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R v. Secretary of State for the Environment and Transport and Regions Ex Parte O'BRYNE [2000] EWHC Admin 347 (24th May, 2000)

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

BEFORE:
MR JUSTICE GOLDRING
-------------------
Regina

v
Secretary of State for the Environment and Transport and Regions
Ex Parte O'BRYNE
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
____________________

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)

____________________
Judgment
As Approved by the Court
Crown Copyright ©
The application
This is an application by Ms O'Byrne for
1. A declaration that the Green Belt (London and Home Counties) Act, 1938, cannot deprive her, as a secure tenant, of the right to buy her flat from Croydon Borough Council ("Croydon") under section 118 of the Housing Act, 1985.
2. An order of certiorari to quash the decision said to deprive her of that right.
3. An order of mandamus to oblige the Secretary of State to consent to the sale by Croydon to her.
The basic issue
Section 5(1) of the Green Belt (London and Home Counties) Act 1938 ("the 1938 Act") provides that the consent of the minister has to be obtained before Green Belt land vested in a local authority is sold. If the relevant local authority is dissatisfied with the sale, the minister, before consenting to it, is obliged to hold a local inquiry. Section 118 of the Housing Act 1985 ("the 1985 Act") provides a right to a secure tenant to buy his council house. Ms O'Byrne is a such a tenant with such a right. Croydon was dissatisfied with the sale it was obliged to make. The minister convened a local inquiry. The inspector found in favour of Croydon. The minister adopted his reasons. He refused his consent to the sale.
There are two limbs to the application.
First, in the light of the relationship between the 1938 Act and the 1985 Act, the inspector and therefore the minister took into account matters which he should not have and omitted to take into account matters he should have.
Second, the conclusions reached by the inspector were not justified by the evidence. No reasonable inspector could have reached them.
A short summary of the facts

