H INVESTMENTS (NZ) LIMITED
BUILDING AND DESIGN COVENANTS ('LAND COVENANTS')
1. Creation of Land Covenants
1.1 The Grantor for itself and its successors in title covenants and agrees with the Grantee and its
successors in title that the Grantor will at all times observe and perform the covenants contained in
this Easement Instrument to the intent that each of the covenants will forever enure for the benefit of
and be appurtenant to each and all of the Dominant Tenements and each and all of the registered
proprietors of the Dominant Tenements provided that the Grantor will be liable only for breaches
of the covenants contained in this Easement Instrument which occur whilst the Grantor is the
registered proprietor of the Servient Tenements or any part of the Servient Tenements and
provided further that H Investments (NZ) Limited will not be liable for breaches of the covenants
contained in this Easement Instrument whilst it is the registered proprietor of the Servient Tenements
or any part of the Servient Tenements.
1.2 The Grantor will at all times indemnify and keep the Grantee indemnified from all losses, costs,
claims and demands in respect of any breach or non-observance by the Grantor of these
covenants.
1.3 The Grantee will not call on H Investments (NZ) Limited to pay for or contribute towards the cost of
erection or maintenance of any boundary fence between any property and adjoining property of
the Grantee provided that this covenant will not enure for the benefit of any subsequent registered
proprietor of any adjoining property.
2. Interpretation
2.1 Unless the context specifies or requires otherwise, the following words and phrases in these
covenants shall have the meanings specified below:
Approved Builder means a builder who has been approved by the Developer and who has
entered into an Approved Builder Deed.
Approved Builder Deed means a deed to be entered into between the Developer and a builder
of any Building on a Developed Property in a form prescribed by the Developer.
Authority means the Waimakariri District Council or any other relevant authority and any
replacement or substitute authority.
Building means any building or structure higher than 1.2 metres above Ground Level, including
chimneys and satellite dishes, but excluding aerials.
Developed Properties means each and every Developed Property within the Development.
Developed Property means any one property comprised on a separate certificate of title in the
Development.
Developer means H Investments (NZ) Limited or its nominee or any developer who acquires the
Development from H Investments (NZ) Limited for the purposes of completing the Development.
Developer Approval means the approval given by the Developer of the Plans and Specifications.
Development means the Silverstream Estates development in Kaiapoi.
Dwelling means a Building or a group of Buildings designed and occupied for residential purposes
as a single self-contained household unit, by one or more persons, and includes any normal
accessory Building including but not limited to garages, garden sheds and glasshouses.
Ground Level means the finished ground level of a Developed Property as at the date of deposit
of the plan of subdivision which creates that Developed Property.
Home Office means no more than two rooms in a Dwelling set aside for home office/business but
excludes any bed and breakfast or other form of commercial visitor accommodation activity.
Land Covenants means these covenants.
Plans and Specifications means the final working drawings and the specifications (including the
materials used) of a Building proposed for construction on the Developed Property and the site
plan, concept plan, landscaping plan and fencing plan for the Developed Property.
Prescribed Approval Processes means those approval processes prescribed from time to time by
the Developer for the purposes of Developer Approval.
RMA means the Resource Management Act 1991 and any regulations (as amended from time to
time) and any replacement or substitute legislation and/or regulations in effect from time to time.
Subdivision Plan means a subdivision plan showing Developed Property boundaries.
WDP means the Waimakariri District Plan (or any replacement or substitute plan) in effect from
time to time.
Working Days means a day which is not a Saturday, Sunday or public holiday in Canterbury.
