Legalisation CSDs, which are always Survey Office plans, create new parcels of land to be acquired for a specific public purpose, or road to be stopped. Parcels may appear as sections or non-primary parcels such as easements.
Publication of the legalisation action, in most instances through the New Zealand Gazette, is the trigger for making the parcels live in the cadastre.
A legalisation action can be distinguished from a normal conveyance of private land, in that the former is not effected simply by execution and registration of an instrument under the Land Transfer Act. A legalisation action is carried out under statutory authority and usually requires some form of public notification such as a notice in the New Zealand Gazette, a legislative instrument (for example an Order in Council), or a statute.
Land can be acquired for a public purpose by subdivision and transfer under the Land Transfer Act 2017. Refer to section 17(2) of the Public Works Act 1981 and section 11(1)(b) of the Resource Management Act 1991, which exempts such acquisitions from the subdivision requirements of that Act. This guidance does not cover this type of acquisition, which would be shown on a LT Subdivision CSD rather than a Legalisation CSD.
Common marine and coastal area – part of the marine and coastal area, being the area between the line of mean high-water springs (MHWS) and the outer limits of the territorial sea - 12 nautical miles from shore. The common marine and coastal area comprises the parts of the marine and coastal area that are not in private ownership or part of a conservation area.
Declaration – a formal authoritative statement or announcement. In this context it most commonly relates to an announcement that land has been acquired for a public purpose, or a change of purpose.
Esplanade reserve – a type of local purpose reserve set aside for esplanade purposes including contributing to the protection of conservation values, enabling public access (along any sea, river or lake), or enabling public recreational use of the reserve and adjoining sea, river or lake. They are created under the Resource Management Act 1991 (RMA) and do not move with the water body, although the water boundary is subject to the doctrine of accretion and erosion. The territorial authority specifies in its district plan the required width for esplanade reserves.
Esplanade strip – (not be confused with an esplanade reserve) is a right over a movable strip of land that adjoins a river, lake, or the sea and created under the RMA. Esplanade strips are created for the same purposes as an esplanade reserve.
Marginal strip – defined by section 24(1) of the Conservation Act 1987 as a strip of land 20 metres wide extending along and abutting the landward margin of any foreshore, the normal level of the bed of any lake (whose bed has an area of 8 hectares or more) not subject to control by artificial means or the bed of any river or stream (but not a canal used for the generation of electricity) that has an average width of 3 metres or more reserved from the sale or other disposition of Crown land.
The marginal strip of land extending along and abutting the landward margin of a lake (8ha bed area minimum) controlled by artificial means is 20 metres wide or has a width extending from the maximum operating water level to the lake’s maximum flood level, whichever is the greater (s 24(2) Conservation Act 1987).
Marginal strips are movable if reserved on or after 10 April 1990 under section 24(1) or (2). Strips are fixed if they were created under section 24 between 1 April 1987 and 10 April 1990, or reserved under section 24(3). This includes Crown land reserved from sale under section 58 of the Land Act 1948 or other similar section in earlier legislation.
Movable marginal strips are not subject to the doctrine of accretion and erosion, but are movable in terms of section 24G of the Conservation Act 1987.
New Zealand Gazette (Te Kāhiti o Aotearoa) – the official Government newspaper and authoritative journal of constitutional record, published since 1841.
Non-primary parcel – has the same meaning as in Schedule 2 CSR 2021.
Parcel intent – means a description of a right or an interest intended to be assigned to a parcel.
Primary parcel – has the same meaning as in Schedule 2 CSR 2021.
Proclamation – a public or official declaration issued by the Governor-General and published in the New Zealand Gazette. Commonly used in conjunction with actions under the Public Works Act 1981 such as the compulsory acquisition of land for a public work.
Severance – land not directly required for a public work but acquired by legalisation action because it would be too costly to maintain or of little use to its owner after other land is acquired from them for a public work. Severances are often disposed of to an adjoining landowner and amalgamated with their existing title.
A useful guide to help decide whether a Legalisation CSD is appropriate, is to consider at what stage the new parcels should become current in Landonline. As a legalisation action might not be completed for a long time after the CSD has been approved, it is important that new parcels are not shown in the current layer of Landonline too early, for instance before the land has been formally acquired. For this reason, parcels in a Legalisation CSD only become current when the legalisation action has been notified, usually by a notice in the Gazette. By contrast, parcels in a Land Transfer (LT) subdivision CSD become current on deposit of the CSD, and parcels in a Crown subdivision (where the land is not held under the Land Transfer Act 2017) become current on approval of the CSD.
Acquiring land for road is one of the most common uses of a Legalisation CSD. Land is usually declared to be road and vested in the Crown or a territorial authority by Gazette notice based on the Legalisation CSD definition and appellation. The affected land becomes legal road and vests in the Crown or the territorial authority named in the Gazette notice.
A Record of Title is not issued for road.
Setting apart land for a different purpose
Legalisation actions are also necessary to set land apart for a different purpose, for example if part of an existing public work is no longer required for that purpose and is to be declared Crown land. A Legalisation CSD is used for this purpose.
The stopping of a road requires the publication of a declaration, and a Legalisation CSD is also prepared for this purpose.
A road stopping will usually be followed by disposal under either section 117 of the Public Works Act 1981 or Schedule 10 of the Local Government Act 1974, and the CSD prepared for the stopping is usually used for the ongoing definition and description of the land.
A CSD that includes road to be stopped must:
- extinguish the existing road parcel in Landonline that is affected by the road stopping (Lodgement standard 4.3)
- create a new primary parcel for each portion of road to be stopped (r 39, Lodgement standard 4.4), using a parcel intent of ‘Legalisation’ and an appellation in the form 'Section [number] SO [number]' or ‘Height-Limited Section [number] SO [number]’ where the parcel has a height-limited boundary (r 42 & r 43)
- create a new balance parcel for each portion of the existing road parcel to remain as legal road (r 39, Lodgement standard 4.4), using a parcel intent of ‘Road’ with no appellation captured.
