Telchadder v Wickland Holdings Limited

A remediable breach of a covenant against anti-social behaviour is remedied when the occupier refrains from further breach for a reasonable time, sufficient to redress the resulting mischief. A notice to remedy does not remain indefinitely available as a basis for termination.

Whether a breach is remediable requires a practical assessment of whether its harmful effects can be redressed. Some serious breaches may be irremediable. Under paragraph 4 of Schedule 1 to the Mobile Homes Act 1983, the court determines what period is reasonable. Once the occupier has complied for that period, a later breach ordinarily requires a fresh notice or must itself be advanced as irremediable.

The appellant owned and occupied a mobile home on the respondent’s protected site. His agreement prohibited conduct which annoyed or disturbed other residents. After a minor incident in July 2006, the respondent served a notice requiring him to refrain from specified anti-social behaviour. He committed no further breach for almost three years, but in July 2009 threatened another resident.

The county court treated the 2006 notice as a sufficient basis for terminating the agreement under paragraph 4 of Schedule 1 to the Mobile Homes Act 1983. The Court of Appeal dismissed the occupier’s appeal in [2012] EWCA Civ 635, holding that the notice could continue throughout his occupation.

The central issue was whether a breach of a covenant against anti-social behaviour could be remedied and, if so, whether compliance with the notice continued indefinitely or ended after a reasonable period without further breach.

1. Disposition. The Supreme Court unanimously allowed the appeal. The 2006 notice could not provide the statutory basis for termination following a breach almost three years later.
2. Remediability. Lord Wilson, Lady Hale and Lord Toulson held that a breach of a covenant against anti-social behaviour can be remedied. The court must make a practical assessment of whether, and how, the mischief resulting from the breach can be redressed. A minor incident may be remedied by refraining from further breach for a reasonable time. Some conduct, including sufficiently serious violence or threats, may cause harm or fear which cannot be redressed within a reasonable time and may therefore be irremediable.
3. Effect of a notice. The majority held that an occupier complies with a notice concerning a remediable anti-social behaviour breach by committing no further breach for a reasonable period. In this context, the statutory requirement to comply “within” a reasonable time means compliance for a reasonable time. The court, rather than the site owner, determines what is reasonable. Once that period has elapsed without further incident, the notice has served its purpose and does not remain a gateway to termination throughout the agreement.
4. Application. The appellant’s almost three years of compliance clearly constituted a reasonable time. The respondent should have served a fresh notice after the July 2009 incident or alleged that the new breach was itself irremediable. That latter issue had not been pleaded or determined and could not be introduced on appeal.
5. Irremediable breaches. Lord Wilson, Lady Hale and Lord Toulson considered, obiter, that paragraph 4 does not require a notice to remedy an irremediable breach. A requirement to remedy the impossible would serve no purpose. Lady Hale nevertheless advised that an owner would ordinarily be prudent to give an alternative notice asserting irremediability while requiring a remedy if the court took a different view.
6. Minority reasoning. Lord Carnwath, with whom Lord Reed agreed, considered that a formal notice was required in every case and that compliance with a negative covenant should continue indefinitely. They nevertheless allowed the appeal because paragraph 4 required a causal or temporal link between the notice and the later conduct, which the three-year gap did not supply.

1. United Kingdom Supreme Court: The appeal was allowed unanimously. The 2006 notice did not support termination for conduct almost three years later.
2. Court of Appeal: In [2012] EWCA Civ 635, the court dismissed the occupier’s appeal and held that the notice could continue throughout his occupation.
3. Southend County Court: HHJ Moloney QC held that the site owner was entitled to terminate the agreement under paragraph 4 of Schedule 1 to the Mobile Homes Act 1983 and ordered the licence terminated forthwith.