England and Wales Court of Appeal (Civil Division) Decisions

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
		16 /05/2012

Lord Justice Mummery:

The appeal

1. 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.
2. 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.
3. 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.
4. 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.
5. 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…)

6. 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).
7. 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

8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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).
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. In February 2010 the defendant was alleged to have harassed or intimidated two elderly residents, Mr & Mrs Bowes-Cavanagh, one of them being disabled. That led to a guilty plea by the defendant in the Colchester Magistrates' Court to a s.5 offence of using threatening words or behaviour likely to cause harassment, alarm or distress and the imposition of a restraining order to prevent him from contacting them or Mr Carter, directly or indirectly. The defendant also served a term of seven day's imprisonment rather than pay a fine.
20. There were two more disputed incidents in July 2010 (threatening behaviour to Mr Alan Collins, who, with his brother, owns and runs the site, and a threat to kill Mr Carter). On New Year's Eve 2010 there was a domestic disturbance between the defendant and Ms Hart at his father's home on the site and the police were called. In March 2011 somebody left used shotgun cartridges outside Mr Carter's house and the judge found that it was likely that it was the defendant. On 26 April 2011 the defendant, on his own admission, approached two elderly residents, Mr & Mrs Cole, who called a Mr Parrott to assist them when they asked the defendant to leave. The defendant used foul language to Mr Parrott, who pushed or slapped him in the face to drive him away when he pushed his face close up to him.

Judgment below

21. The trial lasted for three days. The defence was that there had been no breach of the terms of the Agreement; that no notice had been served in accordance with paragraph 4 of Schedule 1 to the 1983 Act; and that, in all the circumstances, it was not reasonable to terminate the Agreement.
22. Having found that some of the allegations were made out as breaches of the Agreement, the judge turned to paragraph 4 of Schedule 1 to the 1983 Act as a term which is implied into any agreement to which the 1983 Act applies. It provides that:-

"The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the appropriate judicial body –

(a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and

(b) considers it reasonable for the agreement to be terminated."

23. The judge considered the extent of an obligation to serve "a notice to remedy the breach"; how specific it had to be; what formal requirements attached to such a notice; and how long such a notice may last. The key question for the judge was whether the claimant had given the defendant the necessary notice under the 1983 Act for the purposes of paragraph 4 in relation to actionable breaches committed 3 years later in July 2009 and to the possession proceedings commenced in September 2009.
24. The judge concluded that only the letter of 15 August 2006 was a valid notice. It was valid, notwithstanding that the further breach did not occur until 3 years after it was served and that the proceedings were not commenced until September 2009. He held (paragraph 4) that what is required under the 1983 Act is an initial breach, then a notice to remedy that breach and a failure to comply with the notice within a reasonable time. In this case there was a notice complaining of the defendant's anti-social behaviour and requiring him to desist from it and then proven instances of further anti-social behaviour in disregard of the notice.
25. The judge accepted submissions on behalf of the defendant that the breaches relied upon for the purposes of the right to terminate in accordance with paragraph 4 had to be pleaded in the ordinary way. Evidence of events post-dating the proceedings could, however, be taken into account on the issue of reasonableness and also as evidence of pleaded instances of breach.
26. In a key passage of his judgment the judge said that, taking a broad purposive view, he found :-

" 14. ….(1) that I am satisfied that he had behaved in an anti-social manner prior to the service of that notice through his clothing and through his startling appearance; (2) that he was warned that such unsolicited approaches or advances to other residents would be regarded as antisocial behaviour and would put his occupation at risk. That notice served on 15 August 2006 did alert him to the undesirableness of such behaviour and warn him of the consequences if it were persisted in. The later letter of 2009 is of course not such a notice because it does not require the remedy of the breach; rather it is notice that the breach is going to be acted upon."

