SILVIA CARTWRIGHT, Governor-General
A Proclamation
Pursuant to the Public Works Act 1981, I, The Honourable Dame Silvia Cartwright, Governor-General of New Zealand, hereby declare all rights and interests under the Unit Titles Act 1972 (“the Act”) held by the registered proprietor
of Unit 8, Computer Unit Title Register WN 39A/600 and supplementary record sheet WN 36D/871, Wellington Registry, relating to the land described in the First Schedule, including those rights and interests set out in the Second Schedule, to be taken for use in connection with a road,
and a leasehold estate over the land described in the Third Schedule to be taken for the purpose set out in the
Fourth Schedule.
The terms and conditions of the leasehold estate are set out in the Fifth Schedule.
The interests acquired hereunder shall vest in the Crown on the 14th day after the date of the publication of this Proclamation in the New Zealand Gazette.
Wellington Land Registry—Hutt City
First Schedule
Area m2 Description
1132 Part Lot 1, DP 40307; shown as Section 1 on SO 341776.
39 Part Lot 1, DP 40307; shown as Section 2 on SO 341776.
This land is located at 408 Hutt Road, Wellington.
Second Schedule
Rights and Interests
1. (a) The undivided share in the fee simple estate in that part of the land described in the First Schedule, being common property (relating to the Unit Title development defined on Unit Plan 68792).
(b) The undivided share in the fee simple estate in that part of the land described in the First Schedule, being Units 4 and 6, Accessory Units 14 to 19 (inclusive), and 73 to 90 (inclusive) on Unit Plan 68792 (“the Crown-owned Units”), which the registered proprietor is contingently entitled to by virtue of sections 45 and 47 of the Act, and all other rights with respect to the Crown-owned Units, including the interest to vote in favour of resolutions to give effect to the actions in paragraphs 2 (a), (b), (c) and (d).
Actions
2. (a) Demolition of the buildings located on Units 4
and 6;
(b) transfer of the Crown-owned Units to common property in accordance with section 19 (2) of the Act;
(c) taking the land described in the First Schedule by declaration or transfer instrument; and
(d) reservation of an appurtenant easement over Section 2 on SO 341776, granting a formal right of support and access rights in favour of the Principal Units on Unit Plan 68792 and all Accessory Units included in the same Computer Unit Title Registers as those Principal Units on the terms set out in the Sixth Schedule to this notice.
Third Schedule
Unit 8 held in Computer Unit Title Register WN39A/600 and supplementary record sheet WN36D/871 and shown on Unit Plan 68792; including access to:
(a) the wall between Unit 8 and Unit 6;
(b) the wall between Unit 8 and Unit 4; and
(c) the wall between Accessory Unit 21 and Unit 6;
(together called “the exterior walls”).
Fourth Schedule
Purpose for Which Leasehold Estate Required
The leasehold estate is required over the land referred to in this notice to enable the Crown to occupy it to:
(a) clad, repair and weatherproof the exterior walls following demolition of Units 4 and 6;
(b) reasonably reinstate services; and to
(c) secure an area of common property created.
Fifth Schedule
Conditions of Lease
1. The Crown must give the registered proprietor three months’ notice in writing that it intends to enter the land subject to the lease to clad, repair and weatherproof the exterior walls.
2. The lease shall have a term of three months commencing on the date immediately following the expiry of the Crown’s notice, and terminating on
the date three months thereafter.
3. Notwithstanding the term created, the Crown may terminate the lease at any time by giving the registered proprietor one month’s notice in writing.
4. The Crown shall have the right to clad, repair and weatherproof the exterior walls on the land subject to the lease, including the right to enter and re-enter the land at all times, with or without such equipment as is reasonably necessary to complete construction.
5. In completing the work pursuant to paragraph 4 above, the Crown shall provide temporary weatherproofing to exposed areas of the existing interior walls or where existing walls (being a common boundary with Unit
4 or 6) are demolished.
6. The Crown shall reinstate utilities affected by the works including without limitation:
(a) relocating the electrical sub board presently located at the front of Unit 6 to the new area of common property to be created in the position approximately as shown on drawing 3251055-E002 Rev A (a copy of which has previously been made available to the registered proprietor) together with associated cabling works; and
(b) enclosing the main switchboard to be retained within the rear of Unit 6 with a new weatherproof roof and wall.
7. In completing the work pursuant to paragraph 6 (a) above, the Crown may take access through Unit
8 where this is reasonably required to reconnect the relocated sub board to the existing sub board to be retained in Unit 8. Prior to taking any such access, the Crown shall provide the registered proprietor with not less than seven days’ notice in writing and shall take all reasonable steps to minimise any disruption to the enjoyment of Unit 8 including:
(a) taking such access to the extent possible outside of normal business hours;
(b) ensuring the security of Unit 8 is adequately maintained; and
(c) delaying any such entry to accommodate any reasonable request of the registered proprietor.
Access shall not be otherwise taken through Unit 8.
8. The Crown, in completing the works, shall ensure that access through Accessory Unit 21 for the benefit of Units 7, 8, 9, 10, 11, 12 and 13 is maintained at all times.
