Institute of Cadastral Surveying (Inc)

Institute of Cadastral Surveying (Inc) RO. Box 775, Timaru Ph. & Fax: (03) 686 9400 Email: sec@ics.org.nz Web: www.ics.org.nz Page 1 6 May 2010 COMPLAINT ABOUT THE SURVEYOR GENERAL'S RULES FOR CADASTRAL SURVEY 2010 (LINZS65000) 24 MAY 2010 To the Regulations Review Committee INTRODUCTION 1. This complaint is from the Institute of Cadastral Surveying Incorporated, being a professional body as defined in Section 49(2)(b) of the Cadastral Survey Act 2002. Mr Simon Jenkin (President) and Mr Bruce Speirs (Secretary) of the Institute wish to appear before the Committee to speak to the complaint on behalf of the Institute. The Institute can be contacted through its Secretary at: P O Box 775, Timaru, or; sec@ics.org.nz 2. The objectives of the Institute are set out in Rule 2 of our incorporation as; 2.01 Organisation To provide an organisation to which those actively engaged in cadastral surveying may belong. 2.02 Best Practice To collate and disseminate best practice with regard to cadastral surveying, and promote a high standard of professionalism among its members. 2.03 Representation To make representations on cadastral surveying as appropriate in the best interests of the public, and the members of the Institute.

Page 2 EXECUTIVE SUMMARY The Institute is making a complaint about the Surveyor General's Rules for Cadastral Survey 2010 under the following grounds of standing Order 310(2): 3. The Institute is m (c) (g) (h) (i) That the Rules appear to make some unusual or unexpected use of the powers conferred by the statute under which they are made. That the Rules contain retrospective elements where this is not expressly authorised by the empowering statute. That the Rules were not made in compliance with particular notice and consultation procedures prescribed by statute. That the Rules for other reasons concerning its form or purport, call for elucidation. ARGUMENTS UNDER SPECIFIC GROUNDS The Rules appear to make some unusual or unexpected use of the powers conferred by the statute under which they are made. 4. Rule 4.1 (a) requires "Every bearing in a cadastral survey that defines or marks a new primary parcel boundary point must be oriented in terms of an official geodetic projection applicable to the area." The rational for this rule is included in the document Review of the Rules for Cadastral Survey, issued by the Surveyor General on 15 October 2007. On page 27 of that document it states: "Orientation to a common datum is therefore considered crucial to the future cadastral infrastructure and its ability to relate a survey to its neighbours." While it may be desirable for the future cadastral infrastructure to use a common datum (particularly to facilitate geographic information systems), the rule itself relates to primary parcel points, where a Cadastral Surveyor should in fact be defining a primary parcel point in relation to the adjoining parcel, independent of the datum's available. In fact the Surveyor General's functions and duties listed in Section 7(1) of the Cadastral Survey Act 2002 include: (a) (b) to maintain a national geodetic system: and to maintain a national survey control system It is therefore the Surveyor General's function to provide Cadastral Surveyor's with geodetic orientation, rather than for the Surveyor General to require Cadastral Surveyor's to provide him with geodetic orientation in a location he has not yet extended suitable geodetic control to cover.

Page 3 Section 7(2) of the Cadastral Survey Act 2002 requires that the Surveyor General must in exercising his or her functions (set out in Section 7(1)), have regard to a number of factors including; (c) the efficiency with which the cost benefits of those measures will be allocated arnong the Crown, cadastral surveyors, current and future owners of land, and other parties In correspondence to the Institute dated 22 January 2010, the Surveyor General stated: "In response to your letter of 7 December 2009 and your reference to section 7(2) of the Cadastral Survey Act 2002, the method of incorporating those requirements was essentially the same as for the previously supplied analysis for section 49(3)." The previously supplied analysis was provided in correspondence to the Institute dated 3 December 2009 from the General Manager, Policy & Regulation, and stated: "I refer to your letters of 7 September, 19 October, and 25 November 2009 requesting information about the s 49(3) Cadastral Survey Act 2002 analysis used in developing the Rules for Cadastral Survey 2010. As requested in your letter of 26 November, I have arranged for digital copies of the minutes of all expert committee meetings to be forwarded to you together with this letter." Perusal of the minutes supplied identified only one reference to Section 49(3) of the Cadastral Survey Act 2002. In the minutes of the 27 & 28 February 2008 meeting, item 12.2 on page 9 notes: "It was suggested that we keep in mind section 49(3)(e) of the Cadastral Survey Act 2002 when considering the Rules." Section 49(3) (e) reads as: Before making rules under this section, the Surveyor General must have regard to (e) maintaining public confidence in the cadastre. What was missed from the suggestion to the committee was: 49(3) Before making rules under this section, the Surveyor General must have regard to the following matters: (a) (b) (c) the extent to which the proposed standards will promote the purposes of any tenure system: the costs and benefits of consistency in standards relating to more than 1 tenure system: the costs and benefits of maintaining the accuracy of the cadastre:

Page 4 (d) the costs involved in cadastral surveys and cadastral survey datasets complying with the proposed standards: The minutes of the committee contain no reference to Section 7(2) of the Cadastral Survey Act 2002. It must be concluded that the Surveyor General did not in fact carry out his statutory obligations in terms of either Sections 49(3) or 7(2) of the Cadastral Survey Act 2002 when making his Rules for Cadastral Survey 2010. The Rules contain retrospective elements where this is not expressly authorised by the empowering statute. Rule 6.4 of the Surveyor General's Rules for Cadastral Survey 2010 allows for the standard historic practice of adopting existing cadastral data into a new cadastral survey. However, the accuracy standards set out in clauses 3 of the Rules do not allow for the adoption of existing cadastral data in terms of the survey regulations in force at the time of the survey from which the adoption is taking place, but requires these adoptions to meet the accuracy standards of clauses 3 of the Surveyor General's Rules for Cadastral Survey 2010. This is at odds with all previous regulations for cadastral surveys, where adoption in terms of the accuracy standards of the original regulation was allowed (eg. Rule 26(3) of the Surveyor General's Rules for Cadastral Survey 2002/2), and has the effect of retrospectively voiding the accuracy standards of all previous survey regulations. 10. The Institute believes the Surveyor General has promulgated his rules to remove the ability to adopt existing cadastral data in terms of the accuracy requirements of the original survey to "solve" problems he perceives to the integrity of the cadastre in terms of high value property in central business districts. The Institute has suggested to the Surveyor General an alternative method of managing this perceived risk using Rules 5 & 9 of the Surveyor General's Rules for Cadastral Survey 2002/2, where a Cadastral Surveyor is obliged to take the interests of the Crown into account and must follow good survey practice in conducting a cadastral survey. Such a method would of course require the Surveyor General to negotiate an amicable resolution with the professional bodies and the Cadastral Surveyors Licensing Board, which the Institute feels should be simple to achieve. 11. The effects of the inability to adopt existing cadastral data in terms of the original surveys regulations will most heavily be felt in the rural environment, where the proposed accuracy standards of clauses 3 of the Surveyor General's Rules for Cadastral Survey 2010 are likely to increase survey costs to the rural community.

