The Rt Hon Dame CINDY KIRO, gnzm, qso,
Governor-General

A Proclamation

Pursuant to section 26 of the Public Works Act 1981, I, The Right Honourable Dame Cindy Kiro, Governor-General of New Zealand, hereby declare the land described in the First Schedule to be taken for stormwater purposes and vested in Tauranga City Council, subject to an easement over that part of the land described in the Second Schedule in favour of the land described in the Third Schedule on the terms and conditions described in the Fourth Schedule on the 14th day after the date of the publication of this Proclamation in the New Zealand Gazette.

South Auckland Land District—Tauranga City

First Schedule

Land Taken for Stormwater Purposes

Second Schedule

Easement Area

Third Schedule

Benefitting Land Under Easement

Fourth Schedule

Terms and Conditions of Easement in favour of Lot 6 DP 555262 and part Lot 2 DP 325790

1. In this easement, unless the context indicates otherwise:

Benefitted Land means 3.1780 hectares, 5.7300 hectares and 1.4604 hectares more or less respectively being Sections 1 and 3 on SO Plan 569028 (being part of Lot 2 DP 325790) and Lot 6 DP 555262 (Record of Title to be issued);

Burdened Land means 3.3750 hectares more or less being Section 2 on SO Plan 569028 being part of Lot 2 DP 325790 (Record of Title to be issued);

Easement Facility means:

1. for the right of way, a gravel accessway over the surface of the Stipulated Course sufficient to enable vehicular passage;
2. for the right to convey electricity and right to convey telecommunications, means wires, cables (containing wire or other media conducting materials), ducts, surface boxes, towers, poles, transformers, switching gear, other equipment suitable for that purpose (under the ground only), and anything in replacement or substitution;
3. for the right to convey water, means pipes, pumps, pump sheds, storage tanks, water purifying equipment, other equipment suitable for that purpose (under the ground only), and anything in replacement or substitution;
4. for the right to drain water and right to drain sewage, means pipes, conduits, open drains, pumps, tanks (with or without headwalls), manholes, valves, surface boxes, other equipment suitable for that purpose (under the ground only), and anything in replacement or substitution; and
5. for the right to convey gas, means pipes, conduits, valves, other equipment suitable for that purpose (under the ground only), and anything in replacement or substitution;

Grantee means the registered owner of the Benefitted Land and includes the agents, employees, contractors, tenants, licensees and invitees of the Grantee;

Grantor means the registered owner of the Burdened Land and includes the agents, employees, contractors, tenants, licensees and invitees of the Grantor; and

Stipulated Course means:

1. a right of way and a right to drain water and sewage over the area marked A on SO Plan 569028; and
2. a right to drain water and sewage and a right to convey electricity, water, telecommunications and gas over the areas marked F and B on SO Plan 569028.

Right of Way

2. The Grantee has the right, together with the Grantee’s tenants, agents, workmen, licensees and invitees (in common with the Grantor, the Grantor’s tenants and any other persons lawfully entitled to do so) at all times to pass and repass on foot or with vehicles and with or without every kind of domestic animal, machine, equipment and implement over and along the Easement Facility in the Stipulated Course.

3. The right of way will be upon and subject to those terms implied in Schedule 5 of the Land Transfer Regulations 2018 and the Fifth Schedule to the Property Law Act 2007 except as varied by this easement. In the event of any inconsistency, the rights set out in this easement instrument will prevail.

4. The Grantor will, at its own cost, install and construct the Easement Facility for the purpose of this right of way easement. This clause is in replacement of the general rights terms implied in clause 10 of Schedule 5 of the Land Transfer Regulations 2018.

