Notice Type
Land Notices
Notice Title

Easement Taken-Kaikohe to Wiroa Double Circuit 110kV Transmission Line Project, Far North District

LT GEN THE RT HON SIR JERRY MATEPARAE,
Governor-General
Pursuant to section 26 of the Public Works Act 1981,
I, Lieutenant General The Right Honourable Sir Jerry Mateparae, Governor-General of New Zealand, hereby declare the easement in gross over the land described in the First Schedule to be taken for the Kaikohe to Wiroa Double Circuit 110kV Transmission Line Project and vested, pursuant to section 186(2) of the Resource Management Act 1991, in Top Energy Limited on the 14th day after the date of the publication of this Proclamation in the New Zealand Gazette.
The terms of the easement are set out in the Second Schedule.
North Auckland Land District-Far North District
First Schedule
Part Lot 2 DP 197934 (part Computer Freehold Register NA126A/591); marked "A" on SO 471292 ("easement area").
Second Schedule
1. Grantee's rights and powers
1.1 The grantee shall have the following rights and powers:
1.1.1 To construct the works and to remove, inspect, use, operate, repair, maintain, renew, alter, replace, upgrade, add to and modify
the works or any part of the works on the easement area;
1.1.2 to convey, conduct, send, distribute, pass, convert, transport, transmit and receive electricity and telecommunications signals and computer media by means of the works;
1.1.3 to undertake all tests, inspections, investigations and surveys of the easement area that are reasonably necessary for the grantee to exercise its rights under this easement and in so doing the grantee may:
(a) drill for core samples and dig test pits;
(b) install and maintain testing and monitoring equipment; and
(c) take away samples from the easement area for analysis.
1.1.4 to enter and remain on the easement area and such other part of the land as is reasonably necessary in the circumstances with or without vehicles, machinery and/or equipment and with such personnel (including its employees, agents, contractors and/or consultants) for the purposes of exercising the grantee's rights under this easement;
1.1.5 to construct, inspect, use, repair, maintain, renew, alter, remove and modify roads and access tracks on the land, to modify adjacent fences (including boundary fences) on the land and to remove or trim vegetation on
the access tracks at the cost of the grantee
to the extent that is reasonably necessary for the grantee to exercise its rights under this easement with these rights to be exercised on the following terms:
1.1.5.1 Where any new roads and/or access tracks on the land are to be constructed, such will be constructed by the grantee as far as is practicably possible to enhance the land use operations on the land by the grantor;
1.1.5.2 if during the course of the construction of the works on
the land the grantee uses any existing roads and/or access tracks on the land then these will be repaired and/or maintained as is necessary by the grantee so that at the conclusion of the construction of the works such roads and/or access tracks are left in as nearly as possible the same condition as they were in at the time of first entry onto the land by the grantee;
1.1.5.3 if the grantee in the exercise of access to the land for the purposes of inspection, use, repair, maintenance, renewal, alteration, replacement, upgrading, addition to or modification of the works uses roads and/or access tracks on the land, it shall, at the conclusion of such period of access, repair and/or maintain those roads and/or access tracks to ensure that the same are left in as nearly as possible the same condition as they were in
at the time of the commencement of the exercise of the grantee's rights hereunder.
1.1.6 to construct gates within fences (including boundary fences) located on the land and to inspect, use, repair, maintain, renew, alter, remove and modify those gates at the cost of the grantee to the extent that is reasonably necessary for the grantee to exercise its rights under this easement;
1.1.7 to clear and keep the easement area clear of trees, shrubs, vegetation, structures (including fences), earth, gravel and stone, and to clear and keep such other part of the land as is reasonably necessary in the circumstances clear of any trees, shrubs, vegetation, structures (including fences), soil, earth, gravel and stone which is or is likely to be or become, in the reasonable opinion of the grantee, a danger or hazard to the safety or operation of the works, will impede the grantee's access to the works, or will otherwise interfere with the grantee's rights under this easement;
1.1.8 to open up the soil of the easement area and excavate or remove timber, vegetation, soil, earth, gravel and stone from the easement area to the extent necessary for the grantee to exercise its rights under this easement; and
1.1.9 to temporarily occupy any part of the land that is reasonably necessary in the circumstances in order for the grantee to exercise any of its rights under this easement including the right to construct the works and, in doing so, the grantee may fence off such part or parts of
the occupied area as is reasonably necessary for a temporary period or temporary periods for health and safety purposes (subject to clause 2.1 of this easement).
