Easement in Gross Acquired for Sight Line and Visibility Purposes—State Highway 27, Tatuanui, Whakatane District
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, 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 sight line and visibility purposes, 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 hereof in the New Zealand Gazette.
An easement in gross for:
Variable Message Sign Easement over Area A on SO 561183
and
Line of Sight Easement over Area B on SO 561183 (“Easement Land”)
Part Lot 1 DP 10352 (part of Record of Title SA1460/41)
A. The Grantor is the registered owner of the Burdened Land and is adjacent to State Highway 27.
B. Pursuant to sections 61(1) and 80(1) of the Government Roading Powers Act 1989, the Grantee, together with its successors at law, has sole powers of control for all purposes of all State highways and motorways.
C. The Grantee wishes to construct and operate a VM Sign on the VMS Land and requires a Line of Sight Easement over the Sight Line Land to ensure that road users have an unobstructed view of the VM Sign. The Grantee has agreed to grant this easement for those purposes.
In this easement instrument, unless the context dictates otherwise:
1.1 Burdened Land means the land owned by the Grantor described as the Burdened Land;
1.2 Commencement Date means the date this Gazette notice is published;
1.3 Default Interest Rate means a rate 5% above Bank of New Zealand prime overdraft rate;
1.4 Easement Land is that part of the Burdened Land marked A and B on Survey Office plan 561183;
1.5 Easement Rights are the rights described in this Notice;
1.6 Grantee means Her Majesty The Queen (Waka Kotahi New Zealand Transport Agency);
1.7 Grantor means the registered owner of the Burdened Land, together with their successors, administrators and assigns;
1.8 Sight Line Land means that part of the Easement Land that is subject to the Line of Sight easement granted under this Easement Instrument and described as B on Survey Office plan 561183;
1.9 VMS Land means that part of the Easement Land that is subject to the variable message sign easement granted under this Easement Instrument and described as A on Survey Office plan 561183;
1.10 VM Sign means an electronic variable message sign to be constructed on the VMS Land to provide information to road users; and
1.11 Working Day has the meaning given to it in the Property Law Act 2007.
The Grantor grants to the Grantee the right for the Grantee and the Grantee’s tenants, agents, workmen, licensees and invitees:
2.1 To survey, lay, construct, operate, maintain, repair, renew, replace and upgrade a VM Sign, including a concrete access pad, associated roadside equipment cabinet, and timber post and rail fence on the VMS Land for the purpose of providing information to road users; and
2.2 To access and enter onto the Burdened Land for the purpose of constructing, operating, maintaining, repairing renewing, replacing, or upgrading the VM Sign on the VMS Land and to dig up the soil of the Burdened Land to the extent necessary and reasonable.
3.1 The Grantor grants to the Grantee a line of sight easement over the Sight Line Land to ensure an unobstructed view of the VM Sign is available from State Highway 27.
3.2 To give effect to clause 3.1 above, the Grantor must:
3.2.1 Not plant, or cause or allow to be planted any plants, trees or shrubs or other vegetation on the Sight Line Land that may grow to a height of more than one metre above the existing ground level;
3.2.2 Not erect or place any buildings, hoardings, signs or other erections or fences on the Sight Line Land at any time;
3.2.3 Not park, or allow any other person to park, vehicles of any kind, or any caravans, trailers or machinery on the Sight Line Land; and
3.2.4 Ensure the Sight Line Land is kept clear of any obstruction.
3.3 The Grantor may graze livestock on the Easement Land, excepting the VMS Land.
3.4 The Grantor must not do, and must not allow anything to be done, on the Sight Line Land that may interfere with or restrict the rights of the Grantee.
4.1 The Grantor acknowledges that it is solely the responsibility of the Grantee to maintain (or ensure that the electricity network provider maintains) the electricity network lines and associated equipment necessary to supply electricity to the VM Sign, in proper working order at all times, including undertaking reasonable preventative maintenance, to ensure that the electricity network lines and associated equipment do not fail.