27. The judge found that there was no breach within paragraph 4(a) so far as firearms and weapons were concerned. However, he did find that the defendant was warned by the notice of 15 August 2006 against anti-social behaviour of the kind falling within Rule 14; that on 15 July 2009 he did engage in a very serious incident of anti-social behaviour when he made threats to kill Mr Carter and made threatening gestures with a pole; that that was an actionable and proven breach after notice satisfying the requirements of paragraph 4(a) and opening the way to the court to remove him, if it considered it reasonable to do so.
28. The judge went on to consider whether it was reasonable in all the circumstances to terminate the Agreement in the light of the defendant's submissions that termination would amount to unlawful disability discrimination contrary to the 1995 Act and the 2010 Act. The judge considered the evidence that the defendant suffered from mental health problems and learning difficulties, and found that they amounted to a disability that caused the defendant to act in the manner alleged.
29. It was also submitted to the judge that termination of the Agreement would be a disproportionate interference with the defendant's right to respect for his home guaranteed by Article 8 of the European Convention on Human Rights (the Convention), as it would force a sale of his mobile home and also that it would deprive him of a possession protected by Article 1 of the First Protocol to the Convention. The judge took account of the parallel rights of other occupiers of the site in his assessment of the reasonableness of terminating the Agreement.
30. The judge took into account the fact that the defendant suffers from mental conditions and disabilities. He found that he had seldom actually caused physical harm to others, but that he has a tendency to lose self control and to behave in a threatening, frightening and inappropriate manner with a strong suggestion of possible violence causing fear, distress and annoyance, particularly to old people.
31. The judge concluded that it was reasonable for the claimant to seek his removal and for the court to make an order terminating the Agreement, despite the very serious effects it would have on the defendant. He summarised his conclusions on reasonableness as follows:-

"35. It appears to me in the light of the very clear pattern of behaviour that has emerged from the facts that I have recited (as I say I was particularly struck by the Coles and Parrott incident that occurred very recently and with full knowledge of these proceedings and with full knowledge of everything that is going on) that Mr Telchadder is somebody who, by reason of his condition, has a tendency to lose self control and to behave in a threatening, frightening and inappropriate manner, with a strong suggestion of violence in the offing, which renders it reasonable for the site owners to seek his removal and renders it reasonable for the court so to order. The very nature of his condition and disability means that it is difficult to see any intermediate steps that would be realistically likely to prevent him from behaving in this way in the future, particularly now that what I am sure is the benevolent and restraining incident of his father has been removed from the estate. The effects on him of this order will be very serious, but the effects on the fellow residents of his remaining are equally serious. It appears to me that, in the circumstances of this very crowded camp with many elderly people on it and of Mr Telchadder's clear penchant for inappropriate and disturbing behaviour of the kind I have indicated, it is not reasonable for him to remain. With great reluctance, I am going to grant the relief sought."

32. The claimant gave an undertaking to the court to allow the defendant to continue to reside in his mobile home for a further 14 days and to allow him six months in which to sell or remove his mobile home from Meadowview Park.

Defendant's submissions

33. On behalf of the defendant Mr Johnson contended that the judge was wrong to hold that (a) the letter of 15 August 2006 was a valid notice to remedy breaches and (b) it was reasonable to terminate the Agreement. On the notice point the submissions concentrated on the nature and extent of the obligation to serve a notice to remedy the breach, the formal requirements of the contents of the notice and how long a notice may last for the purpose of paragraph 4 of schedule 1 to the 1983 Act. On the reasonableness point the emphasis was on the importance of the rights enjoyed by the defendant under the anti-discrimination and human rights legislation.