1.2 In undertaking any one or more of the rights and powers hereby granted, the grantee:
1.2.1 may use its nominated employees, agents, consultants or contractors to perform the works;
1.2.2 will meet the full costs of the works it undertakes;
1.2.3 for the avoidance of doubt, the grantee may enter on to the land and undertake the works on any day of the year including days which are not working days subject to the provisions of the entry notice given by the grantee under clauses 5.1 and 5.2 of this easement.
2. Grantee's obligations
2.1 The grantee will use its reasonable efforts to cause as little interference as practical to the grantor, any crops or livestock and any farming activities on the land. The grantee shall, at its expense in all things, make good and reinstate the land as and when same shall require reinstatement to ensure that the land is left in as nearly as possible the same condition as it was at the time of the commencement of the grantee's rights hereunder. In particular, but without limitation, when exercising its rights under this easement, the grantee shall ensure that it leaves all gates as it finds them and reinstates all fences which are taken down so that the grantee does not negatively affect the stock proofing of the land.
2.2 Where any disturbance, damage or loss is incurred or suffered by:
(a) the grantor; or
(b) any occupier of the land undertaking, with the grantee's knowledge and in compliance with
the terms of this easement, normal farming operations on the land, in particular sharemilking or forestry during any entry onto the land by the grantee to construct, repair, maintain, modify, replace, renew or remove the works or any part of the works, which is not remedied by the grantee under clause 2.1, including for example but without limitation, a business loss in respect of a business located on the land, the grantee shall compensate the grantor or the occupier, as the case may be, for such disturbance, damage or loss.
2.3 The grantee will bear the costs of managing vegetation on the easement area (excluding pasture land) including removing trees and other vegetation but will not be responsible for the cost of controlling weeds or removing any vegetation which is planted by the grantor in breach of this easement.
2.4 The grantee will bear the whole cost of maintaining the works apart from any works which the grantor and grantee have agreed are to become the property of the grantor, and any additional costs resulting from the grantor's breach of this easement for which the grantee can recover the costs under this easement.
2.5 The grantee will provide to the grantor copies of the grantee's plans indicating the proposed access routes over the land used by the grantee in accessing the works.
2.6 The grantee has no obligation to construct the works or to convey electrical energy and power or telecommunications through them, after construction, continuously or at all, provided that this clause 2.6 shall not derogate from any obligation of the grantee to surrender the easement if the easement is no longer required for a public work under the Public Works Act 1981.
2.7 In the event that the grantee clears the easement area and/or any other part of the land or opens up the soil of same as contemplated by clauses 1.1.7 and/or 1.1.8 hereof, the resulting material shall be removed by the grantee from the land and deposited off-site at the expense in all things of the grantee unless the grantor and the grantee shall otherwise agree.
3. Grantor's rights
3.1 Subject to the restrictions set out in this easement, the grantor may use, occupy and enjoy that part
of the surface of the easement area which is not occupied by the works for normal farming operations including cropping and horticulture to a maximum height of 2.5 metres and grazing.
4. Grantor's obligations
4.1 The grantor must not, without the prior written consent of the grantee (which will not be unreasonably withheld or delayed), do, procure, assist or allow the following to be done:
4.1.1 Alter or disturb the present grades and contours of the surface of the easement area except in the course of normal farming and grazing operations (but subject to the restrictions set out in this easement);
4.1.2 erect any building or other structure (including fences) on the easement area;
4.1.3 plant any vegetation on the easement area (excluding pasture, crops and horticulture to a maximum height of 2.5 metres);
4.1.4 operate any equipment or vehicles on the easement area within a minimum clearance distance of four metres from any electricity transmission line conductor;
4.1.5 excavate or deposit material on the easement area;
4.1.6 impede the grantee's access over the easement area and any access routes over the land or damage the surface of the access routes;
4.1.7 knowingly cause or permit flooding of the easement area except where such flooding occurs naturally and is beyond the control of the grantor;
4.1.8 light any fires or burn off vegetation within the easement area;
4.1.9 do any other thing on the land which may cause damage to the works or endanger the continuity or safety of the supply and distribution of electricity or otherwise impede, interfere with or prejudice any right of the grantee set out in clause 1.1.
