Pursuant to the Public Works Act 1981, and to a delegation from the Minister for Land Information, Madison Ingram, 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 Lot 3–4 and Part Lot 16–17 Allotment 34 of Section 54 City of Auckland defined on DP 19899, shown as Area U SO 470830 (part Record of Title NA449/164)

Part Lot 4 Subdivision of Allotment 34 Section 54 City of Auckland and part Lot 16 Subdivision of Allotment 34 Section 54 City of Auckland, shown as Area T SO 470830 (part Record of Title NA471/2) 

Background

1. The Owner is the registered owner of the Burdened Land.
2. The Railway 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.
3. 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 a designation, under the Resource Management Act 1991 for the Railway and the Railway Tunnels.
4. Auckland Council has entered into an agreement with the Minister of Transport dated 20 June 2018 under section 224 of the Public Works Act 1981 to facilitate the acquisition and taking of land for the City Rail Link Project by the Council. Under that agreement it is provided that, following the completion of the acquisition or taking, the Council will transfer, assign or novate (as may be appropriate) the land so acquired to City Rail Link Limited.
5. This covenant records certain specific restrictions that apply to Restricted Work as defined in clause 1.1 in order to protect the Railway and the Railway Tunnels from damage and interference.

1. Definitions And Interpretation

1.1 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 Railway Land;

Burdened Land means:

1. Part Lot 3–4 and Part Lot 16–17 Allotment 34 of Section 54 City of Auckland defined on DP 19899, shown as Section 12 SO 470830 (part Record of Title NA449/164).
2. Part Lot 4 Subdivision of Allotment 34 Section 54 City of Auckland and part Lot 16 Subdivision of Allotment 34 Section 54 City of Auckland, shown as Section 14 SO 470830 (part Record of Title NA471/2).

City Rail Link Project means the project that includes the construction of the Railway Tunnels and the construction and operation of the Railway;

Chartered Professional Engineer means a Chartered Professional Engineer registered through Engineering New Zealand and having a qualification or experience in ground load assessments and foundation design;

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 as Areas U and T on SO Plan 470830;

Foundation Load and Embedment Plan means a plan prepared by a Chartered Professional 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 for the Project 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 proprietors 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:

0.0392 hectares more or less (subject to survey) being part Lot 3–4 and Part Lot 16–17 Allotment 34 of Section 54 City of Auckland defined on DP 19899, shown as Section 11 SO 470830 pages 4, 5, 16, 17, 19 and 20; (part Record of Title NA449/164).

0.0158 hectares more or less (subject to survey) being part Lot 4 Subdivision of Allotment 34 Section 54 City of Auckland and part Lot 16 Subdivision of Allotment 34 Section 54 City of Auckland, shown as Section 13 SO 470830 pages 4, 5, 16, 17, 19 and 20; (part Record of Title NA471/2).

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.

1.2 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.

1.3 Notices: Any notice to be served on the Covenantee may be served on the registered owner of the Railway Land at the time notice is served.

2. Restrictions

2.1 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.

2.2 Restricted Work: For better compliance with and in extension of the existing restrictions recorded in clause 2.1 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 3 below on each occasion and subject to strict compliance with such conditions as the Covenantee may impose on any such consent.

2.3 Any activity: For the avoidance of doubt, clauses 2.1 and 2.2 apply to any Restricted Work, whether that Restricted Work commences on the surface of the Burdened Land or any other property.

2.4 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.

3. Consent to Restricted Work and Threshold Ground Load Differential

3.1 Consent to Restricted Work: The Owner must not carry out or permit to be carried out, any Restricted Work without first obtaining the Covenantee’s written consent. For that purpose:

1. The Covenantee will promptly 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 or delay its consent to the Restricted Work where the Threshold Ground Load Differential will be exceeded, provided the Covenantee is satisfied, acting reasonably, that the Restricted Work will not damage or adversely affect the Railway Tunnels.

3.2 Foundation Load and Embedment Plan: For the purposes of obtaining the consent of the Covenantee under clause 3.1, 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 Chartered Professional 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 reasonably considers necessary or relevant to its decision on the proposed Restricted Work. The Covenantee will act promptly in considering and deciding upon the Owner’s request, and in requesting any such further information.

3.3 Consent may be given subject to conditions: If the Covenantee gives its consent under clause 3.1, 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 a similar purpose on a prior occasion. If consent is declined, the Covenantee will give reasons for that decision with a supporting report, provided by a suitably qualified Chartered Professional Engineer engaged by the Covenantee.

3.4 Consent deemed to be given: If the Covenantee gives its consent to Restricted Work under clause 3.1, the Covenantee will also be deemed to have consented to the activities constituted by and incidental to that Restricted Work to the extent they would otherwise breach section 176 or section 178 of the Resource Management Act 1991, section 237 of the Public Works Act 1981 or section 73 of the Railways Act 2005, and in that event warrants that it has the authority to give such consent under those provisions.

3.5 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.

3.6 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, or which do not otherwise constitute Restricted Works.

3.7 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 clauses 3.1 and 3.2, or any other matter relating to the obtaining of any consent required under clauses 3.1 to 3.5 inclusive:

1. the parties will endeavour to resolve that dispute by means of facilitation by an 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 3.7(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.

3.8 Where the Covenantee provides its consent to Restricted Work in terms of clause 3.1 and that Restricted Work involves building within the Covenant Area then in such case the Covenantee must prepare an amended plan of the Covenant Area so that it excludes the area occupied by the building within the Covenant Area and is below that building and must vary this Covenant to apply to the amended covenant area that excludes the area occupied by that building with all due expedition and at the cost of the Covenantee.

4. Costs

4.1 Costs: Each party will bear its own costs in respect of obtaining any consents under this covenant, Including the considering of any request for consent.

5. Contracts Privity

5.1 Privity: This covenant is intended to be for the benefit of, and enforceable by, the Covenantee for the purposes of section 12 of the Contracts and Commercial Law Act 2017.

6. Covenants Binding

6.1 Transferees etc.: This covenant will be binding on the Owner and all transferees and their successors in title for as long as they are registered owner of the Burdened Land, and on all tenants and lessees for as long as they are the tenant or lessee of the Burdened Land, and on all mortgagees and chargeholders for as long as they are a mortgagee or chargeholder in respect of the Burdened Land.

6.2 Removal of Covenant: In the event that the Railway Land is no longer required for railway purposes then the Covenantee will at its own cost execute and provide to the Owner a surrender or revocation of this covenant in respect of the record(s) of title to the Burdened Land.

Dated at Christchurch this 26th day of June 2026.

MADISON INGRAM, for the Minister for Land Information.

(LINZ CPC/2005/10974)