First Gas Limited v Gibbs
[2021] NZHC 2794
•19 October 2021
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2021-443-016
[2021] NZHC 2794
BETWEEN FIRST GAS LIMITED
Plaintiff
AND
RUSSELL VICTOR GIBBS PARANI JOSEPHINE GIBBS LEIGH JOSEPH HORTON
Defendants
Hearing (AVL): 15 October 2021 Appearances:
L P Wallace for the Plaintiff S J Grey for the Defendants
Mr Stretton in attendance for the Plaintiff
R and M Gibbs in attendance for the DefendantsJudgment:
19 October 2021
JUDGMENT OF GRICE J
(variation of interim injunction)
[1] First Gas has filed a without notice application to vary the terms of an interim injunction granted on 9 July 20211 (as clarified in a minute of 6 August 2021).2 Since that time the application for a permanent final injunction and related declaratory relief has been heard. The judgment is pending.
[2] The without notice variation application was directed to be served and has been dealt with on a Pickwick basis.3 The parties made oral submissions at an audio-visual
1 First Gas Ltd v Gibbs [2021] NZHC 1722.
2 First Gas Ltd v Gibbs HC Te Whanganui-a-Tara | Wellington CIV-2021-443-016, 6 August 2021 (application to rescind order).
3 Such an application is served at the time of filing so that the defendant can be represented in Court when the application without notice is heard. See Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd [1972] 1 WLR 1213, [1972] 3 All ER 384.
FIRST GAS LIMITED v GIBBS [2021] NZHC 2794 [19 October 2021]
conference and the defendants filed an unsworn affidavit by Mr Russell Gibbs. Following discussions at the conference the plaintiff filed an amended application and draft order incorporating amendments discussed at the conference. The defendants filed a further unsworn affidavit by Mr Gibbs following the conference seeking an adjournment of the application.
[3] The original interim injunction permitted the inspection and survey of a “buckle”, or defect, in the Maui high-pressure gas pipeline operated by the plaintiff that runs through the defendants’ farm. The buckle was said to put five metres of the pipeline at risk of failure. An emergency bypass was constructed to divert the gas supply from the area of the buckle. The emergency bypass and diversion of the gas was referred to as the Pariroa Project Phase 1. Failure of the pipeline would have disastrous effects, not only because of safety issues but, also because the pipeline supplies 90 per cent of the gas needs of the North Island. Customers include large commercial users such as the Huntly Power Station and Fonterra plants.
[4] The sealed order/interim injunction allowed for inspection, repair, and related work to be carried out by First Gas along the easement corridor. That is a strip of land 12 metres wide along which the pipeline is laid (the pipeline corridor). It is delineated on the Survey Office diagrams attached to the two pipeline easement certificates (PECs) registered against the relevant Certificates of Title. The schedules to the two PECs describe the corridor as passing through areas of land described in those schedules. The PECs are registered against the titles.
[5] The Minute (No. 2) of 6 August 2021 ensured that First Gas’ right of entry to the land was not limited to the 12-metre corridor. The words in italic script in the part of the sealed order which follows were added by way of clarification:
2. any physical works associated with the excavation, maintenance and repair of the Maui pipeline buckle at Pariroa, including the temporary position of spoil and storage of equipment and machinery, are confined to the easement corridor is. (For the avoidance of doubt, physical work does not include entry onto, or passing over or across the respondent’s land with or without vehicles, equipment, or machinery; or geological, geophysical, land or archaeological survey in, aerial surveying, or taking samples by hand or hand held methods);
[6] The variation of the interim injunction now sought is to enable First Gas to deposit spoil from excavations and to store equipment and machinery on land outside but adjacent to the corridor of the pipeline to be excavated. This will enable the repairs to commence in Phase 2 of the Pariroa Project. In addition, it seeks to deposit spoil on an area of land further away from the corridor if the need arises.
