Pursuant to the Public Works Act 1981, and to a delegation from the Minister for Land Information, Zak Sun, Land Information New Zealand,

1. Pursuant to sections 116 and 52, declares the road described in the First Schedule to this notice to be stopped and set apart for the functioning indirectly of a road (segregation strip) and remain vested in the Crown;
2. Pursuant to section 48, declares that the easement in gross described in the Second Schedule to this notice is granted in favour of Powerco Limited on the terms and conditions set out in the Third Schedule to this notice, excepting the right of revocation without compensation on three months’ notice in writing; and
3. Pursuant to section 48, declares that the easement described in the Fourth Schedule to this notice is granted on the terms and conditions set out in the Fifth Schedule to this notice, excepting the right of revocation without compensation on three months’ notice in writing,

on the date of publication hereof in the New Zealand Gazette.

South Auckland Land District—South Waikato District

First Schedule

Road to be Stopped and Set Apart for the Functioning Indirectly of a Road (Segregation Strip)

Second Schedule

Easement in Gross Granted

Third Schedule

Conditions of Right to Convey Electricity Easement

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 Fifth Schedule of the Property Law Act 2007.

The implied rights and powers are varied by the provisions set out below:

1. This easement is in addition to and not in substitution or limitation for any statutory rights and authorities which the Grantee may have at any time in respect of the Servient Tenement. The rights and powers in this easement are in addition to those rights and powers contained in Schedule 4 to the Land Transfer Regulations 2002 (“Fourth Schedule”) and where the terms of this easement are in conflict with the Fourth Schedule the terms of this easement shall prevail.

2. Grant of Easement

2.1 In addition to the above rights and powers the Grantor grants to the Grantee as an easement in gross the following rights and powers at all times and in any quantity:

1. to lay, install (including construct), locate, operate, upgrade, add to, inspect, maintain, replace, repair, renew, enlarge, alter, retain, remove, and use Lines and Works on, in, over and under the soil of the Easement Land;
2. to enter with all necessary equipment and remain upon the Servient Tenement for the purposes of laying, installing (including constructing), locating, inspecting, maintaining, replacing, repairing, renewing, enlarging, altering, retaining or removing Lines or Works and opening up the soil of the Easement Land and make any accessways, cuttings, fillings, grades, batters and/or trenches and to re-open the same and generally to do and perform such acts or things upon the Servient Tenement as may be necessary or desirable (or incidental thereto) to enable the Grantee to receive, enjoy and give effect to the full free use and enjoyment of the rights and powers granted under this easement; and
3. to use and operate Lines and Works for the purpose of conveying electricity, data and/or communications, in each case without interruption or impediment;

provided however that nothing shall compel the Grantee to exercise the above rights at any time or in a particular way.

3. Grantee’s Covenants

3.1 The Grantee shall be responsible for:

1. the installation of and maintenance of the Lines and Works located on the Easement Land;
2. using its best endeavors to prevent the Lines and Works located on the Easement Land becoming a danger to any user or occupier of the Servient Tenement;
3. using its commercially reasonable efforts to prevent the Lines and Works located on the Easement Land becoming a nuisance to any user or occupier of the Servient Tenement and, if such nuisance arises, using its commercially reasonable efforts to remove or mitigate that nuisance; and
4. compliance with its obligations under the Health and Safety at Work Act 2015 and at common law generally.

3.2 The Grantee will at the Grantee’s own cost repair any damage to the Servient Tenement (including any damage to any fence or other improvement) caused by the Grantee in exercising the Grantee’s rights and powers under this easement as reasonably close as possible to the original condition of the Servient Tenement prior to such damage.

4. Access

4.1 The Grantee may, at any time enter upon the Servient Tenement using such routes as prescribed by the Grantor (acting reasonably) from time to time, and whether with or without vehicles, machinery and implements of any kind for purposes associated with the creation and exercise of the Grantee’s rights and powers under this easement. The Grantee shall use reasonable efforts to give the Grantor prior notice that the Grantee intends to enter upon the Servient Tenement (except in the case of an emergency, when notice will not be required). Without limitation to the preceding provisions, the Grantor shall not at any time restrict or impede access to the Easement Land (including by way of subdivision of the Land) by the Grantee and, upon request by the Grantee, will provide the Grantee with all necessary keys and / or access cards required from time to time to gain access to the Servient Tenement and the Easement Land.

4.2 The Grantee will, in having access to the Servient Tenement under clause 4.1, comply with all reasonable requirements or conditions previously notified to the Grantee by the Grantor.

