122 was served, and eight weeks in any other case.

125(1) Where a secure tenant has claimed to exercise the right to buy and that right has been established (whether by the landlord's admission or otherwise), the landlord shall -

(a) within eight weeks where the right is that mentioned in section 118(1)(a) (right to acquire freehold), and

(b) within twelve weeks where the right is that mentioned in section 118(1)(b) (right to acquire leasehold interest), serve on the tenant a notice complying with this section.

(2) The notice shall describe the dwelling-house, shall state the price at which, in the opinion of the landlord, the tenant is entitled to have the freehold conveyed or, as the case may be, the lease granted to him...

(3) The notice shall state the provisions which, in the opinion of the landlord, should be contained in the conveyance or grant.

(4) Where the notice states provisions which would enable the landlord to recover from the tenant –

(a) service charges, or

(b) improvement contributions, the notice shall also contain the estimates and other information required by section 125A (service charges) or 125B (improvement contributions).

(4A) The notice shall contain a description of any structural defect known to the landlord affecting the dwelling-house or the building in which it is situated…

(5) The notice shall also inform the tenant of –

(a) the effect of sections 125D and 125E(1) and (4) (tenant's notice of intention, landlord's notice in default and effect of failure to comply),

(b) the right under section 128 to have the value of the dwelling-house at the relevant time determined or re-determined by the district valuer,…

125D(1) Where a notice under section 125 has been served on a secure tenant, he shall within the period specified in subsection (2) either –

(a) serve a written notice on the landlord stating either that he intends to pursue his claim to exercise the right to buy or that he withdraws that claim...

(2) The period for serving a notice under subsection (1) is the period of twelve weeks beginning with whichever of the following is the later -

(a) the service of the notice under section 125, and

(b) where the tenant exercises his right to have the value of the dwelling-house determined or re-determined by the district valuer, the service of the notice under section 128(5) stating the effect of the determination or re-determination.

125E(1) The landlord may, at any time after the end of the period specified in section 125(D)(2)…, serve on the tenant a written notice –

(a) requiring him, if he has failed to serve the notice required by section 125D(1), to serve that notice within 28 days, and

(b) informing him of the effect of this subsection and subsection (4)…

(4) If the tenant does not comply with a notice under this section, the notice claiming to exercise the right to buy shall be deemed to be withdrawn at the end of that period…

126(1) The price payable for a dwelling-house on a conveyance or grant in pursuance of this Part is –

(a) the amount which under section 127 is to be taken as its value at the relevant time, less

(b) the discount to which the purchaser is entitled under this Part…

[S.127 gives details of certain assumptions to be made, and other matters, for the purpose of ascertaining the value of the dwelling-house; s.128 concerns valuation by the district valuer, and ss.129 – 131 deal with the purchaser's discount]

138(1) Where a secure tenant has claimed to exercise the right to buy and that right has been established then, as soon as all matters relating to the grant... have been agreed or determined, the landlord shall make to the tenant -

(a) if the dwelling-house is a house and the landlord owns the freehold, a grant of the dwelling-house for an estate in fee simple absolute, or

(b) if the landlord does not own the freehold or if the dwelling-house is a flat (whether or not the landlord owns the freehold), grant of a least of the dwelling-house, in accordance with the following provisions of this Part.

(2) If the tenant has failed to pay the rent or any other payment due from him as a tenant for a period of four weeks after it has been lawfully demanded from him, the landlord is not bound to comply with subsection (1) while the whole or part of that payment remains outstanding.

(3) The duty imposed on the landlord by subsection (1) is enforceable by injunction.

140(1) The landlord may, subject to the provisions of this section, serve on the tenant at any time a written notice requiring him -

(a) if all relevant matters have been agreed or determined, to complete the transaction within a period stated in the notice, or

(b) if any relevant matters are outstanding, to serve on the landlord within that period a written notice to that effect specifying the matters...

(2) The period stated in a notice under this section shall be such period (of at least 56 days) as may be reasonable in the circumstances.

(3) A notice under this section shall not be served earlier than twelve months after -

(a) the service of the landlord's notice under section 125...