9. The Crown shall install a security door to provide access to the new area of common property to be created in the position approximately as shown on drawing 3251055-S003 Rev A, a copy of which has previously been made available to the registered proprietor.
10. The Crown shall generally complete the works
as shown on drawings 3251055-S001 Rev A to
3251055-S013 Rev A (inclusive), 3251055-E001 Rev A, 3251055-E002 Rev A and 3251055-M001 Rev A, copies of which have previously been made available to the registered proprietor.
11. The Crown shall repair any damage caused to any
part of the surface of the registered proprietor’s
land resulting from the Crown’s occupation of the land subject to the lease.
12. Throughout the term of the lease, the Crown shall be entitled to use the common property for the purposes of accessing the area of land subject to the lease.
Sixth Schedule
Terms of Easement
1. Interpretation
“dominant land” means the land held in Computer Unit Title Registers 39A/593, 39A/594, 39A/595, 39A/597, 39A/599, 39A/600, 39A/601, 39A/602, 39A/603, 39A/604, 39A/605, 39A/606, 39A/607 and 39A/608.
“easement” means the easement of the right of support and right of way described in this Schedule.
“grantor” means the Crown.
“grantee” means the registered proprietor(s) of the dominant land.
“MSE” means a mechanically stabilised embankment to be constructed as part of the proposed Hutt
Road Interchange on the land adjoining Section 2 on SO 341776.
“servient land” means Section 2 on SO 341776.
“structures” means that part of the external wall, concrete column bases and foundation beams
and footings, and all associated fittings, fixtures and attachments constructed on, under, through and over the servient land.
2. Grant of Easement
2.1 The grantor GRANTS to the grantee as an easement imposed upon the servient land and appurtenant to the dominant land, pursuant to section 48 of the Public Works Act 1981, the right to:
(a) use the structures as a support for the building on the dominant land;
(b) subject to clause 2.2, from time to time and at all reasonable times enter upon the servient land with or without engineers, contractors and workers for the purpose of inspecting the structures and the wall of the building they support and, subject to 5.2, to do all things that may appear reasonably necessary for their maintenance, support and repair.
2.2 The grantor may temporarily exclude entry by the grantee, pursuant to clause 2.1 (b), if it believes on reasonable grounds that it is necessary to do so to ensure safety.
2.3 The easement shall be forever appurtenant to the dominant land, subject however to termination as set out in clause 2.4 below. For the avoidance of doubt, the term shall not be capable of revocation on the giving of three months’ notice as provided for in section 48 of the Public Works Act 1981.
2.4 (a) The easement shall only exist for so long as the present building remains on the dominant land. Should the present building be demolished, the grantee shall, at the grantee’s cost as part of such works, remove all parts of the structures from the servient land. On demolition of the building,
the easement shall extinguish absolutely and the parties shall be released from any further liability arising pursuant to the easement with effect from such date but without prejudice to either party’s rights arising before that date.
(b) If at any time an application made for the cancellation of the Unit Title shown on DP 68792 is lodged with the District Land Registrar under the provisions of the Unit Titles Act 1972, the easement shall determine when all other conditions for cancellation are complied with to the satisfaction of the District Land Registrar.
(c) In the event that the easement is extinguished, the District Land Registrar may make an entry in
the Register accordingly in respect of the title
to the dominant land.
(d) In the event that the easement determines, pursuant to clause 2 (b), prior to demolition of the building, the grantor shall, at the request of
the grantee, grant a new easement on like terms as recorded in this easement (amended as may be required in the circumstances) subject to the grantor having first complied with any statutory or regulatory requirements.
3. Covenants
3.1 The grantor and the grantee covenant as follows:
(a) The grantee shall not do or permit to be done anything by which the MSE (or any other replacement or additional roading structure of
the grantor) shall be in any way damaged or rendered unstable or unsafe.
(b) The grantee will regularly inspect the structures and the wall of the building they support adjacent to the servient land to ensure that the same continue to comply with all relevant statutes, regulations or consents, and that no damage to the structures and the wall of the building they support has occurred.
(c) If the structures and/or the wall of the building
do not comply with all relevant statutes, regulations or consents, the grantee will put the same into the condition required to make them comply with the relevant statutes, regulations or consents immediately upon the non-compliance being made known to the grantee.
(d) If the grantee defaults in any of its obligations
to maintain or repair under clause 3.1 (c), the grantor may arrange for such repair or maintenance at the cost of the grantee and the grantee shall immediately reimburse the grantor for such expense, but without prejudice to
the grantor’s other rights and remedies under the easement.
(e) The grantor shall, at all times during this easement, ensure that an adequate security fence and gate is installed along the Hutt Road boundary between the building and the MSE and keep the same
in good repair. The grantor shall make available
to the grantee keys to the security gate to allow
the grantee reasonable access pursuant to clause 2.1 (b).
(f) Nothing in this easement shall prevent the grantor from making excavations of the servient land or
the adjoining road for the purpose of laying foundations for any roading structure or other building, and the grantor may in future do all such things on the servient land or the adjoining road as the grantor shall see fit at its sole discretion (which actions might but for this proviso be a derogation from the grantor’s own grant) provided that in so doing the grantor shall provide sufficient artificial means of support to the building on
the dominant land both during the progress of and after the completion of any such work on the servient land or the adjoining road.