5. Grantor’s Covenants

5.1 If the Grantor is a ‘person conducting a business or undertaking’ as defined under the Health and Safety at Work Act 2015, the Grantor shall:

1. comply with its obligations under that act and at common law generally at all times; and
2. use all reasonable endeavours to ensure that any tenant, licensee, invitee or agent of the Grantor complies with all health and safety signs, notices, policies and instructions issued or displayed by the Grantee on the Servient Tenement.

5.2 The Grantor will not without the written permission of the Grantee:

3. grow or permit to be grown any natural or cultivated vegetation (excluding pasture) on the Easement Land or in the near vicinity of the Easement Land or otherwise encroaching upon the Easement Land; or
4. erect or permit to be erected any improvement (including but not limited to buildings, sheds, fences, roads, walls or driveways) on the Easement Land; or
5. disturb or permit to be disturbed the soil below a depth of 300mm from the surface of the Easement Land; or
6. do anything on the Servient Tenement that may damage or endanger the Lines or Works including anything that would in any way reduce the clearance of the Lines or Works to less than the minimum clearance required from time to time by any applicable statutory regulation, code of practice or other authority; or
7. do any act which will interfere with the rights granted by this easement and will not at any time do, permit or suffer any act whereby the full and free use and enjoyment by the Grantee of the rights and privileges granted by this easement are interfered with. The Grantee may at all times at the Grantor’s cost remove any natural or cultivated vegetation or improvement on the Servient Tenement which may interfere with the rights granted by this easement.

6. Damage To Lines Or Works

6.1 Notwithstanding the provisions of the Fourth Schedule that deal with maintenance and payment of maintenance costs, if any maintenance, repair or replacement of the Lines or the Works or part of the Lines or the Works, is necessary because of any act or omission, neglect or fault of the Grantor (including any tenant, licensee, employee, invitee or agent of the Grantor) then the Grantor shall be responsible for the whole cost of any such maintenance, repair or replacement in the proportion to which the Grantor’s default, act, omission, neglect or fault caused the damage.

6.2 For the avoidance of any doubt, the Grantor will not at any time claim (and waives entitlement to (if any)) compensation from the Grantee under section 57 and/or 58 of the Electricity Act 1992 or under any other provisions of any statute or regulation whatsoever, in relation to the exercise by the Grantee of its rights under this easement.

7. Removal

7.1 The Lines and Works are and shall remain the sole property of the Grantee and the Grantee shall not be required to remove the Lines and/or Works at any time. No person shall have any interest in such Lines and Works by reason only of having an interest or estate in the Servient Tenement.

7.2 No power is implied for the Grantor to determine this easement for any breach of covenant or for any other cause whatsoever. The parties intend this easement to subsist forever or until it is duly surrendered or extinguished at the election of the Grantee.

7.3 The parties acknowledge that the Grantor has granted this easement pursuant to section 48 of the Public Works Act 1981. The parties agree that the Grantor’s right of revocation on three month’s notice without compensation, as contained within section 48 of the Public Works Act 1981 is specifically excluded.

8. Disputes

8.1 If there is any dispute between the parties in connection with this easement (including any dispute as to the validity, breach or termination of this easement or as to any claim in tort, in equity or pursuant to any statute), either party may by written notice to the other party (“Mediation Notice”) request that the dispute be submitted for mediation. The party receiving the Mediation Notice must respond within five Working Days to the Mediation Notice either confirming or refusing to undergo mediation.

8.2 If the parties agree to undergo mediation under clause 8.1, the mediation is to be conducted as follows:

1. The mediator will be agreed by the parties. The mediator will be appropriately qualified in mediating disputes (and shall be at least an associate member of the Arbitrators & Mediators Institute of New Zealand (AMINZ) or equivalent organisation). If the parties cannot so agree within three Working Days of the agreement to the referral to mediation, then either party may request the President for the time being of AMINZ (or his or her nominee) to appoint a mediator.
2. Unless the parties agree otherwise, the mediation will be conducted in terms of the Standard Mediation Agreement promulgated by LEADR New Zealand Incorporated at the time the dispute is referred to mediation. If no Standard Mediation Agreement is promulgated by that organisation at the time of the dispute, the mediation will be conducted in a manner determined by the mediator except that:
   1. the mediation will be conducted on a without prejudice basis;
   2. any party may terminate its involvement in the mediation at any time but only after consultation with the mediator;
   3. any information disclosed during the mediation process will not be disclosed to any person not present at the mediation unless required for the purposes of obtaining professional advice or otherwise by law; and
   4. the costs of the mediation will be borne equally by the parties.