(5) In this section 'relevant matters' means matters relating to the grant.

141(1) If the tenant does not comply with a notice under section 140..., the landlord may serve on him a further written notice -

(a) requiring him to complete the transaction within a period stated in the notice, and

(b) informing him of the effect of this section in the event of his failing to comply.

(2) The period stated in a notice under this section shall be such period (of at least 56 days) as may be reasonable in the circumstances...

(4) If the tenant does not comply with a notice under this section the notice claiming to exercise the right to buy shall be deemed to be withdrawn at the end of that period...

153A(1) Where a secure tenant has claimed to exercise the right to buy, he may serve on his landlord a notice (in this section referred to as an 'initial notice of delay') in any of the following cases, namely, -

(a) where the landlord has failed to serve a notice under section 124 within the period appropriate under subsection (2) of that section;

(b) where the tenant's right to buy has been established and the landlord has failed to serve a notice under section 125 within the period appropriate under subsection (1) of that section;

…

(e) where the tenant considers that delays on the part of the landlord are preventing him from exercising expeditiously his right to buy…

[Subss.(3) and (4) provide for a landlord's counter notice]

(5) At any time when -

(a) the response period specified in an initial notice of delay has expired, and

(b) the landlord has not served a counter notice under subsection (3), the tenant may serve on the landlord a notice (in this section and section 153B referred to as an 'operative notice of delay') which shall state that section 153B will apply to payments of rent made by the tenant on or after the default date or, if the initial notice of delay specified the case in subsection (1)(e), the date of the service of the notice…

[S.153B provides subject to certain qualifications that where an operative notice of delay is served, a later payment of rent shall be treated both as a payment of rent and as a payment going in reduction of the purchase price]

157(1) Where in pursuance of this Part a conveyance or grant is executed by a local authority, the Development Board for Rural Wales or a housing association ("the landlord") of a dwelling-house situated in -

(a) a National Park,

(b) an area designated under section 87 of the National Parks and Access to the Countryside Act 1949 as an area of outstanding natural beauty, or

(c) an area designated by order of the Secretary of State as a rural area, the conveyance or grant may contain a covenant limiting the freedom of the tenant (including any successor in title of his and any person deriving title under him or such a successor) to dispose of the dwelling-house in the manner specified below....

164(1) The Secretary of State may use his powers under this section where it appears to him that tenants generally, a tenant or tenants of a particular landlord, or tenants of a description of landlords, have or may have difficulty in exercising effectively and expeditiously the right to buy…

(2) The powers may be exercised only after he has given the landlord or landlords notice in writing of his intention to do so and while the notice is in force.

(3) Such a notice shall be deemed to be given 72 hours after it has been sent.

(4) Where a notice under this section has been given to a landlord or landlords, no step taken by the landlord or any of the landlords while the notice is in force or before it was given has any effect in relation to the exercise by a secure tenant of the right to buy,… except in so far as the notice otherwise provides.

(5) While a notice under this section is in force the Secretary of State may do all such things as appear to him necessary or expedient to enable secure tenants of the landlord or landlords to which the notice was given to exercise the right to buy…; and he is not bound to take the steps which the landlord would have been bound to take under this Part.

....

165(1) For the purpose of conveying a freehold or granting a lease in the exercise of his powers under section 164 the Secretary of State may execute a document, to be known as a vesting order, containing such provisions as he may determine; and for the purposes of stamp duty the vesting order shall be treated as document executed by the landlord...

179(2) Where a dwelling-house let on a secure tenancy is land held -

(a) for the purposes of section 164 of the Public Health Act 1875 (pleasure grounds), or

(b) in accordance with section 10 of the Open Spaces Act 1906 (duty of local authority to maintain open spaces and burial grounds), then, for the purposes of this Part, the dwelling-house shall be deemed to be freed from any trust arising solely by virtue of its being land held in trust for enjoyment by the public in accordance with section 164 or, as the case my be, section 10."

63. Next I will set out the material provisions of the 1938 Act (hereafter 'the Green Belt legislation'). It is first worth noting the terms of the long title:

"An Act to make provision for the preservation from industrial or building development of areas of land in and around the administrative county of London to confer powers for that purpose upon the London County Council and certain other authorities and persons and for other purposes".

