Notice Type
Land Notices
Notice Title

Easement in Gross Granting Right of Way—Hillcrest Roundabout, Hamilton City

Pursuant to sections 20 and 28 of the Public Works Act 1981, and to a delegation from the Minister for Land Information, Kavya Shrivastava, Land Information New Zealand, declares that, an agreement to that effect having been entered into, the easement described in the Second Schedule to this notice is granted in favour of Her Majesty The Queen for use in connection with a road over the land described in the First Schedule to this notice on the terms and conditions set out in the Third Schedule to this notice.

South Auckland Land District—Hamilton City

First Schedule

The Grantor’s Land

Part of Lot 1 DPS 74168, shown as Common Property on DPS 74832, comprised in Computer Unit Title Register SA62B/571.

Parts of Lot 1 DPS 74168, shown as Accessory Unit 16 and Accessory Unit 17 on DPS 74832, comprised in Supplementary Record Sheet SA62B/572.

Second Schedule

Easement to be Acquired

An easement of right of way in gross over those parts of the Grantor’s land shown marked “B”, “C” and “D” on SO 509507.

An easement of right of way in gross over those parts of the Grantor’s land shown marked “A” and “E” on SO 509507.

Third Schedule
Terms and Conditions of Right of Way Easement

The rights and powers implied in the Right of Way Easement shall be those set out below in substitution for those in the Land Transfer Regulations 2002:

  1. Definitions:
    1. Easement” means the pedestrian right of way to be granted on the terms and conditions contained herein;

    2. Easement Land” means the areas marked A–E on SO 509507;

    3. Grantee” means Her Majesty The Queen for use in connection with a road, including Her heirs and successors, and includes the agents, employees, contractors and other invitees of the Grantee;

    4. Grantor” means the registered proprietor of the Servient Land, and includes the agents, employees, contractors and other invitees of the Grantor;

    5. Pedestrian” and “on foot” includes the use of hand-propelled and electric powered vehicles used by any infirm, disabled or elderly grantee;

    6. Servient Land” means the parts of the Grantor’s land marked “A”, “B”, “C”, “D” and “E”;

    7. Vehicle” has the same meaning as motor vehicle as that term is defined in the Personal Properties Securities Act 1999; and

    8. Working Day” has that meaning given to it in the Property Law Act 2007.

  2. Interpretation:
    1. Headings

      Section, clause and other headings are for ease of reference only and will not affect the interpretation of this instrument.

    2. Negative Obligations

      Any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done.

    3. Statutes and Regulations

      Reference to any statutory provision includes any statutory provision which amends or replaces it and any subordinate legislation made under it.

  3. Pedestrian Access:
    1. The Grantor grants to the Grantee the right, in common with the Grantor and other persons to whom the Grantor may grant similar rights, a pedestrian right of way in perpetuity (subject to clause 3(i) herein) to pass and repass on foot only at all times of the day and night over the Easement Land.
    2. The Grantee covenants:
      1. Only to pass and repass on foot and without Vehicles over the Easement Land;
      2. Not to erect any structure on any part of the Easement Land; and
      3. Not to obstruct the use and enjoyment of the Easement Land.
  4. General Rights
    1. The Easement is for pedestrian use only except where machinery or vehicles are required for any repair or maintenance of the Easement Land.
    2. The Grantor or the Grantee must not do and must not allow to be done on the Easement Land anything that may interfere with or restrict the rights of any other party or interfere with the efficient operation of the Easement.
    3. Whenever the Grantor and Grantee are required to act unanimously in relation to any matter contained in this Agreement this shall oblige each of the parties to act reasonably and not unreasonably withhold consent to an approval, variation, redesignation or substitution as the context requires provided that it:
      1. does not derogate from the Easement;
      2. is for the benefit of the Easement Land generally; and
      3. is not in breach of the obligations contained in this Agreement.
    4. Unless the context requires otherwise, the Easement referred to in this Agreement, together with all relevant terms and conditions, shall be binding on any lessee, occupier or licensee of the Servient Land.
    5. Where there is a conflict between the terms of this Instrument and the Land Transfer Regulations 2002 the terms of this Agreement will prevail.
  5. Repair and Maintenance Costs
    1. The Grantee is responsible for arranging the repair and maintenance of the Easement Land, and for any associated costs, so as to keep the Easement clean and tidy, in good order, well and substantially repaired and maintained for pedestrian use.
    2. Any repair or maintenance of the Easement Land that is necessary because of any act or omission of either the Grantor or the Grantee (including any agent, employee, contractor or invitees of such persons) must be carried out promptly by that person at the sole cost of that person (or in such proportion as relates to that act or omission) with the balance of any costs being payable in accordance with subclause (e)(a).
    3. The party responsible for maintenance under subclause (e)(a) or subclause (e)(b) (as the case may be) must meet any associated regulatory requirements of the relevant territorial authority.
  6. Rights of Entry
    1. For the purposes of performing any duty or in the exercise of any rights conferred under this Instrument implied in any easement, the Grantee may:
      1. enter upon the Easement Land by a reasonable route and with all necessary tools, vehicles and equipment;
      2. remain on the Easement Land for a reasonable time for the sole purpose of completing the necessary work; and
      3. leave any vehicles or equipment on the Easement Land for a reasonable time if work is proceeding.
    2. The Grantee must ensure that as little damage or disturbance as possible is caused to the Easement Land and to the Grantor.
    3. The Grantee must ensure that all work is performed in a proper and workmanlike manner and appropriate materials are used.
    4. The Grantee must ensure that all work complies with all relevant statutory or Council regulatory requirements.
    5. The Grantee must ensure that all work is completed promptly.
    6. The Grantee must immediately make good any damage done to the Easement Land by restoring the surface of the land as nearly as possible to its former condition.
    7. The Grantee must compensate the Grantor for all damage caused by the work to any other part of the Servient Land.
    8. The Grantor reserves the right to restrict access to the Easement Land for any period where the Grantor is undertaking repair or maintenance on the Servient Land.
  7. Default
    1. If the Grantor or the Grantee does not meet the obligations implied or specified in any Easement or this Instrument:
      1. the party not in default may serve on the defaulting party written notice requiring the defaulting party to meet a specific obligation and stating that, after the expiration of seven Working Days from service of the notice of default, the other party may meet the obligation;
      2. if, at the expiry of the seven Working Day period, the party in default has not met the obligation, the other party may:
        1. meet the obligation; and
        2. for that purpose, enter the Easement Land;
      3. the party in default is liable to pay the other party not in default, as a liquidated debt, any money payable under the clause;
      4. the other party may recover from the party in default, as a liquidated debt, any money payable under the clause; and
      5. the other party may set off all such costs and expenses against any moneys which may otherwise be payable by the party not in default to the party in default.
  8. Disputes

