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Post by Brent George on Feb 19, 2015 2:45:48 GMT
There has been increasing angst amongst the cadastral surveying fraternity about the above issue. The angst has been exacerbated by the more recent strict application of the common law principles of boundaries affected by land slippage and the legal doctrine that "boundaries do not move with the land" during the definition approval process.
The Surveyor General's Office within Land Information NZ has today released the following proposed guidance for surveyors. www.linz.govt.nz/land/surveying/canterbury-earthquakes/information-for-canterbury-surveyors-post-earthquake-cadastral
This issue, and the proposed solution(s) / best solution(s) is probably one of the most important (if not the most important) issue ever faced by Cadastral Surveyors in Canterbury.
Think of the impact on the following matters (amongst others): - longstanding occupation, previously documented to be on the boundary, is now no longer on the boundary (by 0.1m, or 0.2m, or 0.7m); - buildings previously documented to be on the boundary now encroaching; - cross-lease building footprints in a different spatial location to that defined on a survey plan - defective title?; - services; fruit trees; driveways etc now encroaching.
Those non-Canterbury Surveyors need to take heed - when the next earthquake strikes it could be in a town near you! |
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Post by Brent George on Feb 19, 2015 20:23:36 GMT
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Post by Alex Liggett on Feb 20, 2015 5:09:46 GMT
Wow, and just like that, we have entered the realm of the coordinate cadastre. Bye bye hierarchy of evidence - it was nice knowing you.
Dark times.
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Post by Ian Gillespie on Feb 22, 2015 19:35:59 GMT
It occurs to me that "slip areas on hillsides" cannot logically be compared with the catastrophic event which has affected "all of Christchurch city"
This needs a new approach and may even need new legislation to deal with it.
One further point that occurs to me is that old existing electricity lines are protected under the electricity act - as long as aren't moved.
(Speaking from a relatively stable province.)
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Post by Bruce Speirs on Feb 24, 2015 0:35:10 GMT
My reply to the SG.
Thank you for advice of the availability of this document. While the document creates a start point for discussion on this topic, it appears this has been written of the premise that the "coordinate cadastre" (ie. a cadastre underpinned by calculated coordinates) has overriding precedence.
In fact the coordinate cadastre is simply a mathematical tool for the management of the cadastre. Be assured that the cadastre as defined by the s4 of the Cadastral Survey Act 2002 is robust and safe, however documents such as you have produced give the impression that the management of the cadastre is not so robust or safe.
In common law there is a cadastral hierarchy of evidence loosely defined as:
Natural boundaries
Original monuments
Documentary record
Occupation
depending on circumstance.
The guidance notes you have produced introduce the concepts of the coordinate cadastre and computer modelling into this hierarchy of evidence at the highest level, overriding all other evidence.
When we consider that the coordinate cadastre is a management tool and the computer modelling of underground fault lines can neither be physically measured or tested, I do not believe the introduction of these elements into the cadastral hierarchy of evidence is justified, and further, would be dismissed in a court of law.
I believe LINZ needs to embrace the concept of good survey practice, and revisit all of the evidence available to it, and identify the issues before developing guidance or "solutions" to the current post earthquake cadastral definition problems being experienced in Christchurch.
I believe legal precedent regarding cadastral definition in areas of earthquake disturbance is available from the 1931 Hawkes Bay earthquake, and LINZ needs to revisit the outcomes of the redefining of road alignments from that event.
My own reading of the limited number of such alignment surveys available to me, and brief discussion with Hawkes Bay Cadastral Surveyors, is that these alignment surveys were based on a best fit using available witness marks, boundary monuments, and occupation (eg. SO 4998A & SO 4861).
Further, there is additional evidence in the standard traverses of urban areas establishing standard traverse offsets for road boundaries, where a cadastral control network was either not available or of poor quality. In these circumstances it is again a combination of witness marks, monuments, and occupation, being used to establish road alignments, and therefore parcel dimension (eg. SO 6161 - Canterbury)).
I urge you to move away from using the concepts of the coordinate cadastre and computer modelling in the definition of land. While these are valid management tools for the cadastre, they are totally alien to the property rights held by the New Zealand public, and have the potential for significant adverse impacts on property rights for the whole of New Zealand if introduced to the cadastral hierarchy of evidence.
Instead, I encourage you to develop guidance on the basis of precedent set in the Hawkes Bay in the 1930's, using witness marks, boundary monuments and occupation, which can now be further informed by GNSS techniques, which allow vectors to be calculated between the pre and post earthquake position of witness and boundary marks.