Adequacy of notice

34. Mr Johnson began with the legislative purpose of the procedure for a statutory warning notice. As in the case of forfeiture of a lease under s.146 of the Law of Property Act 1925, the purpose of the notice is to identify the breach and to afford the recipient an opportunity to remedy it within a reasonable time after service of the notice: see Expert Clothing Service & Sales Ltd v. Hillgate House Ltd [1986] 1Ch 340 at 351B. In Mountain v. Hastings (1993) 25 HLR 427, a case on the Housing Act 1988 provisions relating to security of tenure for assured tenants, it was stated at pp 433-4 that the purpose of a warning notice was to provide a tenant with particulars and information to enable him to consider what he should do, to give him an opportunity to do what was in his power to rectify matters before proceedings could be commenced and so to protect him against the loss of his home. See also Kelsey Housing Association v. King (1995) 28 HLR 270 at 275.
35. Mr Johnson contended that the judge was wrong to hold that the letter of 15 August 2006 was a notice sufficient to satisfy paragraph 4 schedule 1 of the 1983 Act, as (a) its contents were insufficient; (b) its timing was inadequate; and (c) the three years that passed between the sending of that letter, the further breaches and the commencement of proceedings were too long a time span for the notice to remain effective. In brief, that letter was not a "notice" within paragraph 4, as it lacked the proper particulars and it lacked sufficient certainty as to how the defendant could comply with it and within what time frame.
36. In order to constitute a valid notice, the letter should have identified the terms of the Agreement breached; it should have specified how they had been breached; it should have said how the breaches could be remedied and by when they should be remedied; and it should have stated the consequences of not doing so. It should also have said that it was a notice and the first step in seeking possession of the mobile home.
37. The 15 August letter, it was contended, did none of these things. It did not identify or particularise a breach of the provisions of the Agreement in terms of an identified "nuisance" or "annoyance" so as to make the defendant aware of what he had done wrong, what he was required to do to comply with the notice and how long he had to do it. It only identified "behaviour", such as wearing camouflage clothing and approaching other residents, which were not, without more, breaches of the Agreement or the Park Rules.
38. The defendant was not made aware of or given guidance about the time for compliance with the letter. In those circumstances it could not sensibly be maintained that the defendant had failed to comply with the terms of the notice "within a reasonable time."
39. The broader issue of the duration of the legal effect of the notice had to be considered in the context whether it was a sufficient notice of an intention to seek possession of the site of the mobile home by legal proceedings. It had been sent over 3 years prior to the commencement of proceedings based on non-compliance and further breaches in 2009.
40. Mr Johnson accepted that there were no express provisions in the 1983 Act in relation to the form, content, timing or duration of notices under paragraph 4, such as were to be found, for instance, in regulations made under the Housing Acts 1985 and 1988 prescribing forms that should contain specified information and prescribing periods for service of a notice before the commencement of possession proceedings. In this case it was necessary, Mr Johnson submitted, to imply a period of time in relation to notices served under paragraph 4 and to the commencement of the threatened proceedings. In the absence of some implied limit on the duration of a notice, a site owner could rely on a notice served, say, 15 years before proceedings were commenced. That could not have been the legislative intention.

Reasonableness

41. Mr Johnson argued at trial that the eviction of the defendant would amount to unlawful disability discrimination for the purposes of the 1995 Act and/or the 2010 Act and that it would be a disproportionate interference with his rights under Article 8 and Article 1 of the First Protocol. On the appeal he concentrated on the point that, in the broadest sense, it would not be reasonable to terminate the Agreement having regard to all the relevant factors, including those rights.
42. On that aspect of the appeal Mr Johnson cited Manchester City Council v. Pinnock [2010] 3 WLR 1441 at [55]-[57] for the approach to be taken in cases where an order for possession cannot be made by the court, unless it is reasonable to make the order. Any factor which has to be taken into account in order to assess proportionality under, for example, Article 8(2) of the Convention, would have to be taken into account for the purpose of assessing the reasonableness, in all the relevant circumstances, of making an order at all and, if so, whether to make it outright, or on terms. The same approach would apply to the disability aspects of the defendant's situation.
43. Basing his submissions on the fact that the judge had found that the defendant suffered from a disability, Mr Johnson submitted that the judge had not properly engaged with the issue whether the treatment of the defendant was contrary to the 1995 Act or s. 15 of the 2010 Act. The fact of suffering from a disability plainly cannot justify termination of a licence to occupy a pitch on a mobile home site. It would also be wrong, Mr Johnson said, to conclude that it is reasonable to terminate a licence and order possession because of a person's disability in the form of mental illness, or because the disabled person cannot, because of that disability, control himself. Furthermore, there were alternatives to termination of the licence, which the judge had failed to consider.
44. Reference was made specifically to s.35 of the 2010 Act, which provides that a person who manages premises must not discriminate against a person who occupies premises by evicting him or by taking steps for securing his eviction. It was also pointed out that under s.15(1) of the 2010 Act liability for discrimination "arising from disability" no longer depends on a requirement to use a non-disabled comparator. That section was enacted to amend the unexpected interpretation of the 1995 Act in Lewisham LBC v. Malcolm [2008] UKHL 43. The issue is whether there was unfavourable treatment of the defendant as a disabled person "because of something arising in consequence of" his disability. It is then for the claimant to show that the treatment was a proportionate means of achieving a legitimate aim. It has to be accepted, however, that subsection (1) would not apply, if the claimant showed that it did not know, and could not reasonably have been expected to know, that the defendant had the disability: see s.15(2).
45. On the hearing of the appeal it was made clear that it was not contended that the claimant unlawfully discriminated against the defendant by giving the notice to remedy or in seeking to terminate the Agreement through a decision of the court. The main point taken was that the defendant's disability was a relevant factor for the court to consider in determining the reasonableness of terminating the Agreement.
46. A similar submission was made about the defendant's right to respect for his home under Article 8 and his right to his possessions under Article 1 of the First Protocol to the Convention. Termination of the Agreement would, it was contended, deprive him of his mobile home as his only possession, because he will be forced to sell it. The alleged uniqueness of the jurisdiction under the 1983 Act was the court's power to compel an owner to sell his property for failure to comply with the terms of an agreement. Moving the mobile home was not a realistic option for the defendant.
47. Mr Johnson contended that all the above factors militated against the judge's finding that it was reasonable to terminate the Agreement.