    The provisions of section 14 of Schedule 4 of the Land Transfer Regulations 2002 are deleted and replaced as follows:

    1. The parties agree that this clause applies to any dispute between the parties in connection with the Easement or this Agreement.
    2. If a dispute arises between the parties, no party may start proceedings in relation to the dispute (unless that party seeks urgent interlocutory relief) without first complying with this clause.
    3. A party claiming that a dispute has arisen must give written notice to the other party specifying the matter in dispute.
    4. After a party has given a notice under clause 3(h)(c), each party must nominate one person who will have authority to settle the dispute. The nominated persons must try in good faith to resolve the dispute within 10 Working Days of their nomination.
    5. If the dispute is not resolved under clause 3(h)(d) within a further 20 Working Days after the appointment of a mediator, any party may then require the dispute to be referred to arbitration. If this clause is invoked:
      1. The dispute will be referred to arbitration by a sole arbitrator in accordance with the Arbitration Act 1996. If the parties cannot agree on the identity of the arbitrator within 5 Working Days from the date on which the dispute is referred to arbitration, then the arbitrator will be appointed by the President or a Vice President for the time being of the New Zealand Law Society, upon the application of any party.
      2. The arbitration will take place in New Zealand.
      3. The award in the arbitration will be final and binding on the parties and shall be subject to no appeal; and
      4. The arbitrator shall make a costs determination as to who should bear the costs of each party to the arbitration and as to the arbitrator’s costs.
  9. Relocation of Right of Way Easement
    1. Should the existing access from the Property to the roundabout be closed off by the NZ Transport Agency or its successor, the Crown will agree to surrender the existing easement upon request of the Grantor providing a replacement pedestrian right of way easement over the Property is simultaneously registered, or alternatively, fee simple land is acquired by the Crown from the Grantor for a footpath.
    2. The position of the replacement pedestrian right of way or land to be acquired for a footpath shall be negotiated in good faith in accordance with the appropriate design standards operating at the time and taking into account any development plans of the Grantor. The Grantor undertakes to consult with any lessee of the land and obtain the approval of that lessee, as part of these negotiations.
    3. The parties will negotiate in good faith in accordance with the principles set out in the Public Works Act 1981 or its replacement in determining the compensation for the acquisition of a permanent easement or land in replacement for the right of way granted by this easement. In any determination of compensation, the right given by this clause will be excluded as if it did not exist. For this purpose the “specified date” will be the date that the Grantor requests the surrender of the existing easement.
    4. The Crown will, at its cost, arrange and carry out all necessary survey work for the relocation of the pedestrian right of way, will be responsible for forming the new pedestrian footpath and will prepare and have approved all necessary documents and plans.
    5. The terms and conditions of the relocated pedestrian right of way will be the same (with the necessary changes) as the terms and conditions of the pedestrian right of way granted by this easement, but excluding this clause regarding relocation.
    6. The Grantor will sign any plans or documents and do anything else which may be required for the purpose of relocating the easement.
    7. The Crown will reimburse the Grantor’s reasonable costs in negotiating the relocated easement, to the extent that these are payable under the Public Works Act 1981.

Dated at Wellington this 3rd day of November 2017.

KAVYA SHRIVASTAVA, for the Minister of Land Information.

(LINZ CPC/2006/11460 and CPC/2011/15852)