Notice Type
Land Notices
Notice Title

Acquiring a Right of Way Easement in Gross-120 and 122 Ocean View Road, Waiheke, Auckland

Pursuant to sections 20 and 28 of the Public Works
Act 1981, and to a delegation from the Minister for
Land Information, Natasha Pollard, Land Information
New Zealand, declares that, an agreement to that effect having been entered into, the easement in gross described in the First Schedule shall vest in the Auckland Council and its successors as grantee in perpetuity on the date of publication of this notice hereof in the New Zealand Gazette, together with the rights and powers, and subject to the terms and conditions set out in the Second Schedule.
North Auckland Land District-Auckland
First Schedule
Nature of Easement Being Easement Land
Right of way in gross Part Lot 226, DP 22848 (Part Computer Freehold Register NA705/94) Area "G" DP 436882
Right of way in gross Part Lot 227, DP 22848 (Part Computer Freehold Register NA802/145) Area "I" DP 436882
Second Schedule
Rights and Powers, and Terms and Conditions
1. Definitions
In this easement, unless the context indicates otherwise:
"grantee" means the Auckland Council, and includes Auckland Transport;
"service lane" means the vehicle carriageway and associated improvements located on the stipulated area; and
"stipulated area" means the land which is subject to the easement as described in the First Schedule.
2. Grant of Right of Way Easement
2.1 The grantee, its employees, tenants, agents, workmen, contractors, licensees and invitees, including the general public (in common with the registered proprietor, the registered proprietor's tenants and any other person authorised by the registered proprietor) has, as an easement in gross, the right forever:
2.1.1 to form, construct and maintain in a proper workmanlike manner, the service lane over and along the stipulated area; and
2.1.2 to pass and repass at all times over and along stipulated area:
(a) on foot, with wheelchairs and prams and with or without domestic animals;
(b) with motor and other vehicles, laden or unladen; and
(c) with machinery, tools, implements, plant and equipment.
2.2 The grantee also has the right, subject to section 3, to enter and remain for a reasonable time on the stipulated area or any other parts of the registered proprietor's land as is reasonable:
2.2.1 to construct, inspect, maintain and repair the surface of the stipulated area;
2.2.2 leave any vehicles or equipment on the registered proprietor's land for a reasonable period of time if work is proceeding; and
2.2.3 to do anything else in the full exercise of its rights in this easement, with the grantee's employees, tenants, agents, workmen, contractors, licensees and invitees, and with or without machinery, tools, implements, plant, equipment and vehicles.
2.3 The grantee will immediately make good any damage done to the registered proprietor's land by restoring the surface of the land as nearly as possible to its former condition.
3. Maintenance and Repair
3.1 The grantee will be equally responsible for maintaining the surface of the stipulated area in a reasonable state of repair for the purposes for which it is used.
3.2 Any damage to the surface of the stipulated area that is caused by either party or any person under the control or direction of that party must be made good promptly by, and at the sole cost of, that party.
3.3 The parties responsible for maintenance under this clause must meet any associated requirements of the relevant local authority.
4. Registered Proprietor's Obligations
The registered proprietor may not:
4.1 place or allow any obstruction to the use and enjoyment of the right of way, whether by parked vehicles, rubbish or otherwise; or
4.2 place any buildings or erections or plants or allow or suffer to grow any tree, shrub, or bush on the stipulated area;
4.3 alter, reconstruct, or change the existing surface levels of the stipulated area or permit those surface levels to be altered, reconstructed or changed without the prior written consent of the grantee; and
4.4 do anything or allow anything to be done which interferes with or adversely affects the rights of the grantee (including the grantee's employees, tenants, agents, workmen, contractors licensees and invitees) under this easement.
5. Grantee's Obligations
The grantee will construct and maintain the service lane within the stipulated area including all drainage works, stormwater and other maintenance so that it does not become a danger or nuisance to the registered proprietor,
its authorised personnel, licensees, lessees, workmen, contractors, and invitees or the public.
6. No Power to Terminate
There is no implied power in this easement for the registered proprietor to terminate the easement rights due to the grantee breaching any term of this easement or for any other reason, it being the intention that the easement rights will continue forever unless surrendered.
7. Statutory Rights
The rights in this easement are in substitution for those rights set out in the Fourth Schedule to the Land Transfer Regulations 2002 and the rights set out in the Fifth Schedule to the Property Law Act 2007, but otherwise this easement does not affect any statutory powers which the grantee
may have.
8. Default
If either party fails ("defaulting party") to perform, or join with the other party ("other party") in performing, any obligation under this easement, the following provisions will apply:
8.1 The other party may serve a written notice on the defaulting party ("default notice") specifying the default and requiring the defaulting party to perform or to join in performing the obligation and stating that, after the expiry of one month from service of the default notice, the other party may perform the obligation;
8.2 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:
8.2.1 perform the obligation; and
8.2.2 for that purpose enter on to the registered proprietor's land;
8.3 the defaulting party must pay to the other party the costs of:
8.3.1 the default notice; and
8.3.2 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
8.4 the other party may recover any money payable under clause 8.3 from the defaulting party as a liquidated debt.
9. Disputes
If any dispute arises between the parties concerning the rights created by this easement, the parties must 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 must submit to the arbitration of an independent arbitrator appointed jointly by the parties. If the parties cannot agree on an independent arbitrator within 14 days, the parties will submit to the arbitration of an independent arbitrator appointed by the President for the time being of the District Law Society in which the registered proprietor's land is situated. That arbitration will be determined under the Arbitration Act 1996 and its amendments or any statute which replaces it.
Dated at Wellington this 7th day of June 2013.
N. POLLARD, for the Minister for Land Information.
(LINZ CPC/2005/10974)