Pursuant to the Public Works Act 1981, and to a delegation from the Minister for Land Information, Trevor Knowles, Land Information New Zealand:
- Pursuant to section 20, declares that, agreements to that effect having been entered into, the land described in the First Schedule to this notice is acquired for soil conservation and river control purposes and shall vest in the Waikato Regional Council; and
- Pursuant to sections 20 and 28, declares that, agreements to that effect having been entered into, the easements in gross described in the Second Schedule to this notice are granted in favour of the Waikato Regional Council upon the terms and conditions set out in the Third Schedule to this notice
on the date of publication hereof in the New Zealand Gazette.
South Auckland Land District—Waikato District
Land to be Acquired for Soil Conservation and River Control Purposes
Part Lot 1 DPS 20225; shown as Section 1 SO 535258; subject to mining rights created by Transfer 94065 and Encumbrance 9665457.1 (Record of Title SA20B/374).
Part Lot 1 DPS 20225; shown as Section 2 SO 535258; subject to mining rights created by Transfer 94065 and Encumbrance 9665457.1 (Record of Title SA20B/374).
|0.0093||Part Lot 2 DPS 20225; shown as Section 3 SO 535258; subject to mining rights created by Transfer 94065 and Encumbrance 6219516.1 (Record of Title SA20B/375).|
Easement in Gross to be Acquired
Soil conservation and river control
Area A on SO 535258
Part Lot 1 DPS 10620; subject to mining rights created by Transfer 94065 and Encumbrance 9665457.1 (Record of Title SA6B/534).
Waikato Regional Council
Area B on SO 535258
Part Lot 1 DPS 20225; subject to mining rights created by Transfer 94065 and Encumbrance 9665457.1 (Record of Title SA20B/374).
Area C on SO 535258
Part Lot 3 DPS 20225; excluding minerals and subject to mining rights created by Transfer 94065 (Record of Title SA20B/376).
Area D on SO 535258
Part Lot 1 DPS 17976; excepting thereout all mines, beds, veins and seams of coal and minerals and fireclay lying or being within or under the said land as excepted by Transfers 38494 and 226830 and subject to mining rights created by Transfers 38494 and 226830 (Record of Title SA18B/679).
Terms and Conditions applicable to the Soil Conservation and River Control Easements in the Second Schedule
The Grantor and the Grantee have agreed to enter into this Easement (in gross) on the terms and conditions set out in this Schedule for the purposes of soil conservation and river control and to better enable the Grantee to comply with the obligations imposed on it as a Catchment Board under the Soil Conservation and Rivers Control Act 1941.
1.1 In this Schedule, the following terms have the following meanings:
- “Defence against water” has the meaning set out in the Soil Conservation and Rivers Control Act 1941.
- “Easement Area” means the land described in the Second Schedule to this notice.
- “Equipment” means all things used or intended to be used for the purposes of, or ancillary to, the Grantee performing its duties, rights or powers for the purposes of this Easement.
- “Grantee” means the Waikato Regional Council, and includes its successors, assigns and the agents, employees, contractors, surveyors, tenants, licensees, and other invitees of the Grantee.
- “Grantor” means the then current registered owner of the Burdened Land, and includes the agents, employees, contractors, tenants, licensees, and other invitees of the Grantor.
- “Burdened Land” means all of the land legally defined as Lot 1 DPS 10620, Lot 1 DPS 20225, Lot 3 DPS 20225 and Lot 1 DPS 17976 contained in Records of Title SA6B/534, SA20B/374, SA20B/376 and SA18B/679.
- “Watercourse” has the meaning set out in the Soil Conservation and Rivers Control Act 1941.
- “Works” means any works carried out by the Grantee which are deemed necessary for the Grantee to carry out its duties, rights or powers for the purposes of this Easement.
1.2 Where any definition refers to the Soil Conservation and Rivers Control Act 1941, the definition is to be applied in accordance with the Act as in place at the date of this instrument.