Where the road being stopped adjoins a river or stream bed, lake bed or MHWS/MHWM, the provisions of relevant legislation, such as s14 Marine and Coastal Area (Takutai Moana) Act 2011, s118 Public Works Act 1981 and s345(3) Local Government Act 1974, need to be considered (r 6).
- Section 117 Public Works Act 1981
- Section 118 Public Works Act 1981
- Schedule 10 of the Local Government Act 1974
- Section 14 Marine and Coastal Area (Takutai Moana) Act 2011
- Section 345(3) Local Government Act 1974
- Section 6 Cadastral Survey Rules 2021
Land exchanges under the Reserves Act 1977 and Conservation Act 1987, where only part of an existing parcel is being exchanged, will generally require a LT Subdivision CSD rather than a Legalisation CSD. Although the exchange is authorised by a gazette notice, transfers are required to complete the exchange. The transfer from the Crown/territorial authority is not exempt under section 11(1)(cb) RMA from the subdivision provisions of the RMA.
Land no longer required
Legalisation actions are not normally required to effect a disposal of land, such as where part of an existing public work is no longer required and is to be sold. If the surplus land has not already been defined in a CSD (such as for a road stopping action mentioned above), then it should be defined in either a LT subdivision CSD (if it is held under the Land Transfer Act 2017), or a Crown subdivision CSD (if it is a subdivision of Crown-owned land not subject to the Land Transfer Act 2017).
- land need not be held in a Record of Title for it to be subject to the Land Transfer Act 2017, since registration of a Proclamation or declaration acquiring or setting apart land causes the land to be subject to the Land Transfer Act 2017, pursuant to section 57 of the Public Works Act 1981
- a disposal of only part of the land held for a public work might require resource (subdivision) consent under the RMA
- a disposal may also trigger marginal strip or esplanade reserve requirements.
Understanding of process
To ensure the survey is fit for purpose, it is strongly recommended that the surveyor ensures they have a good understanding of the complete legalisation process.
- LINZS15005 - Standard for the acquisition of land under the Public Works Act 1981
- LINZG15703 – Guideline for the acquisition of land under the Public Works Act 1981
- LINZS15000 – Standard for disposal of land held for a public work
- LINZG15700 – Guideline for disposal of land held for a public work
- LINZS15002 – Standard for stopping or resumption of road
When a legalisation survey is being prepared to remove land out of an existing primary parcel, all of the parcel must be extinguished and new parcels created, including what has traditionally been called the balance parcel. (r 39)
Where the land is registered under the Land Transfer Act 2017, LINZ will automatically issue to the registered owners a new Record of Title for the land that remains in their ownership on registration of the legalisation action (usually the Gazette notice). For example, in the figure below Section 1 is to be acquired for road from Lot 8, Section 2 is to be acquired as a severance and disposed of to the adjoining owner, while Section 3 defines the remainder of the land in Lot 8. On registration of the Gazette Notice acquiring Sections 1 and 2, the Record of Title for Lot 8 will be cancelled and a new title issued for Section 3.
If the remaining land from a single existing parcel has been shown on the Legalisation CSD as two or more separate sections, separate titles cannot be issued as this would breach section 226 of the RMA, given the survey office (SO) plan does not have section 223 RMA approval. Section 11(1)(b) of the RMA prevents further division of the land without subdivision consent.
Land acquired under the Public Works Act 1981 vests free of all interests unless otherwise provided for in the Gazette notice, extinguishing all easements or land covenants. The Legalisation CSD record of survey, title plan and easement schedule must reflect all the interests to be retained; that is, all the interests not being acquired for the public work.
All parcel boundaries (including the land subject to the legalisation action and land remaining in current ownership) are subject to the CSR 2021. Each of these new parcel boundaries must be either defined by survey (r 13), adopted (r 14), or accepted (r 15).
- Rules 13 - 15 CSR 2021
- Acquiring land for road
- Existing Easements
- Area Schedules
- Section 226 Resource Management Act
- Road stopping
Accounting for existing multi-polygon parcels
Two or more existing parcels sharing an appellation and area, usually in the same title, are known as multi-polygon parcels. These often arise amongst Māori land partitions or where an older road legalisation action has severed a parcel.
Where this situation exists, only the parcel being surveyed needs to be accounted for. In the case of multi polygon parcels where each polygon does not have its own discrete area, individual areas for the polygons which are not part of the survey must be provided in the survey report. The report must be unambiguous as to which area applies to which polygon.
A Legalisation CSD is a SO dataset. As such, apart from Māori land in some circumstances (see below), new primary parcels must be described in the form 'Section [number] SO [number]' or ‘Height-Limited Section [number] SO [number]’ where the parcel has a height-limited boundary.
Appellations for Māori land affected by legalisation surveys
The Māori Land Court (MLC) has jurisdiction to determine and declare, by status order, the status of a parcel of land. Section 131 of Te Ture Whenua Māori Act 1993 refers. Status orders may change the existing status from, for example, Māori customary land or General land to Māori freehold land. Status orders must be registered under the Land Transfer Act 2017, so a determination that land is Māori freehold land will be recorded on the Record of Title. Additionally, Landonline displays a warning flag when viewing a title if various data indicates the land might be Māori freehold land.
Customary Māori land is inalienable – see section 145 of Te Ture Whenua Māori Act 1993. If customary Māori land is required for a public work, its ownership would need to be investigated and determined by the MLC, and its status converted to Māori freehold land – see section 132 of Te Ture Whenua Māori Act 1993. Very little customary Māori land exists today, and it is rarely acquired for a public work.
Māori freehold land to be acquired must be described as 'Section [number] SO [number]', for example Section 1 SO 456892. Alternatively, use ‘Height-Limited Section [number] SO [number]’ if the parcel has a height-limited boundary.
However, the remaining land that is not part of the legalisation action must be described in the form: ‘Block name, unique parcel identifier, SO number, for example Rotorua 2A1 SO 456892.
Alternatively, a legal description confirmed by the MLC may be used, but all parcels must have the plan number in their appellation.
