Pursuant to sections 20 (1) and 28 of the Public Works
Act 1981, and to a delegation from the Minister for
Land Information, R. J. Sutherland, Land Information
New Zealand, declares that, pursuant to an agreement to that effect having been entered into, the easement described in the First Schedule to this notice is acquired over the land of Oderings Nurseries (Christchurch) Limited (“the grantor”) upon the terms and conditions described in the Second Schedule and shall vest in the Hastings District Council (“the grantee”) for the purposes of stabilising, controlling and maintaining the stream known as Karituwhenua Stream (“the stream”) on the date of publication of this notice in the New Zealand Gazette.
Hawke’s Bay Land District—Hastings District
First Schedule
Easement to be Acquired
A right of way and right to drain water easement in gross over that part of Lot 2, DP 311724 (part Computer Freehold Register 46325); marked “A” on DP 22042 (“the easement land”).
Second Schedule
Terms and Conditions – Right of Way
The grantee shall have the full, free, uninterrupted and unrestricted right, liberty and privilege for the grantee, his servants, agents and workmen (in common with the grantor, his tenants and any other person lawfully entitled so to do) from time to time and at all times by day and by night to pass and repass, with or without vehicles, motor vehicles, machinery and implements of any kind, over and along the easement land for the purposes of stabilising controlling, repairing, maintaining and inspecting the stream.
Terms and Conditions – Right to Drain Water and Create Open Watercourse Way
The grantee shall have the full, free, uninterrupted and unrestricted right, liberty and privilege for the grantee
(in common with the grantor, his tenants and any other person lawfully entitled so to do) from time to time and at all times to drain and discharge water (whether rain, tempest, spring, soakage or seepage water) in any quantities across the easement land, together with the following rights:
(a) To use any concrete or other materials already laid on the easement land for the purposes of directing the flow of water.
(b) To lay, place and maintain or to have laid, placed and maintained, such materials (including soil, concrete, timber, reinforcing, backfill and vegetation) as the grantee deems expedient for the purpose of constructing and maintaining an open watercourse way over the easement land.
(c) To remove and replace or dispose of any materials laid in or on the easement land.
(d) The full, free, uninterrupted and unrestricted right, liberty and privilege for the grantee, his servants, agents and workmen, with any tools, implements, machinery, vehicles or equipment of whatsoever nature necessary for the purpose, to enter upon
the easement land and to remain there for any reasonable time for the purpose of constructing, inspecting, cleansing, repairing, maintaining and renewing the open watercourse way, or any part thereof and of opening up the soil of the easement land to such extent as may be necessary and reasonable in that regard.
Covenants
The grantor hereby covenants with the grantee that the grantor shall keep the easement land clear of all trees, vegetation, overhanging branches and other obstructions at all times, and further covenants with the grantee that the grantor shall not at any time do or suffer any act or thing which will prevent or unreasonably interfere with the full and free use and enjoyment by the grantee of the rights and privileges hereby granted.
Further Terms and Conditions
The grantor and grantee also agree as follows:
(a) No power is implied for the grantor to terminate
the easement rights for breach of any provision in this easement by the grantee for any other cause, it being the intention of the parties that the easement rights will continue forever unless surrendered.
(b) The grantor will not do anything which interferes with or restricts the rights of the grantee or other authorised persons in relation to any of the easement rights.
(c) The easement rights are in substitution for those set out in the Seventh Schedule to the Land Transfer Act 1952.
(d) If the grantor or the grantee fails (“the defaulting party”) to perform or join with the other party
(“the other party”) in performing any obligation
under this easement, then:
(i) the other party may serve a written notice on the defaulting party (a “default notice”) specifying the default and requiring the defaulting party to perform or to join in performing the obligation and stating that, after expiry of one month from service of the default notice, the other party may perform the obligation;
(ii) if after the expiry of one month from service of the default notice the defaulting party has not performed or joined in performing the obligation, the other party may:
(1) perform the obligation; and
(2) for that purpose enter on to the land;
(iii) the defaulting party shall pay to the other
party the costs of the default notice and the costs of the other party in performing
the obligation of the defaulting party within one month of receiving written notice of the other party’s costs; and
(iv) the other party may recover any money payable under paragraph (iv) (c) from the defaulting party as a liquidated debt.
If any dispute arises between the grantor and the grantee concerning the rights created by this easement, the parties shall enter into negotiations in good faith to resolve their dispute.
If the dispute is not resolved within one month of the date on which the parties begin their negotiations, the parties shall submit to the arbitration of an independent arbitrator appointed jointly by the parties and, if one cannot be agreed upon within 14 days, to an independent arbitrator appointed by the president for the time being of the Hawke’s Bay District Law Society.
Such arbitration will be determined in accordance with the Arbitration Act 1996 and its amendments or any enactment passed in substitution.
Dated at Auckland this 22nd day of February 2005.
R. J. SUTHERLAND, for the Minister for Land Information.
(LINZ CPC/1998/1037)