Easement instrument to grant easement or profit à prendre, or create
land covenant
(Sections 90A and 90F Land Transfer Act 1952)
Grantor
ANTRIM DEVELOPMENTS LIMITED
Grantee
ANTRIM DEVELOPMENTS LIMITED
Grant of Easement or Profit à prendre or Creation of Covenant
The Grantor being the registered proprietor of the servient tenement(s) set out in Schedule A
grants to the Grantee (and, if so stated, in gross) the easement(s) or profit(s) à prendre set out
in Schedule A, or creates the covenant(s) set out in Schedule A, with the rights and powers or
provisions set out in the Annexure Schedule(s)
Schedule A
Purpose
(Nature
and
extent) of easement; profit
or covenant
Restrictive Land Covenant
Continue in additional Annexure Schedule, if required
Shown
(plan reference)
Servient
Tenement
(Computer
Register)
Dominant Tenement
(Computer Register)
or in gross
Easements or profits à prendre rights and powers (including terms, covenants and
conditions)
Delete phrases in [ ] and insert memorandum number as required; continue in additional Annexure
Schedule, if required
Unless otherwise provided below, the rights and powers implied in specified classes of easement
are those prescribed by the Land Restrictive land covenant Regulations 2002 and/or Schedule
Five of the Property Law Act 2007
The implied rights and powers are hereby [varied] [negatived] [added to] or [substituted] by:
[Memorandum number
land covenant Act 1952]
, registered under section 155A of the Land Restrictive
[the provisions set out in Annexure Schedule ]
Covenant provisions
Delete phrases in [ ] and insert Memorandum number as require; continue in additional Annexure
Schedule, if required
The provisions applying to the specified covenants are those set out in:
[Memorandum number
covenant Act 1952]
[Annexure Schedule 1 ]
, registered under section 155A of the Land Restrictive land
ANNEXURE SCHEDULE 1
Recitals
1.
The Grantor wishes to establish restrictive covenants over each of the
Lots set out in Schedule A for the benefit of all the Lots in Schedule A.
2.
Section 56 of the Property Law Act 2007 provides that a Grantor may
convey to itself.
3.
Section 66A of the Property Law Act 1952 provides that a covenant for
the purposes of or incidental to any conveyance of the property made by
a Grantor with itself shall be as valid as if made by another.
Expiry of covenants
4.
It is the intent of the Grantor and the Grantee that the Land Covenants
will be restrictive covenants running for a period of 20 years from the
date that a separate Certificate of Title is issued for each of the lots in
Schedule A, and during that period, they will bind each of the Lots in
Schedule A, for the benefit of all of those Lots.
Definitions
5.
In these Land Covenants:
5.1. Accessory Building means any garage, shed, deck, or other utility
building forming part of the Dwelling, whether such Accessory
Building is separate from or attached to the Dwelling;
5.2. Corner Lots mean Lot 34, Lot 37, Lot 47, Lot 69, Lot 70, Lot 71,
Lot 74, Lot 85;
5.3. Developer means Antrim Developments Limited which is also the
Grantee and Grantor;
5.4. Development means the residential development located off
Tuarangi Road, Ashburton including but not limited to the existing
and any future facilities and amenities (if any), residential dwellings,
roading, footpaths, access ways, open spaces, trees, street
furniture and all other associate infrastructure of which the Lot
forms part;
5.5. Dwelling means one self contained building (or group of buildings)
to be used for residential purposes solely by one or more persons
who form a single household unit and may include:
5.5.1.
an attached residential flat contained within such a building;
and
5.5.2.
any Accessory Building.
5.6. Fence means any structure which may or may not be erected on
any boundary of the Lot with the intent of dividing or creating a
barrier between the Lot and any adjoining Lot, Legal Road, or other
property;
5.7. Hedge means any row of bushes, shrubs or small trees;
5.8. Land Covenants means the covenants contained in this
instrument;
5.9. Legal Road means all parts of any road vested in the Ashburton
District Council as a legal road and includes the carriageway,
footpaths, kerbing, driveways and any landscaped areas within the
Legal Road;
5.10. Lot means any of those Lots numbered 34-85 (inclusive) on the
Subdivision Plan.
