Pursuant to sections 20(1) 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 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 the 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

First Schedule

Easement to be Acquired

A debris flow easement in gross for functioning indirectly of a road over that part of the burdened land marked “B” on SO 559099.

Second Schedule

The Grantors land.

Part Lot 1 DP 903 comprised in Record of Title MB43/111 (“burdened land”)

Third Schedule

Easement Rights and powers and covenants

1. Definitions and Interpretation

In this easement, unless the context requires otherwise:

1.1. Definitions:

“burdened land” means the land over which the easement is registered and that is described by reference to the register in Schedule A and includes the easement area;

“easement” means the easement rights hereby granted;

“easement area” means that part of the burdened land:

i. Shown as area B on SO Plan 559099; and

ii. Is identified in this easement instrument as the area to which the easement applies;

“easement facility” means a catch basin culvert constructed on the land described as the easement area for collecting rock fall, debris and accumulated material and includes other equipment suitable for that purpose (whether above or under the ground) and includes the surface of the easement area;

“emergency” means a situation in which there is probably danger to life or property or immediate risk to life or property;

“grantee” means the person having the benefit of the easement in gross pursuant to this easement, and where applicable includes the successors and assigns of the grantee and the grantee’s agents, employees, contractors, tenants, licensees, and other invitees;

“grantor” means the registered owner from time to time of the burdened land and includes the agents, employees, contractors, tenants, licensees, and other invitees of the grantor;

“repair” shall include, if necessary, replace;

“working day” shall have the same meaning as set out in Section 2 of the Public Works Act 1981.

1.2. Interpretation:

In the construction of this Easement Instrument, unless the context otherwise requires:

1.2.1 the headings and sub-headings appear as a matter of convenience and shall not affect the construction of this Easement Instrument;

1.2.2 references to Clauses and the Schedules are to the Clauses and the Schedules of this Easement Instrument;

1.2.3 references to any statute, regulation or other statutory instrument or bylaw are deemed to be references to the statute, regulation, instrument or bylaw as from time to time amended and includes substituted provisions that substantially correspond to those referred to; and

1.2.4 Reference to parties are references to parties in this easement and include each party’s executors, administrators and successors in title and assigns;

1.2.5 the singular includes the plural and vice versa, and words importing any gender include the other genders.

Terms and Conditions of Easement

2. Grant

2.1 The grantor grants to the grantee as an easement in gross the full right:

2.1.1 to construct, install, erect, lay, place, keep, repair, maintain, renew, alter, replace, upgrade, add to, and modify the easement facility and associated equipment on, in, over and under the surface of easement area for the purposes of collecting rock fall, debris and accumulated material;

2.1.2 to enter and remain upon the burdened land with all necessary tools, equipment, machinery, vehicles in order to construct, install, erect, lay, place, keep, repair, maintain, renew, alter, replace, upgrade, add to, and modify the easement facility and associated equipment on, in, over and under the easement area (including the right to excavate land for the purpose of that construction);

2.1.3 to remove rock fall, debris and other accumulated material collected by the easement facility from time to time;

2.1.4 to enter upon the easement area and such other parts of the burdened land using routes as prescribed by the Grantor (acting reasonably) with or without vehicles , machinery, tools or equipment in order to access the easement facility for the purposes of removing rock fall, debris and accumulated material that has collected in the easement facility; and

2.1.5 to stop, leave and park vehicles, machinery and equipment on the burdened land, in such areas as prescribed by the Grantor (acting reasonably), for the period while loading rock fall, debris and accumulated material that is to be removed from the easement facility;

provided however that nothing shall compel the grantee to exercise the above rights at any time or in a particular way.

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 burdened land by a reasonable route with all necessary tools, vehicles, machinery and equipment; and

3.1.2 remain on the burdened land 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 burdened land for a reasonable time if work is proceeding; and

3.1.4 bring on to the burdened land such tools, equipment, machinery, vehicles, soil and other aggregates as are reasonably necessary; and

3.1.5 remove rock fall, deposit, soil, debris and accumulated material from the easement facility.

3.2 The grantee shall 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 shall 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, grantor shall 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 shall 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 shall 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 grantees shall 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; and

6.1.5 disturb or excavate or permit to be disturbed or excavated the soil or surface of 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. Default

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—

i. meet the obligation; and

ii. 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. Disputes

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:

i. An order for costs

ii. An order for enforcement

iii. Interest on monies payable.

10. General

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 31st day of March 2023.

K. McPHAIL, for the Minister for Land Information.

(LINZ CPC/2005/10799)