Brian Telchadder v Wickland (Holdings) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lady Justice Black,Dame Janet Smith |
| Judgment Date | 16 May 2012 |
| Neutral Citation | [2012] EWCA Civ 635 |
| Docket Number | Case No: B5/2011/2356 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 May 2012 |
[2012] EWCA Civ 635
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOUTHEND COUNTY COURT
HHJ MALONEY QC
Claim No 9CO02412
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lady Justice Black
and
Dame Janet Smith
Case No: B5/2011/2356
MR LINDSAY JOHNSON (instructed by Fisher Jones Greenwood LLP) for the Appellant
MR STEPHEN GOODFELLOW (instructed by Asher Prior Bates) for the Respondent
Hearing date: 1 st March 2012
The appeal
In this appeal questions arise on the construction and application of the Mobile Homes Act 1983, as amended (the 1983 Act). They concern the scope of the security of tenure conferred on occupiers of mobile homes owned by them and stationed under licence on pitches in protected residential sites.
The appeal is from an order made by HHJ Maloney QC in the Southend County Court on 17 August 2011. It was ordered that there be terminated forthwith the licence of Mr Brian Telchadder (the defendant) to occupy the mobile home owned by him and sited on Plot Number 160, Meadowview Park, St Osyth Road, Little Clacton, Essex. Meadowview Park is a protected mobile home residential site owned by Wickland (Holdings) Limited (the claimant). The order was made on the ground that the court was satisfied that the defendant had acted in breach of the terms of the licence, that he had not complied with a notice to remedy the breaches and that it was reasonable to terminate the licence. The issue in this appeal is whether the decision of the judge to make the termination order was wrong.
The claimant issued proceedings for possession in September 2009 alleging that the defendant was in breach of the licence/agreement entered into on 1 June 2006 (the Agreement). The Agreement incorporated the "Park Rules" with which the claimant undertook to comply. The breaches consisted of acts of what the judge compendiously described as "anti-social behaviour" by the defendant towards other residents of Meadowview Park amounting to a nuisance contrary to the Agreement and the Park Rules.
The judge granted permission to appeal on the issue of the adequacy of the notice given by the claimant on 15 August 2006 to the defendant to remedy the breaches, but not against his findings of fact in respect of further incidents of anti-social conduct in July 2009, or in respect of the findings of law as to the reasonableness of terminating the licence.
On 4 November 2011 Aikens LJ granted permission to appeal on the reasonableness of the termination of the Agreement, having regard to considerations of disability discrimination, equality law and human rights law (relating both to respect for the home and to interference with possessions) relied on by the defendant, who is described in his Appeal Notice as:—
"…a vulnerable individual by way of mild learning disability with autistic traits in addition to anxiety disorder and remittent depression (as per the report of Dr CJ Brown…)
The mobile home occupied by the defendant is his only asset. If the order under appeal is upheld by this court, the defendant will either have to remove the mobile home from the site or sell it. Submissions about the reasonableness of terminating the defendant's licence rely, in particular, on the relevant provisions of the Disability Discrimination Act 1995 (the 1995 Act), the Equality Act 2010 (the 2010 Act) and the Human Rights Act 1998 (the 1998 Act).
By a respondent's notice the claimant relies on additional or different grounds for affirming the order of the judge. They relate to his finding that only one of the letters sent by the claimant to the defendant between 2006 and 2009 could be treated as an effective notice under the 1983 Act to remedy the defendant's breaches of the Agreement.
Background facts
On 1 June 2006 the claimant granted the defendant a licence to site his mobile home on Plot Number 160, Meadowview Park. It is a large site accommodating about 200 mobile homes in closer proximity with one another than is the case with more conventional dwellings. There is very little privacy. There are no fences or garden walls. About 30% of the occupiers are elderly people aged 70 or more. The defendant's father, who is a man in his 70s, moved onto the site with a Ms Hart at about the same time as the defendant. There has been some trouble at the Park between the defendant and Ms Hart. They are not on good terms. The defendant's father has since moved away from Meadowview Park.