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Post by Brent George on Feb 27, 2015 3:26:17 GMT
I have had the great fortune to recently read an excerpt from a Supreme Court decision concerning a boundary dispute concerning the importance of occupation as evidence. The decision included:
"Even where monuments exist which enable a more accurate survey to be made, no trifling discrepancy can be allowed to over-rule the practical interpretation put upon the instrument by such occupation. The occupier is not to be driven to rely on a mere possessory title; but has a right to assert that the land he holds is the very land granted. Land-surveying is a practical art; which is as much to say that it is not capable of the ideal precision of the mathematics."
Excellent. And even more interesting is the date of this statement = 1886 !!
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Post by Brent George on Mar 16, 2015 19:07:07 GMT
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Post by Bruce Speirs on Mar 23, 2015 20:55:11 GMT
DEFINITION IN AREAS OF LAND MOVEMENT
Section 4 of the Cadastral Survey Act 2002 defines cadastral survey as:
means the determination and description of the spatial extent (including boundaries) of interests under a tenure system
It is worth noting that this definition does not mention the terms "original" nor "position", and in a tectonically active world, these concepts would appear to have little relevance to cadastral surveying, as the spatial extent of all interests are moving relative to something.
In an historic context, the determination and description of the spatial extent of interests means in relation to the adjoining parcels, after all, it is the common boundaries of adjoining parcels that are being determined or defined in a cadastral survey.
In the post earthquake Christchurch situation, there have been significant natural forces at work that have altered parcel boundaries, and Cadastral Surveyor's are out there determining and describing the spatial extent of those altered boundaries using the hierarchy of evidence, loosely defined as:
1. Natural boundaries
2. Original monuments
3. Documentary evidence
4. Occupation
the weight given each of these depending on circumstances..
It appears to me that it is the description part of this process that is causing the most angst in the Christchurch situation. Where Cadastral Surveyors are identifying changes in parcel dimension as a result of the earthquakes, LINZ are having difficulty integrating those cadastral surveys into the cadastre.
To me this is not a cadastral survey problem, it is a cadastre management problem, probably in two areas.
Firstly, when a cadastral survey is identifying changes in parcel dimension as a result of the earthquakes, those dimensions no longer agree with the record held by Registrar General of Land.
Quite simply, this is for the RG to sort out, if he does not believe he has the authority to modify the record to accommodate earthquake induced changes in title, then he needs to seek a law change to give him that authority, and precedent for this has been set in the Hawke's Bay Earthquake Act 1931.
The second management problem LINZ appears to have relates to the record held in Landonline being at odds with cadastral surveys being lodged today.
Again, to me this is not a cadastral survey problem, and it is noted that section 7(1)(e) of the Cadastral Survey Act 2002 (The functions of the Surveyor-General are to set standards for integrating new cadastral surveys into the cadastre by the chief executive) would appear to give the Surveyor-General the ability to sort this out.
From the distance of Timaru, there remain many problems in Christchurch that are within the realm of the Cadastral Surveyor, and in particular, when is it inappropriate to use the hierarchy of evidence for definition purposes.
To date, the contact I have had with Cadastral Surveyors in Christchurch (and the abomination that LINZ put out and withdrew as guidance for cadastral surveys in Christchurch) would indicate that LINZ have been using the requisition portion of the approval as to survey process to mandate earthquake damage should be treated as a slip, a totally untested and dubious assumption.
In fact I will go further, it is my opinion that less than 1% of Christchurch earthquake movement will be as a result of a slip, and even where a slip is present, the existing common law may not apply, as this will most likely have been established in relation to water induced slips.
This is one area in which I believe the Courts will need to be involved for the guidance of cadastral surveys, and there will be others.
LINZ has also expressed concern that when a cadastral survey identifies reduced boundary dimension from the current record, then this may have impacts on land use.
Surely things such as yard requirements in a District Plan is for the District Council to resolve, while the fire rating of buildings is for whoever to resolve, these issues should not be affecting the determination and description of the spatial extent (including boundaries) of interests under a tenure system.
My own recent contact with LINZ gives me hope that they are starting to listen to, and are prepared to learn from the wider profession.
However, I caution that there is not going to be any fast fix to the problems being experienced by Cadastral Surveyor's in Christchurch, and I wouldn't count on any law changes affecting the definition of land, although there may be some common law decisions from Courts that will.
Good luck out there people.