Page 5 12. Survey Regulations typically have a life of 10 20 years, and over such extended time frames, increased costs can soon mount to multi million dollar values. 13. In this light, the Institute would have expected the Surveyor General to undertake some assessment of the costs and benefits as required by Section 7(2) of the Cadastral Survey Act 2002, while paragraphs 5 8 above show that no such assessment was undertaken. The Rules were not made in compliance with particular notice and consultation procedures prescribed by statute. 14. Rule 6.2(a)(iv) reads as: "Unless permitted to be accepted by rule 6.3, the following boundaries or boundary points must be defined by survey: an existing class A boundary or boundary point on a primary parcel that is less than 0.4 ha, except where all the parcel's boundaries are primary parcel boundaries defined in approved CSDs and are right lines or arcs, and all the boundary points meet the accuracy standards in rule 3.3.1(a)(ii)". It is to be noted that a parcel less than 0.4 ha is only allowed to have accepted boundaries or boundary points for a balance parcel, or a residue parcel, where that parcel is not common with another new parcel on the survey (eg. legalisation surveys). 15. This Rule has never been part of any consultation document. 16. This Rule has the most impact on the urban community, where it is likely to increase survey costs to that community through additional survey definition requirements than have historically been required. 17. Again, as in paragraphs 12 & 13 above, no assessment of the costs and benefits of such a rule with potential multi million dollar costs have been undertaken by the Surveyor General as required by Section 7(2) of the Cadastral Survey Act 2002. 18. At a meeting between the President and Secretary of the Institute, and the Surveyor General (and various other staff of LINZ) on 12 March 2010, the matter of the Surveyor General's Rules for Cadastral Survey 2010 were raised on the basis that the discussion would not constitute consultation for the purposes of Section 49(2)(b) of the Cadastral Survey Act 2002. At that meeting the Surveyor General made a statement to the effect that he believed consultation was completed after the submission process on the draft rules in February 2008, on the basis that he only needed to be prepared to alter his rules.

Page 6 The Court of Appeal case between Wellington Intemational Airport and others v Air New Zealand [1993] is still the basis of case law on the matter of consultation, which the Institute has brought to the attention of the Surveyor General and the LINZ Chief Executive more than once in correspondence over the years. 19. From that case the Judge said: "Consultation must be allowed sufficient time, and genuine effort must be made. It is to be a reality, not a charade. The concept is grasped most clearly by an approach in principle. To 'consult' is not merely to tell or present. Nor, at the other extreme, is it to agree. Consultation does not necessarily involve negotiation toward an agreement, although the latter not uncommonly can follow, as the tendency in consultation is to seek at least consensus. Consultation is an intermediate situation involving meaningful discussion. Despite its somewhat impromptu nature, I cannot improve on the attempt at description which I made in West Coast United Council v Prebble at p 405: "Consulting involves the statement of a proposal not yet fully decided upon, listening to what others have to say, considering their responses and then deciding what will be done." "Implicit in the concept is a requirement that the party consulted will be (or will be made) adequately informed so as to be able to make intelligent and useful responses. It is also implicit that the party obliged to consult, while quite entitled to have a working plan already in mind, must keep its mind open and be ready to change and even start afresh. Beyond that, there are no universal requirements as to form. Any manner of oral or written interchange which allows adequate expression and consideration of views will suffice. Nor is there any universal requirement as to duration. In some situations adequate consultation could take place in one telephone call. In other contexts it might require years of formal meetings. Generalities are not helpful." 20. In this context, the Institute made a submission on the draft Surveyor General's Rules on 25 February 2008 that included the following: "In terms of the draft rules then, ICS's submission (see attached spreadsheet) makes detailed comments on clauses 1 6 and 11 14, while any detailed comment on clauses 7 10 will need to await the redrafting of these clauses." and further, within the spreadsheet: "It is noted that clauses 7 10 of the draft rules have been compiled on the false premise that a Cadastral Surveyor currently certifies the Survey and Title Plans from the Landonline system." "These plans are of course a construct of the Landonline system (and therefore the responsibility of the LINZ CEO), which generates these after the Cadastral Surveyor certifies certain data including; survey header information, observation information, a survey diagram (if required), a title diagram (if required), and supporting documents."