5.11. Lot Owner means the owner of any Lot;
5.12. Right of Way Lots means those Lots that have a boundary
adjoining a private right of way namely, Lots 38-46, Lots 52-56,
Lots 57-63, Lots 74-79;
5.13. Stream Lots means those Lots that have a boundary adjoining a
stream namely, Lots 40-44 (inclusive);
5.14. Street Lots means all Lots that have a boundary adjoining a public
road.
5.15. Subdivision Plan means the plan of subdivision incorporating all
of the Lots; and
5.16. Works means the building, construction or erection of any Dwelling
on the Lot and includes any laying out, compacting, excavation,
filling, levelling or other works preparatory to the commencement of
such building, construction or erection.
5.17. Waterway Lots means Lots 44-45, Lot 49, Lots 57-59;
Land and Pre-Construction Controls
The Grantor as registered proprietor of each of the said Lots in Schedule A
covenants for the benefit of the Grantee as registered proprietor of all of the
Lots as set out in Schedule A as follows:
6.
The Lot Owner shall not:
6.1. Further subdivide any Lot into separate lots or parcels whether by
way of freehold subdivision, cross lease, unit title or in any other
way.
6.2. Commence the construction of any Dwelling on the Lot without first
constructing a dedicated permanent street crossing to the
satisfaction of the Developer across any berm, footpath or swale to
afford protection against damage by vehicular traffic accessing the
Lot in the course of undertaking any Works.
6.3. Reside on or in any Lot in temporary accommodation including but
not limited to any caravan, container, hut or shed whilst the
Dwelling is in the course of construction.
6.4. Permit commercial vehicles or trailers to be regularly located on the
street or footpath or in front of the Lot unless reasonably required
during the course of construction of a Dwelling.
6.5. Permit or suffer to be stored on a Lot any freight containers, hut or
shed unless required for storage of materials required during the
course of construction of the Works.
6.6 Permit the land to be occupied or used as a residence prior to the
dwelling being completed (including driveways, pathways, letterbox,
landscaping and seeding of lawns visible from the surrounding Lots
or any road), and a Code Compliance Certificate has been issued.
Building Design Controls
7.
The Lot Owner shall not:
7.1. On any Lot erect or permit to be erected any Dwelling, Accessory
Building or structure that does not comply with the rules and
requirements of the Ashburton District Plan.
7.2. On any Stream Lot erect or permit to be erected any Dwelling or
Accessory Building within 6 metres of the north boundary which
faces the stream.
7.3. On any Waterway Lot erect or permit to be erected any Dwelling or
Accessory Building within 3 metres of the boundary nearest the
waterway.
7.4. Erect or permit to be erected any Dwelling or Accessory Building
within 4.5 metres of any boundary fronting the road on a Street Lot
or Corner Lot.
7.5. On any Lot allow a Dwelling or Accessory Building to be built closer
than 1.5 metres to any side boundary of the Lot, or closer than 2
metres to the side boundary opposite the boundary with the 1.5m
set back and no closer than 4 metres to any rear boundary but
excluding the south west boundary of Lot 59, Lot 60, Lot 61, Lot 77,
Lot 78, Lot 79, and Lot 80, where there is no minimum set back
from that boundary and Corner Lots, which are not considered to
have rear boundaries, so the minimum setback on corner
boundaries which do adjoin the road are 1.5 metres on one
boundary, and 2 metres on the other. The construction of a firewall
shall not allow the external wall of any Dwelling or Accessory
Building to be sited closer to a boundary than provided for in these
Covenants.
7.6. On any Lot erect or permit to be erected any Dwelling, Accessory
Building, on the property unless the Developer shall have first
approved all plans and specifications including the siting of the
Dwelling, Accessory Building, Fence, or other structure on the Lot
prior to the commencement of any Works. The design for any
Dwelling or Accessory Building shall be submitted to the Developer
at sketch plan stage so that approval for the design can be
considered prior to the commencement of working drawings. In
giving or withholding approval the Developer shall take account of
the following criteria:
8.
7.6.1.