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Post by Alex Liggett on Mar 28, 2015 21:41:01 GMT
Good post Bruce. As always, I admire your ability to break a problem down into its component sub-problems. Firstly, when a cadastral survey is identifying changes in parcel dimension as a result of the earthquakes, those dimensions no longer agree with the record held by Registrar General of Land. Quite simply, this is for the RG to sort out, if he does not believe he has the authority to modify the record to accommodate earthquake induced changes in title, then he needs to seek a law change to give him that authority, and precedent for this has been set in the Hawke's Bay Earthquake Act 1931. Has there been an authoritative legal ruling on whether the boundaries move with the land? If they do not, then the parcel dimensions have not changed, and the problem is the landowner's, not the RGL's. The second management problem LINZ appears to have relates to the record held in Landonline being at odds with cadastral surveys being lodged today. Quite so, but as one accustomed to working in non-SDC areas this is hardly unusual. People just need to remember that Landonline is the repository, not the record. Again, to me this is not a cadastral survey problem, and it is noted that section 7(1)(e) of the Cadastral Survey Act 2002 (The functions of the Surveyor-General are to set standards for integrating new cadastral surveys into the cadastre by the chief executive) would appear to give the Surveyor-General the ability to sort this out. Sounds easy if you say it quickly enough. Don't underestimate how difficult this will be to resolve! From the distance of Timaru, there remain many problems in Christchurch that are within the realm of the Cadastral Surveyor, and in particular, when is it inappropriate to use the hierarchy of evidence for definition purposes. Very true. To date, the contact I have had with Cadastral Surveyors in Christchurch (and the abomination that LINZ put out and withdrew as guidance for cadastral surveys in Christchurch) would indicate that LINZ have been using the requisition portion of the approval as to survey process to mandate earthquake damage should be treated as a slip, a totally untested and dubious assumption. Agreed, and this has resulted in surveyors being effectively forced to sign off on definitions mandated by LINZ, who will afterwards absolve themselves of much of the responsibility. In fairness, this has been brought about by a failure by all parties to address the wider problem, and I am hopeful that this is behind us now. My own recent contact with LINZ gives me hope that they are starting to listen to, and are prepared to learn from the wider profession. In a general sense, the bad old days of LINZ autocracy and isolationism are way behind us, and while there will always be frustrations on both sides, the relationship between the regulator and the profession appears to be generally a very positive one. The appearance of the CEO's name in communications coming from LINZ, either along with or instead of the SG's, is very much of concern. However, I caution that there is not going to be any fast fix to the problems being experienced by Cadastral Surveyor's in Christchurch, and I wouldn't count on any law changes affecting the definition of land, although there may be some common law decisions from Courts that will. QED. |
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Post by Bruce Speirs on Mar 29, 2015 20:51:39 GMT
Alex asks the question "Has there been an authoritative legal ruling on whether the boundaries move with the land?"
The simple answer is no one knows, or we would all have heard about it by now.
However, let me pose the related question. Does anyone believe the courts would be prepared to issue such an authoritative ruling?
My guess is that with all the permutations involved, it is not going to happen, and that the courts will rely on the historically accepted hierarchy of evidence in any given circumstance.
That is my take on what happened after the Hawkes Bay earthquake of 1931, and while I don't personally have the resources to review court records from that time, as suggested in my reply to the SG above, LINZ should do this, and as the regulator, it is probably their duty to do so.
In the mean time, Cadastral Surveyor's need to exercise their quasi-judicial function as though advisers to the courts, and use the courts historically accepted hierarchy of evidence for boundary definition.
Make no mistake, I don't under estimate how difficult it will be for the Surveyor-General to write Chief Executive rules for the integration of cadastral surveys in areas of ground movement into the cadastre, but this is not a definition problem, nor a problem for the Cadastral Surveyor to solve.
If I may pass on my method of resolution when a regulator espouses a view with which I disagree. Ask the regulator to set out the specific legislative basis for their view. If they are able to come back with a legislative basis, read that legislation to make sure they are not bullshiting you. If they are right, concede graciously, otherwise tell them where to go.
And that people is pretty much how most of us treat the LINZ requisition process. If LINZ are trying to mandate definition through the requisition process, you need to ask them for the specific legislative or legal basis of their methodology, and read any referenced legislation or court decision to see if its applicable to your situation. If they are right, concede graciously, otherwise tell them they have not been able to provide any satisfactory legislative or legal basis to support the requisition, and require them to approve the dataset as it stands.
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Post by Simon Jenkin on Mar 30, 2015 3:59:01 GMT
Four rhetorical questions; when a freehold re-def changes boundary vector values, does the RGL have a problem with issuing the new title? and
When a freehold plan states on the survey plan face "boundary on outer face of wall" or "boundary is centreline of common wall", does this have to be respected when the land is re-defined after a land movement of any type? and
If land has been compressed, does an easement retain its documented width, and finally,
If two buildings with a common freehold bdy between them are closer together after a vis major, resulting in non-complying side yards, then if the land is redefined does the surveyor have to research and record the side yard non-compliance in the CSD?
Comment, it seems to me The s223 & 224(c) RMA are the only legal link between the TA compliance requirements and the SG compliance requirements.
I also note that coordinates are a ‘by-product’ of the integration of the lodged survey data. The survey system does not ‘depend on coordinates’ i.e. the system would function if no coordinates existed.
