LT GEN THE RT HON SIR JERRY MATEPARAE,
Governor-General
A Proclamation
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 sub stratum estate in fee simple in the land described in the First Schedule; and
(b) A restrictive covenant over the land described in the Second Schedule on the terms and conditions set out in
the Third Schedule appurtenant to the land secondly described in the First 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 Registry-Auckland
First Schedule
Land to be Taken
Area
m2 Description
7897 Part Lot 1 DP 151373, being part of the Common Property shown on DP 212138 (part of the land described in Supplementary Record Sheet NA140A/363); shown as Section 156 on SO 455668.
7897 Part Lot 1 DP 151373, being part of the Common Property shown on DP 212138 (part of the land described in Supplementary Record Sheet NA140A/363); shown as Section 1156 on SO 455668.
Second Schedule
Restrictive Covenant to be Taken
Area
m2 Description
7897 Part Lot 1 DP 151373, being part of the Common Property shown on DP 212138 (part of the
land described in Supplementary Record Sheet NA140A/363); marked "EZ" and "EZZ" on SO 455668 (the "Tunnel Protection Land").
Third 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 Supplementary Record Sheet NA140A/363 (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 New Zealand Transport Agency (NZTA), together with its successors at law 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 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 area marked "EZ" and "EZZ" on SO 455668 (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 within the Tunnel Protection Land, 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 23rd day of May 2013.
[L.S.]
Hon MAURICE WILLIAMSON, Minister for Land Information.
GOD SAVE THE QUEEN!
(LINZ CPC/2010/15596)