[7] The details of the proposed works were set out in Ms Wallace’s memorandum for the plaintiff as follows:
a.Excavation to relieve the strain - it is estimated that exposing the pipeline for about 50-60 metres should be sufficient to remove the soil load causing strain on the pipeline. The pipeline will be exposed gradually and progressively under the supervision of pipeline engineer until the pipe movement observations are nil and/or acceptable to the pipeline engineer;
b.Continuous surveying of pipeline prior, during and after pipeline is strain relieved by a surveyor;
c.Finalisation of design drawings utilising actual survey data post strain relief;
d.Removal of the damaged section and replacement of the section with new pipe and a new spool piece;
e.Surveying of the excavated trench for future monitoring; and
f.Installation of groundwater drainage as far as practicable within the pipeline easement during the excavation works
[8] First Gas has proposed that conditions apply to the variation similar to those attached to the interim injunction. Its undertaking as to damages remains extant.
[9] First Gas says that it is urgent to start the repairs now. This will enable the gas supply pipeline to be shut down over Auckland Anniversary Day 2022 (29 January 2022) when the gas will be rediverted through the repaired pipeline. This has been selected as the optimum date for shut down based on projections as to demand. In addition, the next few months, during which the repairs will be undertaken and preparations made for the shutdown, are likely to present the most favourable weather conditions for that work to take place. The Kapuni pipeline, also operated by First Gas, is a smaller pipeline which will provide some supply during the
Maui pipeline shutdown. According to First Gas, commercial users will need some weeks’ notice to enable them to prepare for the shutdown.
[10]Ms Wallace clarified the proposals as follows:
(a)The second area of land which was delineated for the deposit of spoil and as a lay down on the plan provided would not be immediately required. Whether or not it was required depended on the amount of spoil excavated during the repairs. Whether the extra storage area would be needed would not be known until mid-November 2021.
(b)Lay down areas, which require construction, were marked on the plan. However, it was not proposed to construct those in the interim.
(c)The work was urgent. Next week commencing 18 October would be taken up with further inspections and planning for the repairs, using First Gas personnel and civil contractors. The repairs in earnest would not begin until 25 October 2021.
(d)The machinery and equipment to be stored on the land adjacent to the corridor included: two excavators, a mini excavator and a truck to move the excavated soil and to transport the removed section of pipe and the replacement section of pipe, as well as toilet facilities in the form of a portaloo on a trailer. This would be placed at the worksite adjacent to the corridor or on Clifton Road (the access way).
(e)The conditions proposed are set out in an Appendix to this judgment.
(f)A geotechnical engineer would monitor the works regularly.
[11] The defendants oppose the variation. They say they have offered to meet with First Gas representatives, but the representatives did not show up at the time or place appointed by the Gibbs’, or at the place proposed. In response, First Gas says the offer to meet was on the basis of conditions imposed by the Gibbs; there was no clear agenda
or timetable, and short notice was given. Copies of the exchanges of emails were produced. It appears an impasse has been reached.
[12] In the judgment of 9 July 2021 granting the interim injunction Isac J outlined the legal position and First Gas’ claim in nuisance as a basis for a final permanent injunction. It said it was prevented access to the pipeline to exercise its rights under the petroleum authorisation, PECs and provisions of the Petroleum Act 1937. Isac J found there was a serious question to be tried and that the balance of convenience favoured First Gas. His Honour also found that damages would be an inadequate remedy for First Gas.
[13] The interim injunction permitted the access required for the preliminary investigation and survey of the pipeline. The interim orders allowed for repairs, but it was not contemplated an area of land outside the corridor would be used for the storage and use of equipment or the deposit of spoil.
[14] Now that the inspection and survey permitted under the interim injunction have been completed, an option for repair has been selected and the repairs have been planned. First Gas says it must commence the repairs urgently. The contemplated repairs cannot be carried out without using an area of land adjacent to but outside the corridor. It seeks permission to deposit spoil and use and store the required machinery in the specified area within the PEC. The land to be used for the storage and use of the machinery and equipment is shown on a plan produced by the plaintiff, together with a smaller area delineated on the plan for the deposit of the spoil if needed. The proposed storage site is within the area described in the PEC.
