Pursuant to sections 20(1) and 28 of the Public Works Act 1981, and to a delegation from the Minister for Land Information, Sanket Palshikar, Land Information New Zealand, declares that, pursuant to an agreement to that effect having been entered into, the easement in gross described in the First Schedule to this notice is acquired over the land described in the Second Schedule to this notice, for functioning indirectly of a road, upon the terms and conditions set out in the Third Schedule to this notice and shall vest in the Crown, on the date of publication of this notice in the New Zealand Gazette.
Marlborough Land District—Kaikoura District
Easement to be Acquired
A right of way easement in gross for functioning indirectly of a Road over that part of the burdened land marked “A” on SO 559100.
The Grantor’s Land
Part Mangamaunu Section 3E of 2 Block comprised in Record of Title MB26/72 (the burdened land).
Easement Rights and Powers and Covenants
Unless the context requires otherwise:
“emergency” means a situation in which there is a probably danger to life or property or immediate risk to life or property;
“repair” will include, if necessary, replace;
“working day” shall have the same meaning as set out in Section 2 of the Public Works Act 1981.
2. Grantor Covenants
2.1 Except as provided for in clause 4.2, the Grantor will not be required to contribute to the cost of works for the construction, maintenance, upkeep and repair of the easement facility.
2.2 The grantor will not, at any time after the date of this instrument, do any act, matter or thing which will interfere with the rights granted by the 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 the easement are interfered with.
3. General Rights/Rights of Entry
3.1 The grantee may, for the purpose of exercising any right or power, or performing any duty under this easement:
3.1.1 enter upon and re-enter on the easement area by a reasonable route with all necessary tools, vehicles, machinery and equipment; and
3.1.2 remain on the easement area for a reasonable time for the sole purposes of completing the necessary work; and
3.1.3 leave any vehicles, machinery or equipment on the easement area for a reasonable time if work is proceeding; and
3.1.4 bring on to the easement area such tools, equipment, machinery, vehicles, soil and other aggregates as are reasonably necessary.
3.2 The grantee will use reasonable efforts to give the grantor prior notice that the grantee intends to enter upon the burdened land (except in the case of an Emergency, when notice will not be required).
3.3 The grantor shall not at any time restrict or impede access to the easement area 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 burdened land and the easement area.
3.4 No power is implied in respect of the easement for the grantor to determine the easement for breach of any provision in this easement instrument (whether express or implied) or for any other cause, it being the intention of the parties that the easement shall subsist for all time unless surrendered.
4. Maintenance and Repair
4.1 The grantee will be responsible for the repair and maintenance of the easement facility so as to keep it in good order and prevent it from becoming a danger or nuisance.
4.2 Notwithstanding clause 2.1, the grantor will be responsible for and must promptly carry out, at the grantor’s sole cost, any repair or maintenance of the easement facility that is attributable solely to any act or omission of the grantor.
4.3 If repair or maintenance of the easement facility is only partly attributable to an act or omission of the grantor, the grantor must pay the portion of the costs of the repair or maintenance that is attributable to that act or omission.
5. Grantee’s Obligations
5.1 In exercising its rights pursuant to this easement:
5.1.1 the grantee will use all reasonable endeavours to cause as little damage or disturbance as is reasonably practicable to the burdened land and to the grantor’s activities on the burdened land; and
5.1.2 the grantee will ensure that all work is performed in a proper and workmanlike manner and is completed as promptly as is reasonably practicable; and
5.1.3 if any damage is caused to any of the grantor’s improvements on the burdened land by the grantee accessing and utilising and utilising the burdened land pursuant to this easement, the grantee shall promptly make good any damage at its cost; and
5.1.4 the grantee will adhere to any reasonable request of the grantor to minimise disturbance to the grantor, providing that the grantee’s rights pursuant to this easement are not unduly restricted or prevented.
5.2 The grantee will at the grantee’s own cost repair any damage to the burdened land (including any damage to any fence or other improvement) caused by the grantee in exercising the grantee’s rights and powers under this easement.
6. Grantor’s Obligations
6.1 The grantor covenants with the grantee that the grantor will not at any time:
6.1.1 do or permit to be done anything on the burdened land that may interfere with or restrict the rights of the grantee in exercising its rights under this easement or interfere with the efficient operation of the easement facility; and
6.1.2 do or permit to be done anything on the burdened land which may damage, obstruct, or compromise the integrity of the easement facility; and
6.1.3 erect or permit to be erected any structures or other improvements on the easement area; and
6.1.4 grow or permit to be grown any trees on the easement area.
7. Emergency and Personal Safety
7.1 The grantee may take such measures as the grantee reasonably thinks necessary for the safety of persons or property on or about the easement facility including the right to erect signs and notices warning of any danger.
7.2 The grantee may exclude entry by any persons onto the easement area as the grantee reasonably thinks necessary for the safety of persons or property on or about the easement facility.
8.1 If the grantor or the grantee does not meet the obligations implied or specified in any easement:
8.1.1 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 10 working days from service of the notice of default, the other party may meet the obligation; and
8.1.2 if, at the expiry of the 10-working-day period, the party in default has not met the obligation, the other party may—
- meet the obligation; and
- for that purpose, enter the burdened land; and
8.1.3 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 meeting the obligation; and
8.1.4 the other party may recover from the party in default, as a liquidated debt, any money payable under this clause.
9.1 If any dispute difference arises in any way out of or in connection with the easements 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:
9.1.1 The arbitrator is to be jointly agreed upon by the parties;
9.1.2 If the parties fail to agree on an arbitrator within ten (10) working days of the issue of being submitted to them any party may require the President of the branch of the Law Society for the area in which the easement is located to nominate an arbitrator and that nomination will bind the parties;
9.1.3 The reference is to arbitration under the Arbitration Act 1996;
9.1.4 The arbitration decision is final and binding on and may include:
- An order for costs.
- An order for enforcement.
- Interest on monies payable.
10.1 In the event of conflict between the Implied Statutory Rights in and the express terms of this Easement, the express terms must prevail.
Dated at Wellington this 15th day of June 2021.
SANKET PALSHIKAR, for the Minister for Land Information.