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Land Transfer and Cadastral SurveyLegislation Bill

Government Bill

As reported from the Primary Production Committee

Commentary

Recommendation

The Primary Production Committee has examined the Land Transferand Cadastral Survey Legislation Bill and recommends that it bepassed with the amendments shown.

Background

We received and heard seven submissions about this bill. Our advis-

ers informed us they had consulted widely regarding this bill, andthrough this process had dealt with many earlier concerns.

The bill intends to improve the system of processing transactionsinvolving land and enables the second phase of the Landonlineproject to be implemented. The bill:

• allows conveyancers and cadastral surveyors (whose surveysdefine the spatial extent of interest in land) to submit docu-ments and data electronically:

enables the chief executive of Land Information New Zealand

(LINZ), the Registrar-General of Land and the Surveyor-General to set standards for the electronic submission of doc-

uments and data, and to undertake checks and audits to ensurethose standards have been met. A number of amendments are

made to the Land Transfer Act 1952:

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Land Transfer and Cadastral

Survey Legislation Commentary

• updates and replaces the system of professional regulation forcadastral surveyors that clearly separates the Surveyor-General's role (in setting standards and carrying out qualityassurance for surveys and survey data) from the regulation ofcadastral surveyors. The Survey Act 1986 is repealed:

• ensures the continued integrity of the land titles register andthe cadastral survey system in an electronic environment.

Many of the issues raised are technical. This commentary focuses onthe major recommendations that we are making.

Qualifications for Surveyor-General

Clause 73 requires that the Surveyor-General have appropriate skillsand expertise. There is no requirement for any specific professionalqualification.

Submitters expressed concern about this provision. Their concernsfocus on the lack of a guarantee that the individual who sets stan-dards for surveying in the bill is qualified to set such standards.

We agree. We believe it is important that the person who holds thisoffice is or has been a licensed cadastral surveyor, a registered

surveyor, or holds a similar overseas qualification.

We recommend that clause 73 be amended to ensure that the office is

held by an appropriately qualified individual.

Deputy Surveyor-General

Clause 74(4) in the bill contains an error. LINZ' s intention has been

that the same person could hold the offices of the Surveyor-Generaland the Deputy Surveyor-General. However, on reflection, LINZconsiders that the same person should not be able to hold theseoffices, as this will remove the path for succession under the Electo-ral Act 1993. We agree and recommend that clause 74(4) be deleted.

Qualifications for Registrar-General of Land

Clause 42 of the bill seeks to amend the principal Act by omittingthe requirement for the Registrar-General of Land to be a barristerand solicitor. LINZ told us this professional qualification was nolonger necessary, as the position is now largely administrative.

We received submissions advocating that the Registrar-Generalshould be a lawyer, as has historically been the case. A legally

Commentary


Survey Legislation

qualified person brings essential knowledge to this position, whichensures the ongoing integrity of the Torrens system. 1

We agree with submitters. We are aware that while the position is

largely administrative, this area is very technical and rich in legal

issues. While LINZ is in the process of changing to an electronic

system, we think that it is essential that a person with expert legalknowledge in this area is in a key decision-making role. This person

will provide continuity to protect all the legal interests in the system.

We recommend that clause 42 be amended to ensure that the office

of Registrar-General of Land is held by an individual with a legal

qualification.

Provisions for setting fees

Clauses 63 and 115 (3) of the bill contain provisions that propose toamend the process for setting fees outlined in the principal Act.Clause 63(6) also empowers the chief executive to set a fee or charge

for any function, facility or service if a fee had not been set byregulation. Clause 35(6)(b) and (c) also allows fees to be set by

contract, or set by the chief executive, as well as by regulation.

The Regulations Review Committee advised us that it is well estab-

lished that fees for departmental services and functions should be

fixed by the Governor-General in Council prescribed by regulations.

The Regulations Review Committee has developed a rigorous pro-cess for examining fees for departmental services and functions.

This includes ensuring that fees comply with Audit Office andTreasury guidelines. If departmental officials set fees the existing

scrutiny process of the fees can be avoided.

We agree with the advice provided by the Regulations Review

Committee. These fees are paid to a government department that has

a monopoly in this area. We recommend these clauses and others

that relate to this proposed fee-setting mechanism be removed.

1 The Torrens system is a long-standing system for registering and securingtitle to land in New Zealand. It has the following essential factors:• the identification of each parcel of land• accurate recording of information currently relating to each parcel of land• a state guarantee of accuracy of the information and the boundaries of the

land

• compensation for people who suffer loss because the system preventsthem establishing their title.

(Drake et al 2000, Conveyancing Law Handbook, CCH, NZ Limited, p38).

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Conscientious objections

We received a submission which raised issues about the provisionfor the compulsory electronic lodgement of survey plans (clause115(1)). The submitters are surveyors who object on conscientiousgrounds to the requirement for electronic lodgement. They are will-ing to pay for any additional costs associated with a third party

completing any computer processing that is required.

