Pursuant to sections 20, 28 and 48 of the Public Works Act 1981, and to a delegation from the Minister for Land Information, Szi Ming Lee, Land Information New Zealand, declares that, an agreement to that effect having been entered into;

1. the land described in the First Schedule to this notice is hereby acquired for a local purpose (esplanade) reserve and shall vest in the Auckland Council, reserving therefrom a right to drain water easement over the land described in the Second Schedule to this notice appurtenant to Section 1 SO Plan 563261 comprising 11.8558 hectares on the terms and conditions set out in the Fourth Schedule to this notice; and
2. a right of way easement in gross in favour of Auckland Council is hereby acquired over the land described in the Third Schedule to this notice on the terms and conditions set out in Fifth Schedule to this notice;

on the date of publication hereof in the New Zealand Gazette.

North Auckland Land District—Auckland

First Schedule

Land Acquired for Local Purpose (Esplanade) Reserve

Second Schedule

A Right to Drain Water Easement Reserved

Third Schedule

Right of Way Easement in Gross Acquired

Fourth Schedule

Terms and Conditions of the Easement Reserved

1. Definitions and Interpretation

In this notice creating a grant of easement, unless the context requires otherwise:

Burdened Land means Section 2 SO Plan 563261 comprising 2.5230 hectares (Record of Title to be issued).

Benefitting Land means Section 1 SO Plan 563261 comprising 11.8558 hectares (Record of Title to be issued) being forever for the benefit of the Grantee’s land.

Easement Instrument means this grant of easement created by this notice and any subsequent variations, surrenders, or partial surrenders, whether registered or unregistered.

Grantor means the registered owner of the Burdened Land who grants to the Grantee the easement described in the Second Schedule to this notice with the rights and powers or provisions set out in the Fourth Schedule to this notice, and includes the Grantor’s successor’s in title.

Grantee means the registered owner of the Benefitting Land and includes the Grantee’s successors in title.

Regulations means the implied rights and powers in Schedule 5 of the Land Transfer Regulations 2018.

Unless otherwise provided below, the rights and powers implied in specified classes of easement are those prescribed by the Land Transfer Regulations 2018. The implied rights and powers are hereby added to by the provisions set out below.

2. Repair, maintenance, and costs

2.1 New Regulation 11(8)

A new Regulation 11(8) is added to the Regulations as follows:

“The Grantee will pay all the Grantor’s reasonable costs of and incidental to the processing, granting and documentation of the grant of the easement contained in this Easement Instrument, including legal and survey costs.”

3. Grantor capacity

3.1 New Regulation 15

A new Regulation 15 is added to the Regulations as follows:

“Where the Grantor is a local authority, it will be deemed that the Grantor has entered into this Easement Instrument in its non-regulatory capacity. This Easement Instrument does not bind the Grantor in its capacity as a regulatory authority in any way, and any consent or agreement the Grantor gives under this Easement Instrument is not an agreement or consent in its regulatory capacity and vice versa. When acting in its regulatory capacity, the Grantor is entitled to consider all applications to it without regard to this Easement Instrument. The Grantor will not be liable to the Grantee if, in its regulatory capacity, the Grantor declines or imposes conditions on, any consent or permission that the Grantee or anyone else seeks for any purpose associated with this Easement Instrument.”

Fifth Schedule

Terms and Conditions of the Right of Way Easement in Gross

1. Definitions and Interpretation

In this notice creating a grant of easement, unless the context requires otherwise:

Burdened Land means Section 1 SO Plan 563261 comprising 11.8558 hectares (Record of Title to be issued).

Benefitting Land means in gross.

Easement Instrument means this grant of easement created by this notice and any subsequent variations, surrenders, or partial surrenders, whether registered or unregistered.

Emergency means an urgent, sudden, and serious event or an unforeseen change in circumstances that necessitates immediate action to remedy harm or avert imminent danger to life, health, or property.

Grantor means the registered owner of the Burdened Land who grants to the Grantee an easement in gross described in the Third Schedule to this notice with the rights and powers or provisions set out in the Fifth Schedule to this notice.

Grantee means Auckland Council.

Normal School Hours means 8.00am to 6.00pm on each weekday (excluding weekends, school holidays and public holidays), subject to Regulation 6(4)(g).

