ANAND SATYANAND, Governor-General
A Proclamation
Pursuant to the Public Works Act 1981, I, The Right Honourable Sir Anand Satyanand, Governor-General of New Zealand, hereby declare:
(a) a stratum estate in the land described in the First Schedule; and
(b) a restrictive covenant over the stratum estate in the land described in the Second Schedule on the terms and conditions set out in the Third Schedule to be appurtenant to the land described secondly in the First Schedule;
to be taken for motorway purposes and vest in the Crown
on the 14th day after the date of the publication of this Proclamation in the New Zealand Gazette.
This proclamation relates to the land described
in Computer Unit Title Register NA48A/394 and Supplementary Record Sheet NA48A/395.
North Auckland Land District-Auckland
First Schedule
Area
m2 Description
601
Part of the common property shown on DP 91562; shown as Section 49 on SO 434446.
601 Part of the common property shown on DP 91562; shown as Section 1049 on SO 434446.
Second Schedule
Area
m2 Description
601
Part of the common property shown on DP 91562; marked "AW" on SO 434446 ("the Tunnel Protection Land").
Third Schedule
Terms of Restrictive Covenant
Background
A. The landowner is registered as proprietor of an estate of stratum in fee simple in the land comprised in Computer Unit Title Register NA48A/394 and Supplementary Record Sheet NA48A/395 ("Servient Land").
B. The route of the State Highway 20, Waterview Connection ("the State Highway") will run in a tunnel beneath the land ("the Tunnel"), constructed in a stratum estate in fee simple acquired by the Crown for motorway purposes. Part of this stratum will be declared road and State highway on completion of construction. The State Highway may also have the status of motorway under the Government Roading Powers Act 1989.
C. Pursuant to sections 61(1) and 80(1) of the Government Roading Powers Act 1989, the NZ Transport Agency, together with its successors at law ("NZTA"), has sole powers of control for all purposes of all State highways and motorways.
D. The Crown needs to protect the State highway and the Tunnel from damage and interference from inconsistent activities above the Tunnel.
E. NZTA has obtained, or will obtain, a designation under the Resource Management Act 1991 for the State Highway, the Tunnel and certain land between the Tunnel and the surface of the Servient Land
("the Designation").
Prohibition of Inconsistent Activities
Existing Statutory Restrictions
1. Certain activities above the State Highway and the Tunnel may affect the integrity of the Tunnel and
the safety of the State Highway and users of it.
Designation Pursuant to the Resource Management Act 1991
1.1 Section 176 of the Resource Management Act 1991 provides that no person may, without NZTA’s prior written consent, do anything in relation to any land subject to the Designation, which would prevent or hinder the State Highway or the Tunnel.
Public Works Act 1981
1.2 Section 237 of the Public Works Act 1981 provides that, except with the prior written consent of NZTA, no person may excavate or otherwise interfere with any land in the vicinity of the State Highway or the Tunnel if the excavation or interference is likely to produce, directly or indirectly, a subsidence on
to the State Highway or the Tunnel or a subsidence of the State Highway or the Tunnel or of the soil under it. A breach of that section is an offence and also gives rise to civil liability for all damage caused to the State Highway or the Tunnel arising from that breach.
Government Roading Powers Act 1989
1.3 Section 78 of the Government Roading Powers Act 1989 provides that, except with the prior written consent of NZTA, no person may place any wire, cable, pipe, tower, pole, or other structure or thing on, over, or under any motorway, or on, over, or under any land that has been taken, purchased, set apart or acquired for the purpose of constructing a motorway.
Restrictions on Excavations
2. For better compliance with the existing restrictions recorded in clauses 1.1-1.3 of this Schedule and the better protection of the State Highway and the Tunnel, the landowner shall not:
2.1 Excavate or otherwise disturb the soil in any manner whatsoever in the Tunnel Protection Land without the prior written consent of the Crown on each occasion and subject to strict compliance with such conditions as the Crown may impose on any
such consent;
2.2 Suffer, allow, or permit (including without limitation giving any consents or approvals under the Resource Management Act 1991 or otherwise) any other person to take any action in respect of the Servient Land that would breach clause 2.1;
2.3 Fund, encourage or otherwise be involved in, any act, matter or thing in respect of the Servient Land that would, if carried out by the landowner itself, breach clause 2.1.
3. For the avoidance of doubt, clause 2.1 applies to any activity, whether that activity commences on the surface of the Servient Land or any other property.
4. The Crown’s consent under clause 2.1 may be given
or withheld, or made subject to conditions, at the Crown’s sole and absolute discretion. Consent will be required on each occasion notwithstanding any prior consent or approval obtained for the like purpose on a prior occasion.
5. If NZTA gives written permission to any activities that would otherwise breach clause 2.1 then the Crown will consent under clause 2.1 to those activities.
6. For the avoidance of doubt, the landowner does not require the consent of the Crown to carry out any activities that do not extend into the Tunnel Protection Land.
7. The landowner shall:
7.1 Impose on every occupier of the Servient Land or holder of any unregistered interest in the Servient Land an obligation to observe and perform the terms of this covenant.
7.2 Pay all legal costs and disbursements in respect of the performance and observance by the landowner
of the terms of this covenant including legal costs on a solicitor/client basis and to otherwise indemnify the Crown against any claims, loss and expense of whatever kind incurred by the Crown as a consequence of the landowner failing to comply with the provisions of this covenant.
8. This covenant shall be binding on all transferees, tenants, lessees, mortgagees, charge-holders and their respective successors in title and assigns of any estate or interest in the Servient Land.
Given under the hand of His Excellency the Governor-General of New Zealand, and issued under the Seal of New Zealand this 22nd day of August 2011.
[L.S.]
HON MAURICE WILLIAMSON, Minister for Land Information.
GOD SAVE THE QUEEN!
(LINZ CPC/2009/13875)