Regulatory Impact Statement - Canterbury Earthquake (Cadastral Survey Act) Order 2010

Agency disclosure statement

This Regulatory Impact Statement has been prepared by Land Information New Zealand. It provides an analysis of options to allow the Surveyor-General to issue a new rule for cadastral survey as soon as possible to address certain survey problems caused by the Canterbury earthquake.

The key assumptions in this proposal are:

• a new rule for cadastral survey is required to address, at least, the problem of lateral shear; and
• it is important to get a new rule for lateral shear in place as soon as possible.

The proposal will not:

• impose additional costs on businesses;
• impair private property rights, market competition, or the incentives on businesses to innovate and invest, or
• override fundamental common law principles, except to the extent permitted under the Canterbury Earthquake Response and Recovery Act 2010.

Status quo and problem definition

Status quo

The Cadastral Survey Act 2002 (CSA) provides the framework for the regulation of cadastral surveys in New Zealand. Under the CSA the Surveyor-General (SG) is empowered to make rules for the conduct of cadastral surveys.

The CSA, cadastral survey rules, common law and accepted survey practice combine to provide survey authority that surveyors follow when conducting cadastral surveys.

Ground movement associated with the Canterbury earthquake has created a number of cadastral survey related problems for surveyors. Most of these problems can be dealt within existing survey authority.

The SG has identified one area where there is no applicable survey authority – instances of lateral shear. This movement is most noticeable in the vicinity of the Darfield fault-trace although other, smaller, instances are likely to have occurred across the Canterbury region.

The SG intends to issue a new rule for cadastral survey to address this gap in survey authority as soon as possible, preferably by the end of 2010.

The SG has also identified at least one area where further guidance may be required – instances of liquefaction. Current survey authority suggests liquefaction should be treated in the same way as landslips i.e:

• boundaries are treated as not having moved with the topsoil; and
• boundary pegs are replaced in their original positions.

There may be cases, especially in areas where wide-spread liquefaction has occurred, where new guidance on the approach to take to liquefaction is appropriate. Such guidance could be issued as a new rule for cadastral survey. The SG will monitor surveys undertaken in areas affected by liquefaction to determine whether a new rule is required for liquefaction.

Problem definition

Section 49(2) of the CSA requires the SG to consult the Cadastral Surveyors Licensing Board (in certain cases), the body or bodies representing cadastral surveyors and the Registrar-General of Land when making rules for cadastral survey.

This consultation requirement is designed for business-as-usual circumstances. It is unsuited for an emergency situation such as the Canterbury earthquake response, particularly where a new rule is required to create new survey authority where none has existed previously.

It is important that a new rule for lateral shear (at the least) be issued as soon as possible. Some surveyors in the Canterbury region have indicated to the SG that they would be unwilling to undertake surveys in areas affected by lateral shear without some survey authority to provide guidance.

If new guidance is required for areas affected by liquefaction it will be important that the guidance be issued as soon as possible. This is particularly so in areas that are subject to widespread remediation works.

Under the status quo meaningful consultation that meets accepted standards would inevitably delay the issuing of new rules until mid 2011 at the earliest.

Objectives

The objective of this proposal is to allow the SG to issue a new rule for cadastral survey as soon as possible.

Regulatory impact analysis

There is only one identified option to meet this objective – an Order in Council under the Canterbury Earthquake Response and Recovery Act 2010. The Order would waive the consultation requirements of the CSA for rules that address survey issues caused by the Canterbury earthquake. The Order would apply only to rules that affect the Canterbury region.

The SG has been in discussions with surveyors on the need for, and the content of, a new rule for lateral shear. The SG has also discussed the nature of any new rule with the Registrar-General.

The SG intends to seek informal feedback on any proposed new rule from surveyors and the Registrar-General, and incorporate any feedback where appropriate. This will mitigate any risks associated with a new rule.

The Order will also allow the SG to amend any new rule if it is determined that it does not adequately address the problem. This will only in practice occur, however, after any new rule is actually used by surveyors in practice.

The status quo will not meet the objective. Although the CSA does not set out any specific timeframes, meaningful consultation that meets accepted standards would inevitably delay the issuing of new rules until mid 2011 at the earliest.

Consultation

The SG has discussed the need for a new cadastral rule (or rules) with Canterbury surveyors.

The Canterbury Earthquake Recovery Commission has been consulted and agrees with the proposal.

Conclusions and recommendations

Officials recommend an Order in Council to waive the consultation requirements of the CSA. Officials also recommend that the Order expires one year after it comes into force. This will provide sufficient time to assess the effectiveness of any new rule and amend if required.

After assessing the effectiveness of any new rule made under the Order, the SG will issue New Zealand-wide rules for cadastral survey on these matters. These will be subject to all of the consultation requirements of the CSA, and should reduce the need for further emergency actions after future earthquakes.

Implementation

The proposal will be implemented by an Order in Council under the Canterbury Earthquake Response and Recovery Act 2010.

There is no scope to reduce or remove any existing regulations.

Monitoring, evaluation and review

Any rule made as a result if this order will be monitored by the SG for effectiveness. If it is found that the rule does not achieve the desired result a new rule will be made.

The Order will expire on 16 December 2011.