'Part' is not to be used and each new parcel must be given a unique appellation.
Irrespective of the form of appellation, it must have the approval of the MLC. This is a requirement of the Court, not specified in the Cadastral Survey Rules.
A copy of the MLC’s approval of the appellations should be included with the CSD as a supporting document. Alternatively, a statement in the survey report that the MLC has approved the appellations will be adequate.
- Section 131 Te Ture Whenua Māori Act 1993
- Section 132 Te Ture Whenua Māori Act 1993
- Section 145 Te Ture Whenua Māori Act 1993
- Rule 44 CSR 2021
Multi-polygon parcels for Māori land
There are numerous historical examples where an existing Māori land parcel was severed into two or more parts but were not uniquely identified and given separate areas. These parcels are commonly called 'multi-polygon parcels'.
Where land is being acquired from a multi-polygon parcel, the surveyor only needs to deal with the ‘Part’ or polygon from which the subject land is being acquired.
Although the MLC may confirm an alternative legal description (see above), the creation of new multi-polygon parcels is not permitted.
Accounting for existing multi-polygon parcels is discussed in the ‘Dealing with all of the land’ section and is equally applicable to Māori land multi-polygon parcels.
- Dealing with all of the land
- Rules 44 and 45 of the CSR 2021
- Sections 15 and 16 of the Interim Guideline to aspects of survey requirements applicable to Maori Land surveys (LINZG65703).
The ‘survey purpose’ is a Landonline construct used to indicate the relevant tenure system and the most appropriate purpose available from a supplied list. To initiate the relevant business rules in Landonline and ensure parcels become current at the relevant time, a survey purpose of ‘Legalisation’ must be selected, including for CSDs that only create non-primary parcels.
A new primary parcel in the CSD that is intended to be subject to a legalisation action should be assigned a parcel intent of ‘Legalisation’.
A new non-primary parcel that is intended to be subject to a legalisation action should be assigned a parcel intent that best reflects its intended status, eg ‘Easement’ or ‘Covenant - land’.
A new parcel not directly subject to the proposed legalisation action, but which is required under rule 39 (accounting for all the land in existing primary parcels), should be assigned a parcel intent that reflects its current status such as ‘Fee Simple Title’ for a fee simple parcel. A parcel that is to remain legal road, for example when creating a balance road parcel, should have a parcel intent of ‘road’.
Estate record references for the land under survey must be included in the Title plan and area schedule, and shown on the title diagram where an estate boundary passes through a new primary parcel.
Order of preference
Sometimes more than one estate record exists for the same interest in the same land. Only one reference needs to be used in this situation, but the following order of preference (descending) should be used to determine which reference to use:
- Record of Title
- Registered Gazette Notice
- Gazette reference if not registered (see below)
- In the case of Crown-owned land without a title or Gazette reference, the Act by which it is deemed to be Crown Land or other status such as Conservation land
- the annotation No Registration
- Part old riverbed/streambed/seabed
Gazette notices have traditionally been referenced by quoting the year of publication in the NZ Gazette and the page number on which the notice appears. However, a move to online publication of the Gazette, using unique notice numbers rather than page numbers, means that modern references (since 20 October 2014, when the Gazette began to be published without page numbers) must be to the notice number instead of the page number.
References should use the format ‘[year], p [page number]’ or ‘[year], LN [notice number]’ as applicable. Landonline will automatically add 'GN' to the start of the reference in the 'Comprised in' field.
- NZ Gazette (for access to Gazettes published since 1993)
Land deemed to be held for conservation purposes
Under the environmental restructuring in the 1980’s, Ministerial committees allocated land formerly managed by the Lands & Survey Department and the Forest Service to the Department of Conservation (DOC) and State-Owned Enterprises (SOEs). In the case of land allocated to DOC, section 62 of the Conservation Act 1987 provided that the land was deemed to be held for conservation purposes if it was recorded on a survey plan and certified as being correct by the Chief Surveyor. In addition, section 61 provided for certain former State forest land to become protected area under the Conservation Act 1987.
The estate record for land held under either of these provisions should be referenced in terms of the deemed status and the statutory authority – for example “Conservation purposes pursuant to section 62 Conservation Act 1987”.
Land to be compulsorily acquired under the Public Works Act 1981
Where land is to be compulsorily acquired (as opposed to acquired by agreement), section 23(1)(a) of the Public Works Act 1981 requires a plan to be prepared and submitted to Land Information New Zealand or LINZ (for approval). The Act specifies that the plan shall show ‘the land required to be taken and the names of the owners of the land so far as they can be ascertained’.
For Māori land that is not registered under the Land Transfer Act 2017, the Act requires the plan to instead be endorsed with the advice that the names of the owners may be obtained at the appropriate Māori Land Court.
The requirement for a plan does not apply in certain circumstances, for example where it is proposed to deal with all the land in an existing surveyed parcel – section 32 of the Public Works Act 1981 refers.
In most cases the plan required by section 23(1)(a) of the Public Works Act 1981 also serves as the final Legalisation plan supporting the Proclamation declaring the land to be taken for a public work.
Road to be stopped under the Local Government Act 1974
Clause 1 of Schedule 10 of the Local Government Act 1974 requires the territorial authority to prepare a plan of road proposed to be stopped, and a survey made and a plan prepared of any new road proposed to be made in lieu of the road to be stopped. Clause 1 specifies that the plan of the proposed new road must show the lands through which it will pass and the owners and occupiers of those lands.
The type of legalisation will determine how existing easements must be dealt with.
In the case of a compulsory acquisition, section 26(3) of the Public Works Act 1981 requires that:
“The land specified in the Proclamation shall, unless otherwise provided in the Proclamation or in this Act or in any other Act, become absolutely vested in fee simple in the Crown or in the local authority, as the case may require, freed and discharged from all mortgages, charges, claims, estates, or interests of whatever kind for the public work named in the Proclamation on the 14th day after the day on which the Proclamation is published in the Gazette.”
