Pursuant to sections 20(1) and 28 of the Public Works Act 1981, and to a delegation from the Minister for Land Information, Kerry McPhail, Land Information New Zealand, declares that, pursuant to an agreement to that effect having been entered into, the easement in gross described in the First Schedule to this notice is acquired over the land of Foodstuffs (Auckland) Limited ("the Owner") on the terms and conditions described in the Second Schedule to this notice and shall vest in the Crown for motorway purposes ("the Crown") on the date of publication hereof in the
New Zealand Gazette.
North Auckland Land District-Auckland Council
Easement to be Acquired
"Maintenance Easement Area" means that part
of the land in Certificate of Title NA49C/239 (North Auckland Land Registry); marked "A" on SO 436238, and that part of the land in Computer Freehold Register NA1A/1098; marked "B" on SO 436238.
2. The Crown shall have a maintenance and access easement over the Maintenance Easement Area for
the purposes of erecting, maintaining and replacing the May Road Retaining Walls, together with the additional rights and powers and subject to the terms and conditions of the maintenance easement set out below.
Terms and Conditions
3. The provisions relating to rights of way in Schedule 4 of the Land Transfer Regulations 2002 implied herein as
if set out in full, except where inconsistent with any conditions contained in this agreement in which case
the conditions contained in this agreement shall prevail.
4. The Crown may, for the purpose of exercising any right or complying with any obligation of the Crown under this agreement in relation to the maintenance and access easement:
(a) enter the Maintenance Easement Area at any time with or without agents, consultants, servants, contractors and workmen with all necessary tools, implements, machinery, vehicles or equipment; and
(b) remain on the Maintenance Easement Area for such time as is necessary for the purpose of exercising such right or performing such obligation.
5. In exercising any rights under clause 4, the Crown shall:
(a) cause as little damage, disturbance, inconvenience and interruption to the Maintenance Easement Area and to the use of the Maintenance Easement Area as is reasonably necessary; and
(b) forthwith make good any damage done to the Maintenance Easement Area and to any occupier
of the Maintenance Easement Area including any damage done to any property of an occupier of the Maintenance Easement Area.
6. To ensure that the Crown can maintain the May Road Retaining Walls, the Owner covenants with the
Crown that it will not build or erect any structures or other improvements on the Maintenance Easement Area without first obtaining the written consent of the Crown. The Crown shall be entitled to withhold such consent
if, in the Crown's reasonable opinion, such building, structure or improvement will or might have the effect
of obstructing the Crown's access to the May Road Retaining Walls or will or may significantly increase the Crown's cost of maintaining the May Road Retaining Walls.
7. The Owner shall repair, maintain and keep in good order, condition and repair the Maintenance Easement Area. The costs of such maintenance shall be borne by the Owner. For the avoidance of doubt, the Crown shall not be liable for the cost of maintaining any part of the Maintenance Easement Area other than the May Road Retaining Walls.
8. (a) If the Owner fails to maintain the Maintenance Easement Area as required under this agreement, and such failure to maintain the easement area
may affect the structural integrity of the May Road Retaining Walls or result in additional maintenance costs to the Crown, then the Crown shall serve written notice on the Owner requiring the Owner to complete the maintenance works within seven days from the service of the notice.
(b) If the Owner does not complete the maintenance works before expiration of the notice, the Crown shall be entitled to undertake such maintenance works and recover the costs of so doing from the Owner as a liquidated debt.
9. The Crown shall be responsible for its costs for the maintenance of the May Road Retaining Walls.
10. The grant of the maintenance and access easements shall be in perpetuity. The Owner shall have no power whether express or implied to determine the maintenance and access easements for breach of a provision herein.
11. The Owner shall not do any act, which impedes, interferes with or restricts the rights of the Crown and other authorised persons in relation to the maintenance and access easements.
12. The following provisions will apply to all disputes in relation to the maintenance and access easements or to any of the rights and obligations contained herein.
(a) Any dispute which may arise between the parties concerning the interpretation of the maintenance and access easement or relating to any other matter arising under the agreement or this Schedule will be actively and in good faith negotiated by the parties with a view to a speedy resolution of such disputes.
(b) If the parties cannot resolve a dispute within
15 business days of any dispute arising then, unless otherwise expressly provided in the agreement
or this Schedule, they will, without prejudice to any other right, explore whether such dispute can be resolved by agreement between them using informal dispute resolution techniques such as mediation.
The rules governing any such technique if adopted will be agreed between the parties or as selected
by the organisation known as "LEADR" (Lawyers Engaged in Alternative Dispute Resolution).
(c) If the parties cannot agree on any dispute resolution technique within a further 15 business days of
any dispute being considered for referral by both parties to any informal dispute resolution technique under Clause 12(b), then the dispute shall be settled
by reference to arbitration. Except, as otherwise expressly provided in this easement, the reference shall be to a single arbitrator if one can be agreed upon, or to two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to their arbitration), such arbitration to be carried out in accordance with the Arbitration Act 1996 and the substantive law of New Zealand.
(d) The parties will co-operate to ensure the expeditious conduct of any arbitration. In particular, each party will comply with any reasonable time limits sought by the other for settling terms of reference, interlocutory matters and generally all steps preliminary and incidental to the hearing and determination of the proceedings.
13. Any notice given, or required to be given, by either of the parties shall be in writing, and shall be deemed to
be duly given in accordance with section 152 of the Property Law Act 1952.
Dated at Wellington this 29th day of November 2010.
K. MCPHAIL, for the Minister for Land Information.