This issue has significance across the whole of government in thedevelopment of e-commerce and e-government and is yet to beexplored. However, in this instance LINZ has advised us that thisbill does not prevent third party involvement. As an additionalsafeguard the committee considers that clause 115 should beamended to require consultation with the body or bodies represent-ing surveyors before regulations to make electronic lodgementcornpulsory.

Landbrokers

The law allows for people to be licensed as landbrokers undersections 229 to 234 of the Land Transfer Act 1952. Landbrokers can

carry out conveyancing for reward under these provisions. The

current provisions are dated. We were advised they neither ade-quately provide for the regulation of landbrokers nor provide ade-quate protection for consumers against fraud and incompetence. Itwas anticipated that the repeal of these provisions would occur, indue course, as part of a bill concerning the regulation of lawyers andconveyancers. However, following a court decision in 2001, theRegistrar-General must now license fit and proper persons as land-brokers. We were advised it is not feasible for the Registrar-Generalto construct a regulatory regime around the existing provisions.LINZ is concerned that inappropriate people could be licensed andthat considerable resources could be used in dealing with issues as aconsequence of the present inadequate statutory regime. We agreethe provisions providing for landbrokers ought to be repealed as aninterim step pending the introduction of a new comprehensive statu-

tory regime for conveyancers. We were assured that doing so wouldhave no implications for the Trans-Tasman mutual recognitionarrangements under which the existing landbrokers have recentlybecome established in New Zealand.

Commentary


Survey Legislation

Seven people are currently licensed as landbrokers. These peoplehave made a significant investment in becoming licensed and estab-lishing practices under the Act. We recommend there be transitionalprovisions that allow existing landbrokers to continue to practiseuntil new legislation on conveyancing is in place. We have some

sympathy for those who may be in training. However, we are con-cerned consumer protection in this key area ought not to be put at

risk through any further opening up or expansion of the landbrokerregime until comprehensive consumer protection legislation in thisarea is in place.

Some of us are concerned that this amendment to the Land Transfer

Act 1952 discriminates against individuals who are already in train-ing, and who have made an investment in pursuing this career. We

have considered this issue thoroughly. The legal position and theexpectations of those involved are complex, and have been in a stateof flux. The most recent developments are that, prior to a High Courtdecision in 2000, the only individuals who had been able to becomelicensed as landbrokers were those whose Australian qualifications

gave them recognition in New Zealand under the 1997 Trans-Tas-

man mutual recognition arrangements. The High Court decision in

2001 put a stop to such individuals gaining landbroker status. But aruling of the Court of Appeal in 2001 has now given rise to thepossibility of a much broader opening up of the landbroker regime.In view of the risks associated with such an opening up, and the

uncertainty surrounding the legitimate expectations of those in train-

ing we agree that the Registrar-General should not have the ability toregister additional landbrokers prior to the new comprehensive leg-islation for conveyancing to be introduced by Government. Thisdecision further highlights the need for the proposed legislation to beintroduced in the immediate future in order to accommodate the

concerns of those who have commenced training.

We recommend that changes to clause 67(1) be accepted. Thisclause would stop any further granting of licenses to landbrokers.We further recommend that new clause 69A be included in this bill,

which will allow existing landbrokers to continue to practise uponthe repeal of sections 224 to 234 of the Land Transfer Act 1952.

Access to annual report

Clause 88 requires the Cadastral Surveyors Licensing Board toprepare an annual report to the Minister and make it available to all

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cadastral surveyors. The clause also provides that the requirement to

make the report available to surveyors is met if it is published on theinternet. Several submitters were concerned that there is no require-ment for cadastral surveyors to be told whether the report has beenpublished or where it can be viewed.

We recommend this clause be amended to ensure that all cadastral

surveyors are informed that the report has been published and whereit can be viewed.

Interference with cadastral survey marks

Clause 120 substantially re-enacts a provision of the Survey Act1986, which provides for fines of up to $2000 for knowingly orrecklessly interfering with survey marks.

A submitter suggested that the intent element of the offence shouldbe altered so it applies in the absence of knowledge or recklessness.We were advised this submission was made, at least in part, becausea linked provision of the Survey Act 1986 (section 68), has not beenre-enacted.

Section 68 provides for a person who interferes with a survey markto be liable for the costs of its replacement even though no offenceunder section 67 is alleged. It also provides for vicarious liability onemployers. Section 68 is not being re-enacted because it does notcomply with the New Zealand Bill of Rights Act 1990. It is not clearthat reducing the intent element of clause 120 would provide moreeffective controls. It could also raise Bill of Rights issues, especiallybecause this provision would be subject to new infringement feeprovisions.

Submitters told us that work on roads is a particularly commonsource of interference with marks. It may be more effective toaddress this issue specifically.

