Pursuant to sections 20 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, an agreement to that effect having been entered into:
(a) The land described in the First Schedule to this notice is hereby acquired for stormwater management purposes and shall vest in the Auckland Council, subject as to the land firstly described in the First Schedule to this notice to a drainage and stormwater treatment easement in gross in favour of the Waitakere City Council (now Auckland Council) created by Transfer 5469005.3;
(b) A dam encroachment easement is hereby acquired over the land described in the Second Schedule to this notice, appurtenant to the land described in the First Schedule to this notice on the terms and conditions set out in Fourth Schedule to this notice;
(c) A right of way easement is hereby acquired over the land described in the Third Schedule to this notice, appurtenant to the land firstly described in the First Schedule to this notice on the terms and conditions set out in Fifth Schedule to this notice
on the date of publication hereof in the New Zealand Gazette.
North Auckland Land District-Auckland
First Schedule
Land Acquired for Stormwater Management Purposes
Area
ha Description
1.7899
Part Lot 2 DP 314020; shown as Section 3 on SO 453850 (part Computer Freehold Register 55460).
0.3407 Part Lot 1 DP 19157; shown as Section 4 on SO 453850 (part Computer Freehold Register NA498/103).
Second Schedule
Dam Encroachment Easement Acquired
Part Lot 2 DP 314020; marked "B" on SO 453850.
Part Lot 2 DP 314020; marked "I" on SO 453850.
Part Lot 2 DP 314020; marked "J" on SO 453850.
(All part Computer Freehold Register 55460).
Third Schedule
Right of Way Easement Acquired
Part Lot 2 DP 314020; marked "A" on SO 453850.
Part Lot 2 DP 314020; marked "E" on SO 453850.
Part Lot 2 DP 314020; marked "F" on SO 453850.
(All part Computer Freehold Register 55460).
Fourth Schedule
Terms of the Dam Encroachment Easement Acquired
1. The Grantee shall have the right to deposit soil and other material and to lay pipes and construct any necessary infrastructure on areas marked "B", "I" and "J" on SO 453850 ("Easement Area") for the purpose of building a dam ("Dam") to pond storm water.
2. This easement is appurtenant to Sections 3 and 4 on SO 453850 ("Dominant Land").
3. (a) The Grantor has obtained a Code Compliance Certificate for the Dam dated the 5th day of March 2013. The Dam was designed and constructed by Neil Construction Limited with the Grantee's input and the cost of its construction is to be reimbursed to that company by the Grantee.
(b) The Grantee is to operate and maintain the Dam in accordance with all consents given in these regards as a "Local work" (within the meaning of those words in section 2 of the Public Works Act) and is
to otherwise comply with all statutes, bylaws, codes and regulations relating to the Dam and the Easement Area.
4. The Grantee shall have the right to discharge water on to the Easement Area in common with the Grantor in any quantity from the Dominant Land.
5. The Grantee shall have the right to enter upon the Easement Area at all times with or without employees, contractors and agents together with all necessary plant, tools and machinery to maintain the dam or to carry out any work or excavation or construction that may be necessary to ensure the continuing functioning and safety of the Dam.
6. The Grantor may take stock on to the Easement Area but only for the purpose of moving stock across that area and the Grantor must ensure that no stock stray on to the face of the Dam. However, the Grantor may graze that part of the area marked "B" on SO 453850 within the Easement Area which is not fenced. This grazing right is revocable at will at any time by the Grantee.
7. The Grantor will not at any time without the Grantee's approval dig in the Easement Area or do or cause to be done anything that will undermine or interfere with the Dam or its functioning or allow to be done any act whereby the rights and powers granted to the Grantee in this easement may be interfered with or affected in any way.
8. Any planting within the Easement Area proposed by the Grantor is restricted to agricultural grasses shown on a plan prepared by the Grantor, such plan to be approved by the Grantee and a geotechnical engineer familiar with dam construction.
9. The parties acknowledge that there is a part of the Easement Area which is unfenced at the time of
the creation of this easement. The Grantee may at any time and will at its own expense erect and maintain a
7 wire post and batten fence on the boundary between the Easement Area and the balance of the Grantor's land insofar as that boundary is unfenced at that time. The Grantee will give the Grantor one month's notice in writing of its intention to erect such a fence which will include gates so as to permit the Grantor and the Grantee use of any formed vehicular access within the Easement Area.
10. The Grantor will not construct or place any building, structures, equipment or fences on the Easement Area without the consent of the Grantee.
11. If the Grantee wilfully or with wilful disregard causes
or permits any breach of the obligations set out in this easement, the Grantor will be entitled to take all reasonable steps to remedy the breach and recover the direct costs it incurs from the Grantee as a debt.
12. Nothing contained or implied in this easement shall be deemed to compel the Grantee to avail itself of the rights hereby granted and the Grantee may from time to time discontinue and recommence at will the use of the Dam for the ponding of water and the exercise of any other rights contained in this easement. The Grantee shall continue to have sole responsibility for the maintenance and safety of the Dam during any period(s) its use is discontinued.
13. If the Grantor wilfully or with wilful disregard causes or permits any breach of the obligations set out in this easement, the Grantee will be entitled to take all reasonable steps to remedy the breach and recover the direct costs it incurs from the Grantor as a debt.