Dwellings shall not exceed 8.5 metres in height above the
average ground level of the Lot;
7.6.2.
External design and appearance;
7.6.3.
The influence of the Dwelling, Accessory Buildings, siting
and external design on natural light, view and privacy for
adjacent properties;
7.6.4.
Materials to be used in construction; and
7.6.5.
The views of the Registered Proprietors of the Lots
adjoining the Lot for which consideration is being given, at
the time consideration is being given.
In the exercise of its unfettered discretion, the Developer shall be entitled
to disapprove (by way of example but not limited to) the following:
8.1. Any Dwelling having less than 120 square metres in gross floor
area excluding verandahs, patios and Accessory Buildings.
8.2. Any multi-coloured brick or tile wall cladding and/or roof tile
combination.
8.3. Any Dwelling or Accessory Building having exterior cladding of
colour steel or any similar quality colour corrugated iron product
which exceeds 35% of the solid exterior wall area.
8.4. Any Dwelling which is a kitset, “A” frame or prefabricated nature or
a relocatable dwelling house.
8.5. Any Dwelling utilising second hand or pre-use materials for exterior
cladding or roofing other than slate.
8.6. Any Dwelling having external cladding of unrelieved or non-detailed
flat sheet fibrolite, hardiflex, galvanised steel, metal sheeting or
similar material provided that this restriction shall not apply to the
cladding or soffits or gable ends.
8.7. Any Dwelling using poles for a foundation unless the poles are not
visible from a Legal Road or adjoining properties.
8.8. Any electric or gas meters, gas and/or hot water units, vent and
sewer pipes visible from the Legal Road.
8.9. Any garden shed, clothesline or letterbox except such as may be
aesthetically acceptable in terms of its design and location.
8.10. Any Dwelling or Accessory Building whose colour is not in keeping
with the natural environment.
Fluorescent, vivid or highly
conspicuous colours will be prohibited.
9.
A Lot Owner shall not permit or suffer any Dwelling or Accessory
Building to remain unfinished for more than 18 months from the date of
commencement of construction such that, within that period:
9.1. All exterior work including painting or staining as approved, shall be
completed; and
9.2. All driveways, paths, fences and other landscape features shall be
completed and installed in accordance with the plans approved by
the Developer.
10. During the course of construction neither the Lot Owner nor the Lot
Owner’s servants, agents or contractors shall use any adjacent lot or any
reserve for access to the Lot at any time and, in particular, for the
delivery of building materials to the Lot. The Lot Owner shall be liable
for reinstatement of any berm, road, landscaping, drainage swale,
access, Lot or any reserve caused by the Lot Owner, or the Lot Owner’s
agents, servants, contractors or subcontractors at any time during the
course of construction or otherwise.
11. A Lot Owner must lodge a copy of the plans and specifications approved
by the Developer with the Developer’s written consent thereon with the
Ashburton District Council with the application for Building Consent for
the Dwelling. Any subsequent amendments to the plans will require
further developers written consent, and must be lodged with the
developers written consent thereon with the Ashburton District Council.
Landscaping and Driveway
12. A Lot Owner shall not:
12.1. Construct a driveway having materials other than permanent, dustfree solid materials such as coloured stamped/stencilled or
exposed aggregate concrete, asphaltic concrete, decorative
stones, cobblestones, interlocking pavers or similar.
12.2. Construct a road crossing greater than 4.5 metres wide nor within 1
metre of any side boundary of the Lot to allow for landscaping.
Where a swale or other feature exists between the Legal Road and
the Lot, the access point crossing the swale shall be constructed in
such location, manner and form as is required by the Ashburton
District Council and by the Developer.
12.3. Plant or allow to grow on the Lot any:
12.3.1. Tree or shrub or other vegetation listed on the Schedule of
Pest Plants maintained by Environment Canterbury of the
Ashburton District Council nor any tree which is included in
the list of prohibited trees specified in clause 24 of these
covenants.
12.3.2. Any row of trees or Hedge which is located on or adjacent
to a boundary to a height in excess of 2 metres above
ground level.