[15]The primary points raised by the Gibbs’ in relation to the variation were:
(a)Concern about the extent of the excavation and the possibility of a landslide as a result of excavation of the 50 to 60 metres proposed. Mr Gibbs indicated a 25-metre excavation in 1998 caused a buckle. He was extremely concerned about the geotechnical effect of the larger excavation proposed.
(b)Lack of clarity as to what exactly was proposed. Ms Gibbs said there was a lack of proper assessment by the geotechnical engineers (PDP) whose report appeared to indicate a larger intrusion in the land, including the construction of a lay down area, than appeared in the application for variation of the interim injunction.
(c)Compensation for the use of the area of land on which it was proposed to deposit the spoil and store the equipment and machinery had not been paid from August 2021 onwards.
(d)The proposed works were a significant departure from those permitted under the interim injunction and should be the subject of a Public Works Act 1981 application for access to land outside the PEC provisions.
[16] Marie and Russell Gibbs are to be away from the farm on 18 and 19 October 2021 attending to another matter set down in the New Plymouth High Court. They do not want the repairs to begin without their being present.
Analysis
[17] First Gas has rights to store equipment and machinery and deposit spoil by virtue of the fact they hold authorisations under the Petroleum Act, have registered PECs and rights under the Petroleum Act as follows:
“68. Powers of holders– Notwithstanding the provisions of any other Act, regulation, bylaw, certificate of title, or other authority, any pipeline authorisation issued under this Part of this Act shall, subject to the provisions of this Part of this Act and of the authorisation, confer on the holder, while the authorisation remains in force, an absolute right–
“(a) To construct and lay pipelines on, over, or under any land referred to in the authorisation:
“(b) To construct and lay pipelines along, on, over, or under any road, railway, tramway, bridge, navigable waters, river, or stream referred to in the authorisation:
“(c) To alter, remove, repair, operate, inspect, renew, and maintain any pipeline constructed under the authority of the authorisation:
“(d) To do such other things as are necessarily incidental to the exercise of the powers and authorities of the holder under this Part of this Act.
[18] Isac J outlined the relevant statutory provisions. The reference to s 73 below should be to s 75 of the Petroleum Act. He said:4
[20] As noted, First Gas holds a pipeline authorisation issued under the (now repealed) Petroleum Act 1937 (the Act), which allows the construction and operation of the Maui pipeline.
[21] Under s 68 of the Act, a pipeline authorisation confers on the owner of a pipeline “an absolute right” to “alter, remove, repair, operate, inspect, renew, and maintain any pipeline”. And, importantly, under s 68(d), the holder of a pipeline authorisation is empowered to “do such other things as are necessarily incidental to the exercise of the powers…of the owner under this Part of the Act.”
[22]Under s 73 of the Act, the holder of a pipeline authorisation:
…may enter upon such land as may be necessary for the exercise of any such right [conferred under the authorisation or the relevant part of the Act] with right of access to and egress from any such land with his servants, workmen, and agents, from time to time and at all times, with or without any suitable or available means of conveyance, and with all such equipment, articles and materials as may be necessary for the carrying out of any works authorised by the authorisation or authorised by this Part of this Act…and may also deposit and store from time to time upon any land adjoining any such works all such machinery and material of any kind as may be used in carrying out any such works.
[23]These powers are obviously broad and intrusive.
[24] In addition to its rights under the pipeline authorisation, First Gas also holds two pipeline easement certificates issued by the then Minister of Energy under s 70 of the Act. Clause four of the easement certificates record that the easement holder has the:
…right of entry on the said land pursuant to subsection (6) of section 70 of the Act for the purpose of exercising the rights conferred on them by the Act and any regulations made thereunder and by the pipeline authorisation.
[25] Under s 70(6) of the Act, every pipeline easement certificate gives the owner of the pipeline a right of entry “on the land to which the certificate relates for the purposes of exercising the rights conferred on [them] by this Part…and by [the] authorisation.”
4 First Gas Ltd v Gibbs, above n 1 (footnotes omitted). The version of the Act in force immediately before the repeal of the Petroleum Act by the Crown Minerals Act 1991 was that contained in the Petroleum Amendment Act 1980 (No 34).
