Underground Telecommunications Cables Across Private Land
Underground Telecommunications Cables Across Private Land
Underground Telecommunications Cables Across Private Land
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FACT SHEET<br />
TELEPHONE 0800 327 646 I WEBSITE WWW.FEDFARM.ORG.NZ<br />
UNDERGROUND TELECOMMUNICATIONS CABLES ACROSS<br />
PRIVATE LAND<br />
BACKGROUND<br />
The Rural Broadband Initiative envisages substantially improved broadband access for people in<br />
rural locations. This enhanced telecommunications fibre network will require the acquisition of<br />
rights from private landowners to lay fibre cabling underground, across their land, and protect it.<br />
The gaining of those rights, and associated compensation, will generally be achieved by way of an<br />
easement agreement between the landowner and the broadband provider / telecommunications<br />
company.<br />
If you have been approached by a broadband provider/telecommunications company seeking to<br />
lay a fibre optic cable across your land, this fact sheet can be of assistance to you.<br />
FEDERATED FARMERS OF NEW ZEALAND’S POSITION ON RURAL BROADBAND<br />
Federated Farmers of New Zealand is a supporter of the Rural Broadband Initiative, and is working<br />
hard to get the best deal for rural areas.<br />
The Federation has developed sound knowledge of easement provisions and how they affect<br />
landowners, principally through advising landowners that are negotiating easements for public<br />
infrastructure such as electricity lines and gas pipelines.<br />
WHAT IS AN EASEMENT?<br />
An easement is a property right the broadband provider / telecommunications company will need to<br />
purchase from landowners along the fibre network route. Rights and obligations of the parties over<br />
the easement land will be set out in the agreement.<br />
For the landowner, it will set out the easement area and what they can or cannot do within it. It will<br />
also set out the broadband provider / telecommunications company rights of access to the land,<br />
and payment of compensation for temporary disturbances during the laying of the fibre.<br />
Easement terms related to underground fibre optic cables are not thought to be onerous on the<br />
landowner. Once laid, an underground fibre network rarely requires maintenance, and the fact of it<br />
being hardened and underground substantially reduces the impact on the landowner. The rights<br />
acquired from the landowner, and the obligations placed on them by the easement, are much less,<br />
for example, than those associated with an electricity line.<br />
Nevertheless it is important that landowners ensure that their interests, short and long term, are<br />
protected, and they come to an arrangement with the broadband provider / telecommunications<br />
company that is optimal for them.<br />
CONSTRUCTION<br />
It is important that the landowner find out from the company just how the company intends to<br />
construct the cable across their land. This could have quite significant effects that need to be<br />
considered as part of the easement negotiations.<br />
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Construction will in most cases involve the laying of ducting for fibre-optic cable by way of moleplough.<br />
This means that the cable will be laid with very little disruption to the land over a very brief<br />
period. Given the undergrounding of the cable avoids the engineering concerns of overhead lines<br />
(line tension, spacing between poles, etc.), the route the cable takes can more easily take account<br />
of routes the landowner would prefer taken through their land.<br />
There is however situations where the undergrounding of the fibre cable by mole-plough will not be<br />
possible, whether for reasons of topography (steep slopes) or soil structure (stony or hard ground).<br />
In these situations, the line will likely be directional drilled, trenched or strung up above ground<br />
along poles. This means that parts of the line could be more intrusive and potentially have a larger<br />
on-going impact on the landowner’s use of their land. This impact must be discussed with the<br />
company so the company can either alter the route to minimise the impact, take other steps to<br />
minimise the impact or compensate for the impact.<br />
COMPENSATION<br />
Compensation is paid for the rights acquired by the easement and any associated impact on the<br />
surrounding property and the landowner’s use of it.<br />
Where fibre optic cabling is laid underground, there is no visual impact on the property and<br />
limitations on the use of the easement area are less than is the case for infrastructure that is above<br />
ground. As such, compensation can be insubstantial.<br />
The preference of companies for property rights under an easement is that compensation be paid<br />