4.2 The Grantor agrees to provide access to the Grantee and/or the electricity network provider supplying electricity to the VM Sign, its employees, contractors, subcontractors and invitees, onto the Burdened Land if it is required, for the purposes of carrying out such works required to fulfill the obligations stipulated in 4.1 above. To avoid doubt, the parties agree that such works may include, but not be limited to constructing, operating, maintaining, repairing, replacing or upgrading works necessary to supply or restore electricity to the VM Sign.
5. Grantee’s Rights and Obligations
5.1 The Grantee is entitled to have access to the Burdened Land and Easement Land at all reasonable times for the purposes of inspecting the Easement Land, exercising its rights under this easement instrument and to ensure the Grantee complies with its obligations under this notice;
5.2 Despite anything in clause 7, but subject to clauses 7.3, 7.4 and 7.5 (inclusive) the Grantee is entitled to enter onto the Burdened Land without notice for:
5.2.1 The removal or trimming of any of the items referred to in clause 3.2.1; or
5.2.2 Relocation of any of the items referred to in clauses 3.2.2 to 3.2.3 (inclusive) to adjoining parts of the Burdened Land.
5.3 For the purposes of clauses 2.2, 6.1 and 7.1 the Grantee:
5.3.1 May enter upon the Burdened Land by a reasonable route and with all necessary tools, vehicles and equipment; and
5.3.2 May remain on the Burdened Land for a reasonable time for the purpose of completing the necessary work; and
5.3.3 May leave any vehicles or equipment on the Burdened Land for a reasonable time if work is proceeding; and
5.3.4 Must:
5.3.4.1 Cause as little disturbance as reasonably possible to the surface of the Burdened Land and any property located on it, including livestock;
5.3.4.2 Restore the surface of the Burdened Land as nearly as possible to its original condition; and
5.3.4.3 Restore any other consequential damage.
5.4 The Grantee must ensure that all work carried out under this clause is performed in a proper and efficient manner and completed promptly.
5.5 The Grantee is not obliged to compensate the Grantor for any damage caused to any of the items referred to in clauses 3.2.1. to 3.2.3. (inclusive) that are removed or relocated by the Grantee under this clause.
6.1 No power is implied for the Grantor to terminate the Easement Rights for breach of any provision in this notice by the Grantee or for any other cause, it being the parties’ intention that the Easement Rights will continue forever unless surrendered.
6.2 Notwithstanding clause 8.1, if the Grantee decides to decommission the VM Sign, the Grantee may elect to surrender this easement by giving written notice to the Grantor. If the Grantee sends such a notice to the Grantor, the parties must do all things necessary to register a surrender of this easement.
6.3 If this easement is surrendered by the Grantee under clause 8.2, the Grantee must remove the VM Sign from the Easement Land and repair any damage and restore the surface of the Easement Land to a condition similar to that prior to the installation of the VM Sign, within a period of no less than 6 months from the date of surrender of this easement.
6.4 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.
6.5 The Easement Rights are in substitution to those rights set out in Schedule 4 of the Land Transfer Regulations 2018.
7. Default
7.1 If the Grantor or the Grantee do not meet the obligations implied or specified in this notice, 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 seven working days from service of the notice of default, the other party may meet the obligation.
7.2 If at the expiry of the seven Working Day period, the party in default has not met the obligation, the other party may:
7.2.1 Meet the obligation; and
7.2.2 For that purpose and reasonably required, enter onto the Burdened Land.
7.3 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.
7.4 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 this easement arises between the Grantee and the Grantor:
8.1.1 The party initiating the dispute must provide full written particulars of the dispute to the other party; and
8.1.2 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.
8.2 If the dispute is not resolved within fourteen Working Days of the written particulars being given (or any longer period agreed by the parties):
8.2.1 The dispute must be referred to arbitration in accordance with the Arbitration Act 1996; and
8.2.2 The arbitration must be conducted by a single arbitrator to be agreed upon by the parties or, failing agreement, to be appointed by the President of the New Zealand Law Society (or his or her nominee).
Dated at Lower Hutt this 27th day of October 2021.
JONATHAN WRIGHT, for the Minister for Land Information.
(LINZ CPC/2018/20563)