Pursuant to section 48 of the Public Works Act 1981, and to a delegation from the Minister for Land Information, Kerry McPhail, Land Information New Zealand, declares that, pursuant to an agreement to that effect having been entered into, the Waikato District Council (“Grantor”), being the registered proprietor of the land described in the First Schedule herein, hereby grants, in accordance with the said agreement, the easements described in the Second Schedule herein to Solid Energy New Zealand Limited (“Grantee”), being the registered proprietor of the lands described in the Third Schedule herein, upon the terms and conditions described in the Fourth Schedule to this notice, as from the date of publication hereof in the New Zealand Gazette.

South Auckland Land District—Waikato District

First Schedule

Grantor’s Land

Sections 1, 17–18, 22, 24 SO 374718, comprising 104.5536ha, more or less, and being all the land comprised and described in Computer Freehold Register 358681.

Second Schedule

Easements to be Granted

1. A right of way easement over Section 18 SO 374718 (Part Computer Freehold Register 358681), marked “X” on LT 503186 in favour of the Grantee’s land fifthly, sixthly and seventhly described in the Third Schedule herein.
2. A right of way easement over Part Section 22 SO 374718 (Part Computer Freehold Register 358681), marked “YA” on LT 503186 in favour of the Grantee’s land fifthly, sixthly and seventhly described in the Third Schedule herein.
3. A right of way easement over Section 17 SO 374718 (Part Computer Freehold Register 358681), marked “YB” on LT 503186 in favour of the Grantee’s land fifthly, sixthly and seventhly described in the Third Schedule herein.
4. A right of way easement over Part Section 22 SO 374718 (Part Computer Freehold Register 358681), marked “YC” on LT 503186 in favour of the Grantee’s land fifthly, sixthly and seventhly described in the Third Schedule herein.
5. A right of way easement over Section 24 SO 374718 (Part Computer Freehold Register 358681), marked “Z” on LT 503186 in favour of the Grantee’s land firstly, secondly, thirdly and fourthly described in the Third Schedule herein.

Third Schedule

Grantee’s Land

Firstly, 4.6955ha, more or less, being Part Allotment 46A Pepepe Parish, being the balance of the land in Computer Freehold Register SA43D/542, South Auckland Registry.

Secondly, 6.9052ha, more or less, being Part Allotment 46B Pepepe Parish, being the balance of the land in Computer Freehold Register SA43D/541, South Auckland Registry.

Thirdly, 6.6317ha, more or less, being Part Allotment 48 Pepepe Parish, being the balance of the land in Computer Freehold Register SA46B/157, South Auckland Registry.

Fourthly, 2.9432ha, more or less, being Part Allotment 49 Pepepe Parish, being the balance of the land in Computer Freehold Register SA43C/863, South Auckland Registry.

Fifthly, 27.2242ha, more or less, being Lot 1 and Part Lot 2 DPS 61669, being the balance of the land in Computer Freehold Register SA70D/1, South Auckland Registry.

Sixthly, 26.9694ha, more or less, being Lot 2 DP 320197, Part Lot 3 DP 1053, Part Lot 1 DP 28499 and Part Allotment 9 Pepepe Parish, being the balance of the land in Computer Freehold Register 93332, South Auckland Registry.

Seventhly, 0.0304ha, more or less, being Part Section 1 SO 58281, being the balance of the land in Computer Freehold Register SA50A/807 South Auckland Registry.

Fourth Schedule

Easement Rights and Powers (including terms, covenants, and conditions)

Unless otherwise provided below, the rights and powers implied in specific classes of easement are those prescribed by the Land Transfer Regulations 2002 and/or the Ninth Schedule of the Property Law Act 1952.

The implied rights and powers are varied/added to by the provisions set out below.

Grant of Easement Rights

1. In consideration of $1.00, receipt of which is acknowledged, the Grantor transfers and grants to the Grantee, for the continuing benefit of the lands of the Grantee, the easement facility described as follows over the Easement Area.

1.1 A vehicular and pedestrian right of way (“Right of Way”).

Implied Terms and Variations

2. The Implied Terms shall apply to the grant of the easement subject to the following variations and/or additions as set out in this instrument:

2.1 The addition of new clause 11(5) to Schedule 4 of the Land Transfer Regulations 2002 as follows:

Any maintenance, repair or replacement of any easement facility that is necessary as a result of any act or omission or the consequence of any act of omission by either the Grantor or the Grantee must be carried out promptly by that party at the sole cost of that party or in such proportion as relates to the act or omission on the part of that party.

