LT GEN THE RT HON SIR JERRY MATEPARAE,
Governor-General
Pursuant to the Public Works Act 1981, I, Lieutenant General The Right Honourable Sir Jerry Mateparae, 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 Fourth Schedule appurtenant to the land secondly described in the First Schedule; and
(c) A leasehold estate over the land described in the Third Schedule on the terms contained in the Fifth Schedule
to be taken for motorway purposes and vested in the Crown
on the 14th day after the date of the publication of this Proclamation in the New Zealand Gazette.
North Auckland Land District-Auckland
First Schedule
Area
m2 Description
85
Part Lot 3 DP 38260 (part Computer Freehold Register NA45A/833); shown as Section 15 on SO 434446.
85
Part Lot 3 DP 38260 (part Computer Freehold Register NA45A/833); shown as Section 1015 on SO 434446.
Second Schedule
Area
m2 Description
85
Part Lot 3 DP 38260 (part Computer Freehold Register NA45A/833); marked "O" on SO 434446.
Third Schedule
Area
m2 Description
174
Part Lot 3 DP 38260 (part Computer Freehold Register NA45A/833); shown as Section 5 on SO 441004 ("the Leasehold Land").
Fourth Schedule
Terms of Restrictive Covenant
Background
A. The landowner is registered as proprietor of an estate
in fee simple in all that parcel of land comprised in Computer Freehold Register NA45A/833 ("the Servient Land").
B. The route of the State Highway 20, Waterview Connection ("the State Highway") will run in an underground 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.
Fifth Schedule
Terms of Leasehold Estate
Purpose for Which Leasehold Estate is required
The leasehold estate ("the Lease") is required to allow
the Crown to occupy the Leasehold Land during the construction of the Western Ring Route (Roads of National Significance), Waterview Connection Project, Auckland ("the Project"). The land will be used as part of a construction yard for storage of vehicles and materials required for the construction of the Project.
Terms of the Leasehold Estate
1. The Crown must give the registered proprietor reasonable notice prior to first entry onto the Leasehold Land for occupation during the construction of the Project.
2. The Lease shall have a term of three years, commencing on the 14th day after publication of a proclamation taking the Leasehold Land and the Lease in the
New Zealand Gazette, and terminating on that date three years thereafter.
3. The Crown shall pay to the registered proprietor
a current market rent for the term of the Lease, such
rate to be determined by a registered valuer at the commencement of the Lease.
4. The Crown may, on the giving of written notice to the registered proprietor, extend the term of the Lease for
a further one year twice should the Project not be completed by the expiry of the original term. The current market rent shall be reviewed at the time the registered proprietor is given notice of any such extension.
5. Notwithstanding the term created, the Crown may terminate the Lease at any time by giving the registered proprietor one month’s notice in writing.
6. The Crown shall have the right to occupy the Leasehold Land subject to the Lease, including the right to enter and re-enter the Leasehold Land at all times, with or without such vehicles, machinery or materials for the purpose set out in this Proclamation.
7. The Crown shall erect a temporary fence between the Leasehold Land and the balance of the land in Computer Freehold Register NA45A/833 for the term of the Lease. On expiry of the Lease, the Crown shall remove the temporary fence and provide a new boundary fence, to a similar standard as is reasonably practicable, to the existing timber paling fence.
Given under the hand of His Excellency the Governor- General of New Zealand and issued under the Seal of New Zealand this 7th day of November 2011.
[L.S.]
HON MAURICE WILLIAMSON, Minister for Land Information.
GOD SAVE THE QUEEN!
(LINZ CPC/2010/15444)