[26] So, between the petroleum authorisation, the pipeline easement certificates, and the provisions of the Act, First Gas says it has an absolute right of entry to carry out the initial investigation works and repairs to the Maui pipeline.
[27] Finally, it is relevant to note that the Petroleum Act 1937 was repealed by the Crown Minerals Act 1991 on 1 October 1991, and by s 62(1) of the Health and Safety in Employment Act 1993, on 1 April 1993. Despite the repeal of the Act, First Gas’ rights under the pipeline authorisation and easement certificates are preserved by the Crown Minerals Act.
[19] In addition to the rights under the Petroleum Act, under the Gas Act 1993, First Gas, as the owner of existing gas fittings being the Maui pipeline, is entitled to “enter upon land for the purpose of gaining access to those fittings and may perform any Act or operation necessary for the purpose of… inspecting, maintaining, or operating the fittings”.5 This provision has not been the focus of this application. I mention it for completeness.
[20] Compensation is not an issue which enables the delay of the exercise of any powers under the Act, including those of entry and storage of equipment and machinery or spoil. The compensation provisions are set out in Section 77 of the Act. It provides:
“77. Compensation– (1) Subject to section 74 (7) of this Act, every person having any right, title, estate, or interest in any land or property injuriously affected by the exercise from time to time of any powers conferred by this Part of this Act or by any authorisation shall be entitled to full compensation for all loss, injury, or damage suffered by him.
“(2) The provisions of subsections (2), (3), and (4) of section 39 of this Act shall, as far as they are applicable and with the necessary modifications, apply to claims for compensation under this section.
“(3) This section shall apply to claims on behalf of the Crown, as well as to claims by or on behalf of other persons.
“(4) Notwithstanding any enactment or rule of law, the exercise of any power conferred on the holder of an authorisation shall not be curtailed, suspended, or delayed by reason of the fact that any claim for compensation under this section has been made but not determined.
[21] In the interim injunction judgment, Isac J concluded that there was a serious question to be tried.6 His Honour found that the statutory provisions set out above
5 Gas Act 1992, s 24(1)(a).
6 First Gas Ltd v Gibbs, above n 1, at [52].
appeared to confer broad powers of entry onto the land, not just confined to the corridor, in order to carry out repairs and maintenance to the pipeline.7
[22] I agree with Isac J’s analysis. I have heard the evidence and submissions in the substantive proceedings and I consider the plaintiff has a strong case that the statutory provisions allow not only entry but also to store machinery and equipment and deposit spoil where necessary on land described in the PECs not limited to the pipeline corridor.
[23] In the substantive proceedings the primary issues raised by the defendants in response to the rights claimed by First Gas related to: the interpretation of the legislation and the wording of the PECs; the effect of the 2009 judgment in Gibbs v Vector Gas Ltd;8 and/or that there was an existing arrangement or agreement that required a high degree of collaboration between First Gas and the Gibbs’ involving cultural representatives of Poutama nominated by the Gibbs’ before any repairs could be carried out.
[24] Having heard the evidence and submissions in the substantive matter I am of the view that the issues raised by the Gibbs’ do not affect the statutory rights of First Gas to store machinery and equipment and deposit spoil, where necessary, for the purposes of, among other things, the repair of the pipeline as sought by First Gas in the variation to the interim injunction.
[25] The Gibbs v Vector Gas Ltd judgment related to a different project (a realignment project) on a different pipeline (Kapuni) and the effect of the judgment was limited to that issue. The Gibbs’ could point to no documentation that recorded an agreement by First Gas to conditions or a collaborative process that would bind First Gas for the proposed repair project (known as Pariroa Phase 2).
[26] The relevant arrangements to which the Gibbs’ point were limited to the particular projects being undertaken at the time. That included, most recently, the first phase of the Pariroa Project which involved the construction of the pipeline bypass.