Then s.5:

"(1) Subject to the provisions of section 6 (Saving for certain statutory powers of acquisition of land) of this Act before Green Belt land vested in a local authority or a parish council is sold or… is exchanged or… is appropriated under section 163 (Power to appropriate land) of the Local Government Act 1933 or under any other enactment the local authority or parish council in whom the land is vested shall -

(a) publish in one or more newspapers circulating in the locality in which the land proposed to be sold given in exchange or appropriated is situate a notice of the proposal containing a description of the land proposed to be sold given in exchange or appropriated and specifying a place with the said locality where a plan indicating the boundaries of the land may be inspected and the time (being not less than twenty-eight days after the date or latest date of such publication) within which and the manner in which objections to such sale exchange or appropriation can be made;

(b) serve a copy of such notice on every contributing local authority and on the county council;

(c) seek the consent of every contributing local authority and of the county council to such sale exchange or appropriation;

(d) send to the Minister a copy of every such notice and of every consent which has been obtained to such sale exchange or appropriation; and

(e) obtain the consent of the Minister.

(2) The Minister before giving his consent under this section shall consider any objections which he has received to the proposed sale exchange or appropriation.

(3) If the consent of any contributing local authority [defined by s.2 of the 1938 Act as any local authority which for purposes of the 1938 Act has contributed or agreed to contribute to the cost incurred in the acquisition of the land in question] or of the county council is not obtained by the local authority or the parish council in whom the land is vested or if such consent can only be obtained upon terms with which such local authority or parish council are dissatisfied the Minister shall before consenting to the sale exchange or appropriation cause a local inquiry to be held.

(4) Any consent of the Minister under this section shall be given by an order and shall for all purposes and in all respects have effect as if it were the consent of every contributing local authority and of the county council.

(5) An order of the Minister made under this section may contain such terms and conditions (if any) as shall appear to him to be just and where such order is made with reference to the sale or appropriation of Green Belt land may also provide that the land to which the order relates shall as from such date as the Minister may specify be free (to such extent as may be specified in such order) from the restrictions imposed upon it whether by this Act or by any declaration made or covenant entered into in manner provided by and for the purposes of this Act."

THE ISSUE PRECISELY STATED

64. The purpose of the Right to Buy legislation is, manifestly, to confer on secure tenants of council dwelling-house accommodation, if they satisfy certain conditions, a settled right to buy their homes. The purpose of the Green Belt legislation is no less clear. It is to subject the disposal by local authorities of land in the London Green Belt to a discretionary veto in the hands of the Secretary of State (who will, of course, use his discretion so as to promote the objects of the 1938 Act). Mr Craig submitted that it would be 'inconsistent, absurd and anomalous' for the two sets of provisions to be allowed to stand together. A sale under the Right to Buy legislation cannot be stopped by exercise of any public body's discretionary power. But a prospective sale caught by the Green Belt legislation is liable to be stopped by the hand of the Secretary of State. Mr Craig says that no sale can fall into both categories. In that case the earlier statute must give way to the later; thus the Green Belt legislation is impliedly repealed by the Right to Buy legislation to the extent necessary to obviate the inconsistency, absurdity or anomaly.
65. Like Buxton LJ, I do not consider that the existence of an 'anomaly', produced by the combined effect of two statutes, could properly give rise to the implied repeal of the earlier Act by the later. An 'absurdity' might perhaps be a different matter if the term is intended to connote, on the scale of things, a more deeply unreasonable result. However that may be, I do not think that there would be any absurdity or anomaly in a state of affairs in which the legislature had put into effect, side-by-side though at different times, the respective aims and purposes of the Right to Buy legislation and the Green Belt legislation. There is no want of reason in supposing an intended exception to the settled right to buy, arising in any case where the Green Belt legislation was engaged. The Right to Buy legislation itself imposes exceptions and qualifications to establishment of the right: see ss.119(1), 120, 121, 125E(4), 157(1) of the 1985 Act (provisions to which I shall have to return). The Green Belt legislation would simply give rise to a further exception or qualification, albeit one found in the 1938 Act and not in the 1985 Act.
66. Mr Craig placed much reliance on the terms of s.179(2). In his supplementary skeleton argument it is put thus (paragraph 4):

