Lt Gen The Rt Hon Sir JERRY MATEPARAE,
Pursuant to section 186(2) of the Resource Management Act 1991 and section 26 of the Public Works Act 1981, I, Lieutenant General The Right Honourable Sir Jerry Mateparae, Governor-General of New Zealand, hereby declare the easement in gross over the land described in the First Schedule to be taken for the GOR-TEE A Transmission Line Project and vested in Transpower New Zealand Limited on the 14th day after the date of the publication of this Proclamation in the New Zealand Gazette.
The terms of the easement are set out in the Second Schedule.
Southland Land District—Gore District
Part Lot 42 DP 82 (Computer Freehold Register SL6B/1229); marked “A” on SO 476171.
Rights, Powers, Terms, Covenants, Conditions and Restrictions Included in the Easement (“Easement”)
1. Use of Defined Terms
1.1 Capitalised terms used throughout this Easement are defined in clause 12.
1.2 In this Easement, references to “Landowner” are references to the registered owner for the time being of the Land (or any part of the Land) and include:
- the registered owner at the date of this Easement and that person’s successors in title; and
- where appropriate, the employees, contractors, agents, tenants and invitees of the registered owner of the Land (or any part of the Land).
1.3 In this Easement, references to “Transpower” are references to the holder for the time being of the Easement and include:
- Transpower New Zealand Limited and its transferees and successors;
- any subsidiary or related companies of the holder of the Easement; and
- where appropriate, the employees, contractors, agents and invitees of the holder of the Easement.
2. Transpower’s Rights
2.1 This Easement gives Transpower the following rights:
- To construct, install, inspect, operate, repair, maintain, renew, replace, upgrade, add to, modify and remove the Line or any part of the Line on the Easement Area;
- to convey, conduct, send, distribute, pass, convert, transport, transmit and receive electricity by means of the Line;
- to undertake any tests, investigations, surveys and ancillary works (including the temporary or permanent relocation (including by replacement) of any cables, lines and pipes) to exercise Transpower’s rights and obligations under this Easement;
- to enter, from any reasonable location, and remain on the Easement Area and the Accessway with or without Vehicles and Equipment for so long as is reasonably necessary to exercise Transpower’s rights and obligations under this Easement;
- to enter, from any reasonable location, and remain on parts of the Land outside the Easement Area and the Accessway with or without Vehicles and Equipment to exercise Transpower’s rights and obligations under this Easement, but only if:
- the Accessway is not available for any reason;
- access to and from the Easement Area is by air; or
- Transpower reasonably needs to have access outside the Easement Area and the Accessway to exercise any of Transpower’s rights under this Easement;
- to construct, inspect, repair, maintain, renew, remove and modify fences (including boundary fences) on the Land and to install gates within fences to exercise Transpower’s rights and obligations under this Easement or for electrical safety purposes;
- to use any gates that Transpower installs under clause 2.1(f) and to lock any of those gates if they are boundary gates, but only if Transpower gives the Landowner a means of access through each locked gate unless a gate leads directly onto private property that the Landowner does not own;
- to construct, inspect, use, repair, maintain, renew, upgrade, remove and modify access tracks (including culverts and bridges) on the Easement Area, the Accessway and, if clause 2.1(e) applies, any other part of the Land;
- to clear and keep clear the Easement Area, the Accessway and any routes used by Transpower under clause 2.1(e) of vegetation (including trees), structures (including fences and utility structures), soil, earth, gravel and stone;
- to trim or remove any tree from the Land located outside the Easement Area if:
- all or part of the tree breaches or, when fully grown, is likely to breach any legal requirement (including any statute, regulation or code of practice) applying from time to time regarding vegetation near the Line; or
- clause 2.1(j)(i) does not apply to a tree but Transpower considers that all or part of the tree is or, when fully grown, is likely to be a danger or hazard to the safety or operation of the Line, provided that Transpower must obtain the Landowner’s prior consent except in an Emergency; and
- when Transpower undertakes any works under this Easement, Transpower may:
- excavate the Easement Area, the Accessway and, if clause 2.1(e) applies, any other part of the Land, and remove vegetation (including trees), soil, earth, gravel and stone from the Easement Area;
- temporarily exclusively occupy any part of the Easement Area, the Accessway and, if clause 2.1(e) applies, any other part of the Land, including temporarily fencing off the occupied area and temporarily preventing or restricting the Landowner’s access to the occupied area;
- construct temporary hurdles and other temporary improvements on the Easement Area, the Accessway and, if clause 2.1(e) applies, any other part of the Land in order to allow the works to be undertaken safely and efficiently; and
- remove water from the Easement Area, the Accessway and, if clause 2.1(e) applies, any other part of the Land, and discharge that water onto the Land, but Transpower must first consult with the Landowner about the discharge of that water and obtain any necessary environmental approvals for the discharge of water.
