council report Committee: Council Date: 28 February 2013 Report Name: Te Rapa Subdivision Road Vestment Author: Cliff Newton-Smith

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1 council report Committee: Council Date: 28 February 2013 Report Name: Te Rapa Subdivision Road Vestment Author: Cliff Newton-Smith Report Status Strategy, Policy or Plan context Financial status Assessment of significance Open Development of land under the Operative District Plan No budget implications, all costs will be covered by AMP Having regard to the decision making provisions in the LGA 2002 and Councils Significance Policy, a decision in accordance with the recommendations is/is not considered to have a high degree of significance 1. Purpose of the Report 2. This report seeks a resolution from Council to acquire Lot 18 LT as road. The land shall be acquired by way of agreement under Section 17 of the Public Works Act, which will be implemented by way of a transfer and dedication under the Land Transfer Act. The location of the land is shown on the aerial photograph, Attachment Executive Summary 4. AMP have subdivided the land on The Boulevard that was set aside for the Supa Centre. They are seeking titles to the new lots but because there is a private covenant on the parent titles and the covenant has cascaded down to the new lots, including the land required for road, this means that the District Land Registrar will not accept the lodgment of the title plan. 5. AMP have applied to the Courts to uplift the covenant from the land, and in parallel, staff have agreed to put this report to Council in case the court dealings are unsuccessful or protracted. Advice from Tompkins Wake suggests that the application by AMP will be successful and the Court will uplift the covenant from the land for road. The land, Lot 18 LT460382, over which the covenant rests is shown on the plan in Attachment AMP have offered to indemnify Council for any cost arising from the effects of the covenant, and pay all costs of the transfer and dedication of the land. The land for road will be transferred to Council at no cost. 7. The covenant that is on the land required for road makes the normal vesting process under the Resource Management Act unsuitable as vesting requires that the land in question is free of all legal encumbrances. C-1894 Page 1

2 8. Staff have been advised by Tompkins Wake that the land could be acquired by way of agreement under Section 17 of the Public Works Act, which will be implemented by way of a transfer and dedication under the Land Transfer Act. Because the land acquisition process is provided for under the Public Works Act, and staff have no delegated power to administer any provision of this Act, a decision is required by Council. 9. This process will satisfy the District Land Registrar and thus enable the title plan to deposit and the new lots to be created. 10. The resolution to dedicate the land as road will not remove the covenant or the obligation, but the risk to Council is considered to be minimal, as it is highly unlikely that any of the current or future owners are likely to insist that Council plant a tree within the land required for road. 11. Recommendation/s from Management 12. That the report be received. 13. That Council resolves using the provisions of the Public Works Act Section 17, to acquire Lot 18 as road from AMP on the basis that such acquisition shall be implemented by a transfer and dedication under the Land Transfer Act. 14. Attachments 15. Attachment 1 - AMP Site 16. Attachment 2 - Title Plan 17. Key Issues 18. Background 19. AMP have subdivided the land that was developed for the Supa Centa. The current subdivision has created new roads to service the smaller industrial zoned lots. 20. The previous developer (Udy Family Trust) created large lots for a large format retail centre. The lots fronting The Boulevard had private covenants registered on their titles to provide for specimen tree plantings at 40 metre intervals. The covenants have cascaded down on all new titles including the parcel of the land over which a new road has been created. 21. The resource consent granted for the AMP subdivision requires that the developer vest the roads in Council. The vesting process can only be undertaken on land that is not encumbered by other legal instruments, in this case the covenant. Therefore, AMP can not get title to the new lots until this matter of vesting is resolved. 22. AMP, through Chapman Tripp, has offered a solution to the problem. They have asked Council to acquire the land by agreement under the Public Works Act, and that the acquisition is implemented by way of transfer and dedication under the Land Transfer Act whilst they pursue the uplifting of the covenants through the Courts. They have agreed to pay all reasonable costs, including those incurred by Council. AMP requires an urgent resolution as they have sale and purchase agreements that have expiry dates. C-1894 Page 2

3 23. The acceptance of this would mean that until the Courts have uplifted the covenant Council would be exposed to a minimal risk. However AMP has offered to indemnify Council from this risk. 24. Because the decision to accept or decline this offer would be made under the Public Works Act, and Council cannot delegate matters provided for by the Public Works Act to staff, Council is required to consider the issue and make a decision. 25. Strategic alignment 26. Enables the land zoned for industrial purposes to be developed in keeping with the Operative District Plan. 27. Legislative requirements or legal issues 28. Council can acquire land under the provisions of the Public Works Act and implement the transfer and dedicate land for road even though the land is encumbered by a private covenant, under the Land Transfer Act. 29. Implementation issues 30. To implement this proposal Council must resolve to acquire the land and implement the transfer and dedication as described in the report. Once this is done, the legal requirements will be undertaken by Tompkins Wake for Council at AMP cost. 31. Options (if applicable) 32. Council can refuse to negotiate the issues and turn the problem back to AMP who could then seek resolution through the Courts to uplift the covenant on the road land. 33. Council can agree to accept the proposal from AMP to indemnify Council from all effects of the covenant whilst they pursue the uplifting of the covenant through the Courts, provided Council accepts the land by transfer and dedicates the land as road. This would mean that the covenant would remain on the title retaining the minimal risk of having to comply to the covenant in perpetuity or until AMP were successful in uplifting the covenant. 34. Financial and Resourcing Implications 35. There are no financial implications to Council in accepting the land and dedicating the road, as AMP has offered to indemnify Council against any cost arising from the effects of the covenant whilst it is still in place. 36. AMP have also offered to cover all costs associated with the transfer and the dedication of the land, and to pass the land to Council at no cost. 37. Risk 38. A risk to Council would arise if the Courts decided that the covenant should remain on the title thereby exposing Council to the obligations contained in the covenant. Staff have been advised that the Court is unlikely to refuse the application given that the effects of uplifting the covenant would not disadvantage any of the owners of the surrounding lots. In any case AMP have offered to indemnify Council from any actions arising from the enforcement of the covenant. C-1894 Page 3

4 Signatory Authoriser Chris Allen, General Manager City Infrastructure Group C-1894 Page 4

5 Attachment 1

6 Attachment 2