"... the 1938 Act cannot reasonably be construed or interpreted as imposing greater restrictions in respect of land held for the limited purposes of that Act than for land held for the purposes of recreational public parks, open spaces and cemeteries in respect of which section 179(2) of the 1985 Act expressly provided for the existence of an unqualified right to buy. Parliament must, on any reasonable interpretation, be taken to have regarded the latter land as more sensitive and requiring greater protection than land held under the limited ambit and purpose of the 1938 Act, nevertheless, in respect of that land it provided that qualifying tenants should have an unfettered right to buy."

However, it is perfectly possible to envisage a view taken by the legislature to the effect that as a matter of general policy there exist pressing considerations such as to favour tighter protection of the green belt than the subject-matter of s.179(2). The court is certainly in no position to say that such a view would be so absurd that it cannot have been within Parliament's contemplation. In fact the reason why the provisions referred to in s.179(2) are singled out for mention is not far to seek: it is to release the statutory trusts which would otherwise constitute a potential impediment upon the transfer of the property in question in pursuance of the right to buy.

67. If, as I would hold, there is nothing in Mr Craig's appeal to anomaly or absurdity, it follows that his case on implied repeal can only be one of logical inconsistency. That is, he must show that although their purposes might be harmonised, the Right to Buy legislation and the Green Belt legislation are in truth mutually contradictory and therefore cannot stand together; and to do so he must, in my judgment, demonstrate that upon its correct construction the Right to Buy legislation constitutes a complete and comprehensive code for the administration of the right to buy. If that is demonstrated, then the only permissible exceptions or qualifications to the establishment of the right are those to be found on the face of the 1985 Act itself and so within the code. In that case, the Green Belt legislation could not by law qualify or frustrate any claim to exercise the right to buy; and to the extent that, putatively, it did so, it would stand repealed by the 1985 Act. The only real issue in this case is whether or not that is the position.
68. We were shown some of the established learning on the doctrine of implied repeal, not least what was said by Lord Selborne LC in The Vera Cruz (1884) 10 App Cas 59, 68, and by A L Smith LJ in Kutner v Phillips [1891] 2 QB 267, 271 - 272. However with great deference I need not set out these passages, since the respondent inevitably accepts that if there is an inescapable logical contradiction between the earlier and the later statute, the former is repealed by implication. But the contradiction asserted must be inescapable; so that where (as here) an implied repeal is said to be based on the construction of the later statute, that construction must be shown to be the only rational interpretation which is available. (I think it worth noticing at this stage, in parenthesis, that there are exceptions to the doctrine of implied repeal. In Factortame (No 2) [1991] 1 AC 603 the earlier European Communities Act 1972 was held to prevail over the later Merchant Shipping Act 1988. Upon a proper appreciation of European law the two were on their face irreconcilable; but the House of Lords held that s.2(4) of the 1972 Act effectively inserted a proviso into Part II of the 1988 Act, so that it yielded to the law of Europe. Implied repeal was, however, not argued. It is unlikely that the Human Rights Act 1998 could be repealed by later legislation save expressly. But none of the deep issues raised by these instances falls to be considered in the present case.)

THE CORRECT CONSTRUCTION OF THE RIGHT TO BUY LEGISLATION

69. In R v Secretary of State ex p. Enfield LBC (1988) 86 LGR 549 McNeill J had to consider this very question, whether the Right to Buy legislation impliedly repealed the Green Belt legislation. At 560 he said this:

"At the end of the day, I am unable to find any inconsistency or repugnance between the two statutory provisions. The provisions of section 5 are in no sense wholly incompatible with the provisions of the 'right to buy' legislation and to read the two statutes together does not lead to wholly absurd consequences. It seems to me entirely right and consistent with the intentions of Parliament that where the right to buy exists in respect of land in the green belt that the Secretary of State should continue to have the power to consent or withhold his consent to the sale, applying to his decision what might be described as green belt or more broadly 'planning' considerations. There is to my mind no repugnance between the two provisions: each can work in harness with the other."