Discussion and conclusions

A. Adequacy of notice

48. I agree with Mr Johnson that giving a prior and proper notice to remedy a breach of the Agreement is essential. The 1983 Act expressly restricts the claimant's contractual right to terminate the Agreement. The giving of an adequate notice to remedy breaches and the failure to comply with it are necessary to establish the jurisdiction of the court to determine that it is reasonable to terminate the Agreement.
49. In my judgment, the judge was correct in law to hold that the letter of 15 August 2006 was a notice to remedy within the meaning of paragraph 4(a). It described the conduct complained of, required the defendant to stop it, gave him an opportunity to do so and warned him of the consequences of not doing so.
50. The critical point is that, as Mr Johnson accepted, the 1983 Act, unlike some other legislation relating to security of tenure, does not prescribe the form or detailed contents of the notice, or prescribe the information to be contained in it: cf the Protection from Eviction Act 1977 s.5 and s.83 of the Housing Act 1985.
51. Similarly, there are no express or implied prescriptive provisions in the 1983 Act placing limits on the duration of the period for which a notice may remain effective for the purpose of commencing legal proceedings. There is no indication in the 1983 Act that a claimant has to serve a new notice in respect of each fresh incident of anti-social behaviour. The initial notice of 15 August 2006 made it clear, by reference to the breaches he had committed in the past, what the defendant should not do in the future in order to comply with the terms of the Agreement and to avoid the consequences of breaches. The notice was not, as Mr Johnson sought to persuade the court, a way of the claimant placing the defendant in a position of being "set up to fail."
52. The reference to "a reasonable time" created no practical problems for the defendant. He was simply being asked not to repeat the breaches complained of. If time was a problem, there was nothing to stop him asking for clarification or for more time, if that was appropriate. Nor do I see any difficulty on the duration of the notice given in August 2006. Mr Johnson objected that the notice could not possibly have been intended by Parliament to have perpetual effect. As there had been compliance for a reasonable time following the 2006 notice, it was necessary, he asserted, to serve another notice before commencing proceedings. I do not agree. Paragraph 4 does not set any end-date for the expiration of a notice. There is no reason why the notice served in this case should not have continuing effect for the whole period of the defendant's occupation of the mobile home on Plot Number 160. All that the notice was seeking to achieve was future compliance with continuing obligations in circumstances where certain breaches had already occurred. The position may be different in the case of notices relating to different kinds of breach, such as those which require specific works to be done to restore the physical position of the site to what it was before the breach occurred.
53. In the respondent's notice the claimant relied on grounds that, in addition to the letter dated 15 August 2006, other letters sent by the claimant to the defendant are relevant to determining whether there has been the appropriate notice within the 1983 Act; that the notice does not have to set out in specific detail the particulars of the breach by reference to a Rule or term of the Agreement, reference generally to bad behaviour or nuisance being sufficient; nor does the notice have to be in any prescribed form; nor does it have to state that failure to remedy a breach may result in termination of the Agreement; nor does the 1983 Act require that the breaches and requests to remedy must all be contained within one letter or notice.
54. In view of my conclusion that the judge was right in treating the letter of 15 August 2006 as the relevant notice for the purposes of paragraph 4(a) and as satisfying its requirements, it is not necessary to express a detailed view on each of the additional grounds. As I have already explained, there are no prescribed forms of notice, no prescribed contents or set timings, or limits on the period of effectiveness. It is not for this court to prescribe detailed requirements where Parliament could have done so, but has decided not to. The court's function is to decide, on the particular facts of each case, whether the requirements of paragraph 4(a) are satisfied. In doing so, it will adopt the normal course of interpreting any document relied on as a notice as a reasonable reader, with knowledge of all the objective surrounding circumstances, would understand it.

