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, an 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
Easement in Gross Acquired
|Parts Lot 93 DP 19099; shown marked “A” below Reduced Level 103.30 metres Auckland Vertical Datum 1946, “B” and “C” on SO 533017 (part Record of Title NA642/109).|
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 by substituted by:
1.1 In this instrument unless the context indicates otherwise:
Grantee means Auckland Council and where applicable includes its successors and its agents, employees, contractors, tenants, licensees and invitees;
Grantor means Blacker Investments Limited and where applicable includes its successors in title and its agents, employees, contractors, tenants, licensees and invitees;
Easement Area means that part of the Burdened Land shown as areas marked “A”, “B” and “C” on SO 533017;
Retaining Wall means the retaining wall, together with all associated structural components and facilities, situated on the boundary between the Road Land and the Burdened Land;
Road Land means the road(s) under the management and control of Auckland Transport;
Burdened Land means Lot 93 Deposited Plan 19099;
Soil Nails means the soil nails inserted into the subsoil of the Burdened Land and includes any related support mechanisms reasonably necessary to support the Retaining Wall.
2. Grant of Soil Nail Easement
2.1 The Grantor grants to the Grantee the right for the Grantee and the Grantee’s contractors, agents, workmen, licensees (in common with the Grantor, the Grantor’s tenants and any other persons lawfully entitled to do so) to install the Soil Nails on the Easement Area in order to stabilise and support the Retaining Wall.
2.2 If the Grantee causes any damage to the surface or subsoil of the Burdened Land or the Easement Area in exercising its rights under clause 2.1 above, it will restore the Burdened Land as nearly as practicable to its original condition; and restore any other consequential damage.
2.3 The Grantee will ensure that any work it performs is carried out in a proper and workmanlike manner and so as to cause as little disruption and inconvenience as practicable to the Grantor.
3. Grantor’s Obligations
3.1 The Grantor must not:
- do or permit to be done anything which will damage the Soil Nails or render them unstable or unsafe;
- interfere with or attempt to remove any Soil Nails;
- excavate to within 0.5m of the Soil Nails.
4. General Covenants
4.1 No power is implied for the Grantor to terminate the easement rights for breach of any provision in this instrument by the Grantee or for any other cause, it being the parties’ intention that the easement rights will continue forever unless surrendered.
4.2 The Grantor will not do anything which interferes with or restricts the rights of the Grantee or other authorised persons in relation to any easement rights.
5.1 The Grantee is responsible for maintaining the Soil Nails in the Easement Area so that they do not become a nuisance or a danger.
6.1 The term of the 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.
7.1 If the Grantor or the Grantee does not meet the obligations implied or specified in this instrument:
- 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 meet the obligation;
- if, at 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:
- perform the obligation; and
- for that purpose, enter the Burdened Land or the Road, as the case may be, subject to the conditions as to entry in this instrument;
- 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
- the other party may recover from the party in default, as a liquidated debt, any money payable under this clause.
8.1 If a dispute in relation to the Easement arises between the Grantor and the Grantee:
- the party initiating the dispute must provide full written particulars of the dispute to the other party;
- 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
- if the dispute is not resolved within 10 working days of the written particulars being given (or any longer period agreed by the parties):
- the dispute must be referred to arbitration in accordance with the Arbitration Act 1996; and
- 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 19th day of December 2019.
K. McPHAIL, for the Minister for Land Information.