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The 'registration' (or ’approval’) of cadastral surveys is often tangled in technical compliance issues – cadastral validators are error intolerant – rather than being concentrated upon risks, while customers do not tolerate delays in approval because they may affect costs, profit margins and so on. Today government market 'intervention’ requires justification because individuals and the private-sector are often better able to take responsibility for the services they request and deliver.
Roles and Responsibility
The 1980s privatisation programme challenged the role of government in delivering ser–vices and infrastructure. One of the aims was that the 'market' could determine 'how' to deliver services, whilst government would determine 'what' needed to be delivered, protected or achieved. In the cadastral context, the 'what' focuses on public or government outcomes and object–ives, and intervention is justified by assessing the risks of not achieving them. Ideally, interventions should enable the private-sector to determine how to best manage its methods, technology, resources, business processes and so on, while still achieving public and government goals. Cadastral surveys undertaken in New Zealand by either private-sector or local government surveyors are submitted to LINZ for approval and integration into the cadastral record. Surveyors take responsibility for the correctness of their survey and for compliance with regulations. LINZ takes responsibility for the integrated cadastral record/system. Only surveyors holding a licence from the Cadastral Surveyors Licensing Board are allowed to undertake cadastral surveys. The roles of the Board, LINZ, and the Surveyor-General are enshrined in the Cadastral Survey Act 2002.
Outcomes and Objectives
A regulatory analysis framework of four sequential steps has been developed. The Outcomes and Objectives articulate what we want the survey system to achieve: the key question.
How we achieve this is a different question. The first and most important End Outcome is Outcome A: holders of rights and responsibilities (restrictions) in land confidently know the boundaries to which they apply, so that they can efficiently identify, trade and use their rights. Landowners are interested in the boundaries of their land; that it is correctly described by its size, shape, orientation and position, and that it correctly fits in with adjoining land without gaps or overlaps. The second End Outcome is Outcome B: other parties can rely on and efficiently use the cadastre for achieving other mandated government outcomes (e.g. electoral-boundary definition, resource management, emergency management, and land administration).
We will trace one objective, A.1.c, to illustrate the purpose of this hierarchy and the use made of it in developing appropriate survey interventions. The cadastre has not achieved its primary purpose unless it is possible to locate boundaries in the real world (Intermediary Outcome A.1). The locating of boundaries may be undertaken by right-holders or by surveyors. The cost efficiency of boundary definition is particularly relevant because if it is too difficult, expensive or uncertain, right-holders and others will tend to make assumptions or misrepresentations about their boundaries which are likely to lead to incorrect financial and other decisions. Objective A.1.c is one of four object–ives contributing to Intermediary Outcome A.1, and is a critical objective from the landowner’s perspective. The re-establishment at any time of a boundary comes into play after the survey has created a new parcel with new boundaries. This may be shortly after the original survey, as the new landowner occupies the land for the first time and, for example, builds fences and a house. It may be many years or decades later as a new landowner seeks to further develop their land or to resolve a boundary dispute. It may come into play when a surveyor subdivides the property, first establishing the boundaries of the underlying parcel to prove that adjoining titles have been respected.
Evidence on the Ground
There is a long-established common-law principle that original evidence on the ground takes precedence over documentary evidence and even over location of the intended boundary where this differs from the actual location. While cadastral administrators have debated the move from mark-based to coordinate-based, there appears to be no pressure from the land-owning public (or the survey or legal professions) to replace the current mark-based cadastre with a theoretical cadastre based on records and databases. The effects of ubiquitous and continuous earth deformation in New Zealand also count against a theoretical cadastre. Therefore reliance on the original position of a mark or boundary, where it can be established, is taken to be a fundamental object–ive of the cadastral system. This is supported by a number of court decisions and precedents. When the boundary is first created its location must be clearly and correctly described and correctly transferred to the cadastral record. Re-establishment of the boundary at a later date will require finding and extracting all relevant cadastral records and finding without ambiguity survey marks or physical features in the field. Some marks will have gone, but there must be enough left for the surveyor to establish a survey relationship with remaining marks, thence the missing ones, and finally the boundary itself. In his reliance upon disparate and potentially conflicting evidence the surveyor will need to make judgements.
Re-establishment Risks
The risks of not achieving re-establishment of the boundary are:
1)a failed search for physical evidence of boundaries, such as pegs which are often destroyed or disturbed, currently managed by requirement to place boundary marks.
2)incorrectly recorded marks or boundary location; original marks may not be found and reinstated incorrectly, resulting in failed validation of new surveys or their not being integrated into the cadastre due to conflict with underlying cadastral record.
3)incorrect transfer of survey data into the cadastral record may mean future surveys rely on incorrect authoritative records.
4)insufficient survey marks surviving for future definition: correctly recorded marks not usable for purposes of re-establishing boundaries.
5)incapacity to retrieve original survey information on boundary definition from cadastral record.
6)mutual conflict between survey records or with field evidence; accuracy of the original survey may be unknown or unclear, resulting in invalid judgements.
Risks 1, 2, 4 and 6 are currently managed through the Surveyor-General’s Rules for Cadastral Survey; risks 3 and 5 by separate standards directed at the part of LINZ that processes and approves survey transactions and manages the integrated cadastral record.
Assessment
One of the current methods of controlling risk 1 and, to a lesser extent, risk 4 is the mandatory requirement to place boundary marks on new boundaries. Arguments for this not being an efficient or effective way of man–aging these risks are:
- relatively many boundary pegs are disturbed during sub-divisional development phase
- surveyor’s client may require boundary pegs at the time of selling or fencing new sections but this may be well after survey and engineering works
- pegs affected by engineering works may need several re-instatements, at some expense
- other options for managing risks 1 and 4 are witness marks or permanent reference marks placed to minimise risk of disturbance
- survey technology has reduced and will continue to reduce the cost of reinstatement of boundaries from secure and reliable witness or permanent reference marks, enabling reinstatement to occur at the time actually required.
Therefore it is possible that the need for and timing of emplacement of boundary marks should be left to the surveyor and their client to negotiate themselves. Standards for the permanence of witness and reference marks, and for confidence in the survey relationships between them and the boundary, may be more effective tools for managing the risks.
Concluding Remarks
A framework for determining the optimal level of regulatory intervention is expected to provide transparency through linking the proposed Rules for Cadastral Survey to the risks of not achieving the outcomes and objectives. The full process has yet to run its course but has already proven useful, and the resultant Rules for Cadastral Survey will provide appropriate freedom to allow surveyors to determine how to meet the outcomes and objectives.
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