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

COSTS

MR JUSTICE GOLDRING: Mr Hobson, thank you for the corrections. They have been inserted. I do not know if you have any observations you want to make, Mr Craig, on that front?
MR CRAIG: My Lord, no.
MR JUSTICE GOLDRING: Thank you very much. I will hand the judgment down and obviously it will be corrected when it is perfected.
MR HOBSON: Would your Lordship make an order for the payment of the Secretary of State's costs? A schedule has been prepared and has been served upon my learned friend. Your Lordship will see that the amount as originally inserted has been altered because the hearing did not take quite as long as we thought it might. Hence the reduction to reflect that. So I invite your Lordship to make an order for payment of the Secretary of State's costs assessed at £4,440.
MR JUSTICE GOLDRING: Thank you very much. Have you any observations on that schedule, Mr Craig?
MR CRAIG: My Lord, I oppose in principle the question of costs. I could not, and do not, object to the schedule of costs; that is acceptable.
MR JUSTICE GOLDRING: Forgive me, I am looking around, I am not certain I have my correct note book here.
MR CRAIG: In the course of the hearing one of the sections I referred your Lordship to was section 170 of the Housing Act 1985. Can I hand that up? I have taken a copy and provided Mr Hobson with one.
MR JUSTICE GOLDRING: Thank you. Yes, I recall this section.
MR CRAIG: My Lord, what I say about costs is, clearly if this point had been litigated before and there had been a number of decisions on it, I entirely accept that I would be -- I may be in some difficulty as it is -- but I would be in even greater difficulty in opposing the application. The fact is that this is the first decided case on how the Secretary of State ought to exercise his discretion under the 1938 Act.
That being the case, I say that whilst an application was made to the Secretary of State before the proceedings started to see if he would be prepared to grant assistance to the applicant, what I would say is that -- clearly I am not seeking the assistance from the Secretary of State now -- I would say that having regard to section 170, and in particular subsections (3) and (4), which sets out the type of assistance that might be provided by the Secretary of State, this would be an appropriate case in which to make no order as to costs, having regard to a specific section in the Act which says that the Secretary of State, if a person is -- if it involved a question of principle as to the exercise of the right to buy the Secretary of State might grant assistance. It would seem seek unfair, in my submission, in those circumstances --
MR JUSTICE GOLDRING: Mr Craig, I understand the submission, and I have slight sympathy for your client in all the circumstances, but it seems to me that costs must follow the event.
MR CRAIG: Very well. In that case, my Lord, could I ask for a period of three months for the costs to be paid?
MR JUSTICE GOLDRING: I am sure Mr Hobson would not object to that.
MR HOBSON: My Lord, this point has come up from time to time and the approach that I would urge your Lordship to follow is not to make an order formally that sets out a period of three months for payment of costs, but rather that costs should be paid full stop. The procedure that the Treasury Solicitor would wish Miss O'Byrne to follow is for her to write to the Treasury Solicitor, setting out her circumstances, and those circumstances will be considered, favourably obviously, by the Treasury Solicitor. Clearly if Miss O'Byrne does not have the means, the order will not be enforced in a harsh way.
MR JUSTICE GOLDRING: What I propose to do is to follow that suggestion, but indicate that if, as I strongly suspect from what I have read of the papers, that Miss O'Byrne is someone with limited means, that the matter must be looked at carefully and with sympathy.
MR HOBSON: I am obliged.
MR JUSTICE GOLDRING: I make that absolutely clear.
MR CRAIG: My Lord, if the court has an expressed power under the CPR to make even a judgment payable by instalments -- I appreciate the indication from the Treasury Solicitors that they will regard the application with sympathy, but it is not asking a great deal simply --
MR JUSTICE GOLDRING: Is there any reason why I cannot give a liberty, permission to apply if a problem does arise in relation to it?
MR HOBSON: I do not believe there is any restriction on your Lordship making such an order. But the Treasury Solicitor will certainly consider her circumstances and will also, of course, bear in mind your Lordship's observations.
MR JUSTICE GOLDRING: Absolutely, I will also give what I think formerly was called a liberty to apply, but I am not sure now it is called liberty to apply.
MR HOBSON: Probably called permission, my Lord.
MR JUSTICE GOLDRING: Permission, that is what I had assumed, should that be necessary. I am sure it will not be.
MR CRAIG: My Lord, what has happened is that Miss O'Byrne has married in the last six months and I expect there is no question of costs not being paid, they will be paid. But it is just if an extra period of time, because the normal orders of your Lordship are 14 days, all I am asking for is for that period to be extended. The court has a jurisdiction -- can exercise its discretion to grant an extended period. That is really all I am asking for, three months. I will not need to come back. The costs of having to come back to apply to your Lordship would exceed that application.
MR JUSTICE GOLDRING: Well, I have made my order.
MR CRAIG: My Lord, then I ask for leave to appeal.
MR JUSTICE GOLDRING: I have obviously considered this because I anticipated that you might. I am not going to grant leave to appeal. It is a matter you may take to the Court of Appeal and seek their leave.
MR CRAIG: My Lord, two very short points. The point is that this is, as I am sure your Lordship is aware, this is the first time that the Court has had to consider an application under the -- an objection under the 1938 Act. It is also the first time, so far as I am aware, that anyone in the United Kingdom has actually been prevented from exercising the right to buy under the 1985 Act. It raises a point of general principle as to the interaction between the 1938 Act and the 1985 Act.
One test in the practice direction about whether or not leave should be granted is whether leave should be granted it raises a point of general importance or general principle. I think that is page 1409 of the White Book. No doubt, your Lordship will be aware of that.
It essentially involves a question of construction of the interaction between the two statutes and therefore it raises essentially a point of law. And if I was going to the Court of Appeal, I am not asking the Court of Appeal to look at a whole load of facts. So it is really determining how the Secretary of State should have exercised his discretion in the context of the 1938 Act and 1985 Act.
It was a short point. It was listed for a day in front of your Lordship. We managed to dispose of it in half a day. It would be a short point for the Court of Appeal. In those circumstances, as I say where there has been no previous -- where in fact Turner J granted leave in this case. It has not come straight to your Lordship; Turner J thought there was a point of principle involved that is why he granted leave. So my Lord, I appreciate your Lordship may have formed his view, but I think there are compelling reasons --
MR JUSTICE GOLDRING: It is my job, among other things, to listen to the submissions made. If I form a preliminary view I can change it obviously. I understand that. Is there anything else you want to say?
MR CRAIG: No, my Lord. Simply those two points. Essentially it is a very short point, whether the Secretary of State in exercising his discretion under the 1938 Act is he entitled to rely on reasons --
MR JUSTICE GOLDRING: I have the point. Mr Hobson, is there anything you want to say?
MR HOBSON: My Lord, I oppose the application for leave. It is not the case, with respect to my learned friend, that this is the first time this issue has come before the court. Your Lordship will recall that the issue did come before the Court before McNeil J in the Enfield case. McNeil J held, and your Lordship has adopted the same approach, that both statutory provisions remain extant. That being so, there is a discretion that the Secretary of State must exercise. In relation to the exercise of that discretion your Lordship has held that the general principles apply to the exercise of that discretion. That being so, it is my submission that no important point of principle arises in this case. It is an entirely conventional issue. That being so, there is no justification, I submit, for this case going any further.
MR JUSTICE GOLDRING: Thank you very much. I do not grant leave. You may go to the Court of Appeal and seek leave.
MR HOBSON: My Lord there is some uncertainty whether your Lordship has formally made the order as to payment of costs in the sum of £4,400.
MR JUSTICE GOLDRING: You are quite right, I did not in terms say so.
MR HOBSON: I would be obliged if your Lordship would indicate.
MR JUSTICE GOLDRING: Yes, of course.
MR CRAIG: That is payable within 14 days, subject to the liberty to apply.
MR JUSTICE GOLDRING: Absolutely.
MR HOBSON: I am obliged.