We recommend that the clause be amended to include a provisionthat allows the Surveyor-General overall control and supervision ofthe process. Under proposed clause 120(6) the Surveyor-General

may give approval for the repair, replacement or restoration ofsurvey markings, to their proper position, or making payment forthese things to be done.

CommentaryLand Transfer and Cadastral

Survey Legislation

Survey Rules

There will not be sufficient time between the bill going through theHouse and its enactment to develop Survey Rules in the usual way.Our proposed amendments will allow work to continue while newsurvey rules are being developed. LINZ anticipates a new modulewill be added to the Survey Rules shortly after enactment. The newmodule will specify the form of digital cadastral survey datasets.LINZ further advised us that these Survey Rules will be completelyreviewed and a new set promulgated before the rollover period ends(12 months after commencement of the Cadastral Survey Act 2002).The new Survey Rules are to reflect modern survey practice and willexpress requirements as performance standards rather than prescrip-tive requirements, and should therefore stand the test of time.

We recommend that clause 116A(1)(a)(ii) be amended to allow

sections 57,58 and 60 of the Survey Act 1986, and the SurveyRegulations 1998 to become the first set of Survey Rules. Sections57,58 and 60 of the Survey Act 1986 deal primarily with technicalmatters that are relevant to surveyors. The Survey Regulations 1998set out the standards which must be met in cadastral surveys. Newclause 116A is a transitional provision that will expire after twelvemonths.

Both the sections in the Survey Act 1986 and the Survey Regula-tions 1998 require amendment as part of this process, and these areset out in Schedule 6A:

• The Survey Act provisions are amended to make them consis-

tent with terms and concepts in what will be the CadastralSurvey Act 2002.

• The regulations are amended to remove references to Sur-

veyor-General and Chief Surveyor functions that will move tothe chief executive. This will remove duplication with someSurvey Act 1986 provisions, and update references.

The New Zealand Institute of Surveyors has been consulted andagrees with these changes.

We recommend the above amendments be accepted.

Transitional provisions for surveyors

The bill provides a transition path for registered surveyors who wantto be licensed cadastral surveyors under the new regime (clause 90,and new clauses 10OA and 10OB).

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Submissions suggested the language in clause 90 was confusing, and

requested it be amended. We also received a submission that

expressed concern about the Board's broad ability to set licensingfees at any level. It was suggested this fee-charging clause should be

amended to ensure fees would not exceed the current charge of an

annual practising certificate, which is the closest equivalent to alicence fee. The perceived danger was that fees could be increasedsubstantially to help fund set-up fees for the new Board.

We agree with submitters and recommend the language be clarified.We also recommend an upper limit be imposed on the fee structurefor licences under the new regime.

Drafting changes

Analysis of submissions and further scrutiny of the bill has shown

other areas where the clarity of the drafting could be improved, themain ones are:

• The specification of forms for instruments, how and by whomthey must be signed should be more consistent.

• The new provisions for creating easements should be

standardised as to the way they define the moment wheneasements are created and how they are noted in the system.

• The provisions that allow the Registrar-General to specify theforms of notices should be applied to all forms of notice.

• Specifying how the deposit document provided for in clause

61 (new section 167A Land Transfer Act 1952) integrates

with the Surveyor-General's power to specify the content ofplans.

• Clarifying provisions relating to how certification underclause 60 (new section 164A Land Transfer Act 1952) oper-ates in relation to instruments having effect as deeds.

• Clarifying the drafting around how paper forms may bepresented.

We recommend that these changes are made, and that minor draftingerrors that have no substantive effect are corrected.

CommentaryLand Transfer and Cadastral

Survey Legislation

Appendix

Committee process

The Land Transfer and Cadastral Survey Legislation Bill wasreferred to the committee on 12 November 2001. We received and

considered seven submissions from organisations and individuals.All of these submitters gave oral evidence. The hearing of evidencetook two hours and one minute, and consideration took four hoursand twenty-seven minutes.

We received advice from Land Information New Zealand and from

the Regulations Review Committee.

Committee membership

Damien O'Connor (Chairperson)

Gavan Herlihy (Deputy Chairperson)

Shane Ardern

Clayton Cosgrove

Ian Ewen-Street

Martin Gallagher

Phil Heatley

Mark Peck

Mita Ririnui

R Doug Woolerton

9

Land Transfer and

Cadastral Survey Legislation

Key to symbols used in reprinted bill

As reported from a select committee

Struck out (unanimous)

1 1Subject to this Act, Text struck out unanimously

New (unanimous)

