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 right to convey sewage as an easement in gross, with the rights and powers as set out in the First Schedule to this notice, is hereby acquired over the land described in the Second Schedule to this notice and shall vest in the Gore District Council on the date of publication of this notice in the New Zealand Gazette.

First Schedule

1. Interpretation

1.1 In this Easement unless the context otherwise requires:

“Utilities” means any structure, pole or other appurtenant structure for the provision of utilities or services supplied to or used on the land including but not limited to electricity, gas, telephone, storm water, sewage and water.

“Easement Facility” in relation to a right to convey sewage, means an underground pipeline for that purpose together with air relief and drain appurtenances, and anything in replacement or substitution.

“Grantee” is the Gore District Council.

“Grantor” is the owner of the Servient Land.

“Servient Land” means Lot 1 DP 311820 and Lot 1 DP 9694 (Computer Freehold Register 46624).

“Stipulated Area” has the meaning given to it in Schedule 4 of the Land Transfer Regulations 2002.

1.2 In the interpretation of this Easement:

1. words importing the singular or plural number shall be deemed to include the plural and singular number respectively;
2. the headings appearing are inserted only as a matter of convenience and in no way define, limit or describe the scope or intent of the clauses of this Easement nor in any way affect this Easement;
3. references to any party include that party’s executors, administrators, and assigns, or being a company, its successors and assigns;
4. all covenants on the part of the Grantor shall be deemed to be covenants by each of the registered proprietors included in the term “Grantor” and shall jointly and severally bind each of the registered proprietors and their respective executors, administrators, successors and assigns.

2. Grant of Rights, Powers and Privileges

2.1 The Grantee (to the exclusion of the Grantor and any other party) shall have the full free uninterrupted and unrestricted right liberty and licence at all times hereafter:

1. to take and convey sewage in a free and unimpeded flow (except during any periods of necessary cleaning and repairing) through the Easement Facility and over the Stipulated Area;
2. to lay, make, construct, maintain, alter or repair the Easement Facility as the Grantee shall from time to time think fit.

2.2 The Easement Facility referred to in 2.1(a) and (b) is the Easement Facility laid or to be laid along the Stipulated Area marked “X” on SO 496885.

2.3 No power is implied in respect of any easement for the Grantor to determine the easement for breach of any provision of this Easement (whether express or implied) or for any other cause, it being the intention of the parties that the easement shall subsist until it is surrendered in writing.

3. Grantee’s Rights

3.1 For the purpose of performing any duty or in the exercise of any rights implied in this Easement the Grantee may:

1. enter upon the servient land by either the Council-owned adjoining property to the east of the servient land or by the most practicable route from the nearest public street across any part of the servient land;
2. remain on the servient land for a reasonable time for the purposes of completing any work;
3. bring on to the servient land such materials, tools, equipment, machinery, vehicles or other things as may be necessary for the purposes of completing the necessary work;
4. leave any vehicle or equipment on the servient land for a reasonable time if work is proceeding;
5. sink and make trenches and shafts on the Stipulated Area;
6. excavate any clay, gravel, shingle, stones, and earth from the Stipulated Area;
7. inspect, maintain, cleanse, repair, extend, remove, enlarge or replace the Easement Facility;
8. install gates in the Grantor's fence line where the fence line crosses the Stipulated Area; and
9. generally do and perform such acts and things in or upon the Stipulated Area as may be necessary or proper for or in relation to any of the purposes of this easement.

4. Grantor’s Obligations

4.1 The Grantor will not:

1. build over or erect any other improvements upon, plant trees upon or permit any tree roots to enter within the Stipulated Area from trees planted on the servient land;
2. permit any Utilities to be located within the Stipulated Area unless the siting and installation of such Utilities is expressly consented to in writing by the Grantee, such consent to be at the sole discretion of the Grantee;
3. do or permit or suffer to be done anything which may in any way injure or damage the Easement Facility or interfere with the free flow and passage of any matter through the Easement Facility. If the Grantor is in breach of this obligation the Grantor shall promptly at the Grantor’s expense properly and substantially repair and make good all such injury or damage and restore such free flow and passage. If the Grantor fails to promptly comply with this obligation then the Grantee may perform the obligation and recover any costs incurred from the Grantor.

5. Grantee’s Obligations

5.1 The Grantee shall at its own cost:

1. install, maintain and cleanse the Easement Facility so that it is not or does not become a nuisance or annoyance to the Grantor;
2. ensure that the Easement Facility is as visually unobtrusive as possible, and that the pipe forming part of the Easement Facility is buried underground with a minimum cover of 600mm to the surface;
3. remove and carry away all surplus clay, gravel, shingle, stones and earth which may be excavated from the Stipulated Area or dispose of such material on the servient land with the agreement of the Grantor;
4. upon the Grantee disturbing the surface of the Stipulated Area for any reason, without delay restore the same as nearly as possible to its original condition, (using grass seed that is approved by the Grantor in accordance with the Grantor’s organic farming requirements);
5. repair and make good any damage which may be done to any fence building or improvement, or to any part of the Grantor’s land, in the exercise by the Grantee of any of the rights granted by this Easement but the Grantee shall not be responsible for the cost of removing or damaging any fence building improvements or trees upon, or any tree roots growing within, the Stipulated Area as prohibited under clause 4.1(a).

