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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> O'Bryne, R (on the application of) v Secretary Of State For The Environment & Transport & Regions [2000] EWHC Admin 347 (24 May 2000) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/347.html Cite as: [2000] EWHC Admin 347 |
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CASE NO: CO/1085/1999
IN THE SUPREME COURT OF JUDICATURE
QUEENS BENCH DIVISION
CROWN OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Wednesday 24 May 2000
MR JOHN HOBSON QC (instructed by Treasury Solicitors for the
Respondent)
MR ALISTAIR CRAIG (instructed by Donne Mileham & Haddock, Brighton,
East Sussex, BW1 3YB, for the Applicant)
Ms O'Byrne is a landscape gardener. Since 1988 she has been working for Croydon. On 5 February 1948 Croydon (then a County Borough Council) bought the park and premises on what is now known as Coombe Wood Park. It is about 2 kilometres from Croydon. The park is for the public. Part is ornamental; most woodland. There is a plan at page 34 of the Bundle. Ms O'Byrne's flat is above some old stables in the park. The flat and the park are on Green Belt land (within the terms of the 1938 Act). The stables originally housed the horses used by the park's rangers. Both horses and rangers are no longer there. Part of the stables is empty. Part is used as café for visitors to the park. Since 1954 the flat has been used as living accommodation. In 1993 Croydon offered it to Ms O'Byrne "for the better performance of her duties as a gardener" (see page 35 of the bundle). There was a condition that she undertake a general security role. She agreed. She was granted a service tenancy. She has lived there ever since.
In May 1994, Ms O'Byrne's contract as a landscape gardener was transferred from
the Croydon to a company called Serco Limited. Serco had taken over the
maintenance of the park. Ms. O'Byrne remained in the flat. She changed from
being a service tenant to being a secure tenant within the terms of the Housing
Act, 1985. That is how the right to buy arose.
The history of Ms O'Byrne's attempt to buy the flat
On 6 December 1996 Ms O'Byrne applied to buy the flat. On 6 June 1997 the
application was accepted. On 18 July 1997 Croydon stated that as the flat was
within the Green Belt, consent from the Secretary of State to the sale was
needed. On 1 September 1997 Ms O'Byrne was sent a notice offering to sell her
the flat for £30,780. On 1 December she formally accepted the offer.
On 13 January 1998 a solicitor to Croydon wrote a letter to the Secretary of
State. It stated that he had "been instructed by the Authority's Leisure
Services Committee to make objection to that consent being given." A series of
objections was set out. I can summarise them.
(1) The property had always been occupied under a service tenancy.
(2) The disposal of the property would be a change in residence use and
harmful.
(3) The sale might create security problems.
(4) The effect of the sale would be similar to removing a covenant restricting
the use of the property to agricultural use.
(5) The occupier might bring an action for nuisance against Croydon due to
"comings and goings related to the café, the offices and the
stables."
(6) The property could be sublet.
(7) There would be a loss of employee accommodation.
(8) There might be a future need for accommodation to service the park
(9) The disposal of the property could result in a frequent change of occupiers
which could disrupt the functioning of the park.
As a consequence, the local inquiry was convened. It was held on 21 July 1998.
The inspector reported on 18 August 1998. He recommended that the application
for consent to the sale be refused. In a letter dated 3 February 1999, the
Secretary of State agreed with the conclusions expressed in paragraphs 38-50 of
the inspector's report. The Secretary of State refused consent on that basis.
It is in respect of that decision that the present application is made.
The legislative framework
I need to set out in more detail the legislation which is or is said to be
relevant.
The 1938 Act
The preamble
"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".
Section 5 (1)
".....before Green Belt land vested in a local authority....is sold...the local
authority...in whom the land is vested shall...
(e) obtain the consent of the Minister....."
Section 5 (3)
"If the consent of any contributing local authority...is not obtained by the
local authority...or if such consent can only be obtained upon terms with which
the local authority....are dissatisfied the Minister shall before consenting to
the sale...cause a local inquiry to be held."
Section 27
"Nothing in this Act shall
(a) prevent Green Belt land from being used for purposes of recreation
or...agriculture...or
(b) prevent [it] from being used for camping..."
The 1985 Act
Section 118
"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...
(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..."
Section 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 the matters relating to grant and to
the amount to be left outstanding or advanced on the security of the
dwelling-house have been agreed or determined, the landlord shall make to the
tenant...
(b) ...if the dwelling-house is a flat (whether or not the landlord owns the
freehold), a grant of a lease of the dwelling-house..."
Section 138(3)
"The duty imposed on the landlord by subsection (1) is enforceable by
injunction."
