Statutory water provider — Agreement to provide free water supply “for ever” — Whether power to determine agreement unilaterally on reasonable notice to be implied — Claim allowed
The claimant was the statutory water provider for the county in which the defendants lived. Under a deed of indenture dating from 1909, the claimant’s predecessor had undertaken that it would “for ever and for all times” provide a sufficient water supply free of charge. The undertaking formed part of a settlement of an action that had been brought against it by a local landowner. Following this, the landowner agreed to convey to the provider certain main water pipes, and granted permission for the abstraction and diversion of certain streams and springs, in return for which the provider agreed to lay service pipes to the defendants’ village and surrounding areas. The claimant abandoned the use of the water sources set out in the 1909 agreement owing to problems with the quality and quantity of the water.
It brought proceedings in which it sought a declaration that the obligation to supply water free of charge was determinable upon reasonable notice, after which the defendants would be liable to pay water charges. It contended that such a term should be implied, since the basis upon which the 1909 agreement had been entered into had been extinguished by events, and circumstances had so altered (by the increased cost of water provision, the obligation to supply water of a much-improved quality and increased water consumption) that the parties to the deed could not have intended that the obligation to supply water free of charge should continue in the light of the changed situation.
Held: The claim was allowed.
The obligation to supply water free of charge “for ever” had to be read as being subject to the limitation that it would continue only as long as the water provider continued to take water from the sources provided for in the agreement. Such a limitation addressed the difficulty that if an agreement was terminable upon reasonable notice, it was terminable from the start. The claimant’s decision to abandon the water sources was not challenged as an improper decision. In all the circumstances, on a true construction of the deed, a provision that the claimant was entitled unilaterally to terminate the agreement on reasonable notice had to be inferred.
Nigel Thomas (instructed by Aaron & Partners, of Chester) appeared for the claimant; Iwan Edgar appeared in person for the defendants.
Sally Dobson, barrister