5.2 The Grantee shall not:

1. allow any spillage from any part of the Easement Facility (including from air relief and drain appurtenances); or
2. spray or apply any chemicals or other matter (whether in the nature of herbicides, insecticides, pesticides, fertilisers or otherwise) on or to the servient land; or
3. plant any seeds or plants on the servient land (except where such planting is in accordance with any remediation obligations of the Grantee under this Easement); or
4. do any other thing which in any case is incompatible with either conventional farming practice or organic farming practice on the servient land or which breaches or is inconsistent with any statutes, regulations, ordinances, regulatory requirements or any directions or standards or other requirements applicable to the farming and/or organic farming of the servient land or which allows the Grantor to keep any ‘organic’ appellation, status or privileges and the Grantor will (on request) advise of the standards applicable from time to time in that regard.

5.3 In exercising its rights of access, the Grantee shall:

1. cause as little disturbance as possible to the Grantor’s farming operations and the Grantee shall not disturb stock on the servient land; and
2. notify the Grantor (or a representative of the Grantor) prior to entering onto the servient land so as to give the Grantor an opportunity to then warn the Grantee, or take reasonable steps to avoid or minimise any hazards that might exist; and
3. ensure that it complies at all times with its obligations under the Health and Safety at Work Act 2015.

5.4 The Grantee shall promptly notify the Grantor of any event, action or development that interferes or may interfere with the Grantee’s farming or management of the servient land.

6. Easement Facility to be Property of Grantee

6.1 The Easement Facility and any other structures, plant or equipment erected or installed by the Grantee on the Stipulated Area shall be the property of the Grantee.

7. Limitation of Liability

7.1 Any right of action which shall at any time accrue to the Grantee by reason of breach or non-observance by the Grantor of any of the covenants contained in this Easement may be enforced by the Grantee only against:

1. the registered proprietor for the time being of that part of the Stipulated Area in respect of which such breach or non-observance shall occur; and
2. the registered proprietor at the time of such occurrence

to the intent that the liability of any registered proprietor of the Stipulated Area shall cease (except as to any breach or non-observance occurring during the period of ownership of that registered proprietor) upon registration of a transfer of ownership.

8. Default

8.1 If the Grantor or the Grantee does not meet the obligations implied or specified in any easement:

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 servient land;
3. the party in default is liable to pay the other party the cost of preparing and serving the default notice and the costs incurred in meeting the obligation; and
4. the other party may recover from the party in default, as a liquidated debt, any money payable under this clause.

9. Mediation

9.1 If any dispute arises between the parties relating to this Easement, it must, if either party invokes this provision, be referred in the first instance for mediation by a mediator to be agreed to by the parties, or who is (in default of agreement) appointed by the president for the time being of the Southland Branch of the New Zealand District Law Society. If the dispute is not then settled within fifteen business days of referral to a mediator or within any extended time that the parties agree to in writing then the parties will no longer be bound by this mediation provision. The costs of the mediation will be borne by the party invoking this provision.

10. General Provisions

10.1 Nothing contained or implied in this Easement shall be construed so as:

1. to compel the Grantee to exercise all or any of the rights granted by this Easement at any time and the Grantee may commence, discontinue or resume the exercise of all or any such rights at will; or
2. to abrogate, limit, restrict or abridge any of the rights, powers or remedies vested in the Grantee by statute.

10.2 Provisions applicable to the easement granted by this Easement:

1. The rights, powers and privileges conferred on the Grantee by this Easement are in substitution for the definition of “Easement Facility”, "Servient Land" and the rights and powers set out in clauses 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of Schedule 4 of the Land Transfer Regulations 2002 do not apply but the remaining provisions of the Land Transfer Regulations 2002 shall apply to this Easement;
2. For the avoidance of doubt, the Fifth Schedule of the Property Law Act 2007 does not apply; and
3. Where there is a conflict between the provisions of the Fourth Schedule of the Land Transfer Regulations 2002 that do apply and the provisions of this Easement, the provisions of this Easement will prevail.

Second Schedule

Southland Land District – Gore District

Description

Part Lot 1 DP 9694 shown marked “X” on SO 496885 (part Computer Freehold Register 46624).

Dated at Wellington this 18th day of December 2017.

K McPHAIL, For the Minister for Land Information.

(CPC/2005/10748)