Notice is hereby given that the Auckland Council proposes to take, under the Public Works Act 1981, the land described in the First Schedule (“Railway Land”) and a restrictive covenant (“Covenant”) over the land described in the Second Schedule (“Covenant Area”) to this notice. The terms and conditions for the Covenant are set out in the Third Schedule to this notice.
The Railway Land and the Covenant are required for construction of the City Rail Link Project (“Project”). More particularly, the Railway Land is required for the construction of underground railway tunnels and railway lines and other purposes in connection with the Project. The Covenant is required for the protection of the railway tunnels and railway lines from damage or interference.
The reasons why the Auckland Council considers it reasonably necessary to take the Railway Land and the Covenant are:
- the Railway Land and Covenant are required for the City Rail Link Project, a key transport priority in the Auckland Unitary Plan, to significantly improve access to the city centre and to support Auckland’s growth and development; and
- the land use is in accordance with the designation under the Auckland Unitary Plan.
The owner of the Railway Land and the land that is subject to the proposed Covenant and those persons with a registered interest in that land have been served with notice of the Auckland Council’s intention to take the Railway Land and Covenant and advised of their right to object.
Any other person having the right to object may send a written objection to the Registrar, Environment Court, Specialist Courts and Tribunals Centre, Level 2, 41 Federal Street, Auckland 1010, or PO Box 7147, Auckland 1141, or DX CX10086, Auckland, within 20 working days after the date of publication of this notice.
If any objection is made in accordance with this notice, a public hearing will be held with the right of the objector to appear and be heard personally, unless the objector otherwise requires, and each objector will be informed of the time and place of the hearing.
Any person requiring further information in respect of this advice should contact Adam Vodanovich, BECA Limited, 21 Pitt Street Auckland 1010. Postal Address: PO Box 6345, Wellesley Street, Auckland 1141. Telephone: (09) 300 9000.
North Auckland Land District—Auckland
|0.0407||A stratum estate in fee simple being part of Lot 3 of a subdivision of Allotment 8 of Section 7 Suburbs of Auckland (part Record of Title NA55A/764); shown marked Section 15;|
|0.0174||A stratum estate in fee simple being part of Lot 2 Deposited Plan 17537 (part Record of Title NA86D/861); shown marked Section 17|
|on Survey Office Plan 470830 pages 9, 10, 12, 23, 24 and 26–27.|
- Part Lot 3 of a subdivision of Allotment 8 of Section 7 Suburbs of Auckland (part Record of Title NA55A/764); shown marked Area “AC”; and
- Part Lot 2 Deposited Plan 17537 (part Record of Title NA86D/861); shown marked Area “AB”
on Survey Office Plan 470830 pages 9, 10, 12, 23, 24 and 26–27.
Terms and Conditions for the Covenant
The City Rail Link will run in underground railway tunnels between Britomart Station and the North Auckland Line in the vicinity of the existing Mount Eden station and underground stations, part of which will lie beneath the Burdened Land, constructed in a stratum estate in fee simple held for railway purposes.
This covenant records certain specific restrictions that apply to Restricted Work as defined in clause 1 in order to protect the Railway and the Railway Tunnels from damage and interference.
1. In this covenant, unless the context indicates otherwise:
Acquisition Boundary means the legal boundary that represents the lower or side boundary of the Covenant Area and the upper or side boundary of the Railway Land;
Burdened Land means
- 0.0407 hectares more or less being Section 16 on SO Plan 470830 pages 9, 10, 12, 23, 24 and 26–27, being part Lot 3 of a subdivision of Allotment 8 of Section 7 Suburbs of Auckland (Record of Title to be issued); and
- 0.0174 hectares more or less being Section 18 on SO Plan 470830 pages 9, 10, 12, 23, 24 and 26–27, being part Lot 2 Deposited Plan 17537 (Record of Title to be issued);
Covenantee means the Auckland Council as owner of the Railway Land and includes its successors and assigns and any party which has the authority granted to it or delegated to it or vested in it by contract, or by statute, or by any statutory or non-statutory instrument or otherwise, to exercise the rights and powers of the Covenantee under this covenant including City Rail Link Limited;
Foundation Load and Embedment Plan means a plan prepared by a suitably qualified engineer that shows the location and depth of piles, and the calculated load supported by the piles and/or foundation elements;
Ground Level means the existing ground level, natural or modified, as at the Notification Date;
Notification Date means 25 January 2013, being the date that the notice of requirement for the Designation was publicly notified;
Owner means the owner(s) for the time being of the Burdened Land, and includes the Owner’s successors in title as owners of the Burdened Land;
Railway means the railway to be operated within the Railway Tunnels, and includes the railway lines and associated services and infrastructure, and the rail vehicles to be operated on those lines;
Railway Tunnels means the railway tunnels and underground stations referred to in background recital A, including all infrastructure associated with the Railway Tunnels, and including all modifications or additions to them at any time;
Restricted Work means any excavation, building, foundations, piles or other work of any nature within the Covenant Area;
Threshold Ground Load Differential means a net change (increase or reduction) in ground load of 50kPa (working) from the ground load (including ground modifications and built structures) that existed at the Notification Date resulting or expected to result from any Restricted Work, as measured at the Acquisition Boundary.