Section 157(1)
This is headed, "Restriction on disposal of dwelling-houses in National Parks,
etc." It states
"Where in pursuance of this Part a conveyance or grant is executed by a local
authority of a dwelling-house situated in-
(a) a National Park,
(b) an area designated...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....to dispose of the dwelling house..."
Section 179 (2)
This is headed "Provisions restricting right to buy, etc of no effect." It
states
"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 may
be, section 10."
Sections 164 and 170
Emphasis is placed on them. It is not necessary to set them. By them the
Secretary of State has power to intervene (section 164) and assist in legal
proceedings (section 170) to facilitate the tenant's right to buy.
The authorities
The only authority on the relationship between the two acts is the decision of
McNeill J in R v Secretary of State for the Environment and others ex p
Enfield LBC (1988) 86 LGR 549. In that case, the Secretary of State was
resisting an application to the effect that he had a discretion. He was
arguing that the 1985 Act had impliedly repealed those provisions in the 1938
Act repugnant with it. It was suggested on his behalf that Section 5 of the
1938 Act could be read so as to exclude the "right to buy" cases from its
operation, thus depriving him of his discretion in such cases: also, that
section 5 only applied to a voluntary, not a forced sale under the right to buy
legislation. The argument of the successful applicants is plain from McNeill
J's judgement. At page 558 he quotes the submissions made by Mr. Barnes QC on
behalf of the applicants.
"Parliament expressly declined to free green belt land from the statutory
obligation resting on local authorities and the Secretary of State. The Act of
1985 does not relieve the local authority or Secretary of State of the
respective obligations under the Act of 1938: to obey the law, the applicants
must advertise and seek consent. The Secretary of State must consider the
objections and give his consent to the alienation of green belt land vested in
a local authority: or indeed, by section 6, where local or highway authorities
or statutory undertakers propose to acquire green belt land. Neither the
Secretary of State nor the applicants are by the Act of 1985 relieved of their
obligations under that provision."
It seems clear that McNeill J accepted those submissions. At page 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 green belt land
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."
The adjudication
The inspector summarised the two sides' cases. He set out his conclusions in
paragraph 38 and following. I shall refer to specific paragraphs below.
The submissions on each side
The applicant's
The first limb
In the grounds attached to Form 86A it was said "that section 138 of the 1985
Act could not be construed so as to except properties in the Green Belt land:"
that that was so, notwithstanding the decision in Enfield. It was also
said that section 179(2) of the 1985 Act "clearly demonstrates that the 1985
Act and the 1938 Act are repugnant one to another..."
Mr. Craig on behalf of the applicant now submits as follows.
1. He accepts for present purposes that the Secretary of State does have a
discretion under the 1938 Act when considering whether to consent under the
1985 Act. Enfield makes the existence of the discretion clear.
2. In exercising that discretion, the reasonable Secretary of State has to have
regard to
(1) The limited purpose of the 1938 Act.
(2) The clear and overriding purpose of the 1985 Act.
The purpose of the 1938 Act
He submits its purpose is defined in the preamble. It was to provide
metropolitan Green Belt land through direct ownership and control. It was
primarily if not exclusively directed at preventing "industrial building
development...around London."
It is submitted that section 27 is important. It makes it clear that the 1938
Act is not intended to provide for recreational use of the Green Belt land.
Its limited purpose is to preserve the land from industrial or building
development. If its purpose were recreational, it would not be necessary
specifically to provide for recreational use.
The purpose of the 1985 Act
Section 118 provides the right to buy.
Sections 164 and 170, it is submitted, underline the Act's purpose. The powers
given to the Secretary of State to intervene and assist in legal proceedings
show what the intention of the Act was. Recalcitrant councils were not to
stand in the way of the legitimate exercise of the tenant's right to buy.
That general view is reinforced by the comments made at page 540 in Bristol
City Council v Lovell 29 HLR 528, to the effect 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."
When there is a restriction on the right to buy, the Act says so. Section 157
sets out the circumstances where there is no right to buy. Although it was
submitted this is the only restriction on any right to buy, Mr. Craig seemed to
accept that there was a restriction provided by the existence of the discretion
under the 1938 Act. However, that discretion was severely circumscribed, it
was submitted.
Great emphasis is placed on section 179(2). The section means, it is
submitted, that even as far as open spaces and burial grounds are concerned,
there can be no restrictions on the right to buy. Such parks and open spaces
may even be owned by the local authority (under the Open Spaces Act 1906). It
is submitted it would be anomalous for there to be no such restrictions for
open spaces and burial grounds and yet restrictions for similar land which
falls within the 1938 Act. Section 179(2) is something the inspector should
have taken account of.
In that context, the purchase deed under which Croydon acquired this land was
referred to. Clause 3 is in the sort of terms which would be rendered of no
effect under section 179(2). That, it is submitted, emphasises the anomaly.