Police Vetting Requirement means the police vetting requirement under Regulations 6(4)(a)(ii) and 6(4)(b)(i) in respect of any person or persons utilising the Easement Facility during Normal School Hours.

Regulations means the implied rights and powers in Schedule 5 of the Land Transfer Regulations 2018.

School means the high quality private Preparatory School and College operated by the Grantor from the Burdened Land and known to the public as “ACG Strathallan”.

Vehicle has the same meaning as motor vehicle as that term is defined in the Personal Properties Securities Act 1999.

Unless otherwise provided below, the rights and powers implied in specified classes of easement are those prescribed by the Land Transfer Regulations 2018 and/or Schedule 5 of the Property Law Act 2007. The implied rights and powers are hereby added to by the provisions set out below.

2. Right of Way

2.1 Amendment to Regulation 6(1)

Regulation 6(1) of the Regulations is deleted and replaced in full with the following:

“A right of way includes the right for the Grantee in common with the Grantor and other persons to whom the Grantor may grant similar rights, strictly at such times as permitted under regulation 6(4)(g) only, to go over and along the Easement Facility for the following purposes in connection with the Benefited Land:

1. to carry out maintenance and upkeep of the Benefited Land, including mowing and weed control;
2. to construct, maintain, repair and/or replace a walkway on the Benefited Land;
3. to carry out planting on the Benefited Land;
4. any other ancillary repair and maintenance on the Benefited Land properly required directly in connection with the above purposes,

subject to complying at all times with the provisions in regulation 6(4), and the Grantee expressly acknowledges and agrees that the prior written consent of the Grantor shall be required for any use of the Easement Facility or accessing of the Easement Area for a purpose that is not expressly permitted under this regulation 6(1).”

2.2 Amendment to Regulation 6(2)

Regulation 6(2) of the Regulations is deleted in full and replaced with the following:

“The right to go over and along the Easement Facility includes the right to go over and along the Easement Facility with or without a Vehicle, and any tools, implements and equipment, subject to complying at all times with the provisions in regulation 6(4).”

2.3 Amendment to Regulation 6(3)

Regulation 6(3) of the Regulations is deleted in full and replaced with the following:

“A right of way includes the right to have the Easement Area kept clear at all times of obstructions (whether caused by deposit of materials or unreasonable impediment) to the use and enjoyment of the Easement Area, provided that it is agreed between the Grantor and the Grantee that the following actions carried out by the Grantor will not be in breach of this right:

1. any necessary closure of the Easement Area in accordance with the limitation set out in regulation 6(4);
2. the temporary or intermittent closure of the Easement Area or any part thereof for the purposes of any School exhibition, fair, show, market, concert, film-making, race or other sporting event or School function on the Easement Area;
3. planting (whether temporary or permanent) of any trees shrubs or other vegetation, the placing and retention of any landscaping ornaments and/or features, and/or the landscaping of any part or parts of the Easement Area provided access is still available for the Grantor within the Easement Area so that Vehicles can drive from Hayfield Way to the Benefited Land over the Easement Area; and/or
4. the removal of any person from the Easement Area as a result of the Grantee being in breach of the terms of this Easement Instrument.”

2.4 Amendment to Regulation 6(4)

Regulation 6(4) of the Regulations is deleted in full and replaced with the following:

“The right to go over and along the Easement Facility, and to have the Easement Facility kept clear, is:

• limited to the extent required by any temporary or intermittent closure of the Easement Area or any part thereof for the purposes of necessary maintenance, repair or upgrade of the Easement Facility; and
• subject to the following conditions:

