Guidance on meeting the requirements for cadastral survey datasets (CSDs) prepared under the Cadastral Survey Rules 2021 (CSR 2021) to define subdivisions of Crown-owned land not held under the Land Transfer Act 2017 (LTA).
Crown Subdivision CSDs are Survey Office plans used to define land that is being subdivided by the Crown and which is not held under the LTA. Such subdivisions are subject to section 228 of the Resource Management Act 1991 (RMA), unless they are exempt from subdivision approval by section 11(1)(b) of the RMA.
By contrast, Land Transfer (LT) CSDs are used to define subdivisions of land held under the LTA, including land held by the Crown under that Act.
A Legalisation CSD is also sometimes used to define a subdivision of land, for example, part of a Crown parcel to be used in a Treaty settlement. These types of CSDs are covered in the Legalisation CSDs guideline.
Land in a Crown Subdivision CSD commonly has the status of Crown land held under the Land Act 1948 or land held for conservation purposes. Other land of the Crown, such as land held for a public work, is usually held under the LTA – either by virtue of having a record of title, or because the document notifying the acquisition (for example the Gazette notice) has been registered under the LTA. Land held under the LTA should be defined in a Land Transfer CSD, unless it is being defined for legalisation purposes.
Coastal marine area – as defined in section 2 of the RMA. The area bounded to seaward by the outer limits of the territorial sea and landward by the line of mean high-water springs, except at the mouth of a river, where the landward boundary extends upstream from the mouth for 1 kilometre or five times the width at the mouth (whichever is the lesser). The location of a river mouth is usually set by the relevant regional coastal plan. It includes the foreshore, seabed, and coastal water and the airspace above it within these limits.
Common marine and coastal area – as defined in section 9 of the Marine and Coastal Area (Takutai Moana) Act 2011 (MACAA). The area bounded to seaward by the outer limits of the territorial sea and landward by the line of mean high water springs, and includes the beds of rivers that are part of the coastal marine area, but excludes most freehold land, Crown land held for conservation area, national park or reserve, and the bed of Te Whanga Lagoon in the Chatham Islands. It includes the subsoil, bedrock, airspace and water space (but not the water) within these limits.
Esplanade reserve – as defined in section 2 of the RMA, a type of reserve set aside for 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 RMA and do not move with the water body, although the water boundary is subject to the doctrine of accretion and erosion.
Esplanade strip – as defined in section 2 of the RMA, and not to be confused with an esplanade reserve, an esplanade strip is a right over a movable strip of land that adjoins a river, lake, or the sea and created under the RMA. An esplanade strip is created for the same purposes as an esplanade reserve. For more information refer to the water boundaries guidance on Recording movable marginal strip and esplanade strip parcels.
Gazette – the New Zealand Gazette (Te Kāhiti o Aotearoa), the official Government newspaper and authoritative journal of constitutional record, published since 1841. It is now published online, at https://gazette.govt.nz/
Parcel intent – means a description of a right or an interest intended to be assigned to a parcel.
Upon approval as to survey of a Crown Subdivision CSD, the land becomes subject to the LTA and the parcels become live in Landonline – the same effect as deposit of an LT CSD.
It is therefore important to ensure that the land is in fact owned by the Crown and not held under the LTA before preparing a Crown subdivision CSD. Land records should be reviewed and the findings explained in the survey report, or if applicable a copy of a separate land status report included with the CSD.
Use of Crown Subdivision CSD when land is not being subdivided
A Crown Subdivision CSD is sometimes prepared to replace an existing parcel of Crown-owned land with a new one, without further division of the land. For example, a Crown Subdivision CSD might be used to provide a good definition of an old residue area, or to assign a new appellation prior to its disposal. While this is not a subdivision, a Crown Subdivision CSD may be used for this purpose.
New boundary points on a new primary parcel normally need to be ground marked, but where a boundary point is common to new parcels that are all intended to remain in Crown ownership, the point does not have to be marked (r 35(1)(a)). However, the Crown agency commissioning the survey may specify ground marking where they consider it appropriate.
All the land in the existing parcel must be extinguished and new parcels created, including what has traditionally been called the balance parcel (r 39(2)).
