Carter v. Cole [2006] EWCA Civ 398
The facts and the circumstances in this case led to the Court of Appeal holding the implied easement involving the effective repair of a right of way had not actually been ousted by agreement through the insertion of a Halsall v. Brizell [1957] Ch D 169 clause that effectively provided for an 80% contribution to the costs of the works to be paid in this case by the dominant owner to the servient owner.
Moreover, it was also recognised here that the servient owner in this case could not effectively make this charge in advance of actually incurring the cost of the works that were involved for the fear of the fraudulent exploitation of this principle.
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