Pursuant to sections 20 and 28 of the Public Works Act 1981, and to a delegation from the Minister for Land Information, Jonathan Wright, Land Information New Zealand, declares that, an agreement to that effect having been entered into, an right of support, right of access, maintenance, repair and renewal easement in gross in favour of the Auckland Council over the land described in the First Schedule to this notice is hereby acquired by the Auckland Council on the terms and conditions set out in Second Schedule to this notice on the date of publication hereof in the New Zealand Gazette.

North Auckland Land District—Auckland

First Schedule

Easement in Gross Acquired

Second Schedule

Terms of the Easement Acquired

Unless otherwise provided below, the rights and powers implied in specified classes of easements are those prescribed in the Land Transfer Regulations 2002 and/or Schedule Five of the Property Law Act 2007 shall apply. The implied rights and powers are hereby substituted by:

1. Definitions

1.1 In this instrument, unless the context indicates otherwise:

Auckland Transport means Auckland Transport established under section 38 of the Local Government Act (Auckland Council) Act 2009;

Burdened Land means the land owned by the Grantor described as Section 4 SO 472096 (Record of Title 681803);

Easement Area means the areas marked “A” and “B” on SO 543763;

Grantee means Auckland Council established under section 6 of the Local Government (Auckland Council) Act 2009 and its successors and includes the agents, employees, contractors, licensees and invitees of the Grantee, and for the purposes of this instrument includes Auckland Transport;

Grantor means the registered owner for the time being of the Burdened Land to which this easement is subject and includes the agents, employees, contractors, tenants, licensees and invitees of the Grantor, and includes the Grantor’s successors in title as registered owners of the Burdened Land;

Headwall and Wingwall means the in-ground or above-ground reinforced concrete and/or steel structure, including all associated structural and drainage components which, in accordance with the engineering design and structural specification, are required to support the drainage culvert;

Road means that part of Murphys Road, Flat Bush, being legal road vested in the Grantee under section 316 of the Local Government Act 1974, adjacent to the Burdened Land, comprising the paving, basecourse, and all other materials of which the road is composed, and includes all services laid or installed within the road, such as telecommunications, electricity, gas, water or wastewater lines and works, and all things incorporated into or associated with that road, as may be modified, renewed or reconstructed from time to time;

Road Works means the construction and/or upgrade of the Road that Auckland Transport intends to undertake, including all associated earthworks, infrastructure and other related works.

2. Right of Support

2.1 The Grantor grants to the Grantee the right for the Grantee and the Grantee’s licensees and invitees the right of support for the Headwall and Wingwall by means of the Support Area for all purposes connected with use and enjoyment of the Road as a public road.

3. Right of Entry for Inspection and Maintenance

3.1 The Grantee has installed the Headwall and Wingwall and is responsible, at its own cost in all things, for repairing, maintaining and, if necessary, renewing the Headwall and Wingwall so as to keep them in good order, repair and condition (unless the maintenance or repair is required as a result of the act, omission or negligence of the Grantor, in which case the Grantor will bear the cost of such work) and to ensure that the Headwall and Wingwall continue to provide full support for the Road according to the original design and specifications. This requires that no part of the development on the parts of the Burdened Land that adjoins the Road may take or reply upon any lateral or other support from the Road, other than such support as is provided by the Road in its natural state.

3.2 The Grantee may on reasonable notice, being at least two working days except in an emergency, enter onto the Easement Area to:

1. carry out such inspections of the Headwall and Wingwall as it considers appropriate from time to time, including carrying out such tests of the Headwall and Wingwall and associated subsoil drainage outlets, as it considers necessary; and
2. carry out such work as it considers necessary in its sole discretion to repair, maintain and renew the Headwall and Wingwall.

3.3 For the purpose of performing any duty of the Grantee or in the exercise of any rights conferred on the Grantee under this instrument, the Grantee may:

1. enter upon the Burdened Land by a reasonable route and with all necessary tools, vehicles and equipment;
2. remain on the Easement Area for a reasonable time for the sole purpose of carrying out any inspection or completing the necessary work; and
3. leave any vehicles or equipment on the Easement Area for a reasonable time if the inspection or work is proceeding.

3.4 Where the Grantee carries out any work under this clause 2, the Grantee must ensure that:

1. all work is performed in a proper and workmanlike manner and is completed promptly;
2. as little damage or disturbance as possible is cause to the Burdened Land or to the Grantor; and
3. any damage done to the Burdened Land must be immediately made good as nearly as possible to is former condition.

4. Temporary Right to carry out Geotechnical Assessment

4.1 The Grantor grants to the Grantee for a period of two years following completion of the Road Works:

1. the right to install and operate geotechnical instrumentation within the Burdened Land; and
2. the right to enter onto the Burdened Land for the purpose of:
   1. obtaining readings from such instruments and/or replacing or maintaining the instruments; and
   2. identifying or assessing any signs of soil instability that may affect the Road;

      on no less than 48 hours’ prior notice to the Grantor.

5. General

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 the Grantee in relation to this easement.

5.2 Auckland Transport has full management and control of the Auckland transport system, including roads, under sections 41, 45 and 46 of the Local Government (Auckland Council) Act 2009. The rights in favour of the Grantee in this instrument are intended to be for the benefit of, and enforceable by, Auckland Transport for the purposes of Part 2 Subpart 1 of the Contract and Commercial Law Act 2017.

6. Term

6.1 The term of this easement commences on the date of registration of this instrument and continues in perpetuity until surrendered by the Grantee.

6.2 There is no implied power in this easement for the Grantor to terminate the easement due to the Grantee breaching any term of the easement or for any other reason, it being the intention of the parties that the easement will continue in perpetuity until surrendered by the Grantee.

7. Default

7.1 If the Grantor or the Grantee does not meet the obligations implied or specified in 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 five working days from service of the notice of default, the other party may perform the obligation.
2. If after the expiry of five working days from service of the notice of default, the party in default has not met the obligation, the other party may:
   1. perform the obligation; and
   2. for that purpose, enter onto the Burdened Land or Road as the case may be, subject to the conditions as to entry in this instrument.
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 performing the obligation; and
4. the other party may recover from the party in default, as a liquidated debt, any money payable under this clause.

8. Disputes

8.1 If a dispute in relation to the easement arises between the Grantor and the Grantee:

1. the party initiating the dispute must provide full written particulars of the dispute to the other party;
2. the parties must promptly meet and in good faith try to resolve the dispute using informal dispute resolution techniques, which may include negotiation, mediation, independent expert appraisal, or any other dispute resolution technique that may be agreed by the parties; and
3. if the dispute is not resolved within 10 working days of the written particulars being given (or any longer period agreed by the parties):
   1. the dispute must be referred to arbitration in accordance with the Arbitration Act 1996; and
   2. the arbitration must be conducted by a single arbitrator to be agreed on by the parties or, failing agreement, to be appointed by the President of the New Zealand Law Society.

Dated at Wellington this 6th day of March 2020.

J. WRIGHT, for the Minister for Land Information.

(LINZ CPC/2005/10974)