7 First Gas Ltd v Gibbs, above n 1, at [56].
8 Gibbs v Vector Gas Ltd HC New Plymouth CIV-2008-043-000545, 27 April 2009.
The bypass required a special time-limited authorisation under the Petroleum Act as the bypass was constructed outside the corridor of land along which the pipeline runs, as shown on the PECs. Phase 2 will enable the gas to be diverted back through the original pipeline on the existing corridor.
[27] First Gas’ management, including the Chief Executive, has indicated that the Gibbs whānau and, in particular Marie and Russell Gibbs, co-operated and were of assistance in Phase 1. The extent of the usefulness of their input was limited according to the project manager. The evidence adduced by First Gas, in particular, of that of the project manager, was that all the conditions imposed by the Gibbs’ on First Gas to enable it to undertake the work in Phase 1 were acquiesced to by First Gas only because of the urgent need to put the bypass in place. First Gas says the level of involvement and conditions imposed by the Gibbs’ are not appropriate for Phase 2.
[28] There was nothing agreed in terms of process or conditions that was produced in evidence indicating that First Gas has agreed to the Phase 1 arrangements continuing for Phase 2. The evidence showed that First Gas had sought some written agreement with the Gibbs’ in order to clarify the process and conditions applicable to future work, but nothing was agreed in the end.
[29] First Gas accepts that it has obligations under the Health and Safety legislation and Resource Management Act 1991. It says it will honour those. However, those obligations do not prevent First Gas from exercising its rights of entry, repair, storage, and incidental use of the land for the purpose of pipeline repairs.
[30] First Gas accepts it must meet any obligations on it in relation to archaeological or cultural issues. It has indicated it will do so and offers to abide by an archaeological protocol and will make such applications as are required for authorisations to the appropriate authorities. It has the services of an archaeologist who has inspected the site and reported to First Gas on the relevant issues. While Mr Gibbs does not consider these arrangements are sufficient, they are First Gas’ obligations and it says it will honour them.
[31] In relation to the main issues raised by the Gibbs’ in relation to this variation I comment as follows:
(a)The excavations for the repairs of the pipeline will be undertaken along the corridor. This is permitted as a result of the authorisation, the PECs, and the legislation. The interim injunction, as presently worded, enables those repairs to be effected along the corridor. In relation to the interpretation arguments developed at the substantive hearing, the defendants accepted that First Gas had the right to undertake repairs within the corridor although they argued that such repairs were subject to a “collaborative” arrangement and various conditions (which were unclear). I do not consider those arguments are strong on the basis of the evidence. In addition, the geotechnical effects of the excavation on the stability of the land is the responsibility of First Gas. It has indicated that it will be monitored by a geotechnical engineer who will visit the site twice a week.
(b)Compensation is not an issue which affects whether the interim injunction should be varied. That must be dealt with separately and cannot delay the relevant works. In any event, First Gas has indicated it would deal with compensation, when invoiced, as was agreed.
(c)The final judgment will deal more fully with the extent of First Gas’ rights to use of land for storage and spoil deposition where necessary for the purposes of repair and pipeline-related activities into the future. However, if it is prevented from commencing the repairs as planned it will effectively be prevented from undertaking them at all within the timeframe.
[32] It is not in dispute that the Gibbs’ intend to prevent First Gas from entering and to undertake the repairs using the land for storage and deposition of spoil. The defendants have issued trespass notices to a number of First Gas staff and said they will not allow access to the land for the purposes of repairs of the pipeline without a court order or First Gas collaborating with the Gibbs’ and meeting their conditions.
[33] First Gas has been entrusted with the operation, repair, and maintenance of the pipeline under the authorisation. As Isac J said:9
[8] The pipeline is operated pursuant to an authorisation issued on 31 July 1975 under the Petroleum Act 1937. First Gas is the current holder of the pipeline authorisation, and the current owner and operator of the pipeline.
[9] There is a stringent regulatory framework governing maintenance and operation of the Maui pipeline. Certification under an applicable industry standard is required, a process which involves inspection by an independent certifier and the issue of a pipeline certificate of fitness.
[10] As the original pipeline’s design life was less than 40 years, safe operation requires continuous replacement and renewal of components.