as a once-off lump sum. There are reasons for this, such as the principle of equivalence under the<br />
Public Works Act.<br />
A major perceived shortcoming of once-off lump sum payments, however, is that they cannot<br />
accommodate the on-going impact on the landowner’s future economic potential use of the <strong>Land</strong>. It<br />
may be that, for example, the landowner in the future wishes to take advantage of conversion of<br />
the land to production forestry but is limited by the presence of the easement and the cable’s<br />
location.<br />
As such, Federated Farmers considers compensation paid as an annual rental may better reflect<br />
this changing situation and may be worth the landowner pursuing in their negotiations with the<br />
company.<br />
Alternatively, it is worth understanding that there exists a certain amount of pragmatism and<br />
flexibility in the laying of fibre networks where the company is reluctant to pay compensation as an<br />
annual rental. Federated Farmers would encourage landowners to seek compensation additional<br />
to the once-off lump sum, perhaps, in the form of an additional goodwill payment or some other<br />
form of additional assistance.<br />
EASEMENT VS LEASE<br />
The land rights allowing the laying of fibre across private land are usually secured by way of<br />
easement agreement. This is in recognition of the permanent tenure of the cable across that land.<br />
This is a situation also common to gas pipelines, electricity lines and other long-term infrastructure.<br />
This situation is however different with the construction and siting of cellphone / wireless towers on<br />
private land. As these towers can service a large area wirelessly, the siting of the tower is a lot<br />
more flexible. Standard practice for cellphone / wireless towers is for the property rights to be<br />
secured through a combination of lease and easement agreements.<br />
This usually happens where the tower and an area at the base of the tower are secured by lease,<br />
while the fibre cable and electricity line that connect the tower to both the telecommunications and<br />
electricity networks are secured by easement agreement.<br />
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A separate fact sheet has been developed to assist landowners in their lease negotiations with<br />
telecommunications companies. Members can obtain a copy of this fact sheet by calling<br />
0800 327 646.<br />
EASEMENT GUIDANCE<br />
Below are a range of suggestions as to provisions that Federated Farmers considers necessary in<br />
an easement agreement that balances the rights and obligations of the landowner and the<br />
company.<br />
The easement negotiation and associated compensation are a business matter between the<br />
landowner and the broadband provider / telecommunications company. The easement agreement<br />
provisions below are suggested as guidance and a starting point for landowners in their<br />
negotiations, and are not intended as a comprehensive legal agreement.<br />
1) Purposes of the easement<br />
The purpose of this section is to set out the intent of the agreement, as well as define basic terms<br />
like:<br />
Accessway: the agreed access route across the land to the Easement Area.<br />
Company: the telecommunications company seeking to purchase rights to use<br />
private land to host <strong>Telecommunications</strong> Infrastructure on the Easement Area.<br />
Easement Area: the area of land the company requires to site the<br />
<strong>Telecommunications</strong> Infrastructure<br />
<strong>Land</strong>: the area around the Easement Area that comprises the rest of the<br />
property.<br />
<strong>Land</strong>owner: the owner of the land selling land use rights to the Company under<br />
the easement.<br />
<strong>Telecommunications</strong> Infrastructure: the fibre cable and any other additional<br />
equipment or structures to be constructed on the Easement Area under the<br />
easement agreement.<br />
An agreement will set out its purposes, for example that it is “to allow the company to construct and<br />
use <strong>Telecommunications</strong> Infrastructure on the Easement Area”. It may perhaps go further to make<br />
it clear that the agreement describes the rights the Company is acquiring from the <strong>Land</strong>owner, the<br />
obligations on the <strong>Land</strong>owner that arise from the Company’s occupation and use of the Easement<br />
Area, and the obligations the Company has to the <strong>Land</strong>owner as occupant of the Easement Area.<br />
One aspect the <strong>Land</strong>owner would do well to assert in their negotiations is the inclusion of a<br />
statement that makes it clear what the easement does not seek to do, namely:<br />