Existing easements over the land to be acquired
Where the legalisation action requires the land to be vested free of encumbrances as described above, existing easements must not be depicted.
Where the legalisation action does not have the effect of cancelling easements and the easements are not to be surrendered by other means, they must be depicted unless they have not been previously defined in an approved CSD.
Existing easements over the remaining land
For parcels not subject to the legalisation action, for example the land remaining in private ownership, existing easements must be depicted unless they have not been previously defined in an approved CSD.
Where existing easements extend into land to be acquired and that portion is not to be retained, a new easement parcel will need to be created for the remaining portion, and new dimensions shown.
In all cases where all or part of an existing easement is to be retained, a Schedule of Existing Easements must be included in the CSD in accordance with rule 94.
The Title Plan of a Legalisation CSD must include a schedule of areas indicating a purpose or first intended action for each parcel that will be subject to a statutory action (r 96). Landonline provides a Supporting Document (SUD) type ’Area Schedule‘ that bundles with the Title Plan for this purpose.
- The information required by rule 96 must be presented in a table or series of tables with the heading “Schedule of Areas”.
- Details for each parcel should be grouped in terms of the type of action to be undertaken.
- Rule 96(2)(f) only requires areas for primary and lease parcels.
- An intended action of 'Land to be vested ' would be appropriate for land that is to be vested by statute, for example under Treaty settlement legislation.
Area schedules in the format of the following examples can be used to satisfy rule 96:
A slightly different format can be used for road to be stopped, referencing instead the description and title reference of the adjoining land:
New parcels that will not be subject to a statutory action, such as land remaining in fee simple title, are not required to be included in the area schedule. However, they may be included for completeness, grouped separately as shown in the example below.
Where land is compulsorily acquired pursuant to Section 23 Public Works Act 1981, the names of the owners of the land must be included in the Title Plan to comply with Section 23(1)(a). The names can be shown in a separate column of the area schedule (see example below), which makes it easier to amend later if necessary. However, they can be shown anywhere in the Title Plan.
The survey report must include the purpose for which the survey was conducted and, where it is not otherwise clear, the statutory provisions to be used to achieve the legalisation action (r72(a)).
- The survey is to support acquisition of land for road under section 17 of the Public Works Act 1981
- The survey has been prepared for the purposes of a Treaty Settlement. Sections 1 & 2 are to vest in fee simple as scenic reserve in accordance with section 30 of the Ngāti Hei Claims Settlement Bill.
Any exemptions from normal statutory requirements should also be mentioned. For example, land to be vested under Treaty settlement legislation is sometimes exempted from section 11 and Part 10 of the RMA.
The removal of land from an existing unit title development for a public work is achieved by transfer, declaration, or proclamation under the Public Works Act 1981.
The removal of land may affect both common property and units within a development. A unit plan in substitution that shows the final effect of the public works action will be required in addition to a Legalisation CSD. Provided there is no other change occurring to the unit development, subdivision consent or a redevelopment plan are not required.
Refer to: Unit plan in substitution
For examples of a Legalisation CSD followed by a Units Plan in Substitution, see:
- SO 459717 and DP 317323 (Canterbury)
- SO 429002 and DP 84206 (Wellington)
- SO 450284 and DPS 66160/E (South Auckland)
Limited records of title were introduced by the Land Transfer (Compulsory Registration of Titles) Act 1924. The notation “limited as to parcels” on a record of title means the extent of land owned by the registered owner is in doubt due to the possibility that someone else is in adverse possession of part of the land.
Interim records of title are peculiar to the Hawke’s Bay Land District. Such titles were established under the Land Transfer (Hawke’s Bay) Act 1931 as a direct result of the Napier earthquake in 1931. These titles are inconclusive as to description and delineation due to the loss of survey records in the aftermath of the earthquake.
New parcels subject to the legalisation
New parcels defined on a Legalisation CSD that are intended to be subject to a legalisation action cannot remain limited as to parcels or interim. These parcels must be defined as if the limitation as to parcels is being uplifted or the interim status is being removed.
For further information on these definition requirements refer to:
Land not affected by the legalisation
Where the existing parcel to be extinguished has a limited title or an interim title, a new limited title or interim title will be issued for the land not affected by the legalisation action, and defined as a new parcel or parcels on the Legalisation CSD. These parcels cannot have their limitations or interim status removed through a legalisation survey.
Although a legalisation survey cannot be used to uplift limitations as to parcels or make a Hawke’s Bay interim title conclusive for the land not subject to the legalisation action, in some circumstances rule 13(d) requires an existing boundary or boundary point to be defined by survey for this land. This will occur where it is not permitted to be accepted under rule 15 and:
- there is conflict (r 35(2)(a)), or
- the boundary is inadequately defined (r 35(2)(b)).
If such a boundary is part of a parcel that is to remain interim, its related boundary points must be ground marked.
However, if such a boundary is part of a parcel that is to remain limited as to parcels, its related boundary points must not be ground marked (r 35(3)). This is because the determination of that boundary must ignore possessory occupation that would otherwise be taken into account on a survey to remove limitations. The placement of ground marks at these boundary points on a legalisation survey could appear to be disregarding possessory rights adverse to registered owner.
An example of this is illustrated in Figure 2, where the existing boundary points of Section 2 are shown with blue crosses.
- Rule 13 CSR 2021
- Rule 35 CSR 2021
- Limited Titles
- Subpart 4 of Part 4 of the Land Transfer Act 2017
- Sections 2, 11 and 12 Land Transfer (Hawkes Bay) Act 1931
Existing movable marginal strips
Existing movable marginal strips are not required to be shown on a Legalisation CSD (r 97(6)(c)).
However, surveyors should check whether the land which is to be subject to legalisation action includes an existing movable marginal strip. Since a parcel may not have been created at the time the strip was reserved, a careful assessment is needed. Some relevant considerations are:
- If the subject land is comprised in a Record of Title, does it include a memorial stating that the land is subject to Part 4A of the Conservation Act 1987?