[34] The pipeline is a structure of national importance. Regular and timely maintenance and repairs are essential for First Gas to meet its obligations. First Gas is aware of its obligations in that regard, including under the Health and Safety legislation, the Resource Management Act, as well as its responsibilities concerning archaeological issues.
[35] An unscheduled shutdown leads to considerable disruption of the users of the natural gas, First Gas says. More than half of the supply of gas goes to large industrial users such as Fonterra and the Huntly Power Station. Forward planning is required for a shutdown, including giving those third parties ample notice as to when the shutdown is going to occur, to enable them to plan their operations. First Gas must also give notice of the shutdown to the government.
[36] I am satisfied First Gas would not be able to repair the pipeline within the planned timeframe to meet a shutdown deadline of 29 January 2022 if it is not able to take the steps proposed. That involves the survey and inspection next week with the planned repairs commencing the following week. It is up to First Gas to ensure these are safely carried out with due consideration and management of all risks, including geotechnical risks.
[37] If First Gas is unsuccessful in the substantive proceeding, it will be required to cease work and will effectively lose the benefit of the work it carries out in the interim.
9 First Gas Ltd v Gibbs, above n 1, at [8]–[10].
It must also restore the land to its former condition as far as possible, as well as pay any compensation as assessed. It is willing to take those risks.
[38] The balance of convenience strongly favours granting the variation. Damages would not be an adequate remedy given the national importance of the gas supply and the need to commence the repairs to the pipeline within the planned timeframe.
[39] In Russell Gibbs’ affidavit filed following the conference he sought further time to respond to the present application (as amended). The amended application does not raise any matters that were not covered at the conference. In fact, they narrow the application. Any adjournment would prevent First Gas from undertaking the repairs within the window of time proposed.
[40] I do not consider it is appropriate to further delay dealing with this application or impose the conditions sought as to the provision of plans and involvement of the Gibbs’ in planning meetings. In view of the absence of Marie and Russell Gibbs on 18 and 19 October, the repair work (as opposed to the inspection and planning work) should not commence until 20 October 2021. This will enable either Marie or Russell Gibbs to be present for the commencement of the repairs. First Gas must give them 24 hours’ notice of the time of the commencement of the repairs. However, it is not a condition of the order varying the interim injunction that no work can otherwise take place without the presence of both or either of them. A condition will be imposed allowing a representative of the defendants to be present during excavations and for the amount of remuneration to be paid.
[41] I propose granting the variation to the interim orders but the temporary storage of machinery and equipment and deposition of spoil will be limited to the land adjacent to the pipeline corridor marked in the diagram handed up by Ms Wallace. This is described as:
The land adjacent to the easement corridor shown in the plan attached to the amended application where it is described as “Temporary stockpile/laydown areas” and shown in grey, delineated with a dashed black line, adjacent to the easement corridor, is permitted to be used for stockpiling spoil. The area for the use and parking of machinery is to the east of the easement corridor and buckle area. This area is delineated to the east … of the buckle site with a red ‘dash and stroke’ line (-/-) which is labelled “Temporary stock fence”, and to
the north and west of the buckle site it is bounded by the Waikorora Stream (the “Works Site”).
[42] First Gas does not intend to level or scrape the topsoil off these areas to install a “laydown platform”.
[43] The variation to the interim injunction is granted on the terms set out above. The plan and the work schedules should be referred to and attached to the sealed order.
[44] First Gas have proposed the interim injunction as varied be granted on the conditions set out in the attached Appendix. These were based on those adopted by Isac J in the interim injunction order.
[45] The interim injunction issued on 9 July 2021 and sealed on 9 July 2021 is varied to prohibit the defendants, or any other party, from:
(a)restricting, obstructing or otherwise interfering with First Gas’ rights under its Pipeline Authorisation and Pipeline Easement Certificates registered over the defendants’ land, including rights to enter the defendants’ land for performing any action or operation necessary for the purpose of inspecting, maintaining, repairing or operating the Maui pipeline.
