Pursuant to the Public Works Act 1981, and to a delegation from the Minister for Land Information, Nina Weir, Land Information New Zealand:

1. Pursuant to section 20, declares that, an agreement to that effect having been entered into, the land described in the First Schedule to this notice is hereby acquired for Stormwater Purposes and shall vest in the Tauranga City Council;
2. Pursuant to sections 20 and 28, declares that, an agreement to that effect having been entered into, a right to maintain structures, right of access for maintenance, repair and renewal, and right to drain water in gross, with the rights and powers contained in Schedule 4 of the Land Transfer Regulations 2002, together with the following variations is hereby acquired over the land described in the Second Schedule to this notice and shall vest in the Tauranga City Council (“Grantee”);

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

South Auckland Land District—Tauranga City

First Schedule

Land Acquired for Stormwater Purposes

Second Schedule

The Grantor, being the registered owner of the burdened land set out in Schedule A grants to the Grantee (and, if so stated, in gross) the easement(s) or profit(s) à prendre set out in Schedule A, with the rights and powers or provisions set out in the Annexure Schedule(s).

Schedule A

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 Five of the Property Law Act 2007.

The implied rights and powers are hereby substituted by: provisions set out in the Annexure Schedule.

1. Definitions

1.1 In this easement instrument, unless the context indicates otherwise:

Burdened Land means the parcel of land over which this easement is registered and that is described as such in Schedule A of this instrument;

Easement Area means the course or area that:

1. is shown on a plan prepared for the purpose of specifying the easement, and
2. is referred to in Schedule A of this easement instrument;

Easement Facility means pipes, conduits, open and subsoil drains, pumps, tanks (with or without headwalls), manholes, valves, surface boxes, yard sumps, stormwater outlets, other equipment suitable for that purpose (whether above or under the ground), and anything in replacement or substitution;

Grantee means Tauranga City Council 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;

Stormwater Protection Wall means the stormwater protection wall and all associated structural and drainage components, incorporated into or associated with the structure, any other incidental works necessary to be undertaken in relation to the Stormwater Protection Wall and anything in replacement or substitution;

Water includes rain, storm, spring, soakage or seepage water, as well as water accumulated on other land and from any public street.

2. Right To Maintain Structures

2.1 The Grantor grants to the Grantee and the Grantee’s licensees and invitees as an easement in gross forever the right to maintain the Stormwater Protection Wall located within the Easement Area, for all purposes connected with mitigating the stormwater hazard risk to people and properties on and around the Burdened Land.

2.2 The Grantee also has the right, subject to clause 3, to enter the Easement Area and any other parts of the Burdened Land as are reasonable to do the following work:

1. to dig and lay the Stormwater Protection Wall through or on the Easement Area;
2. to inspect, maintain, repair, dig up, alter, enlarge, renew or replace the Stormwater Protection Wall (including replacement with a Stormwater Protection Wall of the same or larger dimensions) unless the maintenance or repair is required as a result of the act, omission or negligence of the Grantor, in which case the Grantor will bear the costs of such work;
3. to remove any obstruction from the Easement Area including the removal, cutting or trimming of vegetation that is obstructing in any way the use or effectiveness of the Stormwater Protection Wall; and
4. to do anything else in the full exercise of the rights in this easement instrument, with the Grantee’s agents, contractors and employees, and with or without tools, plant, equipment, and vehicles.

2.3 The Grantee may leave any vehicles or equipment on the Burdened Land for a reasonable period of time if work is proceeding.

2.4 The Grantee will ensure that any work it performs is carried out in a proper and workmanlike manner.

2.5 The Grantee shall not be liable to the Grantor in the event of any flooding on the Burdened Land which causes any inconvenience, damage or loss to the Burdened Land directly or indirectly as a result of or in connection with the Stormwater Protection Wall.

2.6 The Grantor acknowledges that the Stormwater Protection Wall intends to address the hazards associated with the stormwater ’depth x velocity’ issues over the Grantor’s Land. The Grantee does not give any warranty that the Stormwater Protection Wall will effectively mitigate or prevent any or all flooding over, on or at the Burdened Land.

3. Right To Drain Water

3.1 The Grantor grants to the Grantee as an easement in gross forever the right to drain, direct, divert, concentrate and store, on the Easement Area, Water accumulating in and from the Burdened Land and any other land and to discharge the Water from the Burdened Land in any quantity and without obstruction.