- Otherwise, establish if the subject land was disposed of by the Crown on or after 10 April 1990 (the date on which the movable marginal strip provisions became effective by virtue of section 15 of the Conservation Law Reform Act 1990).
- If the above considerations establish that the land is subject to Part 4A of the Conservation Act 1987, determine whether the land includes or adjoins a ‘qualifying’ water body – see section 24(1) and (2) of the Conservation Act 1987.
- If the land includes or adjoins a qualifying water body, consider whether it likely qualified for the reservation of a marginal strip when the Crown disposed of the land.
If the land that is intended to be acquired is subject to an existing marginal strip, the surveyor should ensure the acquiring authority is aware of this so it can be dealt with under the legalisation process.
New marginal strips
Part 4A of the Conservation Act 1987 has the effect of reserving marginal strips when the Crown disposes of land adjoining the foreshore or a river or other water body meeting the criteria specified in that Act. The disposal of surplus Crown-owned land, such as Crown-owned land being set apart for a local work, may therefore trigger the reservation of a marginal strip.
Section 118 of the Public Works Act reinforces the application of Part 4A to stopped roads, by requiring Part 4A to apply to a road or portion of a road that has been stopped under section 116 of the Public Works Act if that land is vested in the Crown (for example if it was formerly part of a State highway).
Since 2007, Crown agencies disposing of land must ensure any marginal strips are defined and depicted in a CSD.
A marginal strip reserved under Part 4A should be shown as a non-primary parcel, with a parcel intent of “Marginal Strip – Movable”.
The title diagram must prominently depict the annotation ‘Subject to Part 4A Conservation Act 1987’ (r 103).
- Part 4A Conservation Act 1987
- Section 116 Public Works Act 1981
- Section 118 Public Works Act 1981
- Rule 103 CSR 2021
New esplanade reserves
Esplanade reserves are usually only created when required by the territorial authority as a condition of resource (subdivision) consent under the Resource Management Act 1991. An esplanade reserve is therefore unlikely to be created as part of a legalisation action.
However, both section 118 of the Public Works Act 1981 and section 345(3) of the Local Government Act 1974 cause the creation of an esplanade reserve when a road or portion of road has been stopped adjoining the sea, the bank of a river with an average width of 3 metres or more, or the margin of a lake with an area of 8 hectares or more. Section 77 of the RMA allows a territorial authority to include a rule in a District Plan reducing or increasing the width of an esplanade reserve or waiving the requirements of section 345(3) Local Government Act completely.
Schedule 10 of the Local Government Act 1974 specifies that the CSD must ‘separately show any area of esplanade reserve which will become vested in the council under section 345(3)’.
In this situation the new esplanade reserve should be shown as a primary parcel, with a parcel intent of “Legalisation”.
- Section 118 Public Works Act 1981
- Section 345 Local Government Act 1974
- Schedule 10 Local Government Act 1974
Accretion is the gradual and imperceptible accumulation of land by natural causes, out of the sea, a lake or a river. This contrasts with avulsion, which is a rapid change – a stream suddenly breaking through its banks in an unexpected manner, or the rapid erosion of shoreline from waves in a storm.
A landowner may in certain circumstances be entitled to apply to have their title adjusted due to accretion. Section 21(1)(c) of the Land Transfer Act 2017 authorises the Registrar-General of Land (RGL) to make alterations to record a boundary change resulting from accretion or erosion.
An application by an adjoining landowner to include accretion in their title will need to be supported by an LT Application CSD and evidence to support the contention that the land is accretion, and that the applicant is entitled to it. A Legalisation CSD cannot be used to claim accretion under the Land Transfer Act.
Refer to the RGL’s Accretion and Erosion Guideline for further information about applying to update a record of title to include accretion.
An acquiring authority may sometimes decide to acquire accretion that has not yet been incorporated in an adjoining title under section 21(1)(c) of the Land Transfer Act 2017. In this situation the accretion will need to be defined as a separate parcel in the Legalisation CSD, and evidence supplied to support the contention that the land is accretion. The acquiring authority will need to satisfy themselves that they are acquiring the land from the correct party.
The land should be described in the Area Schedule as “Part dry riverbed” or “Part dry seabed” if it is not in a title.
- LINZG20783 – Accretion and Erosion Guideline 2019
- Identification of accretion in a Legalisation CSD
- Evidence required
- Area Schedules
- Section 21 Land Transfer Act 2017
With some exceptions (see next section), the doctrine of accretion and erosion is considered to apply to all movable water boundaries, irrespective of the land tenure. For example:
- Crown land held under the Land Act 1948
- strips reserved under section 58 of the Land Act 1948 (being 20m wide strips of land abutting water bodies, which are now fixed marginal strips under section 24(3) of the Conservation Act 1948, commonly known as ‘section 58 strips’)
- earlier Land Acts and land vested in local authorities.
A road may be extended by accretion (s 315(4) Local Government Act 1974) but cannot erode (s 315(5) Local Government Act 1974). Road that has been physically eroded should still be shown on the Legalisation CSD as road notwithstanding that it may be physically underwater.
However, under section 14 of the Marine and Coastal Area (Takutai Moana) Act 2011 (MACAA), unformed road in the common marine and coastal area may be deemed to be stopped. It then becomes part of the common marine and coastal area.
Legalisation CSD examples of road extension by accretion are:
The survey was undertaken to define the area to be claimed as accretion to legal road adjacent to the Makerikeri River in North Canterbury.
The survey was undertaken to define an area of land to be claimed as accretion to legal road adjacent to the Chatterton River near Hanmer Springs.
(Road Legalisation) was then compiled to stop portions of the road.
Accretion to legal road adjacent to Akaroa Harbour (tidal) submitted as a Legalisation CSD under section 315(4) of the Local Government Act 1974
- Land Act 1948
- Section 24 Conservation Act 1987
- Section 315 Local Government Act 1974
- Section 14 Marine and Coastal Area (Takutai Moana) Act 2011
- Roads in the marine and coastal area
Exceptions – land not subject to the doctrine of accretion and erosion
The doctrine of accretion and erosion is not applicable to movable marginal strips under section 24G of the Conservation Act 1987. Instead, this section provides that when there is any alteration in the shape or position of the water body, a new marginal strip is deemed to have been reserved simultaneously with each alteration.