“This easement does not prevent the <strong>Land</strong>owner from continuing to use the <strong>Land</strong><br />
outside of the Easement Area for normal farming practice except where it would<br />
interfere with the <strong>Telecommunications</strong> Infrastructure.”<br />
2) Company’s rights<br />
The purpose of this section is to clearly describe the rights that the <strong>Land</strong>owner is allowing the<br />
Company to purchase under the agreement. In general terms, the rights cover everything from the<br />
right to enter the <strong>Land</strong>, to construct and do work on the Easement Area, and to have their cable<br />
sited on the Easement Area.<br />
This section is important because it outlines what the Company is allowed to do. While it should be<br />
focussed on the positive aspects, one should also bear in mind those activities the landowner<br />
would rather the company did not do while on their land. An example is the securing of an agreed<br />
Accessway between the <strong>Land</strong>owner and the Company, in such a way that the <strong>Land</strong>owner has<br />
control over the entry point and route the Company uses to access the Easement Area.<br />
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It is important of course not to grant the Company excessive rights. We suggest that the provisions<br />
below are adequate for the purposes of describing the basic rights an easement for underground<br />
fibre optic cabling:<br />
“This easement gives the Company the following rights:<br />
To construct, install, inspect, operate, repair, maintain, renew, replace, add to,<br />
modify and remove the <strong>Telecommunications</strong> Infrastructure on the Easement<br />
Area;<br />
to transmit, convey, send, distribute, convert and receive telecommunications<br />
signals by means of the <strong>Telecommunications</strong> Infrastructure;<br />
to undertake any tests, investigations and surveys to exercise the Company’s<br />
rights and obligations under this easement;<br />
to enter and remain on the Easement Area and the Accessway with or without<br />
vehicles and equipment to exercise the Company’s rights and obligations under<br />
this easement;<br />
to enter and remain on parts of the <strong>Land</strong> outside the Easement Area and the<br />
Accessway with or without vehicles and equipment to exercise its rights and<br />
obligations under this easement, but only if:<br />
o the Accessway is not available for any reason; or<br />
o access to and from the Easement Area is by air; or<br />
o we need to have access outside the easement area and the Accessway<br />
to exercise our rights under this easement; but only with the prior<br />
agreement of the <strong>Land</strong>owner.<br />
And then the Company may use any access route to exercise its rights and<br />
obligations.”<br />
The Company will make best attempts to run the fibre cable along existing fence lines or otherwise<br />
avoid the need to cross through fences, as it eases problems for both parties. It may however be<br />
necessary in some situations for the Company to interfere with fences or gates within fences to<br />
complete the laying of the fibre cable along the Easement Area.<br />
In these instances, the <strong>Land</strong>owner would do well to argue that while the Company can have the<br />
right to install gates within fences, this should only happen when essential to achieve the purposes<br />
of the easement.<br />
The Company will likely seek the right to construct, use and modify access tracks on the <strong>Land</strong>.<br />
This is necessary to ensure the Company can use access tracks that are fit for their purposes<br />
under this easement. The important consideration for the <strong>Land</strong>owner is to argue that the easement<br />
should ensure the Company must first obtain the <strong>Land</strong>ower’s consent.<br />
The Company may want to have the right to keep the Easement Area clear of obstacles like trees,<br />
soil, and structures. This is reasonable as such things would impede their access to the cable. The<br />
<strong>Land</strong>owner would do well to argue in their negotiations that the Company should cover the costs of<br />
keeping the Easement Area clear.<br />
Additional rights the Company may reasonably seek in the easement could include:<br />
to excavate the Easement Area and remove vegetation (including trees), soil,<br />
earth, gravel and stone from the Easement Area;<br />
to temporarily exclusively occupy any part of the Easement Area to undertake<br />
work safely including temporarily fencing off the occupied area and temporarily<br />
preventing or restricting the <strong>Land</strong>owner’s access to the occupied area.”<br />
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3) Limitation on the Company’s rights<br />
The purpose of this section is to clearly constrain what the Company can build on the Easement<br />
