State-Owned Enterprises (Electricity Corporation of New Zealand Limited (Arnold Power Station) Vesting Order) Order 1999 MICHAEL HARDIE BOYS, Governor-General ORDER IN COUNCIL At Wellington this 29th day of November 1999 Present: His Excellency the Governor-General in Council Pursuant to section 28 of the State-Owned Enterprises Act 1986, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, makes the following order. O r d e r 1. Title This order may be cited as the State-Owned Enterprises (Electricity Corporation of New Zealand Limited (Arnold Power Station) Vesting Order) Order 1999. 2. Interpretation (1) In this order, ``Benefitted land'' means all that parcel of land containing 28.2693 hectares, more or less, being Lots 1 and 2, Deposited Plan 3309 and Lots 1 and 2, Deposited Plan 3322, and being all the land comprised and described in certificate of title, Volume 8B, folio 940 (Westland Registry): ``Construct'' includes install: ``The easement'' means the easement vested by this order: ``Easement land'' means that part of the servient land shown marked ``B'' on the plan deposited in the Westland Land Registry numbered 3309: ``Enactment'' includes bylaw: ``Grantee'', in relation to the easement, (a) Means the holder for the time being of the easement (whether by vesting by this order, by assignment, by operation of law, by succession, or by any other means); and (b) Includes the grantee's agents, consultants, contractors, employees, engineers, invitees, licensees, surveyors, tenants, and workers, and those of any parent company or subsidiary: ``Grantee's rights'' means the authorities, discretions, interests, liberties, licences, powers, remedies, and rights conferred on the grantee by this order; and ``grantee's right'' has a corresponding meaning: ``Grantor'', in relation to any part of the servient land, (a) Means the owner of that part; but (b) For so long as that part has not been alienated from Her Majesty the Queen in right of New Zealand, means Her Majesty acting through the Director-General of Conservation: ``Improvement'' includes (a) The tunnel; and (b) Any boom, bore, building, canal, channel, equipment, gate, inspection shaft, intake structure, line, outlet structure, penstock, pipe, pipeline, screen, shaft, surge chamber, syphon, tail-race, tank, ventilation shaft, or weir: ``The improvements and associated structures'' (a) Means all improvements for the time being on, under, through, and over the easement land constructed under clause 2 (a) of the Schedule; and (b) Includes all improvements constructed on, under, through, and over the easement land before the vesting day to enable the conveyance or drainage of water from, to, along, on, under, through, and over the easement land: ``Line'' means any line component, or structure or system of line components: ``Line component'' means any coaxial cable, conductor, fibre-optic cable, or wire, of any kind, used or intended to be used for or in connection with electricity or telecommunications transmission; and includes (a) Any casing, cross-arm, duct, fixture, foundation, ground-stay, insulator, pole, supporting structure, tower, tube, tunnel, underground piping, or other structure or material, used or intended to be used for enclosing, protecting, supporting, or surrounding any such cable, conductor, or wire; and (b) Any associated capacitor, circuit-breaker, earthing device, fuse, system protection equipment, switch, transformer, or voltage regulator: ``Maintain'' includes reconstruct, repair, and upgrade: ``Permission'' includes agreement, authority, consent, direction, licence, permit, and right: ``Power station'' means the Arnold Power Station: ``Servient land'' means the land described as the Arnold River Scenic Reserve RS 5653 (Gazette, 1978, page 2847): ``The tunnel'' means the tunnel through the easement land that was in existence immediately before the making of this order; and includes any other tunnel through the easement land constructed during the currency of and in accordance with the easement: ``Vesting day'' means 3 December 1999. (2) This order has effect as if (a) Every duty imposed by it on the grantor or the grantee is a covenant by the grantor or the grantee to perform the duty; and (b) Every right given by it to the grantee in respect of the grantor is a covenant by the grantor to act in conformity with the right; and (c) Every right given by it to the grantor in respect of the grantee is a covenant by the grantee to act in conformity with the right. 