For example, in Figure 1 below, Section 1 is part of an existing parcel of Crown land, which is to be disposed of. Following approval of the CSD, a certificate under section 116 of the Land Act 1948 will be issued for the Registrar-General of Land (RGL) to issue of a record of title for Section 1. Section 2 comprises the remainder of the underlying parcel and will remain as Crown land.
All parcel boundaries, including the land to be disposed of and the land remaining with the Crown, 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).
A Crown Subdivision CSD must either:
- be approved by a territorial authority under section 223 of the RMA before it is submitted to LINZ; or
- include an explanation as to why the subdivision is exempt from Part 10 of the RMA and approval under section 223 is therefore not required (r 72(b)).
Approval by LINZ of a Crown Subdivision CSD that has been approved by the territorial authority under section 223 of the RMA has legal effect as if it were the deposit of a plan under the LTA (s 228(1)(a) RMA).
Following approval, and subject to the requirements of section 224 of the RMA, the RGL may issue a record of title upon request (s 228(1)(b) RMA).
Vesting of bed of lake or river, or addition to the common marine and coastal area
Where approval under section 223 of the RMA is required, any part of the land which is the bed of a river or lake may need to be shown as vesting in the territorial authority or the Crown- see sections 237A(1)(a) and 239(1)(c) of the RMA.
Riverbed or lakebed which is to vest under section 237A(1)(a) must be depicted in the CSD as a new primary parcel with a parcel intent of ‘Vesting on Deposit in the Territorial Authority (Sec 237A(1)(a) RM Act)’.
Riverbed or lakebed that is shown to vest in the Crown under section 239(1)(c) must be depicted in the CSD as a new primary parcel with a parcel intent of ‘Vesting on Deposit in the Crown (Sec 239(1)(c) RM Act)’.
Refer to Water boundaries guidance on ‘Recording water bed to vest under sections 237A or 239(1)(c) RMA 1991’.
Any part of the land which is within the coastal marine area must be shown as part of the common marine and coastal area – see section 237A(1)(b) of the RMA. This land must be depicted in the CSD as a primary parcel, with a parcel intent of ‘Common Marine and Coastal Area (Sec 237A(1)(b) RM Act)’.
However, note that some Crown-owned land within the coastal marine area may have already become part of the common marine and coastal area – see separate guidance on Tidal boundaries, in particular:
Exemption from subdivision approval
A Crown subdivision must be approved under section 223 of the RMA unless there is a statutory exemption. A separate guideline for disposal of land held for a public work (see link below) provides information to help decide whether resource consent is required for land that is surplus to a public work.
A common exemption for Crown subdivisions is section 11(1)(b) of the RMA, which allows land to be subdivided without approval if the subdivision is “effected by the acquisition, taking, transfer, or disposal of part of an allotment under the Public Works Act 1981”.
However, section 11(1)(b) stipulates that in the case of a disposition under the Public Works Act 1981, “each existing separate parcel of land shall, unless otherwise provided by that Act, be disposed of without further division of that parcel of land”. This means that an existing parcel may be subdivided to enable the disposal of a portion that is surplus to the public work, but further division of that portion would require the territorial authority’s approval.
Figure 2 shows two examples of subdivisions for the disposal of part of a parcel held for a public work. In the example on the left, subdivision consent is not required because the surplus portion, Section1, is not being further divided. Conversely, subdivision approval would be required for the example on the right because it shows a “further division” of the surplus land by creating two new parcels, Sections 1 and 2.
Another common example of statutory exemption from subdivision approval is surveys to give effect to Treaty settlements. Settlement legislation often exempts the land from Part 10 of the RMA.
A survey for tenure review is also exempt from subdivision approval – see section 96(1) of the Crown Pastoral Land Act 1998.
Unless the subdivision is exempt from Part 10 of the RMA, the territorial authority’s approval under section 223 of the RMA must be supplied with the CSD.
Example: SO 378675 is an example of a Crown Subdivision CSD with approval from the territorial authority under sections 223 and 224 of the RMA.