Area under this agreement to what is agreed. It is important to ensure that it is clear in the<br />
easement agreement that the Company does not have the right to redevelop and extend the<br />
<strong>Telecommunications</strong> Infrastructure beyond that for which the Easement was negotiated with the<br />
<strong>Land</strong>owner.<br />
This is a safety mechanism and might be worded as follows:<br />
“The Company does not have the right to:<br />
install <strong>Telecommunications</strong> Infrastructure to a specification beyond or in<br />
addition to that which is negotiated with the <strong>Land</strong>owner for the purposes of this<br />
easement;<br />
use the Easement Area for purposes other than those negotiated for the<br />
purposes of this easement.”<br />
The constantly evolving technology related to <strong>Telecommunications</strong> Infrastructure is such that<br />
capacity and performance can be enhanced without the need for additional infrastructure to that<br />
negotiated with the <strong>Land</strong>owner. This can be achieved with replacement infrastructure that performs<br />
to a higher specification. It is not our intention within this easement guidance to limit the<br />
replacement of <strong>Telecommunications</strong> Infrastructure that is the same or similar to the agreed with the<br />
<strong>Land</strong>owner but can perform to a higher specification.<br />
4) Company’s obligations<br />
The purpose of this section is to describe the obligations the Company will have towards the<br />
<strong>Land</strong>owner and the <strong>Land</strong>owner’s use of the <strong>Land</strong>. These generally focus on the things the<br />
Company needs to have regard for when they enter the <strong>Land</strong>, while they are on the <strong>Land</strong>, and<br />
when the Company will compensate the <strong>Land</strong>owner for losses arising from their entry to the <strong>Land</strong>.<br />
Although these obligations are likely to be fairly standard, it would help to discuss with the<br />
Company just exactly what they intend to do while on the <strong>Land</strong>. There may be aspects to your<br />
farming operation that you’d rather the Company stayed far away from, or that they took specific<br />
actions while entering your <strong>Land</strong>. The key here is to be clear what the Company needs to do to<br />
avoid a situation where you need to be compensated for damage.<br />
We suggest the following as a helpful guide for your discussions with the Company:<br />
“When the Company enters the <strong>Land</strong>, they must;<br />
only enter the <strong>Land</strong> at access points and via Accessways and / or access tracks<br />
agreed to with the <strong>Land</strong>owner and specified on the maps accompanying this<br />
easement;<br />
have regard to the <strong>Land</strong>owner’s use of the <strong>Land</strong>;<br />
minimise disruption to the <strong>Land</strong>owner’s use of the <strong>Land</strong>;<br />
restore any part of the surface of the <strong>Land</strong> that is damaged by the Company as<br />
close to its prior condition as reasonable practicable and repair any other direct<br />
physical damage caused;<br />
the Company shall use its best endeavours to prevent the outbreak and spread<br />
of noxious weeds and fire; and<br />
remove any debris the Company creates in undertaking any works and<br />
otherwise leave any work sites in tidy condition.<br />
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“Upon completing the installation of the <strong>Telecommunications</strong> Infrastructure, and in<br />
the course of exercising its rights under this easement, the Company must:<br />
restore the soil surface to its original contour and condition;<br />
restore any crops or pasture disturbed by the Company;<br />
complete all site restoration requirements of any resource consents or any<br />
Authority; and<br />
restore any fences, including boundary fences, modified by the exercise of their<br />
rights under this easement.<br />
“The company will compensate any loss to the <strong>Land</strong>owner resulting from:<br />
any damage caused to the surface of the <strong>Land</strong> to the extent that the Company<br />
cannot restore it; and<br />
any trees that the Company removes outside of the Easement Area.”<br />
5) Accessway and access tracks<br />
The purpose of this section is to clearly describe what the Company can and cannot do as regards<br />
Accessways or access tracks across your <strong>Land</strong>. This means considering what rights you will allow<br />
the Company to purchase to construct new access tracks or modify existing ones. There is limited<br />
likelihood that the Company will require permanent access tracks for underground fibre optic<br />
