Pursuant to sections 20 and 28 of the Public Works Act 1981, and to a delegation from the Minister for Land Information, Ainslie Drysdale, Land Information New Zealand, declares that, pursuant to an agreement having being entered into, the easement described in the Second Schedule is hereby acquired over the land described in the Second Schedule and shall be held forever appurtenant to the land described in the First Schedule and shall vest on the date of publication hereof in the
New Zealand Gazette, subject to the terms and conditions set out in the Third Schedule.
Marlborough Land District-Marlborough District Council
First Schedule
Area
ha Description
1.5131 Part Sections 12 and 27 Block IX and Part Sections 9 and 32 Block XIII Arapawa Survey District and Part Hitaua Z2 Block, comprised in Computer Freehold Register MB4D/1386.
Second Schedule
Nature of Easement Being Marked
Right of way Section 21 Block XII Arapawa Survey District, comprised in Computer Interest Register 435193. "X", "Z", "AB" on DP 415633
Right of way Section 2 Section 6A Block VIII Arapawa Survey District, comprised in Computer Interest Register 435193. "Y" on DP 415633
Right of way Section 15 Block XII Arapawa Survey District, comprised in Computer Interest Register 433842. "AA" and "AD" on DP 415633
Third Schedule
Definitions
(a) "The Grantor" means Her Majesty The Queen for Scenic Reserve.
(b) "The Grantee" means Telecom New Zealand Limited and its successors.
(c) "the Dominant Land" means the land described in the First Schedule.
(d) "the Servient Land" means the land comprised in Computer Interest Register’s 433842 and 435193.
(e) "the Easement Land" means the land marked "AA", "AB", "AD", "X", "Y" and "Z" on DP 415633.
Right of Way Easement
1. The Grantee (subject to the conditions herein) shall have the full, free, right, liberty and licence for all times hereafter together with its engineers, surveyors, servants, agents, employees, contractors and invitees, with or without vehicles laden or unladen, with materials, machinery and implements, from time to time, and at all times:
(i) to enter upon, cross, recross and pass through the land in the easement area over the Servient Land for the purpose of ingress and egress from the Dominant Land;
(ii) to take to and from the Dominant Land, all tools and machinery, materials and equipment that is necessary for the operation, construction and maintenance of the Dominant Land.
Terms and Conditions
2. The rights and powers implied in this easement shall be as set out in the Fourth Schedule of the Land Transfer Regulations 2002 other than subclause 11(2) in so far as such terms are not inconsistent with any conditions as contained in this notice, in which case the conditions of this notice shall prevail. The rights and powers implied in easements of right of way as set out in the Fifth Schedule of the Property Law Act 2007 are expressly excluded from this easement.
3. All property and equipment placed by The Grantee on the Easement Land shall remain the property of The Grantee under its control and supervision.
4. The Grantee in its use of the easement agrees to take reasonable and proper care not to cause damage loss or injury to any property of The Grantor and will make good at its own cost any such damage or loss as it has caused to a standard at least good or better than that which pertained prior to the damage or loss.
5. The Grantee shall indemnify The Grantor against any liability for loss damage or injury caused to The Grantor its employees, contractors, agents, or property in the exercise of its rights conferred by the easement except in the case of damage caused by a wilful malicious or negligent act or omission by The Grantor and its employees, contractors, or invitees.
6. The Grantee as principal user shall, subject to the provisions of clauses 7 and 8, be responsible at its expense for the upkeep of the road on the Easement Land ("the Access Road") to four-wheel drive standard.
7. If damage is caused to the Access Road by use, by The Grantor, its contractors, agents, or any persons, or any company acting under a contract with The Grantor, then The Grantor shall at its expense repair the Access Road to the same standard it was in prior to the damage being caused.
8. The Grantor undertakes not to grant any rights to use the Access Road to any other person or organisation without having first obtained the written consent of The Grantee, such consent to be withheld only if the person or body desiring use does not agree to reimburse The Grantee for:
(a) a reasonable share of the costs of maintenance, upkeep and repair of the Access Road to a four-wheel drive standard, having regard to the extent of that person or body’s use of the same in relation to the total use of the same;
(b) the cost of repairs to the Access Road occasioned by any wilful or negligent act of the person or body or by the use of the Access Road by that person or body for forest harvesting operations; and
(c) the responsibility for arranging reimbursement of costs to The Grantee shall lie with The Grantor.
9. The Grantee shall give The Grantor three days’ notice in writing of its intention to haul heavy equipment over the Access Road except in the case of emergency.
10. In the event The Grantee no longer requires the easement, The Grantee shall give The Grantor notice in writing and shall arrange for registration of a surrender of the easement.
11. Any dispute that may arise between the parties concerning the interpretation of this easement, or relating to any other matter arising under this easement, will be actively and in good faith negotiated by the parties with a view to a speedy resolution of such disputes.
(a) If the parties cannot resolve a dispute within 15 business days of any dispute arising then, unless otherwise expressly provided in this agreement, 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).
(b) 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 the above clause, then the dispute shall be settled by reference to arbitration. Except as otherwise expressly provided in this agreement, 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.
(c) 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.
12. The Grantor shall have the right from time to time to relocate a part or parts of the Access Road on reasonable notice to The Grantee. Any such relocation shall not materially reduce the benefit of the access and egress rights to The Grantee. In
the event of The Grantor giving such notice of relocation, The Grantor shall at its cost:
(a) obtain consent of the local authority to the formation of the relocated parts of the Access Road and to the grant of a Right of Way over it to The Grantee;
(b) establish and form the relocated parts of the Access Road to four-wheel drive standard;
(c) cause a plan delineating the relocated parts of the Access Road to be approved as to survey and deposited; and
(d) grant to The Grantee a Right of Way in respect of the relocated parts of the Access Road on the same terms and conditions as apply in respect of the balance of the Access Road.
AND The Grantee shall, following the creation of the Right of Way in relation to the relocated parts of the Access Road, sign a surrender of the Right of Way over those parts of the Access Road of which use is to be no longer made, by reason of the relocation of the Access Road.
Dated at Wellington this 12th day of May 2011.
A. DRYSDALE, for the Minister for Land Information.
(LINZ CPC/2002/7975)