Although McNeill J states that he finds no inconsistency, I read this passage as indicating a conclusion reached on the footing that the respective aims and purposes of the two sets of legislation are perfectly compatible; and with this, as I have made clear, I agree. But McNeill J does not with respect embark upon any analysis of the terms of the Right to Buy legislation so as distinctly to decide whether it constitutes a complete and comprehensive code.

70. I turn then to that question. It seems to me that it possesses two dimensions. The first concerns those provisions within the 1985 Act which show, or may be argued to show, where the intended limits of the right to buy are to be drawn: here the appellant's case is that these limits are exhaustive, so as to demonstrate the creation of a comprehensive statutory code. The second concerns those provisions within the 1985 Act which set in place the mechanics by which the right to buy is established and carried into effect: here the appellants' case is that the impact of the Green Belt legislation upon a case in which otherwise the right to buy would be made good requires these mechanics to be substantially re-written or frankly disapplied; there being no whisper of a suggestion in the statute that any such exercise is contemplated, it would be impermissible upon any known canon of construction for it to be treated as acceptable.

The first dimension

71. I have already referred to the provisions in the 1985 Act which set out particular limits to the right to buy: ss.119(1), 120 (and Schedule 5), 121, 125E(4) and 157(1). But the starting-point for this part of the case must be the opening words of s.118(1): "A secure tenant has the right to buy, that is to say, the right, in the circumstances and subject to the conditions and exceptions stated in the following provisions of this Part... to acquire..." The words are quite unqualified; there is no saving by reference to any such expression as "the provisions of any other enactment" or the like. It seems to me that the ordinary meaning of the opening words of s.118 supposes that "the conditions and exceptions stated" are the only conditions and exceptions intended. But this, I accept at once, is not conclusive. If an implied repeal is to be found based on the construction of the later statute, then as I have said the construction required must be shown to be the only rational interpretation which is available. I do not think that a reasonable appreciation of the sense of s.118(1) can go so far or carry such weight.
72. However the other provisions (ss.119(1), 120 (and Schedule 5), 121, 125E(4), 157(1)) which circumscribe the right to buy, or as I have put it set limits to the right, lend some support to what I regard as the ordinary meaning of s.118 and therefore to a view of the Right to Buy legislation as a comprehensive code. But they are by no means all of a piece. S.119 merely establishes a qualifying period. The instances excluded from the right by s. 120 and Schedule 5 are quite unlike the Green Belt case (as Buxton LJ says at paragraph 9 of his judgment, they are cases either of particular categories of landlord or of particular categories of dwelling-house). S.121 is concerned with tenants who may be unable to pay. S.125E(4) is part of the mechanics of notice and counter notice. S.157(1) might be said to cut both ways: on one view its contents may be taken as the limit of the extent to which the Right to Buy legislation was intended to make special allowance for National Parks, etc; on the other hand the omission of any reference to the 1938 Act may be thought deliberate, exhibiting an intention to leave the Green Belt legislation intact. I prefer the former view; but the point is equivocal. And while as I have said this whole collection of provisions appearing in the 1985 Act lends support to a view of the Right to Buy legislation as a comprehensive code, still I do not consider that without more they establish that position so firmly as to give rise to an implied repeal of the Green Belt legislation.