3. Construction Covenants
3.1 The Grantor for itself and its successors in title hereby covenants and agrees with the Grantee and
its successors in title for the benefit of the Dominant Tenement that the Grantor shall not:
3.1.1 Erect (or permit or suffer to be erected) on the Servient Tenement:
3.1.1.1 any Building unless the Plans and Specifications have first received Developer
Approval in accordance with the Prescribed Approval Processes. The Developer's
decision in relation to all aspects of the Developer Approval will be final;
3.1.1.2 any Building where construction has not commenced within six (6) months of the date
of Developer Approval. Developer Approval will be deemed to have lapsed on
that date six months after the date of Developer Approval in which case the Plans
and Specifications will need to be resubmitted for Developer Approval;
3.1.1.3 any Building unless the builder is an Approved Builder;
3.1.1.4 any Building other than a Building constructed in accordance with the Plans and
Specifications which received Developer Approval;
3.1.1.5 any Building other than a single Dwelling and usual accessory Buildings for the
occupation of one household unit;
3.1.1.6 any re-locatable, pre-built or kit-set Building or any Building containing second-hand
materials (other than second-hand recycled bricks) unless approved in writing by
the Developer;
3.1.1.7 any Building with external cladding (except cladding of soffits or gable ends) of
unrelieved flat steel, corrugated iron, fibrolite, hardiflex, galvanised steel, fibre
cement weatherboards, uncoated fibre material, PVC sidings or claddings,
unpainted concrete masonry, metal or asphalt based aggregate covered tiles or
shingles or any similar materials;
3.1.1.8 any Building with unfinished exterior walls or doors (except where cedar cladding
or decorative brick /stone are used);
3.1.1.9 any Building with a roof constructed from anything other than slate, tile or a precoloured
steel product unless the Developer agrees to a different roofing material
as part of providing Developer Approval and providing that no Building shall
have a roof constructed from copper, corrugated iron or any unpainted metal
surface or have copper spouting or down pipes unless the same shall have been
authorised by Developer Approval;
3.1.1.10 any fence or boundary wall containing cement board sheets or panels, corrugated
iron or metal sheeting;
3.1.1.11 any sign visible from outside the Developed Property except:
3.1.1.11.1 one standard real estate sign which shall be no larger than 600cm x
1m and no higher than 1.2m above Ground Level;
3.1.1.11.2 signage erected by the Developer;
3.1.1.11.3 signage approved by the Developer on such conditions as the
Developer thinks fit;
3.1.1.11.4 a sign erected by an Approved Builder in accordance with the terms
of an Approved Builders Deed;
and all signs erected in accordance with this clause are subject to the requirements
and the rules applicable to the then applicable zone of the WDP for the
Developed Properties. All signs shall be located appropriately and maintained to
the satisfaction of the Developer in all respects. The Developer may give 24 hours
written notice to any registered proprietor or occupier of a Developed Property to
remove any sign that does not comply with these Land Covenants.
3.1.1.12 any carport other than a fully enclosed garage;
3.1.1.13 any aboveground electrical, telephone, or other wires or any fencing other than as
expressly authorised by the Developer Approval of the Plans and Specifications;
3.1.1.14 any satellite dish with a diameter greater than 0.7 metres or any satellite dish or
TV aerial that is visible from the street frontage of the Developed Property; or
3.1.1.15 any Building beyond the approved Authority set backs or located over any
registered easement facility.
3.1.2 Delay commencement of construction of the Dwelling on a Developed Property to a date
more than six (6) months after the settlement date of the purchase of the Developed
Property or take any more than twelve (12) months from the date of Developer Approval
to complete construction of the Dwelling, fencing and landscaping of the Developed
Property.
3.1.3 Erect a Dwelling without erecting a new letterbox at the front of the Developed Property of
a design and colour approved by the Developer as part of the Developer Approval and
where the letterbox shall not be more than 1.5 metres high or 500mm wide.
3.1.4 Permit any damage to be caused to any Servient or Dominant Tenement and any adjoining
property (including, without limitation, berms, footpaths, stormwater swales, tree planting
and fences) as a consequence of construction work on the Developed Property. The
Grantor shall promptly make good any damage.
3.1.5 Permit during the course of construction the loading, unloading, delivery, or storage of
building materials other than within the boundaries of the Developed Property.
3.1.6 Carry out any construction unless an adequate rubbish skip is available and regularly
emptied or replaced, or permit any rubbish to blow outside the boundaries of the
Developed Property or permit any vehicles being used in the construction process to be
washed down other than within the boundaries of the Developed Property.