3. Easement to convey and drain water (1) On the vesting day, there vests in Electricity Corporation of New Zealand Limited an easement in gross (a) Conferring, subject to the conditions set out in subclause (2) and the Schedule, (i) The right to convey and drain water (in whatever quantities and at whatever times the grantee thinks fit) from, to, along, over, through, or under the easement land; and (ii) The right to have access to and maintain the easement land for the purpose of conveying and draining water; and (iii) The other rights over and in relation to the easement land conferred by the Schedule; and (b) Containing the covenants, on the part of the grantor and the grantee to be observed and performed, set out in the Schedule. (2) The right specified in subclause (1) (a) does not include (a) A right to convey and drain water from the easement land to or for the benefit of any land that is not part of the benefitted land (whether directly or via any part of the servient land that is not part of the easement land); or (b) A right to convey and drain water from or for the benefit of any land that is not part of the benefitted land to the easement land (whether directly or via any part of the servient land that is not part of the easement land). 4. Registrar-General to register vesting The Registrar-General of Land must take all steps, and make all entries in the registers, necessary to give effect to the vesting effected by clause 3. 5. Statutory obligations No grantee's right authorises the grantee (a) To do any thing that is contrary to any enactment; or (b) To do without the required permission any thing that is contrary to any enactment unless permission has been obtained under the enactment; or (c) To do, with the required permission but otherwise than in accordance with any condition or requirement subject to which that permission was granted, any thing that is contrary to any enactment unless permission has been obtained under the enactment. Schedule Clause 3 Rights and Covenants 1. (1) The grantee may use the tunnel for any purpose required for or associated with electricity generation. (2) Subclause (1) is subject to clause 3 (2) of this order. 2. The grantee (a) May from time to time enlarge, inspect, maintain, move, remove, renew, replace, or survey, any of the improvements and associated structures on the easement land; and (b) For that purpose may have access to the improvements and associated structures, and pass beside, over and through any of the improvements and associated structures, with any necessary equipment, machinery, tools, and vehicles. 3. The grantee may from time to time construct, enlarge, inspect, maintain, move, remove, renew, replace, or survey, any tunnel or permanent structure on the easement land. 4. (1) If required from time to time, the grantee may have free and unfettered access in, on, over, through, and to the servient land, (a) Without charge, obstruction, or any restriction whatsoever; and (b) With or without (i) Implements, tools, equipment and materials of any kind; and (ii) Vehicles, including heavy machinery, along access routes from time to time agreed with the grantor, for any purpose necessary or convenient for the exercise of the grantee's rights. (2) The right specified in subclause (1) does not include a right to have access to the servient land from any land that is not part of the benefitted land. 5. (1) The grantee must take all reasonably practicable steps to (a) Alert the public to the existence of the tunnel and the improvements and associated structures, and the fact that the public should not have access to the tunnel or the improvements and associated structures without authorisation; and (b) Prevent the public from gaining access to the tunnel and the improvements and associated structures. (2) The grantee must take all reasonably practicable steps to ensure that there are erected on the easement land appropriate signs, notices, and security fencing, to prevent unauthorised access to the improvements and associated structures. 6. (1) The grantee must prepare and maintain a management plan for its operation of the tunnel and the improvements and associated structures. (2) The plan may incorporate general operational, engineering, and health and safety requirements, the grantee's operational instructions, and any recommendations arising out of any safety evaluation of existing dams reports or any equivalent dam safety reports adopted from time to time by the grantee. 7. If any activities of the grantee or the grantee's servants or contractors cause, or bring about the cause of, any substantial damage to the easement land, the grantee (a) Must promptly notify the grantor; and (b) Must take all reasonably practicable steps to prevent or avoid any worsening of the damage and any further damage from those activities; and (c) To the extent that there are no reasonably practicable steps that may be taken to prevent or avoid any worsening of the damage and any further damage from those activities, must take all reasonably practicable steps to minimise any worsening of the damage and any further damage from those activities; and (d) If, in the grantee's reasonable opinion, the damage is capable of remedy, and it is economic to do so, must use its reasonable endeavours to remedy the damage. 