The same applies to esplanade strips. Section 233 of the RMA provides that where the position of MHWS, or the bank of the river or margin of the lake has changed, then a new esplanade strip coinciding with the change is deemed to have been simultaneously created with every change.
As noted in the section above, a road may be extended by accretion but cannot erode.
Alluvion formed in the common marine and coastal area
While the doctrine of accretion and erosion applies to a gradual and imperceptible alteration in the position of MHWS, section 13(3) of the MACAA provides for land to vest in the Crown as Crown land subject to the Land Act 1948 if, by a natural occurrence or process it ceases to be part of the common marine and coastal area, and the title to that land is not determined by an enactment or common law. This could occur, for instance where the position or shape of a river mouth has undergone rapid change or land is uplifted in an earthquake.
The opposite occurs when a natural occurrence or process causes land owned by the Crown or a local authority to become part of the common marine and coastal area; section 13(2) of the MACAA states that it is not necessary for the occurrence to be gradual or imperceptible as under the doctrine of accretion and erosion.
On Legalisation datasets, accreted areas not already claimed and incorporated in a Record of Title must be dealt with in isolation to the title and are shown as separate parcels. A parcel intent of “Legalisation” should be assigned in Landonline
The RGL’s Accretion and Erosion Guideline sets out the evidence required to support a claim for accretion to land held under the Land Transfer Act 2017. This is aimed at ensuring the land has formed from a process of accretion and that it is attributed to the rightful owners. The Guideline states that the surveyor’s report and other documents should contain information about the existence of the accretion.
Where accretion has not been claimed under the Land Transfer Act 2017 before being included in a Legalisation CSD – either because the adjoining landowner has declined to make an application, or because it is considered to be accretion to land that is not held under the Land Transfer Act 2017 (for example Crown land) - the relevant evidence requirements of the RGL’s guideline should be included in the CSD.
This section deals with riverbed or streambed that has become dry, other than through accretion. A typical scenario is where a river or stream has abruptly changed course due to avulsion.
If the dry bed is not already held in a record of title, a person who has acquired a lawful entitlement to the dry bed may secure title by applying under the provisions of Subpart 2 of Part 4 of the Land Transfer Act 2017.
If an acquiring authority wishes to acquire dry riverbed or streambed before it has been brought under the Land Transfer Act 2017, the land will need to be defined as a separate parcel in the Legalisation CSD and evidence supplied to support the contention that the land is not held under the Land Transfer Act 2017 and is not accretion. The acquiring authority will need to satisfy themselves that they are acquiring the land from the correct party.
The land should be described in the Area Schedule as “Part dry riverbed” or “Part dry seabed” if it is not in a title.
The RGL’s guideline on bringing dry riverbeds and streambeds under the Land Transfer Act 2017 sets out the evidence required to establish that the land is dry land to which the applicant is legally entitled.
Where dry streambed or riverbed has not been claimed under the Land Transfer Act 2017 before being included in a Legalisation CSD, the relevant evidence requirements in the RGL’s guideline should be included in the CSD.
Claims for alleged breaches of the Treaty of Waitangi before 1992 are known as historical claims. Settlements aim to resolve these claims by providing some redress to claimant groups. Redress can comprise:
- An historical account of the Treaty breaches and Crown acknowledgement of them and an apology
- Cultural redress, for example changing place names and the return of wāhi tapu and other sites of significance as part of a range of remedies to recognise the importance of Māori culture in achieving settlement.
- Commercial and financial redress, such as cash, property, or a mixture of both.
Each settlement is almost always effected through a separate Act of Parliament.
Legalisation CSDs are used to define land that is to be vested in a claimant group for cultural redress. In this situation the new parcels will become current when the land vests in the claimant group – usually the date on which the settlement legislation comes into force, but sometimes a later date is specified in the legislation.
Commercial redress tends to be handled differently in that the settlement legislation merely authorises properties to be transferred, using existing mechanisms. For some commercial redress properties this does not occur for some time after the settlement legislation has come into force, for example with deferred selection properties, or rights of first refusal in respect of Crown-owned land that becomes surplus in the future.
A new CSD needed to support the transfer of a commercial redress property should therefore have a survey purpose applicable to the intended actions, for example ‘LT subdivision’ if the land is held under the Land Transfer Act 2017.
Plans for illustrative purposes
Te Arawhiti (the Office for Māori Crown Relations) routinely prepare diagrams, usually on an aerial image base, to show land that is to be vested or an interest in land that is to be granted, for example a nohoanga entitlement (see section below). These diagrams assist with negotiations and the development of settlement deeds but are not held in Landonline. Examples can be found in the Waitaha Deed of Settlement.
However, Te Arawhiti also sometimes has plans prepared to show areas within which future rights exist, such as rights of first refusal and areas subject to Deeds of Recognition. These also are not strictly CSDs, despite having a similar appearance and sometimes being recorded in Landonline. See SO 469123 for an example of such a case.
Exemptions from other legislation
The vesting of a cultural redress property is typically exempt from Part 10 (Subdivision and reclamations) and section 11 (Restrictions on subdivision of land) of the Resource Management Act 1991.
In certain circumstances vesting is not considered to be a disposition for the purposes of Part 4A of the Conservation Act 1987 (marginal strips), or the application of Part 4A is deferred until such time as the status of the land changes, such as when the land ceases to have reserve status.
Survey reports should specify the applicable Treaty settlement legislation and identify the relevant legislative requirements exempted by the settlement legislation.
- Section 11 Resource Management Act 1991
- Part 10 Resource Management Act 1991
- Part 4A Conservation Act 1987
Some Treaty settlements include nohoanga entitlements. These are a type of occupation right associated with customary fishing sites that provides rights for members of an iwi to occupy a site for a specified number of days per year.