Subject to this Act,

(Subject to this Act,1

Subject to this Act,

Text inserted unanimously

Words struck out unanimously

Words inserted unanimously

1 1

1 1

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9

8

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2

10

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12

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17

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Hon Matt Robson

Land Transfer and Cadastral SurveyLegislation Bill

Title

Commencement

Government Bill

Part 1

Land Transfer (Computer Registers andElectronic Lodgement) Amendment

Subpart 1-Preliminary provisions

3 Commencement of this Part

4 I«and Transfer Act 1952 called prin-cipal Act in this Part

5 Purposes of this Part

6 Interpretation

Subpart 2-Computer registers andelectronic instruments

Registrar may authorise registrationin any medium

Recording and registration of cer-tain matters to be effected under

this Act

Creation of computer registers

Creation of computer freehold reg-isters for freehold land

Content of computer freehold

registers

Creation of computer interest

registers

Content of computer interest

registers

Creation of computer unit title

registers

Content of computer unit title

registerComposite computer registers

Format of computer registers

Certificates of title for land that is notelectronic transactions land

Issue of certificates of title for land

that is not electronic transactions

land

Directions and authorisations for

land that is not electronic transac-

tions land

Contents

19

20

21

22

23

26

27

28

29

30

31

32

33

34

35

36

37

169--2

24

25

References to certificates of title for

land that is not electronic transac-

tions land

No certificates of title for electronictransactions land

No certificates of title for electronic

transactions land

Directions and requirements forelectronic transactions land

References to certificates of title for

electronic transactions land

Easements

How easement recorded

Electronic instruments

Electronic workspace facilitiesWhen electronic instruments are in

order for registration

Electronic lodgement may be made

compulsory for conveyancersElectronic transactions land

Acceptable forms for electronicinstruments

Registration and access to register

Registrar's copy of instrument to bedefinitive

Instrument presented but copying,imaging, or data capture defective

Unique identifiers

How registration effectedInformation to become part ofregisterInformation to be retained