Rights to convey electricity, telecommunications, gas and water and rights to drain water and sewage

5. The Grantee also has a right together with the Grantee's tenants, agents, workmen, licensees and invitees (in common with the Grantor and other persons to whom the Grantor may grant similar rights) at all times:

1. Right to Convey Electricity: to lead and convey electricity and electrical impulses without interruption or impediment from the point of entry;
2. Right to Convey Water: to take and convey water in free and unimpeded flow from the source of supply or point of entry;
3. Right to Drain Water: to convey and drain water (whether sourced from rain, springs, soakage, or seepage) without obstruction and in any quantity;
4. Right to Drain Sewage: convey and drain sewage and other waste material and fluid without obstruction and in any quantity;
5. Right to Convey Telecommunications: to lead and convey telecommunications without interruption or impediment from the point of entry; and
6. Right to Convey Gas: to lead and convey gas without interruption or impediment from the point of entry,

through the relevant Easement Facility now laid or to be laid through the Stipulated Course.

6. The rights set out in clause 5 will be upon and subject to those terms implied in Schedule 5 of the Land Transfer Regulations 2018 and the Fifth Schedule to the Property Law Act 2007 except as varied by this easement. In the event of any inconsistency, the rights set out in this easement instrument will prevail.

7. The Grantee is, at its own cost and subject to clause 12, responsible for laying, installing and constructing an Easement Facility under the soil of the Stipulated Course that the Grantee reasonably requires for the purpose of each of the rights set out in clause 5 and for which the Grantor has given its prior consent (which cannot be unreasonably withheld). This clause is in replacement of the general rights terms implied in clause 10 of Schedule 5 of the Land Transfer Regulations 2018.

General

8. The Grantee is, at its own cost, responsible for arranging the repair and maintenance of each Easement Facility in the Stipulated Course, so as to keep the facility in good order and to prevent it from becoming a danger or nuisance, unless any repair or maintenance is attributable solely to an act or omission by the Grantor, in which case such repair or maintenance work must be promptly carried out by the Grantor at its sole cost. The party responsible for the maintenance and repair work under this clause (as the case may be) must meet any associated requirements of the relevant local authority. The Grantee acknowledges that the Stipulated Course is over an engineered and consented structure (being a dam), which protects public and private assets and reduces the risk to life. The Grantee must not allow to be done or do anything on or around the Stipulated Course (which, for the avoidance of any doubt, includes any Easement Facility) that impacts the integrity of the dam. This clause is in replacement of the general repair, maintenance and costs terms implied in clause 11 of Schedule 5 of the Land Transfer Regulations 2018.

9. Subject to clause 11, the Grantor must not do and must not allow to be done on the Burdened Land anything that may unreasonably interfere with or restrict the rights of any other party or unreasonably interfere with the efficient operation of the Easement Facility.

10. The Grantee must not do and must not allow to be done on the Benefited Land or the Burdened Land anything that may interfere with or restrict the rights of any other party or interfere with the efficient operation of the Easement Facility.

11. The Grantee and Grantor acknowledge that, during construction of the Grantor’s proposed stormwater works on the Burdened Land and surrounding land, the Grantor may cause interference and obstruction to the Grantee’s use of the Easement Facility (including preventing access for as long as is reasonably required in order to carry out the proposed stormwater works or any other public work). The Grantor will ensure that such interference and obstruction is minimised as far as reasonably possible, and will provide alternative practical access between the parcels comprising the Benefitting Land (formerly comprised within Lot 2 DP 325790) where access of the Stipulated Course is prevented.

12. If, at any time during the term of this easement, the Grantee wishes to undertake works to improve the right of way Easement Facility and/or install services within the Easement Facility to support development of the Benefitted Land, the Grantor will not unreasonably withhold consent to such works, provided the Grantee:

1. complies with all requirements of the Grantor and the relevant consenting authority;
2. meets the cost of the Grantor’s engineer (nominated in the Grantor’s sole discretion) to peer review any plans relating to the Stipulated Area and supervise construction of such works. The Grantor is entitled to require the Grantee to pay the engineer’s costs in advance; and
3. carries out such works at the Grantee’s sole cost and under the supervision of the Grantor’s engineer. The Grantee will comply with the reasonable directions of the Grantor’s engineer.

The land is located at 642L Kennedy Road, Pyes Pa, Tauranga.

Given under the hand of Her Excellency the Governor-General of New Zealand, and issued under the Seal of New Zealand this 26th day of April 2022.

Hon DAMIEN O’CONNOR, Minister for Land Information.

God Save The Queen!

(LINZ CPC/2005/10907)