A Legalisation CSD is prepared for the purpose of defining a nohoanga entitlement. Although Landonline offers a survey purpose of ‘Customary Entitlement’, this was added to support the Ngāi Tahu Claims Settlement Act 1998 and is not intended to be used for new CSDs. Instead, the survey purpose of ‘Legalisation’ should be used in Landonline.
Since a nohoanga entitlement is a lesser interest in land than fee simple, a new parcel representing a nohoanga entitlement is usually a non-primary parcel, with a parcel intent of ‘Customary Entitlement’. If a fee simple Record of Title is required (there is authority for this in some settlement legislation), the nohoanga entitlement should be defined as a primary parcel with a parcel intent of ‘Legalisation’.
- Part 12 Ngāi Tahu Claims Settlement Act 1998
- SO 19987 and SO 529507 (Canterbury) - examples of CSDs which define nohoanga entitlements
Although the CSR 2021 are applicable to Treaty settlement surveys, these types of surveys often have unusual features which may make it impractical or unreasonable to comply with one or more of the rules in a particular case. A dispensation may be requested from the Office of the Surveyor-General on a case-by-case basis. Sometimes Te Arawhiti seeks a dispensation before a surveyor is commissioned to do the work.
- Deciding whether a Legalisation CSD is appropriate
- Dealing with all of the land
- LINZS15001 – Interim standard for Treaty Settlement requirements for disposal of Crown-owned Land
- Survey dispensation requests
Most former State forest land was surveyed in the 1980’s and 1990’s for the issue of Crown forestry licenses under the Crown Forest Assets Act 1989. These licenses permit licensees to grow and harvest tree crops on Crown forest land. The CSDs were deposited under the Land Transfer Act 1952 and used to support registration of the licences.
The underlying land remains owned by the Crown (subject to the licences) and is held in various estate records, including registered and unregistered Gazette Notices which declared the land to be State forest. These estate records are still regarded as current and dealings continue to be registered against them, for example portions acquired for road realignment.
It is important that new surveys over land subject to Crown forestry licenses acknowledge the underlying primary parcels, affected licence parcels and other non-primary parcels, and record the estate boundaries.
Note that marginal strips may have been reserved when the licence was issued, but not identified in the CSD that defined the licence parcel.
For Crown forest land along the coast, portions may have become part of the common marine and coastal area under section 11 or section 13 of the MACAA.
- Crown Forest Assets Act 1989
- Marine and Coastal Area (Takutai Moana) Act 2011
- Marginal strips and esplanade reserves
A Legalisation CSD can be used to support the acquisition of part of an existing parcel of land for a reserve.
Section 16 of the Reserves Act 1977 requires all reserves to be classified according to their primary purpose, as defined in sections 17 to 23 of that Act. Reserves are classified to ensure their control, management, development, use and preservation for appropriate purposes. Different parts of a reserve may be classified for different purposes, but it must not have more than one class applying to any one part.
The classification or purpose of the whole or part of a reserve may be subsequently changed (reclassified) by notice in the Gazette under section 24 of the Reserves Act 1977.
Where part of a reserve is to be classified or reclassified, it will need to be defined in a CSD so that the land can be unambiguously described in the Gazette Notice, in any Record of Title, and spatially recorded in the cadastre. A new CSD is not normally required where an existing parcel is to be classified or reclassified for a single purpose.
A CSD defining parts of an existing reserve for classification or reclassification purposes should have a survey purpose of ‘Legalisation’, and the portions to be classified should be non-primary parcels, with a parcel intent of “Reserve reclassification”.
However, an LT CSD with a survey purpose of ‘LT Subdivision’ will be required if separate freehold titles are to be requested for differently classified parts of an existing reserve. Each portion should be a primary parcel. Subdivision consent may be required.
The Marine Reserves Act 1971 provides for the Governor-General to declare areas to be marine reserves by Order in Council.
A CSD with a survey purpose of ‘Legalisation’ should be used for the purpose of defining a marine reserve. The parcel must be a non-primary parcel, with a parcel intent of ‘land covenant’.
See SO 476217 for an example definition of a marine reserve (before the CSR 2021).
The MACAA accords a special status to land in the ‘common marine and coastal area’, which prevents the Crown and any other person from owning the land (s 11 MACAA). Essentially, this area comprises the foreshore and seabed below MHWS, other than ‘specified freehold land’ as defined in section 9 and some categories of Crown-owned land – conservation area, national park, reserve, and the bed of Te Whanga Lagoon in the Chatham Islands. Section 9 of the MACAA refers – see definitions of ‘marine and coastal area’, ‘common marine and coastal area’ and ‘specified freehold land’.
- Section 9 Marine and Coastal (Takutai Moana) Act 2011
- Section 11 Marine and Coastal (Takutai Moana) Act 2011
Effect on private land
Private land in the marine and coastal area is only affected by the special status accorded to the common marine and coastal area when a landowner subdivides their land – section 237A of the Resource Management Act 1991 requires the CSD to show any part of the land that is in the coastal marine area (land below MHWS) as part of the common marine and coastal area.
When private land is being acquired by the Crown or a local authority, any land in the marine and coastal area becomes part of the common marine and coastal area.
Effect on land owned or being acquired by the Crown or a local authority
Land in the marine and coastal area that was owned by the Crown or a local authority before the MACAA came into force (other than the excluded categories identified above) is now in the common marine and coastal area. This is due to the definitions of “specified freehold land” and “common marine and coastal area” in the MACAA.
Similarly, land in the marine and coastal area that is acquired by the Crown or a local authority after the MACAA came into force (other than the excluded categories identified above) becomes part of the common marine and coastal area.
- Identifying common marine and coastal area where the Crown or a local authority owns the land
- Identifying common marine and coastal area where land is being acquired by the Crown or a local authority
- Section 9 Marine and Coastal (Takutai Moana) Act 2011
- Section 13 Foreshore and Seabed Act 2004 (repealed)
Legalisation actions relating to roads in the marine and coastal area may sometimes be necessary, for example to stop a portion of road, or identify what remains after part of a road has become common marine and coastal area.