Rights to search and copyinformation

Evidentiary provisions

Evidentiary effect of certificates of

title and computer registers

Computer printout, etc, admissiblein evidence

1

2

39

40

48

49


Survey Legislation

Sections 65 to 69 of principal Act excluded

38 Certain provisions of principal Act

not to apply to certificates of titleissued under this Act

Administmtion

Abolition of offices of Registrar ofDeeds and Deputy Registrar ofDeeds

Statutory references to District Land

Registrars

Subpart 3-Amendments to Land TransferAct 1952

42 Registrar-General of Land

43 Delegation of Registrar's powersand duties

44 New section 47 inserted

47 Presentation of instruments

for registration

45 New section 70 substituted

70 Removal of easements and

profits d prendre from regjs-ter

46 New sections 90 to 9OF substituted

90 Transfers and creation of

easements, etc, by registered

proprietor9OA Creaiion and surrender of

easements by easementinstrument

9OB Creation and surrender of

easements on deposit of plan9()C Variation of easements

9OD Rights and powers implied inCertain easements

9OE General provisions relating toeasements

9OF Creating and noting landcovenants

47 New heading and section 99Binserted

Instruments for adoption by otherenactments

99B Forms for instruments avail-

able for adoption by otherenactments

New sections 101 to 103 substituted

101 Forms of mortgage

102 Variation of mortgage terms

103 Variation of priority of

mortgages

New section 111 substituted

111 Discharge of mortgage

50 New sections 115 and 116

substituted

115 Form and registration ofleases

116 Variation of lease


120 Surrender of lease

52 New sections 136 and 137

substituted

136 Caveat against bringing landunder Act

137 Caveat against dealings withland under Act

53 Effect of caveat against dealings54 New section 142 substituted

142 Notices to be given to per-sons affected

55 New section 145A insetted

145A Early lapse of caveat against

dealings

56 New section 147A inserted

147A Electronic registration with

caveator's consent subject to

rights of caveator

57 New sections 148 to 148B

substituted

148 No second caveat may beentered

148A Registrar not required to ver-

ify caveator's entitlement toestate or interest claimed

148B Registrar's powers if caveat

does not comply with this Act


155 Shott forms of covenant


157 Paper instruments to beexecuted

60 New sections 164A to 164E

inserted

164A Certification

164B Who may give certification164C Retention of evidence and

audit of certifications

164D Requirements about execution

do not apply if certification

given164E Effect of certification


167A Deposit documents

73

74

75

70

71

72

62

65

66

67

68

69

63

64

69A

76

77


Survey Legislation

New section 205 substituted

205 Caveats in respect of applica-tions under this Part

Fees or chargesNew section 236 substituted

236 Regulations

New sections 237 and 238

substituted

237 When paper instrument is in

acceptable form238 Content of paper forms

New sections 239 to 24OD

substituted

239 Description of person toinclude personal

representative240 How Registrar gives public

notice

24OA Specifications by Registrar

24OB Notice by Registrar to parti-cular persons

240C Notices to Registrar24OD When notices taken to be

delivered

Repeals

Other amendments to principal Actand amendments to other Acts

Transitional provisions relating toeasements

Transitional provisions relating tolandbrokers

Part 2

Cadastral survey

Subpart 1-Preliminary provisions

Commencement

Purpose

Interpretation

Subpart 2--Administration

Surveyor-General

Surveyor-General

Deputy Surveyor-GeneralFunctions and duties of Surveyor-General

Delegation of Surveyor-General' sfunctions, duties, and powers

Chief executive

Functions of chief executive

Cadastral Surveyors Licensing Board ofNew Zealand

78 Cidnetral Surveyors LicensingBoard of New Zealand

79 Functions and duties of Board

80 Powers of Board

81 Membership of Board

82 Further provisions relating to Boardand its members

83 Liability of members and

employees

84 Application of fees received byBoard

85 Fees and allowances

86 Unauthorised expenditure87 Accounts

88 Annual report

Subpart 3-Licensing of cadastral surveyors

89 Register of cadastral surveyors

91 Entitlement of applicant for licence

92 Character of applicant

93 Applications for licence94 Board to consider applications95 Board to license applicant or

decline application96 Duration of licence

97 Renewal of licence

98 Cadastral surveyor to notify changeof business address

99 Amendment of register on changeof name and removal of name on

request100 Offences relating to licences

10OA Transitional provision: registeredsurveyors

1008 Transitional provision: applicationsto be registered surveyor

Subpart 4-Discipline

101 Professional misconduct

102 Complaints of professionalmisconduct

103 Vexatious or trivial complaints104 Procedure if Board accepts

complaint105 Hearing of complaint106 Disciplinary powers of Board107 Powers and rights of Board and per-

sons involved in proceedings ofBoard

108 Appeals from decisions of Board109 Suspensions and conditions must be

entered in register110 Surrender of licences

111 Publication of orders

112 Copies of rules and procedures to

be made available on request113 Transitional provision

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4

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2

Cl 1


Survey Legislation

Subpart 5-Conduct of cadastral surveys

114 General duties in relation to cadas-

tral surveys115 Regulations116 Surveyor-General may make rules

about conduct of cadastral

surveying

116A Transitional provision: Surveyor-General's rules

116B Expiry of section 116A117 Correction of errors in survey118 Powers of entry for cadastral survey

purposes

Subpart 6-Offences and penalties

119 Obstruction of cadastral surveyor120 Interference with cadastral survey

marks

121 False cadastral survey marks122 Unlicensed persons not to act as

licensed cadastral surveyors123 Offences relating to terms implying

person is licensed cadastral

surveyor

Infringement ofences

124 Infringement offences125 Commission of infringement

offence

126 Infringement notices127 Payment of infringement fees128 Regulations

Subpart 7-Dissolution of Survey Board ofNew Zealand and New Zealand Institute of

Surveyors

129 Dissolution of Survey Board ofNew Zealand

130 Dissolution of New Zealand Insti-

tute of Surveyors

Subpart 8-Miscellaneous131 Certification of plans and

descriptions132 Certificate by or on behalf of Board

to be evidence of being licensed, etc133 Consequential amendments and

repeals134 References in other enactments

Schedule 1

Other amendments to principal Act

coming into force on 1 June 2002

Schedule 2

Other amendments to principal Act

coming into force on date to be appointed

by Order in Council

Schedule 3

Amendments to Deeds RegistrationAct 1908

Schedule 4

Amendments to other Acts

Schedule 5

Further provisions applying to Board

Schedule 6

Professional misconduct

Schedule 6A

Amendments to Survey Act 1986 andSurvey Regulations 1998 for purposes of

section 116A(1)Ca)(ii)

Schedule 7

Acts amended

Schedule 8

Enactments repealed or revoked

The Parliament of New Zealand enacts as follows:

Title

This Act is the Land Transfer and Cadastral Survey Legisla-tion Act 2001.

Commencement

This Act comes into force as provided in sections 3 and 70. 5


Survey Legislation Part 1 cl 5

Part 1

Land Transfer (Computer Registers and ElectronicLodgement) Amendment

Subpart 1-Preliminary provisions3 Commencement of this Part 5

(1) Except as provided in subsections (2) and (3), this Part and Sched-ules 1, 3, and 4 come into force on 1 (Aprill June 2002.

(2) Sections 47,63, and 64 come into force on the day after the dateon which this Act receives the Royal assent.

(3) Sections 45,46,48 to 55,57,59,61,62,65,67(1), 68(2), (and 69) 69, 10

and 69A, and Schedule 2 come into force on a date to be

appointed by the Governor-General by Order in Council; and1 or more Orders in Council may be made bringing differentprovisions of that section into force on different dates.

