Easement Acquired for the Te Tuawai Shared Pathway Project—London Street, Whanganui District
Pursuant to sections 20(1) and 28 of the Public Works Act 1981, and to a delegation from the Minister for Land Information, Janine Stocker, Land Information New Zealand, declares that, pursuant to an agreement to that effect having been entered into, the easement described in the Second Schedule to this notice is acquired over the land described in the First Schedule (“Land”) for public access as part of the Te Tuawai Shared Pathway Project upon the terms and conditions set out in the Third Schedule to this notice and shall vest in the Whanganui District Council (“Council”) as Grantee on the date of publication hereof in the New Zealand Gazette.
Part Lot 1 Deposited Plan 68054 (Part Record of Title WN36B/281)
A right of way easement in gross over that part of the Land marked A on DP 554813 (“Easement Land”)
The Grantee (including the public generally) shall have the full, free, uninterrupted, and unrestricted right, liberty, and privilege to go, pass, and repass over and along the Easement Land at any time on foot, or by bicycle or any other form of human powered transportation and any electric powered mobility vehicles used by disabled or infirm people.
In this Easement, unless the context requires otherwise:
Easement means the rights hereby granted.
Easement Facility means part of the pedestrian and cycle pathway (and any associated equipment, structure and fixtures) constructed on the Easement Land to facilitate access from London Street to the Whanganui Freight Branch Railway Line.
Easement Land means that part of the Burdened Land where the Easement Facility is located shown as marked A on DP 554813.
Grantee means the Whanganui District Council and includes its successors, agents, employees, contractors, tenants, licensees and invitees;
Grantor means the registered proprietor of the Burdened Land for the time being and includes its successors in title and its agents, employees, contractors, tenants, licensees and invitees;
Burdened Land means all of the land legally defined as Lot 1 Deposited Plan 68054 and contained in Computer Freehold Register WN36B/281 Wellington Land Registry.
1. The Grantor grants to the Grantee and the general public the right for the Grantee and the general public in common with the Grantor at all times, to go over and along the Easement Land at any time on foot or by bicycle or any other form of human powered transportation and includes the right to go over and along the Easement Land with or without any kind of:
1.1 pram, skateboard, bicycle, un-motorised scooter, wheelchair or disability/mobility vehicle; or
1.2 domestic animal.
2. The right to go over and along the Easement Facility does not include the right to go over and along the Easement Facility with any type of powered motor vehicle including but not limited to cars, trucks, vans, quadbikes and motorbikes.
3. The Grantee will have the full, free and unrestricted right, liberty and privilege at any time to:
3.1 establish, form, construct, repair, inspect, maintain, replace, renew, alter, substitute, upgrade, extend, modify and operate the Easement Facility (and any associated equipment, structure and fixtures) on the Easement Land; and
3.2 dig up and excavate the Easement Land for all or any of the purposes referred to above; and
3.3 enter with all required vehicles, machinery, plant, implements and equipment and remain upon the Burdened Land, subject to clause 4, for the purposes of:
3.3.1 establishing, forming, laying, installing (including constructing), maintaining, inspecting, repairing, renewing, altering, replacing, upgrading, substituting, modifying and extending the Easement Facility (including the right to excavate land for the purpose of that construction); and
3.3.2 carrying out in or under the Easement Land anything that the Grantee may consider necessary, convenient or desirable to do for the exercise by the Grantee of its rights under this Easement; and
3.3.3 removing any shrubs or trees and open up the soil of the Easement Land to such extent as may be necessary and reasonable for the laying, installing (including constructing), maintaining, inspecting, repairing, renewing, altering, replacing, upgrading, substituting, modifying and extending the Easement Facility; and
3.3.4 generally doing and performing such acts or things on the Burdened Land as may be necessary or desirable (or incidental thereto) to enable the Grantee to receive, enjoy and give effect to the full free use and enjoyment of the rights and powers granted under this Easement.