Page 7 "In this context then, no meaningful detailed comment can be provided for clauses 7 10 of the draft rules, as these are a jumble of, general, survey header, observation, survey diagram, title diagram and supporting document items, although some specific comments are offered to make specific points that should be included in the redrafting." "It would appear from the content of the draft rules that two types of dataset proposed by the rules (namely standard and monumentation), and it is suggested clauses 7 10 be redrafted in that format, based on the actuality of the data a Cadastral Surveyor is certifying." 21. The Institute's attempts to further engage the Surveyor General in the consultation process extended to the Minister of Land Information and the Regulations Review Committee. The Surveyor General went to great lengths to avoid any further engagement with the Institute on his proposed rules, including potentially misleading the Minister. In correspondence from the Minister to the Regulations Review Committee dated 11 March 2009, the Minister advised the Committee that LINZ had advised him that; "3. Two levels of consultation on the proposed Rules have occurred concurrently. The consultation program included the establishment of an Expert Committee". 22. The LINZ letter to the Institute dated 24 January 2007 proposing the setting up of the Expert Committee makes no mention of that committee being part of the Section 49(2) consultation process, and this is reflected in our correspondence to the Surveyor General of 19 February 2007 which stated: "Further to your letter of 24 January 2007, ICS believes the request to nominate a person to provide up to eight days of expert opinion to this committee without remuneration is unrealistic. In this instance, ICS prefers to wait until the Section 49 consultation process begins before committing its resources to this subject. Could I refer you to the Court of Appeal judgement in the case of Wellington International Airport Ltd v Air New Zealand [1991] 1 NZLR 671 for case law in relation to the requirements for consultation." 23. It would appear that the Expert Committee were also unaware they were supposed to be part of a two tier Section 49(2) consultation process, the committees minutes of 29 & 30 May 2007 recording on page 9: "7. PUBLIC CONSULTATION: The Committee discussed the public consultation stage of the draft Rules.

Page 8 It was agreed this would include a roadshow and that both LINZ and some members of the Committee would attend. The Committee discussed who, apart form the Institute of Surveyors, would attend. The SG noted that the Institute of Cadastral Surveying would have to be kept informed." The Rules for other reasons concerning its form or purport, call for elucidation. 24. The Surveyor General's Rules for Cadastral Survey 2010 as gazetted, have deliberately omitted the current requirement for cadastral surveys to be conducted with regard to the Crown's interests, and in accordance with good survey practice. The Surveyor General's Rules for Cadastral Survey 2002/2 recording these as: and: "5. INTERESTS AND RESPONSIBILITIES OF THE CROWN A survey must be undertaken having regard to the Crown's interests in the survey, and responsibilities in respect of the survey." "8. GOOD SURVEY PRACTICE A survey must be undertaken in accordance with accepted good survey practice in relation to any matter for which these rules do not expressly provide." The lack of such staternents in the Surveyor General's Rules for Cadastral Survey 2010 leave the Crown (and hence the Public) unnecessarily exposed to poor survey practice. 25. In addition, it is not possible to cover every situation in legislation, and a degree of flexibility is desirable. The deliberate omission of these items from the Surveyor General's Rules for Cadastral Survey 2010 greatly reduces the flexibility of the resultant Rules. 26. It is also highly desirable that Regulations be clear, concise & unambiguous. As gazetted, the Surveyor General's Rules for Cadastral Survey 2010 may at 47 pages be concise, but they are anything but clear or unambiguous. The Surveyor General to date has provided 265 pages of guidance on how to interpret those 47 pages of Rules, including various guidance on the interpretation of the definitions. BEFORE THE HIGH COURT 27. The Institute has instructed its lawyers to seek a declaratory judgement from the High Court as to the content of the component parts making up a Cadastral Survey Dataset certified by a Cadastral Surveyor, as defined by Section 4 of the Cadastral Survey Act 2002.

Page 9 The Cadastral Surveyor's certification of the Cadastral Survey Dataset is in fact the foundation on which clauses 8, 9, 10, 11 & 13 of the Surveyor General's Rules for Cadastral Survey 2010 are built. A High Court judgement on the component parts of the Cadastral Survey Dataset and the Cadastral Surveyor certification has the potential to require the immediate redrafting of these clauses of the Surveyor General's Rules for Cadastral Survey 2010. RECOMMENDATIONS 28. The Institute believes that the Surveyor General's Rules for Cadastral Survey 2010 as gazetted, did not follow due process either for the consultation or cost benefit requirements of the Cadastral Survey Act 2002, have unexpected, and retrospective effects, are in part based on poor foundation, with the real potential to face almost immediate amendment should they come into force on 24 May 2010. The Institute of Cadastral Surveying Incorporated asks the Regulations Review Committee to recommend to the House of Representatives that the Surveyor General's Rules for Cadastral Survey 2010 as gazetted, do not come into force on 24 May 2010.