Notice to be Given

1. The Grantee shall provide the Grantor with no less than two Working Days’ notice (except in the case of an Emergency where no prior notice is required) on each occasion that the Grantee intends to utilise the Easement Facility and access the Easement Area, such notice to specify:
1. the date and time the access to the Easement Area is required (which shall be strictly in accordance with regulation 6.4(g));
2. the name of each person who will be using the Easement Facility, together with written evidence that each such person has been police vetted within the last 24 months in accordance with Schedule 4 of the Education and Training Act 2020; and
3. a general description of the intended work to be carried out on the Benefited Land which necessitates the use of the Easement Facility; and
4. the duration of such work.
2. The Grantor shall keep and maintain a list of the Grantee’s employees and contractors who are pre-approved by the Grantor to use the Easement Facility without the need to provide evidence of police vetting as specified in regulation 6(4)(a)(ii) on each occasion, and shall provide that list to the Grantee, provided however that:
1. notwithstanding anything else contained within this Easement Instrument, the Grantor shall obtain a further police vet of every person on the Grantor’s list who intends to utilise the Easement Facility under Regulation 6(4)(a)(ii) on every third anniversary of any police vet that has been previously conducted on each person; and
2. the Grantee must, upon becoming aware of any police investigations or prosecutions (successful or otherwise) commenced against any person on the list, prevent such person from using the Easement Facility or entering onto any part of the Burdened Land while such investigation is ongoing, or in the event of a successful police prosecution against such person.
3. The Grantor may (in its sole discretion, but acting reasonably) upon request by the Grantee, waive the Police Vetting Requirement in respect of any person or persons utilising the Easement Facility during Normal School Hours provided that such person or persons shall at all times be strictly under the supervision of the Grantor or a person nominated by the Grantor (at the Grantor's cost), and in such circumstances the person or persons shall at all times comply with the reasonable directions of such nominated person in relation to the Grantee’s access to the Easement Facility. Notwithstanding this Regulation 6(4)(c), the Grantee shall nonetheless at all times be bound by the obligation in Regulation 6(4)(b)(ii).
4. For the avoidance of doubt, where access is required outside of Normal School Hours, and no less than two Working Days’ notice is given by the Grantee in accordance with Regulation 6.4(a), the Police Vetting Requirement or the requirement for supervision under Regulation 6.4(c) shall not apply.
5. The Grantor will allow the use of the Easement Facility requested in the notice unless, acting reasonably, the Grantor considers that the requested use of the Easement Facility specified in the notice either:
1. does or is likely to compromise the Grantor’s duties and obligations to ensure the safety of the School community and to comply with all internal and regulatory requirements in the running of the School, including (but not limited to) the Grantor’s obligations under the Education and Training Act 2020; and/or
2. does not comply with the provisions of this Easement Instrument, where in either case the Grantor shall notify the Grantee of the Grantor’s position (including reasonable justification) within two Working Days’ of receiving the Grantee’s notice of intended use of the Easement Area.
6. The parties agree to discuss in good faith any matter arising out of any notice issued by the Grantee pursuant to regulation 6(4)(a) and/or any refusal to allow access pursuant to regulation 6(4)(e).

Timing and Frequency

7. Except in an Emergency, the Grantee shall not be permitted to use the Easement Facility or access the Easement Area in any manner during the hours of 8.00am–9.00am, and 11.00am–3.30pm on each weekday (excluding school holidays or public holidays), and shall ensure that all of the Grantee’s agents, employees, contractors, tenants, licensees, and invitees have vacated the Burdened Land during such hours.

Health and Safety

8. The Grantee shall, during any use of the Easement Facility, comply at all times with all reasonable health and safety directives and guidelines of the Grantor that are notified in writing to the Grantee including compliance with any pandemic requirements specified by the Grantor at the time consent is granted to the Grantee’s notice of intended use of the Easement Area.”

2.5 New Regulation 6(6)

A new Regulation 6(6) is added to Regulations as follows:

“In exercising the rights granted in regulation 6(1), the Grantee must at all times exercise those rights:

1. properly and reasonably;
2. in accordance with the requirements of all statutes, regulations and the proper requirements of all competent authorities;
3. in accordance with all signs, notices, traffic management devices (including but not limited to traffic lights (if any)) and markers displayed on or nearby the Easement Facility and relating to its use;
4. without obstructing the Easement Facility;
5. safely and in a manner that does not endanger, disturb or annoy any lawful user of the Easement Facility (including students and visitors to the School) or land adjoining the Easement Facility; and
6. without disposing of any rubbish on the Easement Facility or land adjoining the Easement Facility except into bins or receptacles especially provided or designed for rubbish disposal.”

3. General rights and obligations

3.1 Amendment to Regulation 10(1)

Regulation 10(1) of the Regulations is varied as follows:

1. part (b) is deleted in full; and
2. part (c) is deleted in full and replaced with the following:

“the right to repair and maintain the Easement Facility, subject to complying at all times with the provisions in regulations 11 and 12.”