cables, however it is still important to set out conditions.<br />
The following are suggested provisions:<br />
“If the company constructs, modifies or upgrades any access track (including<br />
culverts, bridges and other supports) on the Easement Area or the Accessway, it<br />
will at their cost:<br />
Take steps prior to entry to ensure the access track is of the standard they<br />
require.<br />
Repair any damage they cause to the access track.<br />
“If the <strong>Land</strong>owner damages any access track that the Company has constructed,<br />
modified or upgraded on the Easement Area or the Accessway, the Company may<br />
recover the cost of repairing that damage from the <strong>Land</strong>owner.<br />
“All access tracks that the Company constructs, modifies or upgrades on the<br />
Easement Area or the Accessway will form part of the <strong>Land</strong> and will be the property<br />
of the landowner (unless agreed otherwise in writing with the <strong>Land</strong>owner).”<br />
6) Notices<br />
The purpose of this section is to clearly describe the obligations on the Company to provide notice<br />
in advance of their intention to enter the <strong>Land</strong>, as well as the rights of the <strong>Land</strong>owner to manage<br />
that access.<br />
This section of the agreement is important because notice provisions ensure that potential<br />
interruptions to the <strong>Land</strong>owner’s use of the <strong>Land</strong> are managed in the best interests of the<br />
<strong>Land</strong>owner. It may seem unreasonable to require the Company to give 10 working days notice, but<br />
the Company must be required to give notice far enough in advance that the <strong>Land</strong>owner has a<br />
chance to advise of any conditions or delays they may need for farm management purposes.<br />
We suggest the following as a helpful guide for your discussions with the Company:<br />
“The Company will give the <strong>Land</strong>owner at least 10 working days notice of their<br />
intention to enter the <strong>Land</strong> for any purpose allowed by this easement.<br />
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“The <strong>Land</strong>owner may set reasonable conditions on Company entry onto the <strong>Land</strong>,<br />
but the <strong>Land</strong>owner must inform the Company at least 2 working days before their<br />
proposed date of entry. Reasonable conditions could include matters of animal<br />
welfare, stock and crop disturbance, high fire risk, and biosecurity risk.<br />
“In an Emergency, the Company may enter the <strong>Land</strong> without giving prior notice to<br />
the <strong>Land</strong>owner, but must give notice as soon as possible and no later than 5<br />
working days after the event, and must comply with all other provisions of this<br />
easement relating to their entry.<br />
“The <strong>Land</strong>owner must advise any tenant of the <strong>Land</strong> of the Company’s proposed<br />
entry onto the <strong>Land</strong> if the <strong>Land</strong>owner is given notice of proposed entry. If the<br />
<strong>Land</strong>owner has notified the Company of any tenant, the company may send a<br />
notice directly to that tenant.”<br />
7) <strong>Land</strong>owner’s obligations<br />
The purpose of this section is to describe the actions and activities that the Company requires the<br />
<strong>Land</strong>owner to perform. These typically fall under a general obligation on the <strong>Land</strong>owner not to<br />
interfere with the Company’s use of the Easement Area.<br />
In the case of <strong>Telecommunications</strong> Infrastructure, these obligations should not be excessive and<br />
might reasonably be encompassed by agreeing not to excavate, erect structures, plant trees,<br />
impede access, or flood the Easement Area or Accessway. Many of these will be reasonable<br />
expectations on the part of the Company so they can exercise the rights they are purchasing under<br />
the easement. It is important however to keep in mind the restrictions the Company is looking to<br />
impose on the <strong>Land</strong>owner’s use of the <strong>Land</strong> and Easement Area. It is further important that the<br />
<strong>Land</strong>owner argue that the easement include an additional provision that allows for exceptions to be<br />
negotiated as required.<br />
We suggest the following as a helpful guide for your discussions with the Company:<br />
“Exceptions to these obligations must be obtained by the Company’s prior written<br />
consent.”<br />
8) Breach of respective obligations<br />
The purpose of this section is to describe the process the Company and the <strong>Land</strong>owner must<br />
pursue where they believe the other party has breached a condition contained within the<br />
easement. This should include a dispute resolution process, suggested as follows:<br />