Mr. Craig drew my attention to Hansard in respect of the interpretation of
section 179(2). I do not feel it necessary to refer to it. The meaning and
purpose of section 179(2) are quite clear without the need for such a
reference.
He submits the anomalies do not end there. The 1938 Act was to provide for
Green Belt land through direct ownership and control around London. Since
then, there has been the Town and Country Planning Act 1947 and Ministerial
Advice in 1955, which deal with the establishment of Green Belts. Such Green
Belt land, unlike the present, is not subject to the need for consent. This
underlines, it is submitted, how restricted should be the permissible area of
discretion under the 1985 Act.
Where it is submitted the inspector went wrong
The first limb
In his conclusions at paragraph 49 (page 30 of the bundle), the inspector said
this.
"...the land in public ownership remains important. Some of this land has
little or no public access. This means that those areas in public ownership to
which the public have access are an important recreational asset for London.
In my view it is necessary to safeguard their effective management in that
role."
In paragraph 50 he said this.
"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...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 [the 1985] 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 the future, in my view outweighs the
considerations arising under the Housing Act 1985. I consider it should not be
granted."
The submission as I understand it, comes to this.
1. The inspector found in terms that "the disposal of the Stables Flat might
not harm Green Belt policy..." Once he had made that finding, he had taken
into account all that he was properly entitled to under the 1938 Act. Matters
such as "effective use and management" were irrelevant to the proper exercise
of discretion. So too were "wider policy considerations." They have nothing
to do with the 1938 Act. The inspector should have had in mind its limited
purposes.
2. Section 179(2) gave an express right to buy a dwelling in a park. The
inspector should have considered the section and its implications. If he had,
it would have been clear that park issues should not have played a part in the
exercise of any discretion under the 1938 Act.
3. Section 5 of the 1938 Act is anomalous. The 1985 Act provides the clearest
possible right to Ms O'Byrne to buy. Parliament's plain intention was that it
should if at possible be enforced. Section 179(2) of the 1985 Act emphasises
that. The conclusion that "wider policy considerations" under the 1938 Act
could outweigh the legislative intent of the 1985 Act was wrong and perverse.
4. Planning Policy Guidelines ("PPG") relating to the Green Belt are not
relevant. They have nothing to do with the purposes of the 1938 Act.
5. In short, the inspector took into account in reaching his decision matters
he was not entitled to. In addition, he failed to take into account matters
that he should have.
As I pointed out to Mr. Craig, it is clear that if McNeill J is right in
Enfield (when he says that the Secretary of State has power to consent
or withhold consent "applying to his decision what might be described as Green
Belt or more broadly planning considerations,") there are difficulties in the
submissions made under this limb. Mr. Craig finally submitted that this
decision was not concerned with defining the matters which the Secretary of
State can properly take into account when reaching his decision. It was about
whether or not there was a discretion at all. These comments were unnecessary
to the decision.
The second limb
Mr. Craig accepted that he was submitting that even on the inspector's view of
the law, his decision was perverse. He was relying upon the following matters
(insofar as now material).
In paragraph 41 the inspector dealt with "future use and management" of the
park. He said the council's concerns appeared to have some substance. He
accepted that consideration was being by Croydon to future use of the stables.
Mr. Craig submits there was no proper basis for that conclusion. It depended
upon a simple assertion by a council officer. There was no scheme. There were
no plans.
In paragraph 43 the inspector expressed concern about security in the event of
a sale. The evidence was no more than that the applicant kept a look out.
There was no evidence as to how disposal could affect the recreational activity
of the park. It will continue as before. There is no reason to think an owner
would be less concerned about security than a tenant.
In paragraph 45 the inspector accepted the Council's concerns that disposal of
the flat would give the occupier a right to private enjoyment: that there might
be an action against the council. The functioning of the park might be
prejudiced because full use of facilities might be inhibited. There was no
evidence to support that submits Mr. Craig.
He was critical of the inspector's understanding of the law as expressed in
paragraph 47: that the inspector's discretion under the 1938 Act was
unfettered. He submitted that the provisions of the 1938 Act could not be
applied in a manner inconsistent with the 1985 Act. That is essentially his
first limb.
He did not accept that the evidence justified the conclusions reached in
paragraphs 49 and 50. There was no evidence to justify the finding that the
right to buy would affect the future use and management of the land. Such
evidence as there was, was extremely flimsy.
The respondent's
Mr. Hobson Q.C. made the following specific submissions on behalf of the
respondent.
Limb 1
1. The 1938 Act is operative. It has not been repealed. It gives the
Secretary of State a discretion. He has to exercise it. There is a special
category of land which remains subject to this special procedure. That must
have been the intention of Parliament. That is what McNeill J accepted in
Enfield.