On entering into the Agreement the defendant was supplied with a written statement under the 1983 Act. It explained that he had an Agreement under the Act. The statement contained the terms implied by the Act and additional express terms. The Agreement incorporated paragraph 4 of Schedule 1 to the 1983 Act, which entitles the claimant, as owner, to terminate the Agreement forthwith on the court being satisfied on matters of breach, notice to remedy, non-compliance and reasonableness.
It was an express term of the Agreement that the defendant undertook to comply with the Park Rules and not to be a nuisance or cause annoyance, inconvenience or disturbance to the claimant, or other occupiers on the Park: clause (3) (l) and (m) of Part IV.
Rule 11 of the Park Rules forbids the carrying of offensive weapons or any other objects likely to give offence on the Park and the use of guns or firearms of any kind. Rule 14 of the Park Rules, which were designed to ensure that residents "may live together peacefully in unspoilt surroundings" and to promote a "happy community", contains a prohibition against acts of nuisance, damage, annoyance or inconvenience to the claimant or the neighbours or occupiers of any other home there.
The amended Particulars of Claim alleged that the defendant had breached the terms of the Agreement by harassment and nuisance behaviour on nine occasions and that it was reasonable to terminate the Agreement because of the nature of the breaches.
The claimant gave particulars of complaints about the defendant's behaviour on 15 July 2006 followed by a warning letter on 25 July 2006 (complaints of loud music). Other letters were sent on the following dates: 15 August 2006 (repeating the complaints of loud music and making fresh complaints of unwanted approaches or advances to other residents); 22 June 2007 (alleged bothering other residents and in one instance making a racist remark); and 29 April 2008 (further complaints about loud music causing a nuisance and annoyance to other residents).
The incident that occasioned the critical letter of 15 August 2006 involved the defendant dressing up in camouflage and military combat clothing, wearing a mask that obscured his face, making unwanted approaches to residents and causing them alarm and distress. The defendant was advised that his actions were not acceptable and that, should he ignore the matters raised about the wearing of the mask and the unsolicited approaches, the claimant would have no alternative but to apply to the court to have the Agreement terminated and his home removed from the site.
The defendant, who is in his mid-forties, suffers from a disability. According to a psychological report by a Consultant Psychologist, Dr JC Browne, put in evidence he has a mild learning disability and autistic traits, has developed an anxiety disorder and can have a relapse into depression. He also has a history of heroin addiction and has been on methodone prescriptions, but was then in remission. He has a strong interest in martial arts and in weapons, including bayonets and knives, which have been removed by the police. He likes to wander in the woods near the site in camouflage clothing, including a masked camouflage hat, which makes his appearance very startling to residents of the site.
The important fact to note at this point is that the judge held that the letter dated 15 August 2006 was the only one that qualified as a notice to remedy under the 1983 Act, though complaints and warnings to the defendant about his actions continued up to and after the issue of proceedings. They resulted in visits from the police, the arrest of the defendant for harassing, threatening and terrorising other residents, charges against him in the Magistrates' Court and a court order.
On 15/16 July 2009 the defendant approached a resident, Mr Brian Carter, with threats to kill him and two other residents, Ms Claydon and someone called Sue. He threatened Mr Carter with a martial arts stick. He said "I shoot rabbits, I could shoot you." The judge found that the defendant made those threats. On a police search of his mobile home a substantial collection of weapons or weapon-like objects was found. There were other allegations of threats by the defendant in July 2009 about which the judge did not accept the evidence of Mr Carter.
On 6 and 7 October 2009 there was another incident involving Mr Carter, who complained about a mysterious anonymous note being left at his home. It asked him to surrender one of his two decorative Samurai swords to the writer, whom he suspected was the defendant. He said that he saw the defendant lurking around that night, as if waiting to receive the Samurai sword. The judge found that the defendant had written and delivered the note and that Mr Carter was telling the truth about the defendant's lurking. The police took no action about the alleged threats to kill.
In February 2010 the defendant was alleged to have harassed or intimidated two elderly residents, Mr & Mrs Bowes-Cavanagh, one of...
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