8. The grantor must not obstruct or interfere with the carrying on of the lawful business of the grantee, so that the grantee has the absolute right to use the tunnel and the improvements and associated structures, and have quiet enjoyment of them, subject only to the conditions set out in this order. 9. (1) The grantor must use its best endeavours to ensure that neither the grantor nor any of its servants, contractors, lessees, or licensees causes any substantial damage or interference to the tunnel or the improvements and associated structures. (2) The grantor must not (a) Carry out quarrying or earthmoving operations on the easement land; or (b) Operate or permit to be operated on the easement land any large machinery or equipment, such as cranes, bulldozers, drilling rigs, excavators, or pile drivers. 10. Where the grantee wishes to cease its business operation through destruction or for any other reason whatsoever it must give the grantor at least 6 months' prior written notice on expiry of the notice the rights, obligations, and liability of the grantee will cease and determine except to the extent of any antecedent breach or failure to satisfy the requirements of clause 11 of this Schedule. 11. Upon the cessation or surrender of those of the grantee's rights conferred by clause 1 of this Schedule, the grantee must within 6 months from the date of the cessation or surrender plug the tunnel with concrete to an appropriate health and safety standard to prevent people gaining access to sealed areas unless that grantor directs that the tunnel is to stay open. 12. (1) The grantee may temporarily exclude entry by any people (other than those authorised by it) to all or any parts of the easement land, (a) Without the grantor's approval, if it believes on reasonable grounds that it is necessary to do so because of an emergency endangering public safety or the security of the grantee's electricity generation business. (b) With the grantor's prior written approval, if it believes on reasonable grounds that it is necessary to do so because of a situation (other than an emergency) endangering public safety. (2) For so long as entry is excluded under subclause (1), the grantor will not authorise or permit entry on the easement land unless (a) It has first given the grantee written notice of its intention to do so; and (b) The entry authorised or permitted is for the purpose of inspecting the condition of the easement land or doing any act required to be done by the grantor under this order. (3) If the grantee believes on reasonable grounds that the public safety or the security of the grantee's electricity generation business require the permanent exclusion of the public from all or any part of easement land, the grantee may apply to the grantor to purchase the land or part. (4) The grantee acknowledges that (a) The grantor may take any matters into account in considering an application under subclause (3); and (b) The implementation of any purchase must be in accordance with the Reserves Act 1977. (5) Any purchase the grantor approves must be at the current market value determined under clause 22 of this Schedule. 13. In addition to the rights expressly granted by this order, the grantee has the right to do any act or thing reasonably necessary for the better enjoyment of the rights expressly granted by this order. 14. (1) Where any provision of this order requires the consent or approval of the grantor before an action of any particular kind is taken, the consent or approval is deemed to be granted for any action of that kind properly and reasonably required to be taken for the purposes of the day to day or other activities of the grantee to carry on its electricity generation business. (2) Where (a) Any provision of this order requires the consent or approval of the grantor before an action of any particular kind is taken; and (b) The consent or approval is not deemed to be granted under subclause (1), it must not be unreasonably withheld or delayed, or granted subject to unreasonable conditions, or subject to the payment of money or other consideration. 15. (1) The grantee may at any time apply for any resource consent or other statutory consent required for the purpose of the exercise of any of the grantee's rights, in the same manner as if it were the registered proprietor of the servient land. (2) Promptly after making the application concerned, the grantee must give the grantor a copy. (3) The grantor must, at the reasonable cost of the grantee, give the grantee any reasonable help in relation to the application that the grantee requests in writing. 