Pursuant to sections 20(1) and 28 of the Public Works
Act 1981, and to a delegation from the Minister for
Land Information, Ronald Alistair Jolly, Land Information New Zealand, declares that, pursuant to an agreement to
that effect having been entered into, the easement described in the Second Schedule to this notice is acquired over the land of Robert Craig Walker and Sharon Patricia Walker as to a one-half share, and Sharon Patricia Walker and Robert Craig Walker as to a one-half share ("the Grantor"), being the land described in the First Schedule to this notice
upon the terms and conditions set out in the Third Schedule to this notice, and shall vest in the Auckland Council
("the Council") as Grantee on the date of publication hereof in the New Zealand Gazette.
North Auckland Land District-Auckland
First Schedule
The Grantor’s Land
Part Lot 1 DP 424490; now shown as Section 4 on SO 439526, being the balance of the land in Computer Freehold Register 495319 ("the Servient Land").
Second Schedule
Easement to be Acquired
A right to convey, drain, detain and manage water easement in gross over that part of the land marked "A" and "B" on SO 439526 ("the Stipulated Course").
Third Schedule
Terms and Conditions
1. DEFINITIONS
In this Easement Instrument unless the context indicates otherwise:
"Easement Facility" means any and all stopbanks and flood protection works including but not limited to any pipes, conduits, open drains, pumps, tanks (with or without headwalls), manholes, valves, surface boxes, inlet and outlet structures, other equipment suitable for that purposes (whether above or under the ground), and anything in replacement or substitution;
"Grantee" means the person shown as grantee in the recital of this Easement Instrument and where applicable includes its successors in title and its agents, employees, contractors, tenants, licensees and invitees;
"Grantor" means the person named as grantor in the recital of this document and where applicable includes its successors in title and its agents, employees, contractors, tenants, licensees and invitees;
"Servient Land" means the servient land owned by the Grantor being part Lot 2 DP 424490, now defined as Section 4 SO 516499 and being the balance of the land described in Computer Freehold Register 516499 (North Auckland Registry);
"Stipulated Course" means areas marked "A" and "B" on SO 439526; and
"Water" includes river and stream water, rain, storm, spring, soakage or seepage water, as well as water accumulated in the Kumeu River, on other land, and from any public street.
2. GRANT OF DRAINAGE EASEMENT
2.1 The Grantor grants to the Grantee the following easements in gross forever:
2.1.1 The right to convey, drain, detain, and manage Water without obstruction and in any quantity over, under or through the Stipulated Course or through the Easement Facility now laid or to
be laid through the Stipulated Course and
to discharge the Water beyond the Servient Land; and
2.1.2 The right to fill, re-contour and/or raise the
level of the Stipulated Course, and construct retention walls or stopbanks on, under or over the Stipulated Course.
2.2 The Grantee also has the right, subject to section 3, to enter the Stipulated Course and any other parts of
the Servient Land as is reasonable to do the following work:
2.2.1 To dig and lay the Easement Facility through the Stipulated Course, at a depth and line determined by the Grantee;
2.2.2 To inspect, maintain, repair, dig up, alter, enlarge, renew, replace or upgrade the Easement Facility (including replacement with an Easement
Facility of the same or larger diameter);
2.2.3 To carry out any capital works to the Stipulated Course or any structures on the Stipulated Course including the Easement Facility as the grantee considers necessary;
2.2.4 To landscape and plant plants, shrubs, etc in the Stipulated Course;
2.2.5 To do anything else in the full exercise of
the rights in this Easement Instrument, with the Grantee’s agents, contractors and employees,
and with or without tools, plant, equipment, and vehicles.
2.3 The Grantee may leave any vehicles or equipment on the Servient Land for a reasonable period of time if work is proceeding.
2.4 The Grantee will ensure that any work it performs is carried out in a proper and workmanlike manner.
2.5 The Grantee has no obligation to:
2.5.1 Construct the Easement Facility;
2.5.2 Inspect, maintain, repair, dig up, alter, enlarge, renew, replace or upgrade the Easement Facility, whether constructed by the Grantee or otherwise;
2.5.3 Direct, divert, detain, concentrate or convey Water through, under, or over the Servient Land continuously or at all.