“If either the Company or the <strong>Land</strong>owner breaches any of their obligations in this<br />
easement, the other party may:<br />
if reasonable in the circumstances, give notice of the breach and give a<br />
reasonable period to remedy the breach; and<br />
take all reasonable steps to remedy the breach; or<br />
refer the matter for mediation.<br />
“Mediation will be undertaken by a registered mediator with at least 10 years<br />
experience in disputes resolution.”<br />
9) Health and safety<br />
The purpose of this section is to describe who is responsible for the health and safety of people the<br />
Company send on to the property, and is essential from a liability perspective. Although, there are<br />
general obligations under the Health and Safety in Employment Act on the <strong>Land</strong>owner, this section<br />
does provide the opportunity for the <strong>Land</strong>owner to require the Company to take additional<br />
measures.<br />
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We suggest the following as a helpful guide for your discussions with the Company:<br />
“The Company will be responsible for the health and safety of any persons who<br />
enter the <strong>Land</strong> at the Company’s request to the maximum extent allowed by law.<br />
“The <strong>Land</strong>owner will be responsible for complying with their obligations under the<br />
Health and Safety in Employment Act.<br />
“The <strong>Land</strong>owner must notify the Company of any rules or procedures regarding the<br />
health and safety of persons on the <strong>Land</strong> and the identification and mitigation of<br />
hazards. The Company will comply with all reasonable rules and procedures that<br />
the <strong>Land</strong>owner provides.”<br />
10) Indemnity and liability<br />
The purpose of this section is to clarify how liability will be dealt with between the <strong>Land</strong>owner and<br />
the Company where there is damage to the <strong>Land</strong>, the fibre cable or the interests of third parties.<br />
It is essential to emphasise indemnification of the <strong>Land</strong>owner against damage to the <strong>Land</strong> in an<br />
easement agreement for any infrastructure on private land. The Company will also seek<br />
indemnification from the <strong>Land</strong>owner in circumstances where the agreement has been breached, or<br />
there has been wilful damage.<br />
There are no cases of which Federated Farmers is aware, where the <strong>Land</strong>owner has been liable<br />
for the knock-on costs to the consumers of services delivered through infrastructure (for example<br />
electricity users and in this case businesses and residences using the fibre network), in the event<br />
of an outage arising from a <strong>Land</strong>owner’s breach of the agreement or wilful damage. Such liability<br />
does however still potentially exist and there should be a limitation placed upon it.<br />
We suggest the following as a helpful guide for your discussions with the Company:<br />
“The Company indemnifies the <strong>Land</strong>owner against:<br />
any physical damage to the <strong>Land</strong> or anything located on the <strong>Land</strong>; and<br />
any damage to a third party for which a claim is successfully brought against the<br />
<strong>Land</strong>owner;<br />
where that damage is caused by the Company’s act or omission in breach of this<br />
easement or is caused by the Company’s negligence.<br />
“The <strong>Land</strong>owner indemnifies the Company against:<br />
any physical damage to the <strong>Telecommunications</strong> Infrastructure, equipment and<br />
the Company’s other property; and<br />
any damage to a third party for which a claim is successfully brought against the<br />
Company;<br />
where that damage is caused by the <strong>Land</strong>owner’s act or omission in breach of this<br />
easement or is caused by the <strong>Land</strong>owner’s negligence.”<br />
It would be worth the <strong>Land</strong>owner arguing for the inclusion of a cap on the liability they bear under<br />
this easement. This is something Federated Farmers has secured from its negotiations with<br />
Transpower over the siting of transmission lines across private land. The Company should be<br />
asked to tie the cap to breaches of easement provisions, any damage to a third party, or otherwise<br />
required by law. The cap should be set at a level agreed by both parties, and the premiums for<br />
public liability insurance to that level should be paid by the Company additional to any<br />
compensation to the <strong>Land</strong>owner under the easement.<br />
11) Compensation<br />
The purpose of this section is to describe those aspects of the construction of <strong>Telecommunications</strong><br />
