Pursuant to the Public Works Act 1981, and to a delegation from the Minister for Land Information, Tyler Matthews, Land Information New Zealand, declares pursuant to section 20, and to an agreement to that effect having been entered into:

1. The land described in the First Schedule to this notice to be acquired for Railway Purposes and to vest in Auckland Council; and
2. A restrictive covenant (“Covenant”) to be acquired by Auckland Council for the benefit of the land described in the First Schedule hereto over the land described in the Second Schedule hereto (“Covenant Area”) on the terms and conditions described in the Third Schedule hereto;

on the date of publication hereof in the New Zealand Gazette.

North Auckland Land District—Auckland

First Schedule

Land Acquired for Railway Purposes

Second Schedule

Covenant Area

Description

Part Common Property on DP 324836 being Part Lot 2 DP 159634 shown as Area BU on SO 470831 (part Supplementary Record Sheet 106967)

Third Schedule

Terms and Conditions of Covenant

Background

A. The Owner is the owner of the Burdened Land.

B. 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.

C. The Crown and Auckland Council have incorporated City Rail Link Limited to deliver the City Rail Link Project. City Rail Link Limited is the holder of planning approvals, including designations, under the Resource Management Act 1991 for the Railway and the Railway Tunnels.

D. Auckland Council has entered into an agreement with the Minister of Transport under section 224 of the Act to facilitate the acquisition and taking of land for the City Rail Link Project by Auckland Council. Under that agreement it is provided that, following the completion of the acquisition or taking, Auckland Council will transfer, assign or novate (as may be appropriate) the land so acquired to City Rail Link Limited.

E. 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.

Definitions and Interpretation

1. Definitions: 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 the Common Property on DP 324836 being part section 110 on SO 470831 (Supplementary Record Sheet 106967);

Covenantee means Auckland Council as registered 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;

Covenant Area means that part of the Burdened Land as is shown marked Area BU on SO Plan 470831;

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 registered 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 109 on SO Plan 470831, being 349m 2 more or less;

Railway Tunnels means the railway tunnels and underground stations referred to in background recital B, 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. Interpretation: In this covenant, unless the context indicates otherwise:

1. Joint and Several Obligations: an obligation by two or more persons binds those persons jointly and severally;
2. Persons: references to persons include references to individuals, companies, corporations, partnerships, firms, joint ventures, associations, trusts, organisations, governmental or other regulatory bodies or authorities or other entities in each case whether or not having separate legal personality;
3. Statutes and Regulations: references to any statutory provision include any statutory provision which amends or replaces it, and any subordinate legislation made under it.

Restrictions

3. Existing Statutory restrictions: 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:

1. Resource Management Act 1991: 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.
2. Public Works Act 1981: section 237 of the Public Works Act 1981 restricts excavations near public works;
3. Railways Act 2005: section 73 of the Railways Act 2005 restricts certain activities in relation to railways.

4. Restricted Work: For better compliance with the existing restrictions recorded in clause 3 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 7 below on each occasion and subject to strict compliance with such conditions as the Covenantee may impose on any such consent.

5. Any activity: For the avoidance of doubt, clauses 3 and 4 apply to any activity, whether that activity commences on the surface of the Burdened Land or any other property.

6. Appurtenant to Railway Land: 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.

Consent to Restricted Work and Threshold Ground Load Differential

7. Consent to Restricted Work: 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:

1. The Covenantee will give its consent to the Restricted Work where the Threshold Ground Load Differential will not be exceeded; and
2. 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.

8. Foundation Load and Embedment Plan: For the purposes of obtaining the consent of the Covenantee under clause 7, 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:

1. To evidence the net change in ground load that the proposed Restricted Work will result in at the Acquisition Boundary; and
2. 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.

9. Consent may be given subject to conditions: If the Covenantee gives its consent under clause 7, 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.

10. Consent deemed to be given: If the Covenantee gives its consent to Restricted Work under clause 7, 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.

11. Drilling within Railway Land: No excavation, building, foundations, piles or other work of any nature may be undertaken by the Owner in the Railway Land:

1. 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
2. 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.

12. Activities that do not require consent: 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.

13. Dispute resolution: 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 7 and 8, or any other matter relating to the obtaining of any consent required under clauses 7 to 11 inclusive:

1. 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;
2. In the event that the dispute is not resolved by means of the facilitation process in clause 13(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.

Costs and Indemnity

14. Costs: The Owner is responsible for the Covenantee’s reasonable costs in respect of obtaining any consents under this covenant, including the considering of any request for consent whether or not the matter proceeds, and all costs of the Owner in the performance and observance by the Owner of the terms and conditions of this covenant.

15. Indemnity: The Owner must fully indemnify the Covenantee and Auckland Council against any claims, loss and expense of whatever kind incurred by the Covenantee or Auckland Council as a consequence of the Owner failing to comply with the provisions of this covenant.

Contracts Privity

16. Privity: 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.

Covenants Binding

17. Transferees, etc.: 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.

18. Further Obligations: The Owner must not:

1. 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
2. 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.

Dated at Christchurch this 29th day of May 2025.

TYLER MATTHEWS, for the Minister for Land Information.

(LINZ CPC/2005/10975)