If a subdivision is exempt from Part 10 of the RMA, the grounds for exemption must be stated in the survey report – see rule 72(b). The grounds for exemption are also sometimes stated on the title diagram. A statement of exemption may also be included with the CSD – Part 20.4 of the ‘LINZ guideline on deposit of survey plans for the subdivision of land’ sets out a suggested format for a statement of exemption, and Schedule 1 includes a list of scenarios where an exemption may apply.
Example: SO 523244 is an example of a Crown Subdivision CSD with a statement on the title diagram explaining why the subdivision is exempt from Part 10 of the RMA.
A Crown Subdivision CSD is an SO dataset. As such, 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 (r 42 and 43).
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 appropriate time, a survey purpose of ‘Crown Subdivision’ should be specified.
A new primary parcel in the CSD that is intended to be sold should be assigned a parcel intent of ‘Fee simple title’, including a parcel that is height-limited.
A parcel intent of ‘Fee simple title’ should be used for a new primary parcel created to comply with rule 39 (accounting for all the land in an existing primary parcel), unless either of the following situations are applicable:
- A new primary parcel defining the residual or balance portion of the bed of a lake, river, stream or land that has become part of the common marine and coastal area should be assigned a parcel intent of ‘Hydro’. An exception is erosion parcels, which are to have a parcel intent of ‘Erosion’
- A parcel that is to vest in the territorial authority or the Crown on approval (see Approval of CSD has effect of depositing plan) should have the applicable parcel available in Landonline, for example:
- ‘Vesting on Deposit in the Territorial Authority (Sec 237A(1)(a) RM Act)’ for riverbed or lakebed that is to vest under section 237A(1)(a) RMA
- ‘Vesting on Deposit in the Crown (Sec 239(1)(c) RM Act)’ for land that is to vest in the Crown under section 239(1)(c) RMA
- ‘Vesting on Deposit for Local Purpose Reserve’ for a parcel that is to vest as a local purpose reserve under section 239(1)(a) RMA.
- Land that will become common marine and coastal area on subdivision pursuant to section 237A(1)(b) RMA must have the parcel intent ‘Common Marine and Coastal Area (Sec 237A(1)(b) RM Act)’.
Note that parcel annotations will often be required for these parcels under rules 87 and 103.
A new non-primary parcel should be assigned a parcel intent that best reflects its intended status, for example ‘Marginal strip’, ‘Easement’, or ‘Covenant - land’.
Estate record references for the land under survey must be included in the title plan (r 92(i)) and shown on the title diagram where an estate boundary passes through a new primary parcel (r 97(7)).
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
- If no other estate record exists, the annotation ‘No Registration’
- If no other estate record exists, the annotation ‘Part old riverbed’, ‘Part old streambed’ or ‘Part old seabed’ as appropriate.
Where Gazette notices have not been registered, they 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 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 ‘Gaz [year], LN [notice number]’ as applicable. Landonline will automatically add ‘GN’ to the start of the reference in the ‘Comprised in’ field. For example, ‘GN 2017 LN1005’
NZ Gazette (for access to Gazettes published since 2000)
Land deemed to be held for conservation purposes
Under the environmental restructuring in the 1980s, Ministerial committees allocated land formerly managed by the Lands and 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.
Land held under section 61 or 62 must be declared to be held for conservation purposes under s 7(1), before any parts can be disposed of under section 26 of the Conservation Act 1987. As such, a Crown Subdivision CSD should not normally include conservation land that is still held under section 61 or 62.
Crown Subdivision CSDs must deal with new and existing easements and covenants in the same manner as LT Subdivision CSDs.
Exchanges involving Crown-owned land, for example boundary adjustments involving conservation land, may require separate CSDs if lands of differing status are involved. Surveyors should have a clear understanding of the statutory provisions being used to achieve the exchange. If in any doubt about the number and type of CSDs needed, advice should be sought from LINZ.
The survey report must explain the purpose for which the survey has been conducted, including a reference to the enactments relevant to achieving that purpose, where it is not otherwise clear. For example, a subdivision of Crown land for the purpose of transferring part for a Treaty settlement (r 72(a)).
If applicable, the survey report should also include an explanation as to why the CSD does not include a certificate under section 223 of the RMA (r 72(b)). See section above on ‘Evidence to be submitted with CSD’.