Infrastructure and the Company’s on-going use of the Easement Area that are to be compensated<br />
to the <strong>Land</strong>owner under the easement.<br />
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When considering allowing a cable across the property it is important that negotiations with the<br />
Company have regard to the fact that the land title will be permanently encumbered by an<br />
easement agreement. Even though the fibre will not be visible, the easement may impact on the<br />
market value of the property and therefore should be compensated.<br />
Of significant importance is the extent of the rights the Company is taking over the Easement Area.<br />
These rights are valuable and should be appropriately compensated. The <strong>Land</strong>owner will have<br />
obligations under the easement and these should also be appropriately compensated. The<br />
<strong>Land</strong>owner should also be compensated for the inconvenience caused during the days the cable is<br />
being installed on the Easement Area.<br />
12) General provisions<br />
The purpose of this section is to cover off the lesser aspects of the easement that do not easily fall<br />
under separate sections of their own. Although they may appear minor, many of the aspects<br />
covered off in this section could have significance to the <strong>Land</strong>owner’s on-going use of the <strong>Land</strong>.<br />
The easement should state that the <strong>Telecommunications</strong> Infrastructure and associated equipment<br />
and vehicles will not, for any reason, become the property of the <strong>Land</strong>owner. This is a good thing<br />
as it avoids the <strong>Land</strong>owner assuming responsibility for such things.<br />
The easement may state that if any provision of the easement requires one party to obtain the<br />
other party’s consent, then consent must not be unreasonably withheld or delayed; may be given<br />
subject to reasonable conditions; and that the party giving consent must not require a payment as<br />
a condition of giving consent. This is reasonable given the relationship the <strong>Land</strong>owner and the<br />
Company will have under the easement.<br />
The <strong>Land</strong>owner would do well to understand that it is standard for easements to continue forever<br />
unless surrendered by the company. The easement will likely further state the landowner has no<br />
power to terminate the easement. The perpetual nature of the rights obtained by the Company<br />
under the easement agreement should form part of the case for appropriate compensation.<br />
The easement may state that where there is an outage for reasons of an emergency or under<br />
storm conditions, that both the <strong>Land</strong>owner and the Company will work responsibly to ensure that<br />
telecommunications are restored to those benefit of those affected. This is not intended to see the<br />
<strong>Land</strong>owner having to actively work on the infrastructure, but to instead enable the Company to<br />
access the fault and otherwise assist where reasonable and necessary. This obligation would only<br />
apply where there was a risk to human health or property, or as the result of an adverse event like<br />
a storm, so the circumstances would be severe as would the need for telecommunications to be<br />
reinstated. It would be reasonable for the <strong>Land</strong>owner to argue that this provision does not imply<br />
any liability on the <strong>Land</strong>owner for costs arising from the outage.<br />
There will also be general obligations on the <strong>Land</strong>owner and the Company to comply with all of<br />
their legal requirements. This is reasonable as there are many requirements under law that neither<br />
party can contract out. An example is the duty of care the <strong>Land</strong>owner has towards visitors under<br />
the Health and Safety in Employment Act.<br />
CONTACT<br />
Federated Farmers of New Zealand fact sheets are produced for our members by the Federation as a quick and easy<br />
reference guide to general information on topics of interest. If you wish to reproduce the information please ensure that<br />
you provide appropriate acknowledgement of the Federation as the source.<br />
To either seek further advise on information on the material contained in this fact sheet or to order a contract or<br />
agreement ring 0800 327 646.<br />
The information contained within these fact sheets should not be relied upon in lieu of legal advice. If you require<br />
specialised legal advice, please contact Federated Farmers’ team of employment lawyers and OSH specialists.<br />
Fact Sheet – <strong>Underground</strong> <strong>Telecommunications</strong> <strong>Cables</strong> <strong>Across</strong> <strong>Private</strong> <strong>Land</strong><br />
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