(b)provided that:
(i)all such activities are carried out in accordance with the terms of Pipeline Easement Certificates 269143 and 269148, Pipeline Authorisation 4410-16 and the relevant provisions of the Petroleum Act 1937;
(ii)the repair works that are carried out on the Maui Pipeline are in accordance with the scope of works attached;
(iii)any physical works associated with the excavation, maintenance or repair of the Maui Pipeline buckle at Pariroa are confined to
the easement corridor (for the avoidance of doubt, physical works does not include: entry onto, or passing over or across the respondents’ land with or without vehicles, equipment or machinery; or geological, geophysical, land, aerial or archaeological surveying; taking samples by hand or hand held methods; or the temporary deposition of spoil and storage/use of equipment and machinery on land adjoining the easement as more particularly set out in the attached plan); and
(iv)the conditions set out in Appendix 1 attached which will include the following:
(v)a geotechnical engineer will attend the site to monitor the work and its effects at least twice a week. That engineer will carry out surveying and inspection to assess geotechnical matters associated with the works, including slope stability and soil parameters.
[46] Costs are reserved. If the parties are unable to agree, memoranda should be filed by the plaintiffs within seven days of the date of this judgment and the defendants have a further five days to reply. Any response must be filed within a further three days.
Grice J
Solicitors:
Govett Quilliam, Ngāmotu | New Plymouth, for the plaintiffs.
APPENDIX (conditions proposed)
In exercising its rights under PEC 269143, PEC 269148 and Pipeline Authorisation 4410-16 and when accessing or undertaking works on the Gibbs Family Trust’s (the “Landowner”) Land, First Gas will (at its sole cost):
a)use its best endeavours to avoid disruption to any of the Landowner’s farming activities on the Land, including ensuring all gates remain closed at all times, provided that gates may be opened and immediately closed for access purposes;
b)undertake all routine works and activities, as far as possible, during week days;
c)except in the case of an emergency or where agreed otherwise in writing with the Landowner, provide at least two weeks’ notice to the Landowner and any Lessees of any activities First Gas or its contractors plans to undertake on the Land;
d)keep the Landowner and any Lessees informed of any minor changes to planned site activities or timing due to weather or equipment or contractor availability as soon as practicable and use all reasonable endeavours to minimise disruption to the Landowner’s Activities on the Land;
e)as soon as practicable make good any damage or disruption caused to the Land;
f)on completion of any works, remove all its equipment and other property from the Land and make good any damage or disruption caused to the Land by the installation or removal of that equipment or property, except to the extent such equipment or property is to be retained of affixed on the Land under the Pipeline Easement Certificates;
g)invite a representative of the Landowner to be present during any excavation works10 carried out by FG on the Land in relation to the Maui Pipeline. The representative shall be entitled to be renumerated at a rate of $100/hour;
h)comply with all laws, regulations and orders (including the Heritage New Zealand Pouhere Taonga Act 2014, the Building Act 2004, Resource Management Act 1991 and Health and Safety at Work Act 2015) and undertake consultation as and when required by law or as directed by the relevant statutory bodies (i.e. New Plymouth District Council and Heritage New Zealand Pouhere Taonga);
i)comply with an Accidental Discovery Protocol in the event that koiwi, taonga, archaeological sites or any other waahi tapu are uncovered during any surveys, inspections or works on the Land. The Accidental Discovery Protocol shall as a minimum require First Gas to notify the Landowners, mana whenua and Heritage New Zealand Pouhere Taonga of the accidental discovery and to take immediate steps to secure the site to ensure it remains undisturbed and that the site is safe in terms of health and safety requirements; and
j)where any works exceed 1 week in duration or where the rehabilitation of an area lasts more than 1 month pay the Landowner or Lessee land disruption compensation, calculated by a registered valuer using International Valuation Standards 2017, Australia and New Zealand Valuation Guidance Notes and Technical Information Papers based on the principle of “highest and best use”. Except where disruption has already been compensated (i.e. overlapping areas).
10 For the purpose of these conditions, excavation works means the alteration or disturbance of land by removing, blading, cutting, contouring, filling or excavating earth; but excludes disturbances of land for the installation of fence posts, taking core samples, digging test pits or probing the pipeline.