12.4. Permit or allow any part of any tree, hedge or other vegetation to
grow to a height which, were such tree, hedge or other vegetation
part of a Dwelling would cause it to protrude through the recession
plane applicable for building under the Ashburton District Council
building codes for the Lot. In the event that any tree, hedge or
other vegetation shall exceed this restriction then it shall be
reduced in height to the specified limit.
12.5. Permit grass or weeds to grow to a height exceeding 150mm or
allow any noxious substances, noxious birds or animals on the Lot
which may be likely to cause nuisance or annoyance to
neighbouring occupiers.
12.6. Permit any area lying between the front boundary of the Lot and the
Legal Road to remain in an unkempt and untidy state nor permit
grass or weeds to grow to a height exceeding 150mm on that area.
Fencing
13. The Lot Owner shall not:
13.1. Permit to be erected on the Lot any fence or boundary wall:
13.1.1. That exceeds 1.8 metres in height above the finished
ground level of any Lot;
13.1.2. That is not constructed of the same or similar materials and
construction style as the fencing already constructed on
other properties within the subdivision, however, in the
case of Stream and Waterway Lots, transparent pool type
fencing is permitted.
13.1.3. Within 4.5 metres of a boundary fronting a public road of a
Street Lot or a Corner Lot.
13.1.4. That exceeds 1.2 metres in height within 1 metre of the
boundary of a Right of Way Lot which adjoins the Right of
Way unless the written consent of the Developer has been
obtained and placed on the property file at the Council prior
to construction;
13.1.5. Within 6 metres of any stream boundary of a Stream Lot
except the north west boundary of Lot 44 unless the written
consent of the Developer has been obtained and placed on
the property file at the Council prior to construction.
13.1.6. Within 3 metres of the North West (Waterway boundary) of
Lot 44.
13.1.7. Within 3 metres of any Waterway boundary of Lot 45, Lot
49, Lot 50 and Lots 56-59.
14. The Lot Owner acknowledges and agrees that the Developer shall not
be liable to contribute to the cost of any Fence erected on the Lot, and
that the Ashburton District Council shall not be liable to contribute to the
cost of any fence erected on a Lot which adjoins any road, reserve or
land owned by the Council.
General Covenants
15. The Lot Owner shall not:
15.1. Permit or allow any rubbish, including builders’ waste material, to
accumulate or to be placed upon the Lot, any adjoining land or
reserve land. The Developer shall have the right to remove any
building materials from the Lot, any adjoining Lot or any reserve
land with reasonable costs plus a margin of 25% (GST exclusive)
to be met by the defaulting Lot Owner.
15.2. Permit or suffer any advertising sign or hoarding of a commercial
nature (excluding real estate signage pending sale and builder’s
signage during construction) without the prior consent in writing of
the Developer. All signage shall be professionally manufactured
and installed and shall not exceed 2.88 square metres in aggregate
area per Lot.
15.3. Suffer any dog or other pet to be kept in or about the Lot, which
dog or other pet is likely to cause a nuisance or annoyance to
neighbouring occupiers or detract from the Development and, in
particular, without otherwise limiting this restriction, to keep on or
about the property any dog which in whole or in part appears to be
an American Pit Bull Terrier, Rotweiller, Doberman Pinscher, Dogo
Argentino, Brazilian Fila and Japanese Tosa. The keeping of pigs,
battery chickens and pigeons is expressly prohibited.
15.4. Permit or suffer any activity of a commercial nature in or about the
Lot including, by way of example, but not limited to:
15.4.1. Dog kennels and/or catteries;
15.4.2. A construction company operating from the Lot;
15.4.3. Vehicle or boat storage facilities of any kind; and
15.4.4. The use of the Lot for institutional residential purposes. For
the purposes of this clause “institutional residential
purposes” shall include but not be limited to the use of the
Lot for housing purposes by central or local government
agencies or public or private health sector agencies
in all cases without the prior written consent of the Developer.
Stream and Waterway Lots
16. Each Stream Lot and Waterway Lot owner:
16.1. Covenants not to permit any substance which is or may be
detrimental to water quality to discharge into the waste water or
storm water systems serving the Development. The Stream Lot or
Waterway Lot owner shall be responsible for the cost of any
remedial action required for any breach of this covenant.