16. (1) The grantor acknowledges that all improvements and associated structures made or installed by the grantee on the servient land remain the property of the grantee. (2) The grantee (a) May at any time remove from the servient land any improvement or associated structure made or installed by the grantee; but (b) Must immediately, at its own cost, remedy any substantial damage caused by the removal. 17. The grantee must use all reasonable endeavours to cause as little disturbance and disruption as possible to the carrying on of the normal business operations of the grantor; although the grantor accepts that this provision does not prevent, restrict, or hinder the grantee from carrying out its business in a normal manner consistent with the grantee's rights. 18. The grantee does not have to fence any of the servient land unless it is required as a reasonable condition of the grantor when granting any consent under this order. 19. (1) All improvements connected with the grantee's rights remain in the ownership of the grantee until they are removed by the grantee or on the cessation or surrender of the grantee's rights, whereupon ownership vests and passes to the grantor unless they are in the process of being removed by the grantee at the time of the cessation or surrender (2) The grantee is not entitled to compensation or damages for any improvements it effects on the servient land. 20. The grantee may at any time surrender at its own cost all or any of the grantee's rights; and in that case must execute any deed of surrender requested by the grantee. 21. The grantee may transfer or assign the grantee's rights as to the whole or any parts of the servient land; and in that case, when the assignee or transferee becomes liable under the easements vested by this order (or any of them) or notifies the grantor that it has assumed the relevant obligations of the grantee under the easements concerned, the easements concerned will cease to be binding upon the assignor or transferor in respect of the relevant parts of the servient land (or if applicable, the whole of the servient land) but without prejudice to the assignor's or transferor's liability for any antecedent breach of covenant. 22. For the purposes of clause 12 of this Schedule, (a) The current market value of the relevant land must be determined by a registered valuer appointed by each party; and (b) If they cannot agree, it must be determined by an umpire appointed by those valuers before they begin trying to determine the matter. 23. (1) If any dispute arises between the parties in respect of or in connection with the easements vested by this order, the parties must, without prejudice to any other right or entitlement they may have under this order or otherwise, explore whether the dispute can be resolved by use of the alternative dispute resolution technique of mediation. (2) The rules governing the technique must be agreed between the parties or as recommended by the New Zealand Law Society or as selected by the chairman of the New Zealand Chapter of LEADR (Lawyers Engaged in Alternative Dispute Resolution). 24. (1) If the dispute is not resolved within 28 days of written notice by one party to the other of the dispute (or any further period agreed in writing by the parties), either party may refer it to arbitration under the Arbitration Act 1996. (2) The arbitrator must be (a) Agreed by the parties within 10 days of written notice of the referral by the referring party to the other; or (failing agreement) (b) Appointed by the president of the New Zealand Law Society. (3) The arbitrator must not be a person who has participated in any informal dispute resolution procedure in respect of the dispute. 25. (1) All notices and communications under this order or the easements vested by it must be delivered personally, sent by prepaid post or by facsimile to the following addresses: Grantor: Conservator, West Coast Conservancy, Department of Conservation, Bowen State Building, Private Bag 701, HOKITIKA (Telephone: (03) 755 8301. Facsimile: (03) 755 8425). Grantee: The Property Manager, Electricity Corporation of New Zealand Limited, Rutherford House, 23 Lambton Quay, P.O. Box 930, WELLINGTON (Telephone: (04) 472 3550. Facsimile: (04) 473 4843). or to any other address either party notifies to the other. (2) Delivery is deemed to have occurred when delivered personally or sent by registered mail or facsimile. 26. The grantor must not at any time do, permit, or suffer to be done any act by which the grantee's rights may be interfered with or affected in any way. MARIE SHROFF, Clerk of the Executive Council. Explanatory Note This note is not part of the order, but is intended to indicate its general effect. This order vests easements over certain land of the Crown in Electricity Corporation of New Zealand Limited, a State enterprise. The vesting takes effect on 3 December 1999.