- Transpower does not have the right to:
- upgrade the Line to have a nominal operating voltage greater than the voltage specified in the Maximum Design Specifications;
- construct more permanent poles forming part of the Line than the number specified in the Maximum Design Specifications;
- relocate any pole forming part of the Line, but this clause does not prevent Transpower from relocating a pole in a catastrophic failure or to replace the pole, in which case the replacement pole must be located immediately adjacent to the existing pole site and must be located on the Easement Area (unless the parties agree otherwise);
- increase the number of electricity circuits forming part of the Line to more than the number specified in the Maximum Design Specifications; or
- construct any towers to form part of the Line.
3. Transpower’s Obligations
3.1 When Transpower enters the Land, Transpower must:
- respect and have regard to the Landowner’s use of the Land;
- try to minimise disruption to the Landowner’s use of the Land;
- restore any part of the surface of the Land that Transpower damages to as close to its prior condition as reasonably practicable and repair any other direct physical damage Transpower causes;
- use Transpower’s best endeavours to prevent the outbreak and spread of fire; and
- remove any debris Transpower creates in undertaking any works and otherwise leave any work sites in a tidy condition.
3.2 Transpower will compensate the Landowner for the Landowner’s loss resulting from:
- any damage that Transpower causes to the extent that Transpower does not or cannot comply with clause 3.1(c); and
- any trees that Transpower removes under clause 2.1(j) from outside the Easement Area.
3.3 In exercising Transpower’s rights under this Easement, Transpower may need to undertake earthworks and cause other disturbance to the Land. The Landowner acknowledges that such earthworks and other disturbance are not a breach of clause 3.1.
3.4 Transpower will meet the costs of:
- managing trees on the Easement Area (including trimming or removing trees), apart from any costs resulting from trees planted by the Landowner in breach of this Easement;
- controlling or removing weeds Transpower introduces to the Land, but no other weeds; and
- maintaining the Line.
3.5 Transpower will, upon request, provide to the Landowner a copy of the plan showing the Accessway.
4. Access Tracks
4.1 If Transpower constructs, modifies or upgrades any access track (including culverts and bridges) under clause 2.1(h), Transpower will, at Transpower’s cost:
- maintain the access track to the standard Transpower requires; and
- repair any damage Transpower causes to the access track.
4.2 If the Landowner damages any access track (including culverts and bridges) that Transpower has constructed, modified or upgraded under clause 2.1(h), Transpower may recover the cost of repairing that damage from the Landowner.
4.3 All access tracks (including culverts and bridges) that Transpower constructs, modifies or upgrades under clause 2.1(h) will form part of the Land and will be the Landowner’s property (unless the parties agree otherwise in writing).
5.1 Transpower will give the following notice to the Landowner:
- before entering the Land to inspect the Line, Transpower will give the Landowner at least five Working Days’ notice; and
- before entering the Land for any other purpose allowed by this Easement, Transpower will give the Landowner at least 10 Working Days’ notice in writing.
5.2 If Transpower gives the Landowner notice under clause 5.1, the Landowner may set reasonable conditions on Transpower’s entry onto the Land but:
- the Landowner must inform Transpower of the Landowner’s conditions at least two Working Days before Transpower’s proposed date of entry; and
- the Landowner’s conditions must not:
- delay Transpower’s entry by more than 15 Working Days;
- require the payment of money or any other consideration by Transpower; or
- defeat Transpower’s ability to exercise effectively Transpower’s rights under this Easement.
5.3 In an Emergency, Transpower may enter the Land without giving prior notice to the Landowner under clause 5.1 but:
- Transpower must give notice to the Landowner as soon as possible following Transpower’s entry and no later than 5 Working Days following Transpower’s entry; and
- Transpower must comply with all other provisions of this Easement relating to Transpower’s entry.