3.2 Removal of Regulation 10(2)

Regulation 10(2) of the Regulations is deleted in full.

4. Repair, maintenance and costs

4.1 Amendment to regulation 11

Regulation 11 of Regulations is deleted in full and replaced with the following:

“11 Repair, maintenance and costs

1. The Grantor is responsible for the repair and maintenance of the Easement Facility, and for the associated costs, so as to keep the Easement Facility in good order and to prevent it from becoming a danger or nuisance, subject always to the provisions in regulations 11(2) and (3).
2. Any repair or maintenance of the Easement Facility that is attributable solely to an act or omission by the Grantee must be promptly carried out by the Grantee at its sole cost.
3. Any repair or maintenance of the Easement Facility that is only partly attributable to an act or omission by the Grantee, -
1. the Grantee must pay the portion of the costs of the repair and maintenance that is attributable to that act or omission; and
2. the balance of those costs is payable by the Grantor.
4. The Grantee must ensure that all work that it carries out for the maintenance, repair or replacement of the Easement Facility as required by regulation 11(2) is performed, -
1. in a prompt, safe, proper and workmanlike manner, as well as in compliance with all applicable statutory and regulatory requirements (including, without limitation, any health and safety legislation and requirements);
2. in accordance with regulation 12(1); and
3. in a way that as little damage or disturbance as possible is caused to the Burdened Land or to the Grantor, and that the Grantee must immediately make good any damage done to the Burdened Land by restoring the surface of the land as nearly as possible to its former condition.
5. The Grantee must compensate the Grantor for all damage caused in the Grantee’s exercise of any right or power, or performing any related duty, expressed or implied in an easement by these Regulations to any buildings, erections, fences or other improvements on the Burdened Land.”

5. Rights of entry

5.1 Amendment to Regulation 12

Regulation 12 of the Regulations is deleted in full and replaced with the following:

“12 Rights of entry

1. The Grantee, when exercising any right or power, or performing any related duty, expressed or implied in an easement by these Regulations, may not, without the prior written consent of the Grantor (which shall be sought only in circumstances where the provisions of regulation 6(4) are strictly complied with):
1. enter onto or remain on any part of the Burdened Land other than the Easement Area; or
2. leave any vehicles, tools or equipment on any part of the Burdened Land, including the Easement Area.
2. The Grantee acknowledges that any breach of regulation 12(1) will be treated as a trespass on the Burdened Land, and the Grantor shall be entitled, in addition to its remedies available under regulation 13(1)a., to take all steps available to it at law in respect of such trespass.”

6. Default

6.1 Amendment to Regulation 13

Regulation 13 is deleted in full and replaced with the following:

“13 Default

1. If the Grantor or the Grantee does not meet the obligations implied or specified in any easement,-

1. in respect of a breach by the Grantee of any of the obligations contained in Regulations 6(4), 6(6) or 12(1), the Grantor shall, in addition to its rights under Regulation 13(1)(b), be entitled to immediately revoke and suspend any right for the Grantee to use the Easement Facility by giving one Working Day written notice to the Grantee, and upon receipt of such notice the Grantee must immediately vacate the Easement Area and the Burdened Land (where applicable) and remove all persons, vehicles, machinery, and implements belonging to or under the control of the Grantee until such time that the breach has been remedied by the Grantee;
2. in respect of any other breach, 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 party not in default may meet the obligation;
3. if, at the expiry of the 10-Working-Day period, the party in default has not met the obligation, the non-defaulting party may –
1. meet the obligation; and
2. for that purpose, enter the Burdened land; and
4. 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
5. The other party may recover from the party in default, as a liquidated debt, any money payable under this regulation 13.”