3.1.7 Permit the Grantor's builder (including its construction workers and contractors) to use the
Developed Property or any other area in the Development for toileting purposes and prior
to construction commencing the Grantor shall provide a suitable portable toilet facility for
use by the Grantor's builder (including its construction workers and contractors).
3.1.8 Provide car parking for less than one vehicle that can be parked on the Developed
Property and less than one vehicle that can be garaged on the Developed Property.
3.1.9 Use colours on the exterior roof or wall other than those approved by the Developer.
3.1.10 Permit any soil, earth, clay, sand or shingle materials used in the course of the construction
process to remain on a Developed Property after completion of construction and to remove
the same as soon as possible.
3.1.11 Bring onto or use (either during the course of construction or following completion of
construction) any temporary structure, tent (other than a children's play tent), caravan or
campervan or similar facility for overnight sleeping or accommodation on any Developed
3.1.12 Permit any internal plumbing pipes (other than stormwater pipes) to be visible from the
outside of the Building and to conceal the pipes into walls or ducts. Pipes which are
required to break the roof line must be painted the same colour as the roof.
3.1.13 Erect fences on the boundaries of the Developed Property other than in accordance with
the Developer Approval of the Plans and Specifications and the provisions of the Fencing
Act 1978 will apply to all fencing, including without limitation, section 9. Where, despite
clause 1.3 of these Land Covenants, the Developer has erected a fence then the Grantor
will reimburse the Developer for the cost of the fencing and if the Grantor being liable to
pay the Developer for the fencing cost or maintenance cost fails to reimburse the Developer
within ten (10) Working Days of receiving an invoice for the amount to be reimbursed then
the Grantor will pay the Developer interest at the rate of twelve percent per annum (12%)
on a daily basis until payment is made.
3.1.14 Erect fences otherwise in accordance with the provisions of the WDP and in particular the
rules relating to all fencing between residential properties and reserve land to ensure that
all residential properties fronting neighbourhood roads shall have a minimum visual
permeability/openness of 45% and subject to the WDP all street facing fences will be set
back from the front boundary of the Developed Property in accordance with specifications
that will be described in the Developer Approval of the Plans and Specifications. Subject to
the WDP all side and rear fences will not exceed 1.8m in height and will be stained or
finished before the Dwelling is occupied. Where fences from adjoining Developed
Properties meet they will be flush at that juncture and if required the fence will be tapered
over a minimum length of 2 x 2.4m.
4. Land Use Covenants
4.1 The Grantor for itself and its successors in title hereby covenants and agrees with the Grantee and
4.1.1 Use or allow the Developed Property to be used or developed other than in accordance
with the requirements of the WDP in all respects and in particular the rules applicable to
the then applicable zone of the WDP for the Developed Properties.
4.1.2 Use or allow the Developed Property to be used for any illegal, offensive or noisy
activities.
4.1.3 Use the Developed Property and the Dwelling as a residence until the later of:
4.1.3.1 the date of issue of a Code Compliance Certificate by the Waimakariri District
Council; or
4.1.3.2 the date that the Building, landscaping and fencing have in the Developer's opinion
been completed strictly in accordance with the Developer Approval of the Plans
and Specifications.
4.1.4 Use any part of the Developed Property for any purpose other than a Dwelling or Home
Office without the prior written consent of the Developer.
4.1.5 Except during the period of construction of the Building, use (or permit or suffer to be used)
any chainsaw, motor mower, mechanical weed-eater or other noisy mechanical device on
the Developed Property before 8.00am or after 7.00pm on any day.
4.1.6 Play or use (or permit or suffer to be played or used) any live music or any radio, television
set, audio device or electrical musical appliance on the Developed Property that can be
heard beyond the boundaries of the Developed Property.
4.1.7 Subdivide any Developed Property. For the purposes of this clause "subdivide" shall have
the same meaning given to the expression "subdivision of land" in section 218 of the RMA
provided however that it shall not include any boundary adjustment that does not result in
the creation of a greater number of separate certificates of title than existed prior to the
boundary adjustment.
4.1.8 Permit any clothesline or clothes drying apparatus to be visible from the street frontage of
the Developed Property.