The effect of the Foreshore and Seabed Act 2004 (F&SA, repealed) should be considered before investigating the effect of the MACAA on the status/ownership of a road in the marine and coastal area. Under the F&SA roads in the ‘public foreshore and seabed’ were deemed to be stopped unless they were owned by the Crown, or formed or in the process of being formed at the commencement of the F&SA (25 November 2004). Section 15(4) of the F&SA refers.
The term ‘public foreshore and seabed’ was used in the F&SA to describe an area with similar extent to the ‘common marine and coastal area’ under the MACAA. Roads stopped under the F&SA are therefore likely to now be part of the common marine and coastal area.
If a formed road ceased to be used as a road, or if activities required to form a road were discontinued, then the road vested in the Crown. Section 15(3) of the F&SA refers. However, note that while section 15 dealt with ownership of roads in the public foreshore and seabed, section 28(6) may have continued the ‘road’ status.
On repeal of the F&SA, section 14 of the MACAA made special provision for existing roads in the marine and coastal area. However, establishing the effect of section 14 in specific cases can be complex, and the following diagram is provided to assist with evaluating this.
Example of a road being stopped when part of the road is below MHWS
Example of a road being redefined to identify what has become common marine and coastal area
- Section 15 of the Foreshore and Seabed Act 2004 (repealed)
- Section 14 Marine and Coastal Area (Takutai Moana) Act 2011
Part 3 of the MACAA provides for customary interests in the common marine and coastal area. This includes provision for a protected customary right and a customary marine title, and wāhi tapu within these areas.
Section 94 of the MACAA authorises a protected customary right or a customary marine title to be recognised by either an agreement made in accordance with that Act, or by an order of the High Court.
The following diagram has been prepared to enable surveyors to better understand the MACAA process.
The Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019 also provides for the protection and recognition of customary activities, wāhi tapu, and customary marine title along parts of the coastline at East Cape.
- Part 3 Marine and Coastal Area (Takutai Moana) Act 2011
- Section 94 Marine and Coastal Area (Takutai Moana) Act 2011
- Part 4 Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019
- Schedule 3 Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019
Customary marine title
A CSD in terms of CSR 2021 is required when defining the extent of a new customary marine title area.
If the High Court grants recognition of a customary marine title, the applicant is required to submit a draft order for approval by the Registrar of the Court. Section 109(4) of the MACAA, and section 98 of Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019, require the order to include a survey plan that sets out the extent of the area to a standard of survey determined for the purpose by the Surveyor-General.
Neither the MACAA nor the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019 explicitly require the production of a survey plan to support a customary marine title by agreement. However, Te Arawhiti - the Office for Māori Crown Relations - generally commissions a survey and asks the Surveyor-General to advise on the standard of survey.
A customary marine title area, and a wāhi tapu or wāhi tapu area, is to be defined as a non-primary parcel in a CSD with a survey type of “SO”, a survey purpose of “Legalisation” and a parcel intent of “Customary Marine Title”.
- Section 109(4) Marine and Coastal Area (Takutai Moana) Act 2011
- Section 98 Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019
The Surveyor-General has determined that the ‘standard of survey’ to support an order for a customary marine title, as referred to in section 109(4) of the MACAA, is as specified in the CSR 2021. The same requirements apply to a survey to support an agreement for a customary marine title.
There is no requirement for a CSD to be included in a recognition agreement or a court order for a protected customary right under the MACAA.
Reclamations from the sea are governed by the RMA and the Marine and Coastal Area (Takutai Moana) Act 2011 (MACAA).
The RMA provides for consent to carry out reclamation and approval and deposit of plans for reclaimed land.
The MACAA provides for:
- the vesting of reclaimed land in the Crown,
- the granting or disposition by the Crown of interests in reclaimed land, including freehold interests and the issue of title,
- reclaimed land to be declared Crown land subject to the Land Act 1948.
A Legalisation CSD should only be used to define reclaimed land that has vested in the Crown and is to be declared Crown land subject to the Land Act 1948 under section 32 MACAA. Refer to SO 517545 as an example.
In other cases, reclaimed land should be defined on a LT Plan with the survey purpose of “Reclamation” so that the CSD can be approved under section 245 RMA and deposited under section 246 RMA. A freehold or lesser interest in the reclaimed land is vested by Gazette notice under section 39 MACAA, following the issue of a certificate under section 245(5) RMA. A record of title for the reclaimed land can then be requested.
- LINZS15004 – Interim standard for dealing with coastal reclaimed land
- Subpart 3 of Part 2, Marine and Coastal Area (Takutai Moana) Act 2011
A parliamentary dataset supports an Act of Parliament and is usually produced before the Bill is introduced to the House. A new CSD is normally required, with a survey purpose of ‘Legalisation’, where the Bill is to alter the status of part of an existing parcel of land, for example the vesting of land for a Treaty settlement. A new CSD would not normally be required if the subject land comprises all of an existing parcel.
The Standing Orders of the House of Representatives contain special requirements where a Private or Local Bill is to take power to deal with land. These do not alter the requirements in the Cadastral Survey Rules, but in addition to the normal LINZ approval, LINZ’s Chief Executive or a delegate will need to endorse the CSD with the words ”approved for parliamentary purposes”.
Historically, plans such as electoral plans, parliamentary plans, and airshed plans have been lodged in the cadastre for a variety of purposes. These are known as Graphic Description plans. Graphic Description plans are primarily for the description of the periphery boundary of an area of land that would previously have been defined by a ‘Metes and Bounds’ boundary description.
As Graphic Description plans are not cadastral survey datasets as defined in the Cadastral Survey Act 2002, they are not provided for under the Rules.
Some types of Graphic Description plans have in the past defined the extent of a right or interest in land. In these instances, a Legalisation CSD would be used, for example for reserve re-classification purposes.
LINZ does allow the lodgement of some specialist datasets in Landonline that are not cadastral survey datasets in terms of the Cadastral Survey Act 2002. Application to LINZ must be made to enable the lodgement of any dataset which is not certified in accordance with the cadastral rules.