14. The within easement shall run forever or until the Grantor and Grantee, for the time being, otherwise mutually agree.
15. In no circumstances whatsoever shall any Grantor or Grantee, for the time being, to the within easement cancel, repudiate or otherwise attempt to terminate the within easement for any breach or alleged breach by
the other party, it being the mutual and irrevocable intention of the parties at all times during the continuance of this easement that the remedies set out in clauses 11 and 13 are the only remedies any party not
in breach (or alleged breach) has.
16. The Grantor and Grantee mutually acknowledge:
(a) That the Dam and the Easement Area are located on the land of the Grantor.
(b) That the Dam has been constructed for the Grantee as a public work, namely a "Local work" as defined in section 2 of the Public Works Act 1981.
(c) That the Easement Area upon which the Dam is located remains in the fee simple ownership of the Grantor (or any successor in title) but is subject to the terms of the within easement.
(d) That, notwithstanding any rule of law or equity to the contrary, the Grantee or any successor to the Grantee as a Grantee under the within easement shall, for the purposes of any statute, Regulation, bylaw, ordinance, requisition or any other lawful requirement be deemed to be both the owner and occupier of the Easement Area and all structures
and appurtenances thereon (whether constructed by or at the expense of the Grantee or any successor in title to the Grantee, or not).
(e) That the Grantee and any successor Grantee for the time being:
(i) Shall save harmless and indemnify the Grantor and any successor(s) in title to
the Grantor to the fullest extent permitted
by law from any loss, harm or damage howsoever suffered that may in any way accrue to the Grantor or any successor in title to the Grantor from the operation of the Dam and its appurtenances on or about the Easement Area.
(ii) Irrevocably agrees that should the Grantor or any successor(s) in title to the Grantor suffer either any physical damage or monetary loss whatsoever as a result of any breach of the indemnity given at paragraph 16(e)(i) above, then such loss shall be recoverable under section 60(1)(c) of the Public Works Act 1981.
(iii) Should there be more than one Grantee under
the within easement, their liability under the indemnity in clause 16(e)(i) above shall be joint and several.
(iv) The Grantee shall not assign its interest under the within easement unless its assignee is another public work operator or network utility operator with requiring authority powers, in which case the Grantor or any successor in title to the Grantor shall be deemed to have consented to the assignment.
(v) That should the within easement be determined by agreement, the Grantee or the then Grantee shall be responsible for making good the Dam and the Easement Area to the reasonable satisfaction of the Grantor within one year from the determination of the easement (time being strictly of the essence).
17. The Grantor and the Grantee acknowledge and agree that if the whole of the fee simple of the Easement Area comes into the ownership of the Grantee for the time being, then that Grantee shall promptly either surrender the Dam Easement or alternatively merge the Grantor's and Grantee's interests by way of a request made to the Registrar-General of Land under section 35 of the Public Works Act. Alternatively, should part of the fee simple of the Easement Area come into the ownership of
the Grantee for the time being, then that Grantee shall promptly partially surrender the Dam Easement over that part of the fee simple that has come into its ownership.
18. Clauses 13 and 14 of Schedule 4 of the Land Transfer Regulations 2002 will apply in respect of this easement.
Fifth Schedule
Terms of the Right of Way Easement Acquired
1. The Grantee, its employees, contractors and agents shall have the right at all times in common with the Grantor and the Grantor's invitees to go over and along the area marked "A", "E" and "F" on SO 453850 ("the Right of Way Area") with or without any vehicle, machinery or implement.
2. This easement is appurtenant to Section 3 on SO 453850.
3. The Grantee shall have the right to form and maintain a driveway over the Right of Way Area and if necessary for any of those purposes to alter the state of the land over which the easement is granted.
4. The Grantee shall have the right to have the Right of Way Area kept clear at all times of obstructions whether caused by parked vehicles, deposit of materials, or unreasonable impediments.
5. The Grantee shall have the right to recover the cost of repairing any damage to the driveway made necessary
by any deliberate or negligent act of a person bound by these covenants or that person's agents, contractors, employees, invitees, licensees or tenants. Except for this, the Grantor shall have no obligation to contribute to the cost of constructing, maintaining and repairing any driveway to which this easement applies.
6. The Grantee will construct a lockable gate at the point where Babich Road meets the area marked "E" on SO 453850. Keys to any lock on this gate will be provided to the Grantor and the Grantee. The Grantor and the Grantee agree that no other locking device may be placed on this gate.
7. The Grantee shall have the right to construct a key lock box on the Right of Way Area adjacent to Babich Road for the purpose of storing a key to the gate to allow the Grantee access to the Dam Easement area.
8. The Grantee agrees to inform the Grantor at least
24 hours before entering onto the Right of Way area but in situations considered by the Grantee to be an emergency may enter onto the right of way without giving the Grantor notice.
9. The Grantor must not do and must not allow to be done on the easement area or the servient land anything that may interfere with or restrict the rights of the Grantee or interfere with the efficient operation of the easement facility.
10. Clauses 13 and 14 of Schedule 4 of the Land Transfer Regulations 2002 will apply to this easement.
Dated at Wellington this 25th day of July 2013.
K. MCPHAIL, for the Minister for Land Information.
(LINZ CPC/2005/10974)