Understanding the impact of the Canterbury Property Boundaries and Related Matters Act 2016 and the ‘boundaries moved’ principle on survey practise and title to land.
Impact on title to land
Under the Land Transfer Act (LTA) a title describes the land in a way that directly or indirectly refers to a Deposited Plan (DP) CSD. The DP shows information enabling the owner (or a surveyor on behalf of the owner) to locate the land on the ground, including:
- the land parcel in a scale diagram with an area,
- where the boundary markers have been placed (commonly wooden pegs),
- the distances and directions between those markers.
When a land transfer (LT) CSD is ‘approved’ as to survey, the Registrar-General of Land (RGL) is assured that the CSD correctly shows the extent of the land in relation to previous definitions of the land, and adjacent land. Based on this assurance, the RGL creates a new title and registers dealings in regard to the land without fear that any of the owner’s land has been omitted or the title inappropriately overlaps with property rights in another person’s land. Under the LTA the Crown guarantees ownership of the land as marked out on the ground as recorded by this DP. There is no Crown guarantee associated with a boundary defined in a survey office (SO) CSD unless the definition of the boundary from the SO is recorded in the land transfer register (examples are where the SO boundary definition has been subsequently recorded in a DP CSD or where a SO legalisation CSD has resulted in a new record of title).
Under the Canterbury Property Boundaries and Related Matters Act 2016 (the Act), boundaries are deemed to have moved with the movement of land caused by the Canterbury earthquakes (unless it is a landslip). This does not affect the validity of title for land registered under the Land Transfer Act. The land in a title will still be the land defined by undisturbed marks placed by the pre-earthquake survey and recorded on the pre-earthquake DP CSD— although the law recognises that where the marks have moved with earthquake movement, the boundaries will have moved accordingly.
The land might be of a different shape and area as a consequence of the movement of land and boundary marks. However, the Act makes it clear the movement will not have created new overlaps or gaps that reduce certainty in the boundaries of interests in land and their relation to surrounding interests. In this regard title is still reliable.
As an example, Figure 1 shows the shape of Lot 1 DP 38048 is different as a result of earthquake movement (reflected by the change in location of the boundary points). The land (as moved) continues to be the same land (Lot 1 DP 38048) and affected by the same interests that existed before the movement. The title CB5B/261 continues as the record of ownership and interests. If further survey work is being undertaken, and the owner of Lot 1 DP 38048 wants a title that reflects the post–earthquake location of their boundaries, they will need to request a new title in terms of a deposited dataset prepared in line with the boundaries moved principle.
Figure 1: Example parcel of land before and after earthquake movement (note movement is exaggerated for illustrative purposes)
Impact on survey practice
When defining by survey, Rule 6.1 Rules for Cadastral Survey 2010 requires the surveyor to interpret evidence in accordance with relevant enactments and rules of law. For greater Christchurch this requires the surveyor to have correctly located boundaries (and have dealt with any earthquake movement) as at the date they certify the CSD as being accurate and correct.
All boundaries must be defined in terms of the ‘boundaries moved’ principle. This includes existing primary and non-primary parcel boundaries, as well as new non-primary parcel boundaries that are coincident with or intersect an existing primary parcel boundary.
Surveyors will need to gather and document additional evidence, relating to the impact of earthquake movement on a boundary affected by earthquake movement. They must consider all earthquake induced land movement when locating a boundary.
Where a new non-primary parcel boundary coincides with or intersects an existing underlying parcel boundary, that underlying parcel boundary must be in terms of the ‘boundaries moved’ principle. This is of particular relevance for a CSD that is creating a new non-primary parcel, but not creating a new primary parcel underlying it (for example, an easement only CSD).