2. McNeill J's comments about the manner in which the discretion should be
exercised were both part of the decision and in any event correct.
3. The inspector correctly directed himself. His function was to balance the
applicant's rights under the Housing Act 1985 against the relevant
considerations relating to the Green Belt. The right to buy is not overriding.
There has to be a balance between the 1938 Act and the 1985 Act. Green Belt
considerations can properly be taken into account when applying that.
4. Green Belt land may have become so in a number of ways. Once created and
held as such by the Council, there is a range of functions it has to perform.
That may include recreation. The inspector was entitled to have regard to its
maintenance as "an important recreational asset for London" (paragraph 49).
He was entitled to have regard to the matters set out in paragraphs 42 and 43.
These are all relevant when considering whether its disposal should be
consented to.
5. It is plain that the inspector did not ignore or overlook the 1985 Act.
Paragraph 38 starts by saying there is a right to buy. It is repeated in
paragraph 50.
6. In paragraph 50 he took into account what were relevant matters.
Limb 2
1. Having correctly identified factors he was entitled to take into account, he
considered the evidence he heard. There was nothing perverse about the
conclusions he reached. He was entitled to take account of possible future
plans on the basis he was told such were under consideration. This was not a
free-standing building. He was entitled to take that into account. He was
entitled to consider possible future problems.
2. It was within the scope of his discretion to consider the matters set out in
paragraph 45. Planning Policy Guidelines relating to Green Belt land may
properly be considered. Any factors which would adversely affect Green Belt
land can properly be taken into account.
3. In paragraphs 49-50, he brought his views on the evidence together. He
weighed up the competing interests. He struck a balance. That is exactly as
it should have been.
My conclusions
Limb 1
1. However anomalous it may be, the fact of the matter is that Parliament, on
passing the 1985 Act did not repeal section 5 of the 1938 Act. It must be
taken to have been Parliament's intention deliberately not to have done so. It
must be taken to have been Parliament's intention in 1985 that before Green
Belt land held under the 1938 Act can be sold, the Secretary of State must
consent.
2. Section 5 gives the Secretary of State a discretion. It must be given
effect to.
3. What Mr. Craig on behalf of the applicant is submitting, I think, comes to
this. Provided the Secretary of State concludes a particular sale will have no
effect on industrial or building development in the Green Belt, that is the end
of his consideration. He cannot go on to consider any other consequence of
granting consent. If, for example, in a given case, the effect of consent
would be that Green Belt land being used for recreational purposes no longer
could be, that would be something the Secretary of State could not properly
take into account.
4. In my view, that cannot have been Parliament's intention. Having left the
Secretary of State with a discretion, it cannot have intended so narrow an area
of consideration. It cannot have intended that he ignore other consequences on
the Green Belt of consent to a sale. It cannot have intended he ignore such
things as the location of the property in question, its nature, how the
particular sale will affect the particular piece of Green Belt land and so on.
In other words, I accept McNeill J's view. The Secretary of State is entitled
to take into account "Green Belt or more broadly planning considerations."
5. It must have been Parliament's intention that the Secretary of State carry
out a balancing exercise between the right to buy under the 1985 Act and
section 5 of the 1985 Act.
6. I have of course considered the sections of the two acts drawn to my
attention: in particular section 179(2). It does not seem to me to follow that
because Parliament decided to prevent restriction of the right to buy in
respect of pleasure grounds under the Public Health Act 1875 and open spaces
under the Open Spaces Act 1906, park issues cannot be considered by the
Secretary of State when considering Green Belt land in respect of which
Parliament decided not to provide for, either in section 179(2) or elsewhere.
Each time one comes back to the basic point: Parliament could have repealed
section 5. It chose not to. If it is anomalous, that is simply reflecting the
intention of Parliament.
7. In short, I do not accept Mr. Craig's submissions under the first limb. I
accept Mr. Hobson's.
Limb 2
I can take this aspect shortly.
The inspector, who was very experienced in these matters heard the evidence.
It is not for me to go through his conclusions in a pedantic way. It was for
him, not me to weigh the evidence he heard. He plainly considered it with
great care. The court must be slow to interfere with the findings made by an
inspector in such circumstances. He was in my view entitled to form the views
about the evidence he did. Having found the facts he did, he carried out the
balancing exercise between the two Acts he was required to. Although he did
not mention section 179(2) in terms, that failure does not affect in my view
the careful balancing exercise he carried out. Neither would I categorise any
of the decisions he reached on the facts as perverse.
In short, I accept Mr. Hobson's submissions in this regard too.
I therefore reject the application.
Wednesday 24th May 2000