The second dimension

73. All depends, then, on what I have called the second dimension of this question. The bones of the statutory mechanics for processing the right to buy are to be found in the provisions for service of notice and counter notice in ss.122, 124, 125, 125D and 125E, and (importantly) the landlord's duty under s.138, enforceable by injunction, to make the transfer. On the facts of the present case, the local authority landlord admitted the appellant's right to buy. Mr Hobson QC for the Secretary of State was at first disposed to accept that that was the correct course, although when the case was restored for further argument on 7 March 2001 upon the implied repeal issue, he submitted that a local authority which appreciates that the 1938 Act might be engaged in the case ought to give a notice under s.124 denying the right. I by no means criticise Mr Hobson for what may appear to be a shift of ground. If the 1938 Act survives the 1985 Act, the authority's position is, to say the least, somewhat delicate. S.124 only allows for a notice admitting the tenant's right, or denying it; it does not contemplate a notice indicating that the right depends on the views of the Secretary of State, of necessity not yet ascertained, under the 1938 Act. This circumstance, to which I shall return directly, serves to emphasise that the real question here is whether there is any point or place in the process between, as it were, ss.122 and 138 where there might exist any legitimate space for the intervention of s.5 of the 1938 Act.
74. Suppose that the local authority landlord, faced with a tenant's notice under s.122, sees that the Green Belt legislation will bite on the case. Absent implied repeal the landlord must then comply both with s.124 of the 1985 Act and with s.5 of the 1938 Act. It cannot defer compliance with s.124 until the s.5 issue has been sorted out, save on pain of breach of the s.124(2) time limit for service of its notice. Apart from the general common sense of the thing - the s.5 procedures will plainly take some time: they may involve a local inquiry, as happened here - one notes the particular reference in s.5(1)(a), dealing with publication of notices, to a period of "not less than 28 days". If the local authority fails to meet the s.124(2) time limit, it is liable to have to convey at a reduced purchase price: see ss.153A and 153B. It cannot be its duty to expose itself to that consequence. But if on receipt of the s.122 notice the local authority proceeds to apply s.5 of the 1938 Act (and the Secretary of State in due course permits the sale to go ahead) the tenant's right to compensation under ss.153A and 153B will fall in - unless the time limit for the s.124 notice is 8 weeks under s.124(2) and the whole s.5 process is completed within that time, which I should have thought is impossible or hopelessly unlikely.
75. However it must in my judgment be accepted that the availability of compensation under ss.153A and 153B, taken alone, is no sound basis for any finding of implied repeal. Those sections were introduced into the legislation by amendment in 1988. It is not I think in the real world to suppose that, whereas before the amendment the 1938 Act and the 1985 Act were perfectly consistent (at any rate for the purposes of the law relating to implied repeal), the introduction in 1988 of ss.153A and 153B made all the difference. But the time limits themselves were contained in s.124 originally; and plainly they were meant to be fulfilled. It cannot be the landlord's duty not to fulfil them.
76. I conclude that the landlord must serve a s.124 notice within the time stipulated, whether or not the case is one to which s.5 of the 1938 Act applies. What then is the position if the right is admitted under s.124(1)(a)? The right is thereby and without more "established" (see the opening words of s.125(1)). The machinery of ss.125 – 138 is at once engaged, including the time limits for service of the landlord's notice under s.125 (see s.125(1)(a) and (b)). Obviously the matters required to be set out in the s.125 notice include no reference to the Green Belt legislation. If after admitting the tenant's right the authority engages s.5 of the 1938 Act and withholds service of the s.125 notice until the s.5 process is complete, the s.125 notice will inevitably or almost inevitably be late (and the same scenario as to time and compensation will arise as in the case of late service of the notice under s.124).
77. Could it be said that the landlord (having under s.124 admitted the right to buy) might interject his obligations arising under s.5 of the 1938 Act at a later stage, after he has given his notice under s.125? After s.125 the scheme of the Right to Buy legislation seems, as it were, to change gear. The tenant is obliged to give his notice under s.125D; and if he defaults, the landlord may give notice under s.125E. The statute stipulates the time within which the notice under s.125D, but not that under s.125E, is to be served. I think that the purpose of the arrangements constituted by ss.125D, 125E, 140 and 141 is to provide a long-stop mechanism by which the local authority landlord may be relieved of the obligation to fulfil the right to buy in the case of a tenant who drags his feet: note in particular ss.125E(4) and 141(4). There would no doubt be time for the s.5 process to be undertaken and completed between service of the authority's notice under s.125 and service of its first notice to complete under s.140 (see s.140(3): "... not... earlier than twelve months after... service of the... notice under section 125...).