2.0 Grantee Right of Entry – Burdened Land
2.1 For the purpose of performing any duty or in the exercise of any rights or powers conferred under this Easement, and without limiting clause 6.3 of this Schedule, the Grantee may:
- Enter upon the Burdened Land and the Easement Area by a reasonable route and with all Equipment;
- Remain on the Burdened Land and the Easement Area for a reasonable time for the sole purpose of carrying out and completing the Works;
- Leave any Equipment on the Burdened Land for a reasonable time if Works are proceeding; and
- Construct any temporary shelter on the Easement Land for any workmen or other persons.
2.2 In exercising its rights as set in paragraph 1 above, the Grantee will use its best endeavours to ensure that:
- As little damage or disturbance as possible is caused to the Burdened Land or to the Grantor;
- All Works are performed in a proper and workmanlike manner;
- All Works are completed promptly; and
- Any damage caused to the Burdened Land is fixed by restoring the surface of the Burdened Land as near as possible to its condition prior to commencement of the Works.
2.3 The Equipment and any other property of the Grantee remains the sole property of the Grantee and will not for any reason become the property of the Grantor.
2.4 Subject to the Grantee’s rights under this Easement, the Grantee must compensate the Grantor for all damage caused by any negligent act or omission of the Grantee to any crop (whether ready for harvest or not), buildings, access races, culverts, water supplies, fences and any other improvement on the Burdened Land. Any compensation payable is for actual and direct losses incurred by the Grantor and is limited to $2,000,000 in any 12 month period. This clause specifically excludes any indirect or consequential loss, loss of profits, loss of goodwill, regulatory penalties, any loss arising out of any act of God or any other kind of loss that is not directly attributable to the Grantee.
3.0 Rights and Powers of the Grantee
3.1 In addition to the rights and powers contained in paragraph 0, the Grantee has the following rights/powers in respect of the Easement Area:
- To prohibit the Grantor or any third party from doing any act or thing which may be likely to facilitate or contribute to soil erosion or floods.
- To prohibit the Grantor from doing any activity on the Easement Area that will threaten the integrity of the Works or any Defence against water.
- To maintain, construct, or reconstruct any Defence against water on the Easement Area.
- To do all things necessary to maintain the Easement Area including (without limitation):
- To maintain, plant or remove any vegetation including grasses on the Easement Area;
- To require the Grantor to remove any Vegetation or weeds from the Easement Area.
- To fence (at the discretion and expense of the Grantee) the boundary of the Easement Area with any type of fence.
- To prevent or regulate the erection of any structure or fences on the Easement Area.
- To regulate and prescribe conditions on which water may be pumped, or otherwise conveyed under or through or across or over the Easement Area to or from any Watercourse to prevent damage or degradation to any Defence against water and/or any Watercourse.
- To prevent or regulate access to the Easement Area.
- To prevent or regulate the excavation of land on the Easement Area.
- To regulate the use of the Easement Area by the Grantor and to require the Grantor at all times to comply with the directions of the Grantee with respect to the use of the Easement Area so that the Easement Area shall be maintained and kept in such manner that ensures the integrity of the Easement Area and any Defence against water.
- To do all things the Grantee deems necessary to ensure that the Grantor complies with the Easement.
- To prohibit the feeding out by the Grantor on the Easement Area of hay, silage or any other feed for stock.
- To do all things necessary, or require the Grantor to do all things necessary, to prevent stock or other animals from accessing the Easement Area.
3.2 The Grantee may assign, transfer, lease or license all or any part of its rights under this instrument without needing to obtain the consent of the Grantor.
3.3 There is no power in this instrument for the Grantor to terminate any of the Grantee’s rights due to the Grantee breaching any term of this instrument or for any reason. It is the intention of the parties that the Easement will exist in perpetuity.