4 Land Transfer Act 1952 called principal Act in this Part 15In this Part, the Land Transfer Act 19521 is called *'the princi-pal Act".1 1952 No 52

5 Purposes of this PartThe purposes of this Part are-

(a) to enable information technology to be used for the 20following purposes:

(i) registering instruments, dealings, and other mat-ters under the principal Act:

(ii) recording and storing particulars of instruments,dealings, and other matters relating to land and 25title to land registered under the principal Act:

(iii) preparing and lodging electronic instruments;and


1 1

(b) to enable the things referred to in parag,aph (a) to be donein a manner that preserves the integrity and underlying 30purposes and principles of the principal Act:1 1

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Part 1 cl 5


Survey Legislation

New (unanimous)

(b) to enable the things referred to in paragraph (a) to be donein a manner that-

(i) preserves the integrity and underlying purposes

and principles of the principal Act; and(ii) does not affect the right to claim compensation 5

under Part XI of the principal Act; and

(c) otherwise to provide for the more efficient operation ofthe principal Act.

6 Interpretation

In this Act, unless the context otherwise requires,

New (unanimous)

chief executive means the chief executive of the departmentof State that, with the authority of the Prime Minister, is forthe time being responsible for the administration of this Act

computer freehold register means a computer freeholdregister created by the Registrar under section 9 15

computer interest register means a computer interest regis-ter created by the Registrar under section 11

computer register means all or any of a computer freeholdregister, computer interest register, or computer unit titleregister, as the case requires 20

computer unit title register means a computer unit titleregister created by the Registrar under section 13

conveyancer means--

(a) a landbroker licensed by the Registrar under section229 of the principal Act; or 25

(b) a person who holds a current practising certificate undersection 57 of the Law Practitioners Act 1982

electronic instrument means an instrument of a class speci-

fied in regulations made under section 236(1)((g))@ of the princi-pal Act that has been prepared in an electronic workspace 30facility

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1 1

1 1

1 1



electronic transactions land has the meaning set out insection 27

electronic workspace facility means a facility approvedunder section 24(1) for use in preparing electronic instrumentsfor presentation to the Registrar 5

medium includes-

(a) any electronic, electromagnetic, optical, digital, or pho-tographic process or system; and

(b) any paper; and

(c) any other means of recording, reproducing, copying, or 10storing information

New (unanimous)

Minister means, subject to any enactment, the Minister of theCrown who, under the authority of any warrant or with theauthority of the Prime Minister, is for the time being responsi-ble for the administration of this Act 15

register means the register referred to in the principal Act

unique identifier means a combination of letters or numbers,

or both, by which a computer register or an instrument orother document is, or is to be, uniquely identified.

Subpart 2-Computer registers and 20electronic instruments

7 Registrar may authorise registration in any medium

The Registrar may authorise the registration or deposit ofinstruments, and the recording of information, in any medium.

8 Recording and registration of certain matters to be 25effected under this Act

If land is subject to this Act,-

(a) that land does not cease to be subject to the principalAct; and

(b) every matter required by the principal Act, or any other 30enactment, to be entered, noted, deposited, recorded,

registered, or specified in respect of the land under the

principal Act must instead be done under this Act; and

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8

9

Part 1 cl 8

(1)

(2)

(3)

(4)

10

(C)

(d)


Survey Legislation

in the case of electronic instruments, every matter

required by the principal Act must, if provision is madefor it in this Act, instead be done under this Act; and

the principal Act and every other enactment has effectaccordingly. 5

Creation of computer registers

Creation of computer freehold registers for freeholdland

The Registrar may create a computer freehold register for anyfreehold interest in land that is subject to the principal Act. 10

If a computer freehold register is created for any land, the landbecomes subject to this Act and remains subject to the princi-pal Act.

If a computer freehold register for any land is created underthis section,- 15

(a) the relevant folium established under section 33 of the

principal Act is closed; and(b) if the land is not electronic transactions land, a certifi-

cate of title must be issued under section 17, but, until

that occurs, the certificate of title issued under the prin- 20cipal Act remains in force; and

(c) if any instrument has been registered or deposited underthe principal Act in respect of that land, or is subse-quently lodged for registration or deposit, the instru-ment may be held in its definitive form as determined 25

by the Registrar.

The Registrar need not create a computer freehold register forany land in any particular case if, in his or her opinion, it is notexpedient to do so.

Content of computer freehold registers 30

Each computer freehold register must comprise-(a) the unique identifier for that computer freehold register;

and

(b) a description of the land in a form determined by theRegistrar from time to time; and 35

(c) the unique identifier for each instrument relevant to the

land and the information necessary to enable its priorityto be determined; and



(d) the name of the registered proprietor of the freeholdinterest in the land; and

(e) any minority or other restriction on the legal capacity ofthe registered proprietor that is known to the Registrar;and 5

(f) any other information or matter-

(i) that is required to be included by any Act orregulations; or

(ii) that is set out in any form prescribed by the prin-cipal Act for certificates of title and that the Reg- 10istrar considers appropriate to include; or

(iii) that the Registrar considers appropriate to giveeffect to the requirements of any Act orregulations.