78. But one has to consider the case, which I should think is much commoner, where the tenant does not drag his feet; he gives notice under s.125D promptly; matters relating to the price or otherwise to be contained in the conveyance or grant are expeditiously dealt with; and the tenant looks to the authority to complete the transaction. S.138(1) then takes effect. Once the tenant's right to buy is "established", s.138(1) imposes a duty enforceable by injunction (subs.(3)) upon the authority to make the grant of freehold or lease "as soon as all matters relating to the grant have been agreed or determined". As I have said the right is "established" by the landlord's acceptance of it by notice under s.124(1)(a). The phrase "all matters relating to the grant" must surely refer to conveyancing matters (cf. "relevant matters" in s.140(1) and (4), defined by s.140(5) to mean "matters relating to the grant"); I cannot think it is apt to include the putative impact of the Green Belt legislation, and Mr Hobson did not so submit. The only other qualification to the right is that given by subs.(2).
79. If the authority puts the Green Belt legislation in the way at this stage, or has done so at any time since the s.125 notice, and the s.5 process is not yet complete, it must claim thereby to be relieved of the s.138(1) duty: not just for the time being but altogether, because the s.138(1) duty is to make the grant as soon as the conveyancing matters are sorted out. A duty to make the grant if and when the Secretary of State gives consent under s.5 would be a different duty which in my judgment cannot be read into or got out of s.138.
80. I conclude that if the right to buy is admitted by the landlord under s.124, s.5 of the 1938 Act cannot be given effect to consistently with the lawful operation of the 1985 Act.
81. But what if the landlord serves notice denying the right to buy, as Mr Hobson submitted that it should in a case to which s.5 applies? If it does so, the right is not of course then and there established, and the balance of the 1985 Act procedures and accompanying time limits are put on ice. S.181 of the 1985 Act confers upon the county court "jurisdiction to determine any question arising under this Part…" Where, for example, the landlord denies the right because it does not accept that the tenant satisfies the qualifying period (s.119 and Schedule 4), I envisage that the county court would resolve the matter. Likewise if there were an issue whether the case were one in which the right to buy does not arise (s.120 and Schedule 5), following the landlord's notice denying the right the issue would go before the county court. In all such instances the timetable does not run while the matter is being dealt with.
82. It is worth paying specific attention to paragraph 11 of Schedule 5, to which reference was made at the further hearing on 7 March 2001. That deals primarily (I summarise) with the case where the dwelling-house in question is particularly suitable for occupation by elderly persons. Notwithstanding s.181, paragraphs 11(3) and (4) give jurisdiction to the Secretary of State to determine any question arising under the paragraph if application for that to be done is made by the tenant within 56 days of the landlord's notice under s.124; and (paragraph 11(5)) "[i]f no such application is so made, the question shall be deemed to have been determined in favour of the landlord". Now, it might be thought that the procedure under s.5 of the 1938 Act is no more nor less than an analogous process, arising of course under another statute and having a different subject-matter, but a process just as consistent with ss.118 – 138 of the 1985 Act as is paragraph 11 of that very statute.
83. But in a paragraph 11 case the landlord must of necessity have given notice denying the tenant's right. The landlord's positive stance on the particular facts will be that the dwelling-house is particularly suitable for occupation by elderly persons: note paragraph 11(5), to which I have just referred. In my judgment Mr Hobson's submission that a landlord faced with a potential s.5 case should likewise give notice under s.124 denying the tenant's right is erroneous. The right may at length be satisfied if after all the Secretary of State consents to the sale under s.5. The landlord, for its own reasons, may actually favour the right's being made good in the particular case. Or the landlord may be neutral; or it may be opposed to the establishment of the tenant's right – whether on grounds to do with s.5 of the 1938 Act or other grounds altogether. But the submission must be that none of this matters: the landlord must serve notice denying the right purely so as to make room for the operation of s.5, whatever its own attitude. In my judgment the machinery of s.124, and the words there used by the draftsman, are wholly inapt to be treated as a vehicle for the operation of s.5 in tandem with the Right to Buy provisions. What would in truth be required would be a measure which suspended the operation of the 1985 Act in the particular case until the s.5 issue had been resolved. That cannot in my judgment be got out of s.124, or any other provision contained in the 1985 Act. A notice under s.124(1)(b) is (with great respect to what I understand to be a contrary suggestion contained in the reasoning of my Lord Buxton LJ at paragraphs 45 and 46 of his judgment) not a notice denying the right to exercise the right to buy for the time being; it denies the existence of the right in the particular case and states "the reasons why, in the opinion of the landlord, the tenant does not have the right to buy".
84. I would add that an attempt to make these statutes live together might also involve, as it seems to me, a potential conflict of jurisdiction between the county court and the Secretary of State. If in a s.5 case a negative notice is given (and the tenant does not simply accept it), "a question arising under this Part" – namely, whether the tenant does or does not enjoy the right to buy – will have arisen. The county court then has jurisdiction under s.181. But the Secretary of State, of course, has jurisdiction under s.5 of the 1938 Act.