B. Reasonableness of termination

55. Mr Johnson accepted that the power of the court under paragraph 4 was a very wide one. Although he was not, he said, advancing a case that the defendant was a victim of unlawful disability discrimination by the claimant in serving the notice or in commencing the legal proceedings for termination of the Agreement, he contended that the broad concept of what is reasonable meant that the court had to consider the cumulative, disproportionate and penal effect on the defendant of an eviction order and of the sale of the mobile home as a result of his inability to control himself. He would suffer a serious injustice in consequence of the judge's order.
56. I agree with Mr Johnson that the judge was under a duty to consider all the circumstances relevant to the issue of reasonableness, including the defendant's disability, even though no unlawful disability discrimination was alleged or established. In my judgment, there are no good grounds for contending that the judge took the wrong approach to the issue whether it was reasonable to terminate the Agreement or that he left out of account factors arising from the 1995 Act, the 2010 Act or the 1998 Act that may be relevant to the issue of reasonableness.

Disability discrimination factor

57. I agree with Mr Johnson that the defendant's disability was a relevant factor to be taken into account by the judge in deciding whether it was reasonable to terminate the Agreement. It is clear from his judgment that the judge did take the factor of the defendant's disability into account in reaching his decision. The judge's conclusion was not a perverse one. Indeed, in the circumstances of the defendant's ongoing anti-social activities, both before and after he was given notice of the consequences of it continuing, and its detrimental effect on the legitimate rights and interests of the other residents and of the claimant, it is difficult to see how the judge could properly have arrived at a different decision.

Human rights factors

58. Article 8 and Article 1 of the First Protocol were also properly taken into account by the judge in deciding whether it was reasonable to terminate the Agreement. The defendant had been allowed to pitch his mobile home on the claimant's site on mutually agreed terms. The terms referred to the possible consequences of the termination of the Agreement forthwith and the removal or sale of the mobile home.
59. The repetition of breaches of those terms after notice and the non-compliance with the notice that warned the defendant of the consequences of non-compliance entitled the court, on the application of the claimant, to conclude that it was satisfied that, in all the circumstances, it was reasonable to terminate the Agreement. As with the disability aspect of the defendant's case, it is difficult to see how the judge could have properly arrived at a different decision. He was aware of the serious consequences of the order and of the cumulative effect that his decision would have for the defendant in the loss of his home at the site and possible loss of a valuable asset with severe financial consequences. He was aware of the defendant's Convention rights regarding his home and his possessions. But, in deciding whether it was reasonable to terminate the Agreement, the court also has to take account of the rights of others: the rights of other residents as regards respect for their homes and their private life and the right to their possessions and the rights of the claimant to its possessions. No suggestion was made to the judge or to this court of any other way in which the situation arising from the defendant's ongoing activities could be made better for the other residents. No feasible plan has been proposed on behalf of the defendant for getting psychiatric help with his disabilities or for dealing with the difficult situation for other residents on the site, if the defendant continues to cause them the nuisance and annoyance that he has in the past.

Result

60. I would dismiss the appeal. The defendant has not established that the order made by the judge consequent on his careful and detailed judgment was wrong. The judge correctly found that the letter dated 15 August 2006 was a notice that met the requirements of paragraph 4(a) of schedule 1 to the 1983 Act. His decision that it was reasonable in all the circumstances to terminate the Agreement was not plainly wrong nor was it flawed by any error of law or approach to the issue of reasonableness.

Lady Justice Black

61. I agree.

Dame Janet Smith

62. I also agree.