11 Creation of computer interest registers 15(1) In this section and in section 12, interest means-

(a) a lease registered or to be registered under the principalAct; or

(b) any matter or interest less than the freehold incor-porated or embodied as a folium of the register under 20the principal Act; or

(c) any matter or interest embodied as a folium of theprovisional register; or

(d) any other matter incorporated or embodied in any otherregister in a Land Registry Office; or 25

(e) any proclamation or notice published in the Gazene andregistered or to be registered in a Land Registry Office.

(2) The Registrar may create a computer interest register for anyinterest that is required or permitted to be registered.

(3) If a computer interest register is created for any interest, the 30interest becomes subject to this Act and, if subject to theprincipal Act, remains subject to the principal Act.

(4) The Registrar need not create a computer interest register forany interest in any particular case if, in his or her opinion, it is

not expedient to do so. 35

(5) If the principal Act or any other enactment directs or empow-ers the Registrar to incorporate or embody any registeredinterest or any other matter as a folium of the register orprovisional register, or in any other register in a Land Registry

9

(2)

12

(1)

Part 1 cl 11

(6)

(3)

10


Survey Legislation

Office, it is sufficient if the Registrar instead creates a com-puter interest register for that interest.

A requirement in any enactment to certify, endorse, note,notify, or record any matter, information, or thing against, in,or on any instrument for which the Registrar has created a 5computer interest register is satisfied if the Registrar recordsthe matter, information, or thing in the computer interestregister.

Content of computer interest registersEach computer interest register must comprise- 10(a) the unique identifier for that computer interest register;

and

(b) a general description of the interest; and(c) a reference to the instrument that creates the interest;and 15

(d) the unique identifier for each instrument relevant to theinterest and the information necessary to enable its pri-ority to be determined; and

(e) the date on which the interest was registered; and(f) the name of the registered proprietor of the interest or a 20

reference to the instrument stating that name; and(g) any minority or other restriction on the legal capacity of

the registered proprietor that is known to the Registrar;and

(h) any other information- 25(i) that is required to be included by any Act or

regulations; or

(ii) that the Registrar considers appropriate to giveeffect to the requirements of any Act orregulations. 30

If the interest to which the computer interest register relates isa lease registered or to be registered under the principal Act,the register may also include any provisions set out in anyform prescribed by the principal Act for certificates of titlethat the Registrar considers appropriate to include. 35

A reference in the computer interest register to the instrumentcreating the interest to which the register relates takes effect asif the instrument were fully set out in the register.



13 Creation of computer unit title registers

( 1) The Registrar may create a computer unit title register for astratum estate in freehold or a stratum estate in leasehold,within the meaning of the Unit Titles Act 1972.

(2) If a computer unit title register is created in respect of any 5principal unit (and any associated accessory units) and anyfuture development units under the Unit Titles Act 1972,-(a) the unit or units become subject to this Act and remain

subject to the Unit Titles Act 1972 and the principalAct; and 10

(b) the relevant folium established under section 33 of the

principal Act is closed; and(c) if the unit is not electronic transactions land, a certifi-

cate of title must be issued under section 17, but, until

that occurs, the certificate of title issued under the prin- 15cipal Act remains in force; and

(d) if any instrument has been registered or deposited underthe principal Act in respect of the unit or units, or is

subsequently lodged for registration or deposit, (theinstrument may be held in its definitive form as deter- 20mined by the Registrar) the Registrar may determine,for the purposes of section 29, the definitive form in

which the instrument may be held.

(3) The provisions of this Part apply, to the extent that they areapplicable, and with any necessary modifications, to any unit 25or units in respect of which a computer unit title register hasbeen created as if that register were a computer freeholdregister.

(4) On or after creating a computer unit title register in respect of

a unit, the Registrar may also create, in any medium deter- 30mined by the Registrar, a register-

(a) that must be treated as the supplementary record sheetkept for the relevant unit plan in accordance withsection 20 of the Unit Titles Act 1972; and

(b) that includes every entry on any supplementary record 35

sheet kept in accordance with section 20 of the UnitTitles Act 1972 at the time the register is created; and

(c) that has a unique identifier determined by the Registrar.

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Part 1 cl 13

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Survey Legislation

(5) The Registrar need not create a computer unit title register inrespect of any unit in any particular case if, in his or heropinion, it is not expedient to do so.