5. Access
5.1 Where the grantee, together with or through its engineers, consultants, employees, contractors, workmen and anyone else authorised by the grantee, intends to enter upon the land to exercise and give effect to the rights of the grantee as listed in clauses 1.1.1 through 1.1.9 of this easement, the grantee must give at least 10 working days' notice ("entry notice") to the grantor except in an emergency situation, when prior notice is not required and the provisions of clause 5.6 of this easement apply.
5.2 An entry notice is to identify the works the grantee intends to carry out with the entry notice to specify:
5.2.1 the location of the proposed entry;
5.2.2 the area on which the works will be undertaken by the grantee;
5.2.3 the nature of the works to be undertaken;
5.2.4 the date and time of initial entry;
5.2.5 the length of time that the grantee expects to be on the land; and
5.2.6 the nature of all other works that are to be undertaken on the land in accordance with the rights granted pursuant to clause 1.1.
5.3 Upon receipt of an entry notice from the grantee of its intention to exercise the right of entry provided for in clause 5.1, the grantor may set reasonable conditions relating to the timing of entry and the access route but those conditions may not:
5.3.1 delay the exercise of entry by the grantee by more than 15 working days; or
5.3.2 require monetary or other consideration; or
5.3.3 otherwise defeat the ability of the grantee to exercise effectively the rights granted under this easement.
5.4 Any dispute between the grantor and the grantee in relation to the terms of the entry notice or of the conditions set by the grantor pursuant to this clause shall constitute a dispute which is to be resolved using the dispute resolution procedure set out in clause 8 of this easement.
5.5 The grantee, in entering the land, will take all reasonable steps to minimise inconvenience to the grantor, including (but without limitation):
5.5.1 the time of entry (unless this is not possible due to an emergency situation);
5.5.2 leaving gates as they are found;
5.5.3 driving in a safe manner and taking reasonable steps not to disturb stock; and
5.5.4 avoiding access through any specific areas within the land which have been identified by the grantor to the grantee unless necessary to access the works, but without limiting the rights of the grantor to claim under clause 2.2 of this easement.
5.6 Where entry is effected by the grantee due to an emergency situation, the grantee shall as soon thereafter as is reasonable give an entry notice to the grantor such entry notice to be in terms of clause 5.2 of this easement.
6. Ownership
6.1 The works and vehicles or any other property of the grantee will not, for any reason, become the property of the grantor and will at all times remain the property of the grantee, except in relation to any works which the grantee and the grantor agree are to become the property of the grantor.
6.2 The grantee may transfer, assign, sublet, lease or licence all, but not part, of its rights created by this easement provided that the assignee, sublessee, transferee, lessee or licensee is financially solvent and has the financial resources to meet the grantee's commitments under this easement.
7. No power to terminate
7.1 There is no power in this easement for the grantor to terminate any of the grantee's rights due to the grantee breaching any term of this easement or for any other reason.
8. Dispute resolution
8.1 If any dispute arises between the grantor and the grantee concerning the rights and obligations contained within this easement, the parties will enter into negotiations in good faith to resolve the dispute themselves or through any informal dispute process they agree upon.
8.2 If the dispute is not resolved within 10 working days then any party may at any time serve a mediation notice on the other party requiring the dispute be referred to mediation. The mediation notice shall set out the nature of the dispute. The parties shall in good faith endeavour to agree upon a mediator within five working days of the date of service of
the mediation notice. If the parties cannot agree
on the mediator, the President for the time being of the New Zealand Law Society (or any successor organisation) or the President's nominee will appoint an independent mediator. The mediator's costs are to be borne equally by the parties.
8.3 If the dispute is not resolved within 20 working days of the date on which the mediation notice is served, 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 10 working days, the President for the time being of the New Zealand Law Society (or any successor organisation) or the President's nominee will appoint an independent arbitrator.
8.4 Any arbitration proceedings will be conducted in accordance with the Arbitration Act 1996 and the substantive law of New Zealand.