16.2. Acknowledges and accepts that the stream adjacent to the Lot is
an important environmental asset of the Development and
covenants to maintain the stream and to keep it free from all grass,
weeds, rubbish, noxious substances in a manner that will ensure
that the stream is able to be enjoyed by all Stream Lots and
Waterway Lots within the Development. All Stream Lot and
Waterway Lots owners further acknowledge that the water supply
to the stream is available at the discretion of the Ashburton District
Council and that in the event of the supply being discontinued, no
liability whatsoever shall accrue to or visit the Developer.
Enforcement
17. The Developer may enforce these Land Covenants in the same manner
as a Lot Owner and in particular, where a Lot Owner does not comply
with any covenant, the Developer may request such owner in writing to
remedy such non-compliance within a specified time (not to be less than
14 days from the date of such request). At the end of the specified time
and, where the Lot Owner remains in default in remedying such noncompliance, the Developer may employ a suitably qualified or
experienced person to enter his Lot and to carry out work necessary to
remedy the breach involved. The Developer may recover as a debt due
from the defaulting Lot Owner all costs incurred by the Developer in
completing such remedial work plus a margin of 25% (GST exclusive).
18. The Developer will use reasonable endeavours to ensure observance of
these Land Covenants but shall have no legal responsibility or liability for
any lack of enforcement or enforceability of any of these Land
Covenants or any subsequent liability relating to any breach of the
covenants by any Lot Owner. The Lot Owners agree to keep the
Developer fully indemnified against any claim, liability, loss or action
arising against it or its agents in respect of these Land Covenants,
having regard to their intent to provide for the interests of Lot Owners
inter se and their individual obligations of observance and rights of
enforcement.
19. The Developer may at its sole discretion waive compliance of one or
more of the restrictive covenants in this document provided that it is
satisfied that such waiver will not adversely affect the character and
amenity value of the Development as a quality residential subdivision.
Default Provisions
20. If there should be any breach or non-observance of any of these Land
Covenants and without prejudice to any other liability which the Lot
Owner may have to any person having the benefit of these covenants,
the Lot Owner will upon written demand being made by the Developer or
by any of the registered proprietors of any of the Lots:
20.1. Pay to the person making such demand liquidated damages in the
sum of $100.00 per day for every day that such breach or non-
observance continues after the date upon which written demand
has been made;
20.2. Remove or cause to be removed from the Lot any Dwelling,
Accessory Building, Fence or other structure erected or placed on
the Lot in breach or non-observance of the covenants;
20.3. Replace any building materials used in breach or non-observance
of the covenants; and
20.4. Repair or reinstate any damage done to the Lots as a result of any
breach or non-observance of the covenants.
ARBITRATION
21. Except as relates to the exercise of any discretion, opinion or consent
requested of the Developer under these covenants, and without
prejudice to the enforcement of the provisions of this document, if any
dispute shall arise concerning the covenants, then the parties to the
dispute shall enter into negotiations in good faith to resolve such dispute.
22. If the dispute is not resolved within 20 working days from the date on
which the parties begin their negotiations then the parties shall submit to
the arbitration of an independent arbitrator appointed jointly by the
parties. if the parties agree, that person appointed may act as a expert
and not an arbitrator.
23. If the appointment of a single arbitrator cannot be agreed upon within a
further period of 10 days then an independent arbitrator shall be
appointed by the President for the time being of the Canterbury District
Law Society on the application of either party.
24. The arbitrator shall determine the dispute in accordance with the
provisions of the Arbitration Act 1996 (and its amendments) or any
enactment passed in substation.
List of Prohibited Trees
25. Botanical Name
Acacia species
Agonis species
Acer pseudoplatanus
Araucaria species
Banksia integrifolia
Cupressus
Eucalyptus species
Lagunaria pattersonii
Maytenus boaria
Pinus species
Populus species
Racosperma species
Salix species
Common Name
Wattle
Myrtle
Sycamore
Araucaria
Banksia
Cypress
Eucalyptus
Norfolk Island hibiscus
Mayten tree
Pine
Poplar
Wattle
Willow