The Rt Hon Dame PATSY REDDY, gnsm, qso,
Pursuant to section 26 of the Public Works Act 1981, I, The Right Honourable Dame Patsy Reddy, Governor-General of New Zealand, hereby declare:
- the land described in the First Schedule hereto to be taken for railway purposes and vested in the Auckland Council; and
- a Restrictive Covenant (“Covenant”) to be taken in favour of Auckland Council over the land described in the Second Schedule hereto (“Covenant Area”) on the terms and conditions set out in the Third Schedule hereto
on the 14th day after the date of the publication of this Proclamation in the New Zealand Gazette.
North Auckland Land District—Auckland
Land Taken for Railway Purposes
|0.0139||Part Lot 1 DP 63789 below reduced level 46.00 metres Auckland Vertical Datum 1946: shown marked Section 33 on SO 470830 (part Record of Title NA44C/53).|
Land Taken for a Restrictive Covenant
Part Lot 1 DP 63789; shown marked Area “AH” on SO 470830 (part Record of Title NA44C/53).
Third Schedule – Terms and Conditions of 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.
- 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 0.2987 hectares more or less being Section 34 on SO Plan 470830 pages 15, 16, 31 and 32, being part Lot 1 Deposited Plan 63789 (Record of Title to be issued); and
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;
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 registered 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 Land means the stratum estate in freehold that has been acquired for railway purposes described as Section 33 on SO Plan 470830, being 139m² more or less;
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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- In the event of a dispute between the Owner and the Covenantee regarding the assessment of the net change in the ground load resulting or expected to result from any Restricted Work for the purposes of clause 6 and 7, or any other matter relating to the obtaining of any consent required under clauses 6 to 10 inclusive:
- The parties will endeavour to resolve that dispute by means of facilitation by a suitably experienced independent Chartered Professional Engineer, nominated by Engineering New Zealand, such facilitation to adopt as far as practicable the same facilitation process that is supported by Engineering New Zealand for Seismic Assessment Reconciliation dated May 2018 as published on the Engineering New Zealand website;
- In the event that the dispute is not resolved by means of the facilitation process in clause 12(a) within 40 working days after the referral of that matter to facilitation, the Owner will be entitled to appeal the decision of the Covenantee in respect of the matter in dispute to the Environment Court under section 179 of the Resource Management Act 1991, and for that purpose the parties agree that the Environment Court will have full jurisdiction to determine the matter as an appeal under that section.
- This covenant is intended to be for the benefit of, and enforceable by, the Covenantee for the purposes of section 12 of the Contract and Commercial Law Act 2017.
- 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.
- 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.
Given under the hand of Her Excellency the Governor-General of New Zealand and issued under the Seal of New Zealand this 25th day of June 2020.
Hon EUGENIE SAGE, Minister for Land Information.
God Save The Queen!