Right of Way Additional Terms

3. The following provisions shall also apply in respect of the Right of Way and to the extent they vary the Implied Terms, then the Implied Terms are further varied accordingly:

3.1 Maintenance: The following shall apply in relation to maintenance of the Right of Way and related matters:

3.1.1 The Easement Area, insofar as it has the purpose of a right of way, shall be maintained to a standard which is reasonably suitable in the opinion of the Grantor, having regard to the use of it by the parties.

3.1.2 The Grantor shall be responsible for arranging to have all maintenance work necessary to meet the above standard (“Maintenance Work”) carried out as and when reasonably needed.

3.1.3 The parties shall, subject to the provision at the foot of this subclause 3.1.3, share all costs associated with the Maintenance Work on such basis provided for in the Implied Terms. For the purposes of this clause and the sharing of maintenance costs, a “reasonable contribution” as referred to in clause 2(c) of the Ninth Schedule of the Property Law Act 1952 shall (subject to clause 3.1.4 below) mean a contribution that reasonably reflects the parties respective overall proportional use of the Right of Way. The cost of formation if required however shall in any event be met by the Grantor.

3.1.4 Any remedial work required as a result of any damage (however caused) shall be paid for and carried out as soon as reasonably possible following that damage. That remedial work shall be carried out as follows:

1. By the Grantee if that damage is caused by the Grantee or anyone under its control; or
2. by the Grantor if that damage is caused by the Grantor or anyone under its control.

3.1.5 If any dispute arises under this provision then that dispute shall be referred to mediation in the first instance in accordance with the mediation provisions set out in clause 4.

Mediation

4. The parties will first try to negotiate in good faith a speedy resolution of all disputes that arise between them in any way relating to any part of this instrument. If at any time either party (including any one or more persons comprising the Grantor) considers that a dispute has arisen that cannot be resolved then that party may by notice in writing require the matter to be referred to mediation of a mediator having those skills required (including relevant expertise and experience of the subject matter of the dispute) to bring the parties to a resolution (“Mediator”).

5. The Mediator shall be appointed by agreement of the parties (including any one or more persons comprising the Grantor) or, if the parties are unable to agree upon a Mediator within five working days of notification of the reference to mediation, the Mediator shall be appointed by the President of the Auckland District Law Society. Following appointment, the following terms shall apply:

5.1 The Mediator shall immediately, upon appointment, set down and advise the parties of the procedure to be adopted in the mediation, which shall include an opportunity for each party to make written and oral submissions to the Mediator;

5.2 the Mediator shall consider the submissions received from both parties (with or without expert reports) and may consult with both parties either alone or together;

5.3 the Mediator shall use his or her best endeavours to obtain an agreement between the parties as to how the dispute should be resolved provided that within 40 working days of reference of the dispute to mediation the parties are unable to resolve the dispute the Mediator shall make a final written recommendation to the parties as to how the dispute should be resolved;

5.4 the parties shall, within 15 working days form receipt by them of the final recommendation, advise each other and the Mediator whether they accept that recommendation. The parties shall consider any final recommendation in good faith; and

5.5 if the Mediator’s final recommendation is not accepted by both parties within 15 working days from receipt by them of that recommendation then each party may pursue such other remedies or methods of resolution of the dispute as may be available to it, including commencing proceeding in any court of competent jurisdiction but excluding reference to the matter to arbitration unless the parties agree otherwise at the time.

6. All costs of mediation shall be, subject to any recommendation of the Mediator to the contrary, borne equally between the parties.

Public Access

7. The public has the right to vehicular and pedestrian access during daylight hours over and along the right of way easements lands described in the Second Schedule herein.

Definitions

In this instrument, unless the context otherwise requires:

Easement Area means the areas marked “X”, “YA”, “YB”, “YC” and “Z” on LT 503186.

Implied Terms means the terms contained in the Ninth Schedule of the Property Law Act 1952 and Schedule 4 of the Land Transfer Regulations 2002.

Grantee includes, for the purpose of the easement granted under this instrument, its permitted successors and assigns.

Grantor includes, for the purposes of the easement granted under this instrument, any subsequent registered proprietor of the land described in the Second Schedule herein, together with its respective successors in title.

Interpretations

1. Clause headings are included for the purpose of convenience only and should not be taken into account in interpreting the meaning of any of the provisions contained in this instrument.

Dated at Wellington this 14th day of September 2017.

K. McPHAIL, for the Minister for Land Information.

(LINZ CPC/2005/10908)