CONCLUSION

85. For all these reasons there is in my judgment no place within the mechanics of the Right to Buy legislation where the Green Belt legislation can properly be operated. In the words of AL Smith J in West Ham Wardens v Fourth City [1892] 1 QB 654, 658 (cited by Buxton LJ) the material provisions of the 1985 Act are so inconsistent with or repugnant to the material provisions of the 1938 Act that the two cannot stand together. I would accordingly hold that the Green Belt legislation is pro tanto impliedly repealed by the Right to Buy legislation. That conclusion is in my judgment supported by the provisions I have discussed as "the first dimension"; and to some extent supported also, I think, by the role of the Secretary of State within the Right to Buy legislation itself: see ss.164 and 165; but those points would not on their own give rise to the implied repeal, and I will not discuss them further.
86. I would allow the appeal.

LORD JUSTICE THORPE:

87. I have had the advantage of reading the powerfully argued judgment of my lord, Buxton LJ, and also the clear dissent of my lord, Laws LJ.
88. My approach to a position is undoubtedly influenced by a number of extraneous realities. In a subsequent written submission tendered by Mr Craig to answer a question that I raised in argument it is stated that:

i) in England 4.5M acres are held within urban green belts:

ii) the London green belt accounts for 1.2M of those acres:

iii) but only 35,000 acres within the London green belt are so designated by the 1938 Act.

89. Of course Mr Hobson emphasises that the 35,000 acres are all in the ownership of local authorities whereas little otherwise within the London green belt will be in public ownership. He also emphasises that the designation of the greater part is for the sole purpose of inhibiting development whereas the land acquired under the 1938 Act was so acquired for the additional positive purpose of providing Londoners with recreational spaces. But leaving aside the 3.3M acres of green belt land around other cities (where the operation of the right to buy mechanism is solely regulated by the 1985 Act) can it be that there are two regimes for tenancies within the London green belt: one controlling the vast majority of the acreage on all fours with the rest of the country and another operating only within 35,000 acres where the legitimate aspiration of the tenant to buy his home is then subjected to the elaborate procedure conceived in 1938 for the necessary fortification of the capital's green lung? Furthermore precisely because the procedure is elaborate it is likely to be expensive and those that the 1985 Act intended to benefit are least equipped and provided for such struggles. Finally it is a procedure of uncertain outcome. Having survived the trials of a public local enquiry the tenant may well find, as did Miss O'Byrne, that her statutory right has been denied. I cannot accept Mr Hobson's submission that those whose tenancies are caught by the 1938 Act are in like condition to those tenants affected by the National Parks and Access to the Countryside Act 1949, the Public Health Act 1875 or the Open Spaces Act 1906. He further submits that whilst express provision is made for the latter class by section 157 and section 179, no provision is made for the former since they are already catered for by the 1938 Act itself. Neither submission attracts me. First the invasion of the rights provided by the 1985 Act is of a different character and degree for each class. Second the import of the 1938 Act procedure into the 1985 Act procedure is theoretically complementary but, for the reasons given by my lord, Laws LJ, not achievable without a breakdown of the machinery created by the later Act. I therefore agree with him that this appeal should be allowed.
ORDER: Appeal allowed with costs in the sum of £13, 899.68 against the first respondent; application for permission to appeal to the House of Lords refused. (Order does not form part of approved Judgment)