7. Disputes

7.1 Amendment to Regulation 14

Regulation 14 of the Regulations is deleted in full and replaced with the following:

“14 Disputes

If any dispute arises between the Grantor and the Grantee concerning the rights created by this Easement Instrument, the party initiating the dispute must provide a written notice of the dispute to the other party and then:

1. the parties must promptly meet and try to resolve the dispute through good faith negotiations;
2. if the dispute is not resolved within one (1) month of the date on which the parties begin their negotiations:
1. the dispute will be referred to either a senior manager, executive or an authorised representative of the Grantor and the Grantee who will enter into negotiations in good faith to resolve the dispute; or
2. the matter may be referred to mediation, if the parties agree (including as to the terms of reference);
3. if the dispute is not resolved within one (1) month of the date on which:
1. the parties referred the dispute to a senior manager, executive or an authorised representative pursuant to regulation 14(b)(i); or
2. the parties agreed to commence mediation pursuant to regulation 14(b)(ii),

the parties will submit to the arbitration of an independent arbitrator appointed jointly by the parties. If the parties cannot agree on the arbitrator within a further 14 working days, the president for the time being (or his/her nominee) of the New Zealand Law Society (or any successor organisation) will appoint an independent arbitrator based in the area the Servient Land is situated in. The arbitration proceedings will be conducted in accordance with the Arbitration Act 1996 and its amendments or any enactment passed in substitution.”

8. Schedule 5 of the Property Law Act 2007

The covenants implied in grants of vehicular rights of way contained in Schedule 5 of the Property Law Act 2007 are deleted in full and do not apply to this Easement Instrument.

9. Miscellaneous provisions

9.1 No substitution of other rights

The easement created by this Easement Instrument is not in substitution for, and its creation is without prejudice to any statutory rights, powers and limitations on liability of the Grantee from time to time in respect of the Burdened Land.

9.2 Variation of Easement Area

1. The Grantor may, in the case of a redevelopment of the Burdened Land which will result in it no longer being possible to go over and along the entire Easement Area with a Vehicle, elect to vary the Easement Area either by way of variation of this Easement Instrument, or by the surrender of this Easement Instrument and registration of a replacement easement instrument, provided that:
1. the varied or replacement easement area shall still provide the Grantee with reasonable access from Hayfield Way to the Benefited Land over the Burdened Land;
2. the varied or replacement easement facility shall be of no less quality than the Easement Facility;
3. the Grantor shall reasonably consult with the Grantee prior to electing to vary the Easement Area, and shall give reasonable consideration to the Grantee’s feedback on such variation, noting however that the decision on any variation of the Easement Area is ultimately for the Grantor; and
4. the Grantor shall not be permitted to elect or take any steps to vary the Easement Area prior to the date that is 5 years from the date of this Easement Instrument.
2. The Grantee will take all reasonable steps to assist the Grantor to vary the Easement as contemplated by this clause, including signing all necessary authorities and instructing solicitors to act on any e-dealing.
3. The Grantor will undertake all survey work, obtain all required regulatory consents, obtain any other third party consents, and pay all costs associated with the variation of the Easement Area, including paying:
1. the Grantee’s reasonable costs and disbursements (including its solicitor’s reasonable costs); and
2. any survey costs associated.

9.3 Costs

The Grantor and Grantee will bear their own legal costs and disbursements in respect of the preparation and registration of this Easement Instrument, any consent or other matters arising in relation to it, unless expressly provided otherwise in this Easement Instrument. The Grantee’s reasonable costs and disbursements associated with complying with the Police Vetting Requirement will be recoverable from the Grantor.

9.4 Unenforceable terms

If any part of this Easement Instrument is held by any court or administrative body of competent jurisdiction to be illegal, void or unenforceable, such determination will not impair the enforceability of the remaining parts of this Easement Instrument.

9.5 Conflict

Where there is any conflict between the provisions of Schedule 4 of the Land Transfer Regulations 2002 and the provisions of this Easement Instrument, the provisions of this Easement Instrument will prevail.

9.6 Auckland Council as Regulatory Authority

The Grantee has entered into this Easement Instrument in its non-regulatory capacity as landowner of the Benefited Land. This Easement Instrument does not bind Auckland Council in its capacity as a regulatory authority in any way, and any consent or agreement the Grantee gives under this Easement Instrument is not an agreement or consent in Auckland Council’s regulatory capacity and vice versa. When acting in its regulatory capacity, Auckland Council is entitled to consider all applications to it without regard to this Easement Instrument. The Grantee will not be liable to the Grantor or any other party if, in its regulatory capacity, Auckland Council declines or imposes conditions on any consent or permission the Grantor or any other party seeks for any purpose associated with this Easement Instrument.

Dated at Wellington this 26th day of July 2023.

SZI MING LEE, for the Minister for Land Information.

(LINZ CPC/2005/10974)