The following information relates to surveying land held in a title that is 'limited as to parcels', including surveys to remove limitations, legalisation surveys where limitations are to remain, boundary marking surveys, and unit development surveys.
A title to land that is “limited as to parcels” means that at the time the first title was issued for that land, a guaranteed title could not be issued. This is because either the survey information was insufficient or there could have been someone else in adverse possession of part of the title.
The Registrar-General of Land requires the position of the boundaries of the land to be properly defined on a cadastral survey dataset before an ordinary (guaranteed) title can be issued.
Where the survey is to enable the removal of limitations from a limited title, all existing and new boundary points of the parcel must be defined by survey [r 6.2(a)(viii)].
When defining a boundary by survey, a surveyor must gather, interpret, and use all evidence relevant to the definition of that boundary [r 6.1]. The surveyor must consider all evidence of occupation and demonstrate in the CSD that no part of the land is held in occupation adverse to the registered proprietor.
If a portion of the land of the parcel to be extinguished is adversely occupied and is not part of the land rightfully owned by the holder of the limited title, the portion must be a residue parcel.
To demonstrate that a survey correctly defines land in a limited title and that none of the land is in occupation adverse to the registered proprietor:
- all boundaries and boundary points on the parcel must be defined by survey [r 6.2(a)(viii)],
- where practicable, boundary points must be marked unless a reliable boundary mark is already in place [r 7.1(b)],
- information about occupation and physical features must be provided in a diagram [r 9.5(b)(iii)],
- the survey report must include the fact that the survey facilitates the uplifting of limitations [r 8.2(a)(i)], and
- the survey report must include information about the decisions made in determining the location of the boundaries [r 8.2(a)(ix)].
For a land transfer CSD where the title is limited and all the boundary points of a parcel have been defined by survey in terms of rule 6.2(a)(iv), it is presumed limitations as to parcels will be uplifted.
Occupation adverse to the registered owner must be dealt with and would normally be depicted as a residue parcel.
In the case of a legalisation survey, where the parcel to be extinguished has a limited title, a new limited title will be issued for the land not affected by the legalisation action. This title will be based on the new parcel depicted in the survey office (SO) legalisation CSD.
Even though a legalisation survey cannot be used to uplift limitations for the land not subject to the legalisation, in some circumstances rule 6.2 still requires an existing boundary point to be defined by survey for this land. This will occur where it is not permitted to be accepted and:
- there is conflict [r 6.2(a)(vi)],
- the boundary is inadequately defined [r 6.2(a)(vii), or
- the 90 % threshold has not been reached for a class A parcel [r 6.2(a)(iv)].
When determining the parcel boundaries, possessory occupation that is not on the parcel boundary must not be taken into account.
An example of this is illustrated in Figure 1 below, where the existing boundary points of Sec 2 are shown with blue crosses.
Note: These positions should not be marked even where conflict has been resolved or where the boundary was previously inadequately defined [r 7.1(b)(ii)].
The Rules provide for boundaries and boundary points to be defined by survey [r 6.2], defined by adoption [r 6.4], or accepted [r 6.3].
Where the existing title for a parcel is limited, the limitations can only be uplifted if all the boundary points are defined by survey.
New parcels which have boundaries or boundary points that are defined by adoption or accepted will not be sufficiently defined to enable the uplifting of limitations from a title.
Note however the exception provided for in the ‘Alternative process where limitations as to parcels are being uplifted’ below.
Where the title is to remain limited, the annotation 'Limited as to parcels' must be on the Diagrams of Survey and Title [r 9.6.11 and r 10.4.8].
In depicting a parcel to support the uplifting of limitations, the surveyor is demonstrating that none of the land is in occupation adverse to the registered proprietor.
Adjoining surveys, irrespective of their age and quality, do not provide sufficient evidence on their own as to the correct definition of the subject land in a limited title.
Each boundary point must be defined by survey [r 6.2(a)(viii)] and marked, where practicable, unless a reliable boundary mark is already in place [r 7.1(b)]. No boundary or boundary point is permitted to be defined by adoption or accepted, except as provided for in the ‘Alternative process where limitations as to parcels are being uplifted’ below.
Historically, a boundary marking (formerly 'redefinition') survey was not permitted in the case of title that is limited as to parcels [r 45 Surveyor-General's Rules for Cadastral Survey 2002/2]. The current Rules do not have this restriction and, in certain cases, allow a boundary marking survey where the title is limited.
The point being marked must be:
- defined by survey [r 6.2(a)(v)]. This means that all the relevant evidence (including evidence relating to long standing occupation) must be gathered and considered, and
- already defined in an existing approved CSD; ie it must be an existing point.
If, after taking into account the evidence, the position does not agree with that defined in the approved CSD, a boundary marking survey must not be carried out. If the new boundary position is to be recognised as authoritative, a full land transfer survey is required.
A boundary marking survey must not create a new parcel and must not be used to uplift limitations from a title.
Limitations as to parcels must be uplifted before a unit title CSD can be deposited [s 32(1)(a) of the Units Titles Act 2010].
Where limitations are being uplifted, the CSD must define the land so that the RGL and adjoining owners can be satisfied that no part of the surveyed land is held in adverse occupation.
This means that the CSD in the first instance must define the boundaries by survey [r 6.2(a)(viii)], mark the boundary points [r 7.1(b)] and, in a diagram, depict the occupation in relation to the boundaries and boundary points [r 9.5(b)(iii)].
The requirement to define by survey need not be complied with, to instead allow a boundary to be defined by adoption, providing:
- the accuracy tolerances are met [r 3.3 and r 3.4],
- there is no risk of boundary overlap [r 3.3.2],
- the adjoining owner confirms in writing that they agree to the boundary as depicted in the CSD,
- the land parcel is wholly or substantively occupied by the title holder. An example of substantive occupation is full occupation except for a strip between the physical occupation and the parcel boundary.
This exemption and the alternative requirements are pursuant to s47(5) Cadastral Survey Act 2002.
The adjoining owner’s consent must be within the CSD at time of lodgement and be referred to in the survey report. You can download a consent form at the end of this page (If you use a different form, please ensure it contains the same information as below)
By agreeing to the adopted boundary as depicted in the CSD, the adjoining owner is agreeing that (irrespective of the location of occupation) they are forgoing any potential claim of possession adverse to the surveyed land.
To define by adoption means to adopt the documentary (previously surveyed) dimensions of the parcel. Note that where a boundary is permitted to be defined by adoption, rules 7.1(b) (boundary marking) and 9.5(b)(iii) (diagram of occupation) by default, will also not apply.
A CSD may contain a mixture of boundaries that are defined by adoption and defined by survey.