Pursuant to sections 20 and 28 of the Public Works
Act 1981, and to a delegation from the Minister for
Land Information, Kerry McPhail, Land Information
New Zealand, declares that, agreements to that effect having been entered into, the lands described in the First Schedule to this notice are hereby acquired for motorway purposes and the covenant over the land described in the Second Schedule to this notice (being appurtenant to the land secondly described in the First Schedule to this notice) is hereby acquired on the terms and conditions described in the Third Schedule to this notice and further declares that
the said land and covenant shall vest in the Crown on the date of publication hereof in the New Zealand Gazette.
North Auckland Land District-Auckland
First Schedule
Land Acquired for Motorway Purposes
Area
m2 Description
721
Part Lot 46 DP 16628; shown as Section 41 on SO 434446 (part Computer Freehold Register NA438/75).
721 Part Lot 46 DP 16628; shown as Section 1041 on SO 434446 (part Computer Freehold Register NA438/75).
Second Schedule
Land Over Which Covenant is Acquired
Part Lot 46 DP 16628; marked "AO" on SO 434446
("the Tunnel Protection Land") (balance Computer Freehold Register NA438/75).
Third Schedule
Terms of the Covenant
Definitions
"Motorway" means the land described in the First Schedule to this notice.
"Tunnel" means the land described in the First Schedule to this notice.
"State Highway" means Western Ring Route Roads of National Significance, State Highway 20, Auckland.
"NZTA" means the NZ Transport Agency.
"Servient Land" means Sections 241 and 441 SO 434446, being the balance of Computer Freehold Register NA438/75.
Existing Statutory Restrictions
1. The registered proprietors acknowledge and accept
that 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 Excavation
2. For better compliance with the existing statutory restrictions 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 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 Tunnel Protection 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, 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 registered proprietor 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 registered proprietor 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.
Dated at Wellington this 17th day of January 2012.
K. MCPHAIL, for the Minister for Land Information.
(LINZ CPC/2009/13844)