5.4 Transpower must advise the Landowner in its notice under clause 5.1 if Transpower proposes to enter the Land by air.
5.5 The Landowner must advise any tenant of the Land of Transpower’s proposed entry onto the Land if Transpower gives the Landowner notice under clause 5.1. If the Landowner has notified Transpower of any tenant of the Land, Transpower may send a copy of Transpower’s notice directly to that tenant.
6. Land Use Obligations
6.1 Because of the electrical nature of the Line and the need for Transpower to have regular access to the Line, the Landowner must not, without first obtaining Transpower’s written consent, do or allow any of the following to be done:
- excavate or deposit material on the Easement Area or the Accessway or otherwise alter or disturb the grades and contours of the surface of the Easement Area or the Accessway;
- erect any building or other structure (including fences and utility structures) on the Easement Area or the Accessway;
- plant any vegetation on the Easement Area that will or may when fully grown exceed 2.5 metres in height or breach any legal requirement applying from time to time regarding vegetation near the Line;
- plant any vegetation on the Accessway that will impede Transpower’s access along the Accessway;
- operate any Equipment or Vehicles on the Easement Area within a minimum clearance distance of 4 metres from any conductor forming part of the Line;
- impede Transpower’s access along the Easement Area or the Accessway or, if Transpower is exercising Transpower’s rights under clause 2.1(e), the Land;
- cause the Easement Area or the Accessway to be flooded;
- light any fires (including burning-off vegetation) on the Easement Area;
- subdivide the Land in a way that:
- may prevent Transpower’s use of the Easement Area or the Accessway under this Easement;
- prevents Transpower’s access along the Accessway (unless the subdivision application makes provision for alternative legal access which Transpower considers suitable); or
- creates allotments which are only capable of being efficiently used in a way that requires the construction of buildings or other structures on the Easement Area; and
- any other thing on the Land which may interfere with or restrict Transpower’s rights under this Easement or the efficient operation of the Line, cause damage to the Line or endanger the continuity or safety of the supply and distribution of electricity.
6.2 This Easement does not stop the Landowner from applying fertiliser to the Land (including the Easement Area). Transpower will not hold the Landowner liable for any damage to the Line or any losses Transpower suffers which result from the Landowner’s application of fertiliser.
6.3 This Easement does not stop the Landowner from continuing to use the Land for normal cropping or grazing provided that the Landowner complies with clause 6.1.
7. Breach of the Landowner’s Obligations
7.1 If the Landowner breaches any of the Landowner’s obligations in this Easement, Transpower may:
- give notice to the Landowner of the breach and, if reasonable in the circumstances, give the Landowner a reasonable period to remedy the breach; and
- if it is not reasonable in the circumstances for Transpower to allow the Landowner a reasonable period to remedy the breach or if the Landowner does not remedy the breach within a reasonable period following Transpower’s notice, Transpower may:
- take all reasonable steps to remedy the breach; and
- recover the direct costs of remedying the breach from the Landowner as a debt.
8. Health and Safety
8.1 Transpower will be responsible for the health and safety of any person who enters the Land at Transpower’s request to the maximum extent allowed by law.
8.2 Transpower will comply with all reasonable rules and procedures that the Landowner gives to Transpower regarding the health and safety of persons on the Land and the identification and mitigation of hazards.
9. Indemnity and Liability
9.1 Transpower indemnifies the Landowner against:
- any physical damage to the Land or anything located on the Land (other than damage resulting from or caused by interruptions to the supply of electricity or variations in the quality of electricity); and
- any damage to a third party for which a claim is successfully brought against the Landowner;
where that damage is caused by Transpower’s act or omission in breach of this Easement or caused by Transpower’s negligence.
9.2 The indemnity in clause 9.1(b) will only apply if the Landowner advises Transpower of the claim by the third party immediately when the Landowner becomes aware of the claim. In respect of the claim by the third party, the Landowner agrees that:
- Transpower has the sole right to act in the Landowner’s name in respect of the claim, at Transpower’s expense; and
- Transpower may defend the claim, negotiate with the claimant or settle the claim (or any of these) in the Landowner’s name, at Transpower’s expense.
9.3 The maximum amount payable by the Landowner to Transpower in respect of any liability associated with this Easement arising:
- for breach of any provision of this Easement; or
- otherwise at law;
is, in the absence of the Landowner’s wilful, deliberate or intentional acts or omissions, limited to an aggregate of $1,000,000.00 per event or series of related events (“Limitation Amount”), provided that the Limitation Amount will be adjusted annually in accordance with movement in the Consumer Price Index (All Groups) or any replacement comparable index from the date of this Easement.
