NEW ZEALAND GAZETTE, No. 161

22 SEPTEMBER 2005

2. Grant of Easement

2.1

The grantor GRANTS to the grantee as an easement imposed upon the servient land and appurtenant to the dominant land, pursuant to section 48 of the Public Works Act 1981, the right to:

(a) use the structures as a support for the building on the dominant land;

(b) subject to clause 2.2, from time to time and at all reasonable times enter upon the servient land with or without engineers, contractors and workers for the purpose of inspecting the structures and the wall of the building they support and, subject to 5.2, to do all things that may appear reasonably necessary for their maintenance, support and repair.

2.2

The grantor may temporarily exclude entry by the grantee, pursuant to clause 2.1 (b), if it believes on reasonable grounds that it is necessary to do so to ensure safety.

2.3

The easement shall be forever appurtenant to the dominant land, subject however to termination as set out in clause 2.4 below. For the avoidance of doubt, the term shall not be capable of revocation on the giving of three months' notice as provided for in section 48 of the Public Works Act 1981.

2.4

(a) The easement shall only exist for so long as the present building remains on the dominant land. Should the present building be demolished, the grantee shall, at the grantee's cost as part of such works, remove all parts of the structures from the servient land. On demolition of the building, the easement shall extinguish absolutely and the parties shall be released from any further liability arising pursuant to the easement with effect from such date but without prejudice to either party's rights arising before that date.

(b) If at any time an application made for the cancellation of the Unit Title shown on DP 68792 is lodged with the District Land Registrar under the provisions of the Unit Titles Act 1972, the easement shall determine when all other conditions for cancellation are complied with to the satisfaction of the District Land Registrar.

(c) In the event that the easement is extinguished, the District Land Registrar may make an entry in the Register accordingly in respect of the title to the dominant land.

(d) In the event that the easement determines, pursuant to clause 2 (b), prior to demolition of the building, the grantor shall, at the request of the grantee, grant a new easement on like terms as recorded in this easement (amended as may be required in the circumstances) subject to the grantor having first complied with any statutory or regulatory requirements.

3. Covenants

3.1

The grantor and the grantee covenant as follows:

(a) The grantee shall not do or permit to be done anything by which the MSE (or any other replacement or additional roading structure of the grantor) shall be in any way damaged or rendered unstable or unsafe.

(b) The grantee will regularly inspect the structures and the wall of the building they support adjacent to the servient land to ensure that the same continue to comply with all relevant statutes, regulations or consents, and that no damage to the structures and the wall of the building they support has occurred.

(c) If the structures and/or the wall of the building do not comply with all relevant statutes, regulations or consents, the grantee will put the same into the condition required to make them comply with the relevant statutes, regulations or consents immediately upon the non-compliance being made known to the grantee.

(d) If the grantee defaults in any of its obligations to maintain or repair under clause 3.1 (c), the grantor may arrange for such repair or maintenance at the cost of the grantee and the grantee shall immediately reimburse the grantor for such expense, but without prejudice to the grantor's other rights and remedies under the easement.

(e) The grantor shall, at all times during this easement, ensure that an adequate security fence and gate is installed along the Hutt Road boundary between the building and the MSE and keep the same in good repair. The grantor shall make available to the grantee keys to the security gate to allow the grantee reasonable access pursuant to clause 2.1 (b).

(f) Nothing in this easement shall prevent the grantor from making excavations of the servient land or the adjoining road for the purpose of laying foundations for any roading structure or other building, and the grantor may in future do all such things on the servient land or the adjoining road as the grantor shall see fit at its sole discretion (which actions might but for this proviso be a derogation from the grantor’s own grant) provided that in so doing the grantor shall provide sufficient artificial means of support to the building on the dominant land both during the progress of and after the completion of any such work on the servient land or the adjoining road.

4. Agreement to Subsist

4.1

No power is implied in respect of the easement or any right or obligation under it for the grantor to determine the easement or any right or obligation set out in this easement, it being the intention that the easement and all rights and obligations shall subsist for the term (subject to early termination under clause 2.4) unless surrendered by the grantee or modified or terminated by the mutual written agreement of the grantor and the grantee.

5. Statutory Rights Implied

5.1

The rights and powers implied by the Fourth Schedule to the Land Transfer Regulations 2002 shall be deemed incorporated and form part of the easement, but where any conflict arises the terms of the easement shall prevail.

5.2

Nothing in the easement shall override any statutory and regulatory provisions relating to the servient land. The grantee shall, in taking entry under the easement and in completing any works on the servient land, comply with any such statutory requirements, including without limitation obtaining the consent of the grantor prior to completing any works that affect the surface of the servient land or that may produce subsidence affecting the servient land.

6. Disputes

6.1

The parties acknowledge their desire that all questions or differences whatsoever which arise between the parties concerning the easement or its subject matter or arising out of or in relation thereto and whether as to interpretation or otherwise be resolved amicably by bona fide discussion between them.