9. Severability
9.1 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.
10. No waiver
10.1 A waiver of any provision of this easement shall not be effective unless given in writing and then it shall be effective only to the extent that it is expressly stated to be given.
10.2 A failure, delay or indulgence by any party in exercising any power or right shall not operate as a waiver of that power or right. A single exercise or partial exercise of any power or right shall not preclude further exercises of that power or right or the exercise of any other power or right.
11. Implied rights and powers
11.1 The rights and powers implied in specified classes of easements prescribed in the Fourth Schedule to the Land Transfer Regulations 2002 and the Fifth Schedule of the Property Law Act 2007 are negatived and the rights and powers contained herein shall apply in substitution.
12. Definitions
12.1 In this easement, unless the context requires otherwise:
12.1.1 "construct" means to build, construct, erect, install or lay the works, access tracks, roads, gates and/or fences contemplated by this easement and includes anything that is reasonably necessary to give full effect to this easement including removing soil and water from the easement area subject always to the provisions of clause 2.7 of this easement;
12.1.2 "emergency situation" means a situation in which there is a probable danger to life or property or immediate risk to the continuity or safety of supply or distribution of electricity;
12.1.3 "entry notice" means the notice to be given pursuant to clause 5.1 of this easement;
12.1.4 "equipment" means cables, lines, wires, cranes, drilling rigs, vehicles, plant, tools and machinery and all material and items required for the purpose of exercising any of the rights under this easement;
12.1.5 "grantee" means Top Energy Limited, its successors and permitted transferees, assigns, lessees, sublessees and licensees together with the grantee's servants, agents, employees, workers, invitees, licensees and contractors with or without vehicles, machinery or equipment;
12.1.6 "grantor" means the registered proprietor(s) for the time being of the land;
12.1.7 "land" means the servient tenement, which is the land being Lot 2 DP 197934 contained in Computer Freehold Register NA126A/591;
12.1.8 "temporary period" or "temporary periods" means such period or periods of time as are reasonable for the sole purpose or purposes of the grantee occupying such part or
parts of the land as it requires for the purposes set out in clauses 1.1.1 through 1.1.9 and as detailed in the entry notice;
12.1.9 "vehicles" means four-wheel drives, motorbikes, cars and trucks, tractors, trailers, graders, pile drivers, drilling rigs, cranes, helicopters, aircraft, excavation and earthmoving equipment, whether wheeled or tracked;
12.1.10 "working day" means any day of the week other than:
(a) Saturday, Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign's Birthday, Northland Anniversary Day and Labour Day; and
(b) A day in the period commencing on the 24th day of December in any year and ending on the 5th day of January in the following year, both days inclusive.
12.1.11"works" means electrical and telecommunications works and computer media and includes all or any part of any cables (including fibre optic cables), wires, earthwires, conductors, poles, pole structures, insulators, foundations, tunnels, buildings, repeaters, pipes, bridges, ground stays, supports, casings, devices, appliances, antennae, metering devices
and other apparatus, structures, fixtures and equipment as are reasonably necessary to give effect to the grantee's rights under this easement to install and operate an electricity transmission network.
13. Interpretation
13.1 In this easement, unless inconsistent with the context:
13.1.1 singular includes plural and vice versa;
13.1.2 references to "persons" includes references to companies, corporations, partnerships, joint ventures, associations, trusts, government departments or agencies and territorial local authorities;
13.1.3 references to the grantor and grantee include their subsidiary or related companies, their permitted assigns and, where appropriate, their employees, contractors, surveyors, invitees and inspectors;
13.1.4 references to any statute, Regulation or other statutory instrument or bylaw shall be deemed to be references to the statute, Regulation or instrument or bylaw as from time to time amended and includes substitution provisions that substantially correspond to those to which reference is made;
13.1.5 the headings and subheadings appear as a matter of convenience and shall not affect the interpretation of this easement.
Given under the hand of His Excellency the Governor- General of New Zealand and issued under the Seal of New Zealand this 9th day of June 2014.
[L.S.]
HON MICHAEL WOODHOUSE, Minister for Land Information.
GOD SAVE THE QUEEN!
(LINZ CPC/2013/17315)