4.1.9 Permit the Developed Property to become untidy and overgrown so that the Grantor will
keep the Developed Property in a neat and tidy condition and not allow rubbish to
accumulate on the Developed Property.
4.1.10 Permit any part of the Developed Property to form a private or legal road to an adjoining
property, provided, however, that where a Grantor owns two adjoining lots with the
intention of constructing one Dwelling on those combined lots, this clause shall not apply for
the Grantor's use of those adjoining lots.
4.1.11 Keep any livestock or animals on the Developed Property (other than household domestic
pets for household domestic purposes) which may cause a nuisance or annoyance to
registered proprietors of any neighbouring Developed Property or detract from the
Development including but not limited to pigs, deer, goats, horses, sheep, fowl, pigeons, or
any dog which in whole or in part, resembles any of the Pit Bull Terrier, Japanese Tosa,
Dogo Argentine, Fila Brasileiro, Rottweilers or Doberman Pinschers breeds or any other
potentially aggressive or noisy breed of animal or allow the Developed Property to be
used for any commercial kennel or cattery.
4.1.12 Park or (permit or suffer to be parked) on the Developed Property any storage container
or caravan, campervan, boat, trailer or like recreational vehicle where it is visible from the
street frontage of the Developed Property.
4.1.13 Park any vehicle or leave any item of plant or equipment on the road reserve in front of
the Developed Property which is in a poor state of repair, unsightly or damaged and which
might cause a hazard to any person or devalue or decrease the enjoyment of any
registered proprietor of a Developed Property.
4.1.14 Bring or allow to be brought onto any Developed Property motor vehicles of a gross laden
weight of more than 4500kg or agricultural or other contracting plant, or any similar
machinery likely by its presence to devalue or decrease the enjoyment of any registered
proprietor of a Developed Property.
4.1.15 Permit the state of repair and condition of a Building on the Developed Property to
deteriorate, to the intent that the Grantor shall regularly maintain the Building and in
particular the exterior surface materials.
4.1.16 Oppose or object to any application for a resource consent or building consent or any other
approval made by the Developer to the Authority and will on request being made by the
Developer sign any documentation required to give effect to any such consent or approval.
5. Neighbouring Land Covenants
5.1 The Grantor for itself and its successors in title hereby covenants and agrees with the Grantee and
5.1.1 Make or lodge, be a party to or finance or contribute to the cost of any complaint,
application, or other proceeding (either directly or indirectly) under the RMA or otherwise
designed or intended to limit, prohibit, or restrict:
5.1.1.1 the permitted use of the piggery adjoining part of the western boundary of the
Development as more particularly described in Certificates of Title CB12K/708
and CB560/71 permitted by a resource consent or any existing use of the land or
any part of the land; or
5.1.1.2 in the case of any expansion, after the date of this Land Covenant, of any such
activity which was carried out by the piggery adjoining part of the western
boundary of the Development as more particularly described in Certificates of
Title CB12K/708 and CB560/71 prior to the date of this Land Covenant, or in the
case of any alteration to the accommodation of animals housed on the land
described in Certificates of Title CB12K/708 and CB560/71 that is required to
bring about changes introduced by the Animal Welfare code;
5.1.1.3 provided that the effects of such activities including any proposed expansion
will be no greater than the effects of activities which were lawfully established at the date
of this Land Covenant unless the Grantor believes (acting reasonably) that an activity
carried out on the land described in Certificates of Title CB12K/708 and CB560/71 is in
breach of the requirements of the WDP or the requirements of a consent issued by an
Authority.
5.1.2 Pursuant to the provision of the Contracts (Privity) Act 1982, the parties acknowledge that
the terms and provisions of clauses 5.1 and 5.2 of these Land Covenants confer a benefit
on, and shall be enforceable by, the registered proprietors (from time to time) of the land
described in Certificates of Title CB12K/708 and CB560/71 as if such persons or entities
were a party to these Land Covenants.