4. Agreement to Subsist
4.1 No power is implied in respect of the easement or any right or obligation under it for the grantor to determine the easement or any right or obligation set out in this easement, it being the intention that the easement and all rights and obligations shall subsist for the term (subject to early termination under clause 2.4) unless surrendered by the grantee or modified or terminated by the mutual written agreement of the grantor and the grantee.
5. Statutory Rights Implied
5.1 The rights and powers implied by the Fourth Schedule to the Land Transfer Regulations 2002 shall be deemed incorporated and form part of the easement, but where any conflict arises the terms of the easement shall prevail.
5.2 Nothing in the easement shall override any statutory and regulatory provisions relating to the servient land. The grantee shall, in taking entry under the easement and in completing any works on the servient land, comply with any such statutory requirements, including without limitation obtaining the consent
of the grantor prior to completing any works that affect the surface of the servient land or that may produce subsidence affecting the servient land.
6. Disputes
6.1 The parties acknowledge their desire that all questions or differences whatsoever which arise between the parties concerning the easement or its subject matter or arising out of or in relation thereto and whether as to interpretation or otherwise be resolved amicably by bona fide discussion between them.
6.2 If any question or difference (the “Dispute”) is not resolved by written agreement between the parties within 20 business days of one party giving notice
to the other of a proposal for resolution of the
Dispute, the Dispute shall be referred to mediation in accordance with clause 6.3.
6.3 Each party agrees not to commence any legal proceedings relating to the Dispute unless it has complied with the following:
(a) On notice (the “Notice”) by one party to the other party of the failure of formal discussions between the parties in respect of the Dispute, and its decision to apply for mediation, the parties shall endeavour in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed by them.
(b) If the parties do not agree within 10 business days of receipt of the Notice (or such further period as agreed in writing by them) as to:
(i) the dispute resolution technique and procedures to be adopted;
(ii) the timetable for all steps in those procedures; and
(iii) the selection and compensation of the independent person required for such techniques,
the parties shall mediate the Dispute in accordance with the mediation rules of the New Zealand Chapter of Lawyers Engaged in Alternative Dispute Resolution (“LEADR”) and the executive chair of LEADR or the executive chair’s nominee will select the mediator and determine the mediator’s remuneration.
(c) Where the Dispute is not resolved by mediation in accordance with this clause 6.3, then either party may take such other action, as it considers appropriate, including commencing legal proceedings;
(d) Pending resolution of the Dispute, the parties shall continue to perform their respective obligations pursuant to the provisions of the easement.
7. Notices
7.1 Without prejudice to any other procedures for the giving of notice at law, all notices and other communications required or permitted under the easement shall be in writing and shall be delivered personally or sent by prepaid post or by facsimile transmission to such address notified for this purpose.
7.2 A notice or other communication delivered by hand shall be deemed to have been received at the time of delivery. However, if the delivery is not made on a business day or is made after 5.00 p.m. on a business day, then the notice or other communication will be deemed to have been received on the next business day.
7.3 A notice or other communication delivered by prepaid post shall be deemed to have been received on the third business day after posting.
7.4 A notice or other communication sent by facsimile shall be deemed to have been received on the date of transmission. However, if the date of transmission is not a business day or the transmission is sent after 5.00 p.m. on a business day, then the notice or other communication will be deemed to have been received on the next business day after the date of transmission.
8. Governing Law
8.1 The easement is governed by, and shall be construed in accordance with, the laws of New Zealand. The parties to the easement agree to:
(a) submit to exclusive jurisdiction of the Courts of New Zealand;
(b) waive any immunity they may have to the
New Zealand Courts jurisdiction; and
(c) consent to the enforcement, or execution, in any court of competent jurisdiction in any country, of any order or judgment which may be made by the Courts of New Zealand.
9. Severability
9.1 If any part of the easement is held by any Court or administrative body of competent jurisdiction to be illegal, void or unenforceable, such determination shall not impair the enforceability of the remaining parts of the easement.
10. No Partnership
10.1 Nothing in the easement shall evidence or be deemed to constitute a partnership between the parties.
11. No Waiver
11.1 A waiver of any provision of the easement shall not be effective unless given in writing, and then it shall
be effective only to the extent it is expressly stated
to be given.
11.2 A failure, delay or indulgence by any party in exercising any power or right shall not operate as a waiver of that power or right. A single exercise of any power or right shall not preclude further exercises of that power or right or excuse from any other power or right.
12. Force Majeure
12.1 Notwithstanding any other provision of the easement, if either party shall fail to comply with or observe
any provision of the easement and such failure is caused by an event which is outside the reasonable control of that party, that failure shall not itself give rise to any cause of action or liability based on breach of that provision of the easement.
Given under the hand of Her Excellency the Governor-General of New Zealand, and issued under the Seal of New Zealand this 5th day of September 2005.
[L.S.]
PETE HODGSON, Minister for Land Information.
God Save The Queen!
(LINZ CPC/2002/8664)