4.0 Responsibilities of the Grantee
4.1 The Grantee has the following responsibilities:
- To bear the cost of all Works, on the Easement Area, and any Defence against water.
- To bear the cost of any damage caused to the Burdened Land that is attributable to any negligent act or omission of the Grantee to a maximum of $2,000,000 in any 12 month period. This clause only applies to direct loss and specifically excludes any indirect or consequential loss, loss of profits, loss of goodwill, regulatory penalties, any loss arising out of any act of God or any other kind of loss that is not directly attributable to the Grantee.
- To comply at all times with relevant health and safety legislation.
- To maintain public liability insurance in relation to this Easement.
5.0 Responsibilities of the Grantor
5.1 The Grantor must not do and must not allow to be done on the Burdened Land anything that may interfere with or restrict the rights of or interfere with the efficient operation of the Easement Area. In particular, in respect to the Easement Area the Grantor must not, without obtaining the prior written consent of the Grantee:
- Construct any buildings;
- Install any permanent equipment, fitting or fixture;
- Stockpile, or permit the stockpiling of any soil, sand, gravel, fertiliser, supplementary feed, vegetative matter or any other substance;
- Light any fires or permit any other party to light any fire;
- Plant, establish, or allow to become established any vegetation (whether natural or cultivated), unless such planting forms part of a recognised and approved environmental programme which has been approved in writing by the Grantee. For the purposes of this clause, “vegetation” excludes any pasture cover;
- Damage or cause to be damaged in any way whatsoever the Easement Area or anything upon the Easement Area, including any Defence against water;
- Damage or cause or permit any other party to damage any fence erected by the Grantee along any boundary of the Easement Area or within the Easement Area.
- Crop, break up, cultivate, plough, excavate, remove, mine, impoverish or waste the soil or enter into a pasture improvement programme.
- Erect any additional fencing.
5.2 The Grantor must not grant or agree to any easement or other right over the Burdened Land or the Easement Area which could impact on the Grantee’s rights and powers under this Easement.
5.3 The Grantor must not subdivide the Burdened Land without the prior written consent of the Grantee.
5.4 The Grantor must notify the Grantee immediately if there are any defects or matters affecting the Easement Area, including to any Defence against water.
5.5 The Grantor must bear the cost of any damage caused to the Easement Area that is attributable to any act or omission of the Grantor.
5.6 The Grantor must provide a copy of this Easement to any tenant of the Grantor prior to that tenant occupying the Burdened Land.
5.7 The Grantor must obtain the consent of any mortgagee of the Burdened Land or any other party whose consent may be required to ensure registration of this easement.
6.0 Other Matters
6.1 The Grantee acknowledges that the Burdened Land is subject to the registered interests detailed in the Second Schedule to this notice:
6.2 The parties agree that any default or dispute in relation to the easements to be granted will be dealt with in accordance with the Fourth Schedule to the Land Transfer Regulations 2002. However, except as expressly provided, the rights and powers implied by the Fourth Schedule to the Land Transfer Regulations 2002 will not apply.
6.3 The rights recorded in this notice are not in substitution for and are without prejudice to any statutory rights and/or authorities the Grantee has from time to time in respect of the Land, in particular (but without limitation) the Grantee’s rights under the Soil Conservation and Rivers Control Act 1941
6.4 The Grantor waives any and all statutory rights of compensation from the Grantee in respect of the exercise by the Grantee of its rights under this Easement. This clause is without prejudice to the Grantee’s responsibilities under clauses 2.4 and 4.1(b) of this Easement.
6.5 The rule of construction known as the contra proferentem rule does not apply to this Easement.
6.6 Subject to clause 1.2, any reference to legislation or to any provision of any legislation referred to in this Easement includes any amending legislation, any modification or re-enactment, any legislative provision passed in substitution, and all regulations and statutory instruments issued under it.
Dated at Wellington this 14th day of August 2019.
T. KNOWLES, for the Minister for Land Information.