Carter & Anor v Cole & Anor

Unless the parties agree otherwise, both the servient owner and the dominant owner may repair a right of way. A reservation of a right of way carries the dominant owner’s incidental right to undertake necessary repairs reasonably. Clear contractual language is required to remove that right.

An agreement that maintenance costs are to be shared in stated proportions creates mutual contractual obligations where either party performs work to the agreed standard. A contribution cannot be demanded merely because an estimate has been accepted. It becomes recoverable when sums for the work become payable.

The owners of land reserved a right of way when transferring the servient land to the appellants. The transfer provided for maintenance costs to be shared in proportions of 80% and 20%, and made the transferors’ use conditional upon payment following a request, subject to reasonable disputes.

His Honour Judge Yelton in the Southend County Court declared that neither party was obliged to repair, that both could undertake repairs, and that contributions could not be claimed until the work had been carried out. The appellants contended that they alone could control the repairs and could demand the transferors’ contribution upon accepting an estimate.

The central issues were who could repair the roadway and when a contractual contribution became payable.

1. Appeal dismissed, subject to a minor variation. Both the servient owners and the dominant owners were entitled to repair the roadway. Paragraph 8 of the county court’s order was varied so that a contribution could be claimed when sums due for the works became payable, rather than only after completion. Longmore LJ delivered the leading judgment. Lloyd and Waller LJJ agreed.
2. At common law, neither the servient owner nor the dominant owner is obliged to repair a right of way. Both may undertake repairs. The dominant owner’s right is limited to necessary work performed reasonably and, absent agreement, the dominant owner must bear its cost.
3. Clause 3.2 did not remove the dominant owners’ incidental right to repair. Such removal would have left them contractually obliged under their lease to maintain the roadway but without a means of performing that obligation. The allocation of 80% of the cost to them and the requirement that each party cause as little damage as possible also contemplated that either party might perform the work.
4. The words providing that the cost was to be shared 80% by the transferors and 20% by the transferees created mutual contractual obligations to contribute when either party incurred qualifying maintenance costs. A contribution was recoverable only if the work met the standard specified in the transfer. The unilateral condition attached to the transferors’ exercise of the right of way did not confer an exclusive or primary right to repair upon the transferees.
5. The cost-sharing provision did not permit an 80% demand merely upon acceptance of an estimate. At that stage no quantifiable cost of repair had been incurred. Where a repair contract required stage or other payments, however, the cost could be shared as each sum became payable to the contractor.
6. The renewed application for permission to appeal against the county court’s costs order was refused.

1. Court of Appeal (Civil Division): The appeal was dismissed, save that paragraph 8 of the order was varied to permit contributions to be claimed when sums for the works became payable. Permission to appeal against the costs order was refused: [2006] EWCA Civ 398.
2. Southend County Court: His Honour Judge Yelton declared that neither party was obliged to repair the roadway, that both parties could repair it, and that contributions could not be claimed until the work had been carried out. The standard of repair was also determined, but that determination was not appealed.