8.3 For the avoidance of any doubt, nothing in this clause 8 precludes a party at any time from:

1. commencing proceedings before any New Zealand Court in respect of any dispute which is the subject of this clause, including for the purpose of seeking interim relief against any other party or person;
2. agreeing with the other party to submit to binding arbitration.

9. Further Assurances

Each party shall make all applications, including execute and deliver any documents, and do all acts and things, as may reasonably be required by the other party to obtain the full benefit of this easement according to its true intent.

10. Indemnity

The Grantee agrees to indemnify the Grantor for all liabilities and direct damage or losses which the Grantor may incur as a result of:

1. negligence by the Grantee in respect of the existence or operation of any Lines or Works installed (including constructed) or used by the Grantee on the Easement Land; or
2. or any breach of this easement by the Grantee,

except to the extent that any such liabilities and direct damage or losses result from the negligence of, or breach of this easement by, the Grantor and/or any occupier of the Easement Land.

11. Electricity Act 1992

Without limitation to the generality of the provisions contained in clause 1 above, the terms contained in this easement shall be without prejudice to and do not derogate from the rights and powers of the Grantee under any contract for the supply of electricity or the Electricity Act 1992.

12. Definitions

12.1 In this easement

1. “conveying electricity data and/or communications” means the conveyance of electricity, data and/or communications solely associated with the conveyance of electricity and includes the generation, conversion and transformation of electricity.
2. “Easement Land” means that part of the Servient Tenement identified in the Second Schedule to this notice as Easement Land.
3. “Emergency” means a situation in which there is a probable danger to life or property or immediate risk to the continuity or safety of supply or distribution of electricity or telecommunications and computer media.
4. “Equipment” includes tools, machinery, cables, lines, wires, plant, excavators, mole ploughs, vehicles and all materials and items required for the purposes of exercising any of the rights under this easement.
5. “Lines” means one or more wire, cable or conductor of any other kind and equipment used or intended to be used for conveying electricity, data and/or communications and includes poles, towers, insulators, casings, fixtures (major or minor), fittings, tunnels or other thing used or intended to be used for generating, converting or transforming electricity and for supporting, enclosing, surrounding, or protecting any such wire, cable, conductor or equipment and also includes any part of a line (and also includes any “lines” as that term is defined under the Electricity Act 1992 and the Telecommunications Act 2001 as the case requires).
6. “Grantee” means Powerco Limited and includes all its subsidiaries (within the meaning of sections 5 and 6 of the Companies Act 1993) and its successors, assigns, personal representatives, employees, contractors, agents, invitees and licensees.
7. “Grantor” includes the successors in title, assigns, transferees and personal representatives of the Grantor.
8. “Servient Tenement” means all of the land described as the Servient Tenement in the Second Schedule to this notice.
9. “Working Day” means any day other than Saturday, Sunday and statutory holidays.
10. “Works” means every work or thing used, or designed or intended for use in or in connection with conveying electricity, data and/or communications and includes Lines (and also includes any “works” as that term is defined under the Electricity Act 1992 and the Telecommunications Act 2001 as the case requires).

12.2 A reference to any Statute or section of any Statute includes any enactment in amendment or substitution for such Statute or section.

12.3 Terms which are defined in the Land Transfer Regulations 2002 have the meaning set out in these definitions.

12.4 The headings in this easement are for convenience only and shall not affect the construction of the easement.

12.5 Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New Zealand for the purpose of hearing and determining any disputes or proceedings arising out of or in connection with this easement.

Fourth Schedule

Easement Granted

An easement of right to convey electricity over that part of Section 20 SO 512212 marked “B” on SO 512212 appurtenant to the land contained in Computer Freehold Registers 828987, 828989 and 828990.

Fifth Schedule

Terms 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.

The implied rights and powers are varied by the provisions set out below:

1. The rights and powers in this easement are in addition to those rights and powers contained in Schedule 4 to the Land Transfer Regulations 2002 and where the terms of this easement are in conflict with the Fourth Schedule the terms of this easement shall prevail.
2. The words “in common with the grantor and other persons to whom the grantor may grant similar rights” shall be deleted from clause 7(1) of the Fourth Schedule.

Dated at Wellington this 1st day of June 2018.

ZAK SUN, for the Minister for Land Information.

(LINZ CPC/2011/16220, CPC/2013/17224)