4. Access
4.1 The Grantee may, at all reasonable times, but with at least 2 days’ notice to the Grantor, enter the Burdened Land with or without its employees, contractors and agents and with or without vehicles, machinery and implements of any kind for purposes associated with the creation and exercise of its rights and powers under this Easement. In case of an emergency the Grantee may enter the Burdened Land without notice.
4.2 When accessing the Easement Land the Grantee must so far as is reasonably practical:
4.2.1 do as little damage as possible to the Burdened Land and any vegetation, fences or improvement on it;
4.2.2 cause as little disturbance as possible to the Grantor’s use and enjoyment of the Burdened Land;
4.2.3 reinstate the surface of the Burdened Land as soon as possible after the work has been completed, and resurface it if necessary with appropriate materials so as to restore it as nearly as possible to its former condition; and
4.2.4 repair any fences or other improvements on the Burdened Land damaged by the Grantee to reinstate them to their previous condition and replace any trees, shrubs and plants which have been destroyed or damaged.
5. Obligations of Grantee
5.1 The Grantee shall use reasonable endeavours to cause as little disturbance and disruption to the carrying on of the normal or reasonable operations of the Grantor or the lawful use of the Burdened Land by the Grantor or third parties although the Grantor accepts that this provision shall not prevent, restrict or hinder the Grantee from exercising its rights in a manner consistent with the terms and conditions set out under this Easement.
5.2 The Grantee shall construct the Easement Facility in a safe, proper, and workmanlike manner.
5.3 The Grantee shall:
5.3.1 at its cost be solely responsible for the structural maintenance of the Easement Facility, and keep it in good order and condition and prevent it from becoming a danger or nuisance;
5.3.2 at all times use reasonable care and skill when exercising the rights and powers set out in this easement;
5.3.3 at its cost be solely responsible for the operation and reasonable structural maintenance and structural repair of the Easement Facility; provided however that the Grantor must promptly carry out at its sole cost any structural repair or structural maintenance of the easement facility that is attributable solely to an act or omission of the Grantor.
5.3.4 repair, to the reasonable satisfaction of the Grantor, any damage to any part of the Burdened Land, directly caused by the Grantee;
5.3.5 complete all works required pursuant to this clause 5.3 with reasonable expediency.
6. Grantor’s Obligations
6.1 The Grantor shall:
6.1.1 not construct, place or erect or permit to be constructed, placed or erected any building or other structure on the Easement Land or do anything else which may reduce the soil and general stability of the Easement Land;
6.1.2 not without the written permission of the Grantee grant any similar rights in respect of the Easement Land, the intention being that the Grantee shall have sole and exclusive right to use the Easement Land;
6.1.3 not grow or permit to be grown any trees on the Easement Land or otherwise encroaching on the Easement Land;
6.1.4 not to do or allow to be done on the Easement Land anything that may interfere with or restrict the rights of the Grantee or interfere with the efficient operation of the Easement Facility;
6.1.5 promptly give notice to the Grantee upon becoming aware of discontinuance of operation of the Easement Facility or of any matter potentially relevant to required maintenance or repair of the Easement Facility.
7. General
7.1 The Grantor or the Grantee will have the reasonable right to restrict access to the Easement Land with not less than 48 hours’ public notice, except that in an emergency situation the Grantor or Grantee may restrict access to the Easement Land immediately and must notify the other party of that restriction as soon as possible in the circumstances.
8. Dispute
8.1 Where there is any dispute or default in relation to the terms of this Easement, then the appropriate dispute or default provisions of the Land Transfer Regulations 2018, or any Regulations issued in substitution, shall apply.
9. Governing Law
9.1 This Easement is governed by, and shall be construed in accordance with, the laws of New Zealand.
10. Severability
10.1 If any part of this Easement is held by any court or administrative body of competent jurisdiction to be illegal, void or unenforceable, such determination shall not impair the enforceability of the remaining parts of this Easement.
Dated at Wellington this 11th day of March 2021.
J. STOCKER, for the Minister for Land Information.
(LINZ CPC/2005/10911)