Meridian Energy, NZ Forestry Group, Memorandum of Encumbrance
This Memorandum of Encumbrance dated 21st September, 2006 was signed by Meridian Energy, fully owned by the New Zealand Government. It is clear, that in September 2006 Meridian and its lawyers knew full well that there were adverse health impacts, noise, vibration and a range of other factors which could result from operating wind turbines. This document explicitly mentions noise, vibration, “health effects” and “other emissions”, in Schedule 3.
New Zealand Forestry Group Limited (Encumbrancer )
Meridian Energy Limited ( Encumbrancee)
Certified correct for the purposes of the Land Transfer Act 1952
Solicitor for the Encumbrancee
MEMORANDUM OF ENCUMBRANCE
TABLE OF CONTENTS
PARTIES
BACKGROUND
OPERATIVE PART
1 Rent charge, covenants and agreements
2 Implied covenant and agreement
3 Encumbrance binding on others
4 Application of the Land Transfer Act 1952
FIRST SCHEDULE – COVENANTS AND AGREEMENTS
1 Definitions and Interpretation
2 Purpose
3 Term
4 Obligations of the Encumbrancer
5 Further Assurances
6 Implied Relationship
7 Severability
8 Notices
9 Dispute Resolution
10 Deemed consent of Encumbrancee pursuant to Section 90E( 3)
SECOND SCHEDULE – ENCUMBRANCER’S LAND
THIRD SCHEDULE – COVENANT
FOURTH SCHEDULE – ADDRESSES FOR NOTICE
PARTIES
New Zealand Forestry Group Limited (Encumbrancer ) as to the land described in the Second Schedule
Meridian Energy Limited ( Encumbrancee)
BACKGROUND
A The Encumbrancer is the registered proprietor of the estate in fee simple of the land described in the Second Schedule to this Encumbrance ( Encumbrancer’ s Land).
B Encumbrancee intends to undertake the Development on the Development Land.
C “The Encumbrancer has agreed to the covenant set out in the Third Schedule to this Encumbrance (Covenant) requiring the Encumbrancer to support any resource consent or other applications made by Encumbrancee relevant to the Development, and not to object to, prevent, prohibit, in any way Interfere with or restrain the Development, or oppose any application for resource consent or other authority or consent required by Encumbrancee in respect of the Development.”
D In order to secure performance of the Covenantr the Encumbrancer grants to and makes with the Encumbrancee the covenants set out in this Encumbrance.
OPERATIVE PART
1 Rent charge, covenants and agreements .
1.1 The Encumbrancer, for themselves and their successors and assigns for the time being of the Land, encumbers the Land for the benefit of the Encumbrancee fur the term set out in the First Schedule with an annual rent charge of $10.00 plus GST to be paid each year on the anniversary of the date of this Encumbrance if demanded by the Encumbrancee and covenants and agrees with the Encumbrancee as set out In the First and Third Schedules.
1.2 The Encumbrancee, for themselves and their assigns, covenants and agrees with the Encumbrancer as set out in the First and Third Schedules.
2 Implied covenant and agreement
Sections 154 and 156 of the Land Transfer Act 1952 and sections 63, 64, 73 and 104 of the Property Law Act 1952 shall apply to this Encumbrance but otherwise the Encumbrancer shall not be entitled to any of the powers and remedies given to encumbrancers by the Land Transfer Act 1952 and the Encumbrancee shall not be entitled to any of the powers and remedies given to mortgagees under the Land Transfer Act 1952 or the Property Law Act 1952.
3 Encumbrance binding on others
This Encumbrance shall be binding on all transferees, lessees, mortgagees, chargeholders and their respective successors in title and assigns of any estate or interest In the Land.
4 Application of the Land Transfer Act 1952
This Encumbrance shall not constitute an Instrument creating an easement for the purposes of the Land Transfer Act 1952 and the rights and powers set out In Schedule 4 to the Land Transfer Regulations 2002 and the Ninth Schedule to the
c Property Law Act 1952 are expressly negatived.
EXECUTION
Signed by New Zealand Forestry’ Group Limited as Encumbrancer:
Signed by Meridian Energy Limited as Encumbrancee
THIRD SCHEDULE – COVENANT
1 The Encumbrancer will not:
1.1 complain about raise any objection or lodge any submission in opposition, lodge any appeal or legal proceedings or take any other action relating to the Encumbrancee’s use (including future use) in respect of the Development and in particular any effects relating to the Encumbrancee’s use {including future use) of the Development, including:
(a) noise levels, odour, glare or vibration;
(b) electromagnetic frequency or other emissions;
(c) health effects;
(d) electrical interference;
(e) use of vehicles;
(f) site coverage and layout;
(g) shadowing or blockage of sunlight; and
(h) use, erection, alteration, extension or removal, reconstruction,
or demolition of buildings, structures or equipment.
1.2 oppose or lodge any submission in opposition to any application by the Encumbrancee for any resource consent relatlng to the Encumbrancee’s use (including future use) of the Development; and
1.3 Incite, participate in or support any objection, submission in opposition, appeal or legal proceeding or other action which may have the effect of preventing, prohibiting, restricting, restraining or interfering with the Encumbrancee’s use (including future use) of the Development.
2 If requested by the Encumbrancee, the Encumbrancer will (without delay) do all things necessary to assist the Encumbrancee to obtain any resource consents relating to the Encumbrancee’s use of the Development, Including signing any consent or approval required by any competent authority.
3 The Covenant shall apply:
3.1 In respect of the Development as more particularly described in the Service Requests (including minor layout changes permitted under the Service Requests); and
3.2 In respect of changes to the layout of the Development which are not contemplated under the Service Requests, where such changes do not alter the layout of the Development described in the Service Requests by:
(a) Increasing the number of wind turbines located on the Development Land; or
(b) moving any of the wind turbine located on the Development Land closer to the Encumbrancer’s Land; or
(c) materially Increasing noise emissions from the Development recorded at the Encumbrancer’s Land, it being the Intention that the Encumbrancee may otherwise alter the layout of the Development, and the Encumbrancer’s obligations in this Third Schedule shall continue to apply to any such alteration.
FOURTH SCHEDULE – ADDRESSES FOR NOTICE
The encumbrancer
Description: New Zealand Forestry Group Limited Address: PO Box 24475, Royal Oak, Auckland Attention: Mr Wesley Garratt Fax: 09 624 2789
The Encumbrancee
Description: Meridian Energy Limited Address: PO Box 10 840, Wellington Attention: New Zealand Wind Manager Fax: 04 3811201