The extent of the Crown ‘guarantee’ on ordinary titles needs to be clearly identified, a clue showed up in the early Landonline title plans where the bearings were removed. This could only have happen with (or as a result of) legal permission/persuasion; ergo, orientation and ‘square-ness’ is not guaranteed by the Crown.
Whilst there is legal debate over a slip or not a slip, I do not think that is relevant. The Quake has resulted in translation, rotation and scale changes, this is well known to the survey profession, it could well be that the solution is not as complex as it may appear.
If all the 5th and better marks through the quake affected area were re-surveyed, resulting in revised vector values, NOT adjusted coordinates (and a selection of 6th order), the extent of the translation, rotation and scale could be identified for any particular location or plan(s), and conventional definition principles applied.
Opinions should be posted and demolished (or not), this is a national issue, it will affect everyone eventually, so I encourage you to be part of the solution.
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Post by Alex Liggett on Mar 30, 2015 4:25:06 GMT
And that people is pretty much how most of us treat the LINZ requisition process. If LINZ are trying to mandate definition through the requisition process, you need to ask them for the specific legislative or legal basis of their methodology, and read any referenced legislation or court decision to see if its applicable to your situation. If they are right, concede graciously, otherwise tell them they have not been able to provide any satisfactory legislative or legal basis to support the requisition, and require them to approve the dataset as it stands. That's all very well, Bruce, but who pays for the endless merry-go-round of requisition, response, challenge, etc? LINZ naturally won't. Will the client? The Quake has resulted in translation, rotation and scale changes, this is well known to the survey profession, it could well be that the solution is not as complex as it may appear. If all the 5th and better marks through the quake affected area were re-surveyed, resulting in revised vector values, NOT adjusted coordinates (and a selection of 6th order), the extent of the translation, rotation and scale could be identified for any particular location or plan(s), and conventional definition principles applied. Opinions should be posted and demolished (or not), this is a national issue, it will affect everyone eventually, so I encourage you to be part of the solution. I (we) would that it were so Simon, but the reality is that the movement in the worst affected areas (ie the ones that are causing the problem) is entirely random, and 3 marks within 10m of each other may show three different displacements. It is rarely as simple as applying a single scale, rotation or translation, even over a small, discrete area. |
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Post by Simon Jenkin on Apr 9, 2015 3:44:51 GMT
The complexity of land definition in the earthquake affected areas increases each time more information circulates. The distinct impression to a surveyor outside the district is that each attempted solution since the first quake has brought new problems into the equation.
In my earlier posting I suggested that when a freehold boundary is defined by a physical feature, such as the centreline of a wall, after a land disturbance which physically moves that physical feature, my firm opinion is that the legal freehold boundary should remain as the 'centreline' of the wall.
Taking that one step further, when a freehold boundary is pegged, the surveyor is placing a physical monument defining the position and alignment of the freehold boundary. The Survey Dataset is the official record of the position of the physical monuments defining the boundary. The control work is the tool or mechanism for placing and recording the physical monument.
This gives, in my opinion, the survey peg the same status as a 'wall' which leads to the conclusion; the freehold boundary is defined by the physical monuments, and remains so in the event of a land disturbance.
I don't expect there to be a magic solution, but I do expect that every survey definition in NZ has the potential to be affected by the outcome of the various groups now established. Every party now realises that wider consultation is an essential part of the process, supporting the 'groups' now with input and ideas can only be seen as a positive move towards an earlier resolution. So get involved.
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Post by Brent George on Aug 2, 2015 23:12:28 GMT
OK. As Surveyors we (think) we know how to deal with earthquake affected boundaries and we (think) we know what the subsequent impacts on things like underground services within defined easements may be.
However, it is relevant to consider how a layperson may interpret boundaries changing, and their affect on easements.
[Let's also overlook the comment regarding the GPS (and by implication not the Surveyor) determining the boundary movement...  ]
This was posted in The Press last week (29-July-2015) in the Question and Answer section....
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Post by Brent George on Jun 10, 2016 5:41:21 GMT
The Canterbury Working Group are pleased to deliver the final draft of the "Practice Guidelines for Cadastral Surveying in Areas Affected by Ground Movement Caused by Earthquakes in Canterbury" document that was previously disseminated for wider comment late last year.
This version (Revision 6) generally incorporates the comments and feedback received from the previous release. As before, the Working Party considers that this document will:
• become a resource for cadastral surveyors working in Canterbury;
• be a developing document that is enhanced and expanded as necessary;
• be redistributed to any and all practitioners for their information; and
• is owned and controlled by the NZIS Canterbury Branch.
In addition, we consider that this document will be independent of, but compatible with, any subsequent legislation or rules that may follow.
This can be downloaded here: Practice Guidelines (v6) or extracted from the "Resources" section of the ICS website here: ICS Website - Resources |
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