5.1.3 Make any complaint (either directly or indirectly) in respect of the location of the
Developed Property within the 50 dBa air noise contour for Christchurch International
Airport ("CIA"). The Grantor acknowledges that part of the Development is within the 50
dBa air noise contour for CIA and that depending on prevailing weather conditions the
Developed Property will be over-flown by aircraft landing and taking off from CIA 24
hours a day, 365 days a year. The Grantor will not lay any complaint with or against the
Developer, any Authority, CIA or its successor in respect of any noise or other nuisance that
may be caused to the Grantor as a consequence of the Developed Property's proximity to
CIA.
5.2 The Grantor acknowledges that the Development land was rural land prior to rezoning and that
properties surrounding the Development continue to be used for rural, quasi-rural, life-style and
ancillary related purposes.
5.3 In this clause 5, the terms "permitted activity" and "resource consent" shall have the meanings as
defined in section 2 of the RMA, and "existing use" shall have the meaning as defined in terms of
section 10 of the RMA.
6. Default
6.1 If there shall be any breach or non-observance on the Grantor's part of the Land Covenants
contained in this Easement Instrument (and without prejudice to any other liability which the Grantor
may have to the Grantee or any other person having the benefit of these Land Covenants) the
Grantor will upon written demand being made by the Developer or any of the registered
proprietors of the Dominant Tenement(s):
6.1.1 pay to each Grantee (or other person having the benefit of these Land Covenants) making
such demand as liquidated damages the sum of $150.00 per day for every day or part
day that such breach or non-observance of the Land Covenants contained in this Easement
Instrument continues after the date upon which written demand has been made;
6.1.2 remove or cause to be removed any Building or fence erected or placed on the Servient
Tenement in breach or non-observance of these Land Covenants;
6.1.3 replace any building materials so as to comply with these Land Covenants; and
6.1.4 while the Developer is the registered proprietor of any Dominant Tenement, reimburse the
Developer upon demand for all legal and other costs incurred by the Developer in dealing
with the Grantor's default.
6.2 The Grantor will not have any claim in damages against the Developer on account of any refusal
to grant or the grant of Developer Approval under these Land Covenants or for the transferring or
assigning of its interest and right to grant or withhold Developer Approval.
6.3 While the Developer is the registered proprietor of any Dominant Tenement all breaches or nonobservance
on the Grantor's part of the Land Covenants whether actual or alleged must first be
referred to the Developer so that no Grantee other than the Developer may take any action
against a Grantor in respect of a breach or non-observance of the Land Covenants. In addition to
the remedies set out in clause 6.1 the Developer will have a complete discretion to deal with the
default in such way as it thinks fit and the Grantor will not have any claim in damages against the
Developer or right to compensation in respect of any action by the Developer in dealing with the
default.
7. Disputes
7.1 If a dispute arises in relation to this Easement Instrument:
7.1.1 the party initiating the dispute must provide full written particulars of the dispute to the
other party;
7.1.2 the parties must promptly meet and in good faith try to resolve the dispute;
7.1.3 subject to clause 7.2 if the dispute is not resolved within ten (10) days of the written
particulars being given (or any longer period agreed by the parties) the dispute must be
referred to arbitration in accordance with the Arbitration Act 1996 to be conducted by a
single arbitrator to be agreed on by the parties or, failing agreement, to be appointed by
the President of the Canterbury and Westland Branch of the New Zealand Law Society.
7.2 Notwithstanding clause 7.1.3 if any dispute arises in relation to this Easement Instrument including
as to what may constitute a breach or as to matters of interpretation of this Easement Instrument
while the Developer is the registered proprietor of any Dominant Tenement then the same shall be
referred to the Developer for resolution whose decision shall be final.
8. No Termination
8.1 The Grantor may not determine this Easement Instrument for breach of any provision in this
instrument (whether express or implied) or for any other cause, it being the intention of the parties
that the Land Covenants created herein shall subsist until they expire in accordance with clause 9.1,
become obsolete or are surrendered.
9. Expiry of Land Covenants
9.1 These Land Covenants shall expire and cease to have any effect on the date 50 years following
the date of registration of this Easement Instrument such expiry being without prejudice to any
claim under these Land Covenants made prior to the expiry date.