3.2 The Grantee also has the right, subject to clause 4, to enter the Easement Area and any other parts of the Burdened Land as are reasonable to do the following work:

1. to dig and lay the Easement Facility through or on the Easement Area;
2. to inspect, maintain, repair, dig up, alter, enlarge, renew or replace the Easement Facility (including replacement with an Easement Facility of the same or larger dimensions);
3. to remove any obstruction from the Easement Area including the removal, cutting or trimming of vegetation that is obstructing in any way the use of the Easement Facility; and
4. to do anything else in the full exercise of the rights in this easement instrument, with the Grantee’s agents, contractors and employees, and with or without tools, plant, equipment, and vehicles.

3.3 The Grantee has no obligation to drain, direct, divert, concentrate or store Water through, under, or over the Burdened Land continuously or at all.

4. Right of Access by Grantee

4.1 For the purpose of performing any duty of the Grantee or in the exercise of any rights conferred on the Grantee under this instrument, the Grantee may:

1. enter upon the Burdened Land by a reasonable route and with all necessary tools, vehicles and equipment;
2. remain on the Burdened Land for a reasonable period of time for the sole purpose of carrying out any inspection or completing the necessary work; and
3. leave any vehicles or equipment on the Burdened Land for a reasonable time if the inspection or work is proceeding.

4.2 Where the Grantee carries out any work under this clause 4, the Grantee must ensure that:

1. all work is performed in a proper and workmanlike manner and is completed promptly;
2. it causes as little disturbance as possible to the Grantor’s use and enjoyment of the Burdened Land; and
3. any damage done to the Burdened Land must be immediately made good as nearly as possible to its former condition.

5. Grantor’s Obligations

The Grantor may not:

5.1 place any buildings or other improvements, or plant or allow any tree or shrub to grow, on the Easement Area;

5.2 change the existing surface levels of the Easement Area except with the Grantee’s prior approval;

5.3 cause or allow any damage to occur to the Stormwater Protection Wall; or

5.4 do anything or allow anything to be done which would interfere with, or affect, the rights of the Grantee under this easement instrument.

6. Maintenance

The Grantee is responsible for maintaining the Stormwater Protection Wall in the Easement Area so that it does not become a nuisance or a danger. For the avoidance of doubt this obligation does not include any private facilities located within the Easement Area.

7. No Power To Terminate

There is no implied power in this easement instrument for the Grantor to terminate the easement rights due to the Grantee breaching any term of this easement instrument or for any other reason, it being the intention of the parties that the easement rights will continue forever unless surrendered.

8. Statutory Rights

The easement rights are in substitution for those set out in the Fifth Schedule to the Land Transfer Regulations 2018, but otherwise this easement does not affect any statutory powers which the Grantee may have.

9. Default

If the Grantor or the Grantee does not meet the obligations implied or specified in this instrument:

9.1 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 5 working days from service of the notice of default, the other party may meet the obligation;

9.2 if, at the expiry of 5 working days from service of the notice of default, the party in default has not met the obligation, the other party may:

1. perform the obligation; and
2. for that purpose, enter the Burdened Land or the Road, as the case may be, subject to the conditions as to entry in this instrument;

9.3 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 performing the obligation; and

9.4 the other party may recover from the party in default, as a liquidated debt, any money payable under this clause.

10. Disputes

If any dispute arises between the Grantor and Grantee about the rights in this easement instrument which cannot be resolved by negotiation, the parties must submit at the request of either party to the arbitration of an independent arbitrator. This arbitrator is to be appointed jointly by the parties, and if they cannot agree on one within 14 days, by the President for the time being of the New Zealand Law Society. The arbitration will be determined in accordance with the Arbitration Act 1996 and its amendments or any statute which replaces it. The parties’ execution of this easement instrument is to be treated as a submission to arbitration.

11. Regulatory Position

This easement instrument does not bind the Grantee 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 its regulatory capacity and vice versa. When acting in its regulatory capacity, the Grantee is entitled to consider all applications to it without regard to this easement instrument. The Grantee will not be liable to the Grantor if, in its regulatory capacity, the Grantee declines or imposes conditions on, any consent or permission that the Grantor or anyone else seeks for any purpose associated with this easement instrument.

Dated at Wellington this 14th day of February 2023.

N. WEIR, for the Minister for Land Information.

(LINZ CPC/2005/10907)