3. ACCESS
3.1 The Grantee’s right of access in clause 2.2 may be exercised on giving reasonable notice to the Grantor, except in an emergency.
3.2 When obtaining access to the Stipulated Course for the purposes of clause 2.2 the Grantee must, so far as is practicable, use existing driveways and other areas suitable for access, and
3.2.1 Do as little damage as possible to the Servient Land and any vegetation, fences or improvements on it;
3.2.2 Cause as little disturbance as possible to the Grantor’s use and enjoyment of the Servient Land;
3.2.3 Reinstate the surface of the Servient Land as soon as possible after the work has been completed, and resurface if necessary with appropriate materials so as to restore it as nearly as possible to its former condition; and
3.2.4 Repair any fences or other improvements on
the Servient Land damaged by the Grantee to reinstate them to their previous condition and replace any trees, shrubs and plants which may have been destroyed or severely damaged.
4. GRANTOR’S OBLIGATIONS
The Grantor may not:
4.1 Dig on or in or otherwise disturb the soil or the extent of the Stipulated Course; or
4.2 Place any buildings or other improvements, or plant or allow any tree or shrub to grow, on the Stipulated Course; or
4.3 Change the existing surface or water levels of the Stipulated Course, without obtaining the Grantee’s prior written approval; or
4.4 Cause or allow any damage to occur to the Easement Facility; or
4.5 Do anything or allow anything to be done which would interfere with, or affect, the rights of the Grantee under this easement instrument.
5. MAINTENANCE
The Grantor is responsible for maintaining the Easement Facility in the Stipulated Course so that it does not become a nuisance or a danger.
6. NO POWER TO TERMINATE
There is no implied power in the easement instrument for the Grantor to terminate the easement rights due to the Grantee breaching any term of this easement instrument or for any other reason, it being the intention of the parties that the easement rights will continue forever unless surrendered.
7. DEFAULT
If either party fails (the "Defaulting Party") to perform or join with the other party (the "Other Party") in performing any obligation under this easement instrument, the following provisions will apply:
7.1 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:
7.1.1 Perform the obligation; and
7.1.2 For that purpose enter the Servient Land.
7.2 The Defaulting Party must pay to the Other Party the costs of:
7.2.1 The default notice; and
7.2.2 The Other Party in performing the obligation
of the Defaulting Party, within one month of receiving notice of the Other Party’s costs.
7.3 The Other Party may recover any money payable under clause 8.2 from the Defaulting Party as a liquidated debt.
8. STATUTORY RIGHTS
The easement rights are in substitution for those set out in the Fourth Schedule to the Land Transfer Regulations 2002, but otherwise this easement does not affect any statutory powers which the Grantee may have.
9. THE GRANTEE AS A REGULATORY AUTHORITY
The Grantee has signed this easement instrument in its
non-regulatory capacity. This easement instrument does not bind the Grantee in its capacity as a regulatory authority in any way, and any consent or agreement the Grantee gives under this easement instrument is not an agreement or consent in its regulatory capacity and vice versa. When acting in its regulatory capacity, the Grantee is entitled to consider all applications to it without regard to this easement instrument. The Grantee will not be liable to the Grantor or any other party if, in its regulatory capacity, the Grantee declines or imposes conditions on any consent or permission that the Grantor or any other party seeks for any purpose associated with the easement instrument or otherwise.
10. DISPUTES
If any dispute arises between the Grantor and the Grantee about the rights in this easement instrument, which cannot be resolved by negotiation, the parties must submit at the request of either party to the arbitration of an independent arbitrator. This arbitrator is to be appointed jointly by the parties, and if they cannot agree on one within 14 days, by the President for the time being of the District Law Society where the Servient Land is situated. The arbitration will be determined in accordance with the Arbitration Act 1996 and its amendments or any statute which replaces it. The parties’ execution of this easement instrument is to be treated as a submission to arbitration.
Dated at Wellington this 20th day of June 2011.
R. A. JOLLY, for the Minister for Land Information.
(LINZ CPC/2005/10974)