An explanation of the records examined to confirm the status of the land should be included in the survey report. If a separate land status report is available, it should be included in the CSD as a supporting document.
Existing marginal strips
Although unlikely, it is possible that there are existing movable marginal strips within the land to be disposed of (for example, a strip created on an earlier lease of the land).
A CSD must show a new non-primary parcel for an existing movable marginal strip if the strip has previously been defined in an approved CSD (r 97(5)). Surveyors are encouraged to also show a new non-primary parcel for an existing movable marginal strip which has not previously been defined in an approved CSD.
Fixed marginal strips, for example strips reserved under section 58 of the Land Act 1948, are defined as separate primary parcels and therefore should not normally be part of a Crown subdivision.
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. In 2007 the Government directed that Crown agencies disposing of land must ensure any new marginal strips are shown in a CSD.
Any marginal strip that will be reserved on alienation of the Crown-owned land must therefore be shown in the Crown Subdivision CSD.
New esplanade reserves
Normally a marginal strip, rather than an esplanade reserve, will be created on the disposition of land from the Crown. However, occasionally an esplanade reserve may be required as a condition of the resource (subdivision) consent under the RMA.
An esplanade reserve can be created on the landward side of an existing public reserve or marginal strip adjoining a water boundary (s 236 RMA). For example, if there has been erosion to an old fixed marginal strip, causing a reduction in the width of part of the strip, the territorial authority might choose to make up for the loss in width by requiring an esplanade reserve along the landward side of that part of the marginal strip.
A new esplanade reserve should be shown as a primary parcel, with a parcel intent of ‘Vesting on Deposit for Local Purpose Reserve’. The notation ‘Local Purpose (Esplanade) Reserve to vest in [XYZ] Council’ must also be shown on the title diagram, clearly related to the relevant parcel (r 103).
Water boundaries of Crown-owned land are movable in accordance with the common-law doctrine of accretion and erosion unless the doctrine is excluded, for example, by statute. In most cases accretion and erosion must be identified in a CSD in the same way as for private land, and evidence supplied to support the contention that accretion has occurred.
However, in some situations it may be reasonable to redefine an existing water boundary in the new position of the water margin without establishing the reason for the change or identifying areas of accretion or erosion. This is on condition that the change does not impact on other interests, such as adjoining private land. Rule 29(2)(a) refers.
Typical scenarios where this might be reasonable include Crown land being disposed of for the first time, and water boundaries between parcels which are all held in Crown ownership.
Surveyors are encouraged to discuss cases with LINZ before taking this approach, by submitting a ‘Survey-survey information complex’ request through Landonline. A thorough explanation should also be included in the survey report.
Refer to the following sections of Water boundaries guidance for details about movability provisions and how to deal with accretion and erosion where it needs to be accounted for in a CSD:
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 MACCA). 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. See definitions of ‘marine and coastal area’, ‘common marine and coastal area’ and ‘specified freehold land’ in section 9 of the MACAA.
Effect on land owned by the Crown
Land below MHWS that was owned by the Crown (other than the excluded categories identified above) before the MACAA came into force has been divested and is now in the common marine and coastal area. See section 11(3) of the MACAA, and the definitions of “specified freehold land” and “common marine and coastal area” in section 9 of the MACAA.
Similarly, land owned by the Crown, which was previously above MHWS but is now below MHWS because of erosion or other natural occurrence, has become common marine and coastal area (s 11(4) and s 13(2) MACAA).
This includes land that is defined by fixed boundaries.
Conversely, land vests 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 (for example, the doctrine of accretion and erosion) (s 13(3) MACAA).
Such changes occurred (and continue to occur) without the need for surveys, so survey and title records do not necessarily reflect the changes. For example, land held for a Government work that originally extended down to mean high-water mark (MHWM) no longer contains the portion below MHWS, but this will only be reflected in the cadastre and on the title when the land is eventually surveyed.
Dealing with land in the common marine and coastal area
Refer to Common marine and coastal area in the separate guideline about Tidal boundaries for guidance on dealing with land that is, or will be, in the common marine and coastal area.