2. Certain activities above the Railway and the Railway Tunnels may affect the integrity of the Railway Tunnels and the safety of the Railway and users of it. The following existing statutory restrictions apply to such activities:
- Section 176 or Section 178 of the Resource Management Act 1991 prohibits, without the prior written consent of the requiring authority, activities on land that is subject to a designation that would prevent or hinder the public work or project or work to which the designation relates;
- section 237 of the Public Works Act 1981 restricts excavations near public works; and
- section 73 of the Railways Act 2005 restricts certain activities in relation to railways.
3. For better compliance with the existing restrictions recorded in clause 2 above and the better protection of the Railway and the Railway Tunnels, the Owner is prohibited from carrying out any Restricted Work without the prior written consent of the Covenantee under clause 6 below on each occasion and subject to strict compliance with such conditions as the Covenantee may impose on any such consent.
4. For the avoidance of doubt, clauses 2 and 3 apply to any activity, whether that activity commences on the surface of the Burdened Land or any other property.
5. The covenants on the part of the Owner in this covenant are for the benefit of, and are appurtenant to, the Railway Land and every part of the Railway Land.
6. The Owner must not carry out, or permit or allow to be carried out, any Restricted Work without first obtaining the Covenantee’s written consent. For that purpose:
- the Covenantee will give its consent to the Restricted Work where the Threshold Ground Load Differential will not be exceeded; and
- the Covenantee will not unreasonably withhold its consent to the Restricted Work where the Threshold Ground Load Differential will be exceeded, provided the Covenantee is satisfied that the Restricted Work will not damage or adversely affect the Railway Tunnels.
7. For the purposes of obtaining the consent of the Covenantee under clause 6, the Owner must give written notice to the Covenantee requesting the Covenantee’s consent to the proposed Restricted Work, accompanied by a sufficiently detailed Foundation Load and Embedment Plan, prepared by a suitably qualified engineer, with accompanying specifications and methodology:
- to evidence the net change in ground load that the proposed Restricted Work will result in at the Acquisition Boundary; and
- generally to enable the Covenantee to properly consider and decide upon the Owner's request. The Covenantee may request any further information that it considers necessary or relevant to its decision on the proposed Restricted Work.
8. If the Covenantee gives its consent under clause 6, such consent may be given subject to such reasonable conditions as the Covenantee may determine. Consent will be required on each occasion notwithstanding any prior consent obtained for the like purpose on a prior occasion.
9. If the Covenantee gives its consent to Restricted Work under clause 6, consent to the activities constituted by that Restricted Work will be deemed to have been given to the extent they would otherwise breach section 176 or section 178 of the Resource Management Act 1991.
10. No excavation, building, foundations, piles or other work of any nature may be undertaken by the Owner in the Railway Land:
- with the exception of drilling for geotechnical investigation within the Railway Land, with the prior written consent of the Covenantee, if the Covenantee is satisfied in its sole and absolute discretion that such drilling is necessary to establish geotechnical conditions immediately above or adjacent to the Acquisition Boundary; and
- subject to such conditions that the Covenantee may impose, including (without limitation) any borehole casings are removed and that any boreholes are backfilled with cement grout on completion of the work.
11. For the avoidance of doubt, the Owner does not require the consent of the Covenantee to carry out any activities that do not extend into the Covenant Area or the Railway Land.
12. This covenant will 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 Burdened Land.
13. The Owner must not:
- 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 Burdened Land that would breach this covenant; or
- fund, encourage or otherwise be involved in, any act, matter or thing in respect of the Burdened Land that would, if carried out by the Owner itself, breach this covenant.
The Railway Land and Covenant are located at 246–254 Karangahape Road, Newton, Auckland.
Dated at Auckland this 18th day of March 2019.
STEPHEN MICHAEL TOWN, Chief Executive, Auckland Council.