Pursuant to sections 20 and 28(1) of the Public Works Act 1981, and to a delegation from the Minister for Land Information, Zak Sun, Land Information New Zealand, and, pursuant to an agreement to that effect having been entered into, declares that the easement in gross described in the Second Schedule to this notice is acquired over the land of (a) Lee Forests Limited; (b) David Leigh Irvine and Peter William Sutherland; and (c) David Leigh Irvine and Peter William Sutherland (together called the “Grantor”) being the land described in the First Schedule to this notice for water augmentation and irrigation purposes upon the rights and powers described in the Third Schedule to this notice and shall vest in the Tasman District Council as Grantee on the date of publication hereof in the New Zealand Gazette.
Nelson Land District—Tasman District
The Grantor’s Land
- Section 3 Block XIV Waimea Survey District and Lot 2 DP 436034 (Record of Title 534538).
- Section 6 Block II Rintoul Survey District (Record of Title NL119/146).
- Section 5 Block II Rintoul Survey District (Record of Title NL39/32).
Easement to be Acquired
Right of way; and right to convey electricity, telecommunications and computer media easement in gross over those parts of the Grantor’s Land:
- Marked E on DP 350533 and A on DP 436034;
- Marked F on DP 350533;
- Marked G on DP 350533 and A on DP 454190
(together called the “Servient Land”).
Rights and Powers
Prescribed Rights and Powers
Unless otherwise provided below, the rights and powers implied in specific classes of easement are those prescribed by the Fourth Schedule of the Land Transfer Regulations 2002 (“Regulations”). The implied rights and powers are varied as set out in herein.
1 Definitions and Interpretation
1.1 In addition to the definitions contained in clause 1 of the Regulations unless the context otherwise requires:
“Easement Facility” in subclause (c) of the definition in clause 1 of the Regulations includes roads, tracks, bridges, culverts, drains and other structures providing access and egress on the land described as the stipulated area.
“the Project” means the Waimea Water Augmentation Scheme which involves construction of a dam structure called the Waimea Community Dam to impound up to 13 million cubic metres of water which will be released into the Lee River to augment river flows in order to satisfy instream needs and recharge the Waimea Plains groundwater system. The Project will also provide additional water for urban supply and irrigation purposes.
“working day” has the meaning ascribed to it under the Public Works Act 1981.
1.2 The provisions of clause 1 of the Regulations are modified by deleting the definition of grantee and adding:
“grantee” means the Tasman District Council, its servants, agents, contractors and sub-contractors engaged for the purposes of the Project.
2 Right of Way
2.1 In addition to clause 12(2) of the Regulations, the grantee shall, immediately after passing through any gates on the Servient Land, close such of them as were closed and lock such of them as were locked.
2.2 In addition to clause 12(2) of the Regulations, the grantee shall take all full and proper precautions for guarding against any danger (including, but without limitation, fire, physical damage or disease) on the Servient Land, or to any trees and forest produce on the Servient Land, and, in particular, shall (without limiting the grantee’s obligations pursuant to this clause 2.2):
2.2.1 comply strictly with all reasonable conditions including any Health and Safety Induction and Compliance requirements that may be imposed from time to time by any lawful authority;
2.2.2 not use or operate any vehicle or machinery unless it is provided with safe and sufficient means of preventing the escape of sparks or flames;
2.2.3 comply with any Construction Traffic Management Plan implemented under the Resource Consent conditions for the Project;
2.2.4 comply with any radio protocols agreed from time to time between the parties who have rights to use the Right of Way;
2.2.5 use the Easement Facility only for purposes associated with the Project and for water quality monitoring purposes.
2.2.6 take all reasonable steps to identify all hazards occurring from time to time on the Servient Land including hazards notified by the grantor and ensure that the grantee, its servants, agents, contractors and subcontractors using the Easement Facility are notified of such hazards and any measures required to be taken with respect to such hazards.
2.2.7 ensure that the grantee, its servants, agents and contractors using the Easement Facility have insurance cover of $10,000,000.00 (public liability) and $2,000,000.00 (fire) and have full commercial vehicle insurance for any vehicle.
2.3 In addition to clause 12(5) of the Regulations, the grantee shall, at its cost, repair any roads, tracks, fences, gates, drains, buildings, or other structures on the Servient Land that are damaged by the grantee, or by the exercise of the rights under these easement terms.
2.4 For the purposes of the Right of Way, Clause 11 of the Regulations is hereby deleted and substituted as follows:
“11(1) The cost of construction and upgrading of the Right of Way for the Project shall be borne by the grantee and thereafter the costs of maintenance, repair and renewal of the right of way shall be borne by the parties for the time being entitled to use, and actually using the same, in such shares and proportions as may be fair and reasonable having regard to the use and benefit of the easement facility derived by such parties provided however that if the easement facility shall reach such a state of disrepair or be damaged through abnormal use or wear by any of the parties entitled to use, and actually using, the same or any of their contractors, employees or invitees, then in such case the party or parties by whose action or by the action of whose contractors, employees or invitees , such damage or state of disrepair was occasioned shall be solely liable to restore and repair such damage.”
2.5 For the purpose of the Right of Way, clause 6(2)(b) of the Regulations is deleted.
3 Rights and Powers Implied in All Classes of Easements
3.1 The general rights set out in clause 10 of the Regulations are amended by inserting the following at the end of paragraph 10(1)(b):
“provided that all pipes, cables, wires, conduits or other parts of the easement facility relating to the easements to convey electricity, telecommunications and computer media (where appropriate) shall be installed underground at an appropriate depth beneath the surface of the land. The costs associated with laying, installing, and constructing the Easement Facility shall be borne solely by the grantee”.
3.2 The provisions of clause 11 of the Regulations (as it relates to easements other than the Right of Way easement) are modified by deleting paragraph 11(6) and inserting the following at the end of paragraph 11(5):
“provided that the owner of the Servient Land shall not be responsible for repair or maintenance of damage to the Easement Facility caused by logging activities on the Servient Land.”
4.1 The provisions of clause 14 of the Regulations are modified by deleting paragraphs 14(a) to (c) and inserting the following:
“If any dispute or difference arises in any way out of or in connection with the easement the parties agree to discuss the matter fully in the spirit of goodwill and co-operation with a view to reaching a resolution for the purposes of which either party may require the other to enter into mediation in the manner adopted by LEADR or an equivalent facility for alternative dispute resolution available in New Zealand. If the parties cannot resolve any such dispute or difference and such dispute cannot be resolved through mediation, either party may require the matter to be referred to arbitration on the following terms:
- the arbitrator is to be jointly agreed upon by the parties;
- if the parties fail to agree on an arbitrator within 7 working days of the issue being submitted to them any party may require the President of the Nelson District Law Society to nominate an arbitrator and that nomination will bind the parties;
- the reference is to arbitration under the Arbitration Act 1996;
- the arbitration decision is final and binding on and may include:
- An order for costs;
- An order for enforcement; or
- Interest on monies payable.”
5.1 In the event a conflict exists between the provisions of the Regulations and the modifications herein, the modifications shall prevail.
Dated at Wellington this 8th day of January 2019.
Z. SUN, for the Minister for Land Information.