10.1 The Landowner is hereby deemed to:
- consent to any application by Transpower for any consent or authority required to give effect to the easements created by this Easement, including any building consent, resource consent or authority under the Heritage New Zealand Pouhere Taonga Act 2014; and
- appoint Transpower as the Landowner’s agent to sign and deliver any forms evidencing the Landowner’s consent to those applications.
11. General Provisions
11.1 The Line and the Equipment and Vehicles will not, for any reason, become the Landowner’s property.
11.2 If any provision of this Easement requires one party to this Easement to obtain the other party’s consent then:
- consent must not be unreasonably or arbitrarily withheld or delayed;
- consent may be given subject to reasonable conditions; and
- the party giving consent must not require a payment as a condition of giving consent.
11.3 This Easement will continue forever unless surrendered by Transpower. Accordingly, the Landowner has no power to terminate the Easement or any of Transpower’s rights under this Easement for any reason.
11.4 Transpower will surrender the Easement when the Easement is no longer required by Transpower. Transpower will prepare, sign and register all documents necessary to surrender the Easement and the Landowner will promptly sign and deliver the documents when called upon to do so by Transpower.
11.5 The Landowner must at all times comply with all the Landowner’s legal requirements relating to the Line.
11.6 Transpower must at all times comply with all Transpower’s legal requirements relating to the Line.
11.7 If any part of this Easement is held to be illegal, void or unenforceable, such determination will not affect the enforceability of the remaining parts of this Easement.
11.8 Any waiver by either party of any provision of this Easement will only be effective if it is given in writing and then only effective to the extent that it is expressly stated to be given.
11.9 Any failure, delay or indulgence by either party in exercising any power or right under this Easement will not operate as a waiver of that power or right. A single or partial exercise of any power or right by either party under this Easement will not prevent further exercises of that power or right or the exercise of any other power or right.
11.10 The rights and powers implied by the Fourth Schedule to the Land Transfer Regulations 2002 and the Fifth Schedule to the Property Law Act 2007 are expressly negatived and do not apply to the Easement.
12. Definitions Used in this Easement
12.1 In this Easement, unless the context requires otherwise:
- “Accessway” means the accessway shown on the plan held by Transpower (available on request);
- “Easement Area” means the parts of the Land marked “A” on SO 476171;
- “Emergency” means a situation:
- involving possible danger to human life or property;
- where the Line is or may be electrically unsafe; or
- involving an existing or potential electricity outage;
- “Equipment” includes cables, lines, wires, cranes, drilling rigs, plant, tools and machinery and all material and items required for the purpose of exercising any of Transpower’s rights under this Easement but, to avoid doubt, excludes any culverts and bridges constructed by Transpower under clause 2.1(h);
- “Land” means the land described as Lot 42 DP 82 (Computer Freehold Register SL6B/1229);
- “Line” means an electricity transmission line including all or any part of that line, including:
- electricity conductors, wires and earthwires;
- poles, foundations, ground stays and supports;
- insulators, repeaters, devices, appliances, antennas and metering devices; and
- other apparatus, structures, fixtures and Equipment which Transpower considers necessary or useful to give effect to Transpower’s rights and obligations under this Easement;
- “Maximum Design Specifications” means the following details of the Line:
- The nominal operating voltage is 220 kilovolts;
- the maximum number of permanent poles is five; and
- the maximum number of circuits is two;
- “Vehicles” includes four wheel drives, motorbikes, cars and trucks, tractors, trailers, graders, pile drivers, drilling rigs, cranes, helicopters, aircraft, excavation and earthmoving equipment, whether wheeled or tracked; and
- “Working Day” means any day of the week excluding Saturday, Sunday, national statutory holidays and the anniversary days commonly observed in Wellington and the locality in which the Land is situated.
13. Interpreting this Easement
13.1 In this Easement, unless the context requires otherwise:
- singular includes plural and vice versa;
- headings in this Easement are inserted for convenience only and are to be ignored when interpreting a clause; and
- derivations of defined terms have similar meanings to the defined terms.
Given under the hand of His Excellency the Governor-General of New Zealand and issued under the Seal of New Zealand this 29th day of August 2016.
Hon LOUISE UPSTON, Minister for Land Information.
God Save The Queen!