14 Content of computer unit title register

Each computer unit title register must comprise- 5(a) the unique identifier for that computer unit title register;

and

(b) the number of the principal unit on the relevant unit

plan and the letter allotted to any associated accessoryunit and any future development unit on that plan; and 10

(c) the unique identifier for each instrument relevant to the

principal unit and any associated accessory unit, and theinformation necessary to enable the priority of theinstrument to be determined; and

(d) a statement that the stratum estate concerned is subject 15to the reservations, restrictions, encumbrances, liens,

and interests that are notified by memorial or by a

unique identifier on the computer unit title register andon the relevant unit plan and the supplementary record

sheet for the plan kept in accordance with section 20 of 20the Unit Titles Act 1972; and

(e) the name of the registered proprietor of the stratumestate concerned; and

(f) any minority or other legal restriction on the legal capa-city of the registered proprietor that is known to the 25Registrar; and

(g) any other information that is required to be included byany Act or regulations, or that the Registrar considers

appropriate to give effect to the requirements of any Act

or regulations. 30

15 Composite computer registers

(1) If the Registrar considers it appropriate, he or she may create acomposite computer register comprising all or any of a com-puter freehold register, computer interest register, and com-puter unit title register. 35

(2) Composite certificates of title for land that is not electronic

transactions land may be issued accordingly.

16

17

(1)

(2)

(3)

(4)

(5)

18

(1)



Format of computer registersA computer register may be held or stored in any medium orcombination of media that will enable it to be maintained or

accessed for the purposes of this Act and the principal Act, orfor any other lawful purpose. 5

Certijtcates of title for land that is not electronictransactions land

Issue of certificates of title for land that is not electronic

transactions land

This section applies to land subject to this Act that is not 10electronic transactions land.

When acting under section 18(2), (3), (4)(a), or (4)(b), the Registrarmust-

(a) prepare a new certificate of title; and(b) cancel any other relevant certificate of title relating to 15

the land that is in the Registrar' s custody and issue thenew certificate in its place; and

(c) give the new certificate to the person who would other-wise be entitled to receive the certificate of title.

The Registrar may not issue a certificate of title under sub- 20section (2) unless any previous relevant certificate of title hasbeen produced and cancelled or unless the Registrar has dis-pensed with production of the previous relevant certificate oftitle and that dispensation is recorded in the new certificate oftitle. 25

The format of the certificate of title issued under this section

must be determined by the Registrar and must include a repre-sentation of the New Zealand Coat of Arms and the seal of the

Registrar.

When creating a computer interest register for a lease regis- 30tered under this Act, the Registrar must issue a leaseholdcertificate of title, and the provisions of subsection (2) applywith any necessary modifications.

Directions and authorisations for land that is not

electronic transactions land 35

This section applies to land subject to this Act that is notelectronic transactions land.

13

Part 1 cl 18

(2)

(3)

(4)

(5)

(6)

(7)

19

(1)

14


Survey Legislation

When an application or request is made for a certificate of titleunder any enactment for any purpose, including any amalga-mation, subdivision, or separation, the Registrar may insteadcreate the appropriate computer register and issue a certificateof title under section 17. 5

If the Registrar is authorised or directed by any enactment toissue a certificate of title, the Registrar may instead create acomputer register and issue a certificate of title under section17.

If any enactment contains an authorisation or direction of a 10type described in subsection (5), the Registrar may instead doeither or both of the following:(a) make an equivalent entry in a computer register:(b) create an appropriate computer register.

Subsection (4) refers to an authorisation or direction to-- 15

(a) make an entry in the register; or(b) enter a memorandum in the register or endorse one on a

certificate of title or on a duplicate certificate of title; or(c) amend a certificate of title; or

(d) make any other entry or endorsement or notation in the 20register or on a certificate of title or on a duplicatecertificate of title; or

(e) file or deposit any instrument or covenant, notice, orresolution in a Land Registry Office.

If any enactment contains an authorisation or direction to 25certify, endorse, note, notify, or record any matter, informa-tion, or thing against, in, or on a document held in any LandRegistry Office, the Registrar may instead make an appropri-ate entry in a computer register.

If the Registrar takes action under subsection (4) or subsection (6) 30in relation to an authorisation or direction, a requirementunder any enactment that the Registrar take action in relationto a duplicate or triplicate of a document affected by thatauthorisation or direction does not apply.

References to certificates of title for land that is not 35

electronic transactions land

This section applies to references to certificates of title inrelation to land subject to this Act that is not electronic trans-actions land.

21

20

(1)

(2)

(3)

(4)

(5)

(2)

(1)

(2)

(3)



A reference in the principal Act, or the Unit Titles Act 1972,to a certificate of title that is a reference to a folium of the

register must be read as a reference to the appropriate com-puter register.

A reference in the principal Act, or the Unit Titles Act 1972, 5to a certificate of title or duplicate certificate of title that is areference to a certificate of title issued or capable of beingissued to the registered proprietor of an estate or interest inany land must be read in relation to an estate or interest forwhich a certificate of title has been issued under section 17 as a 10

reference to that certificate of title.

A reference in any enactment to the issue of a certificate oftitle must be read as a reference to the creation of a computerregister and the issue of a certificate of title.

A reference in section 7 or section 8 of the Unit Titles Act 15

1972 to a certificate of title in relation to a stratum estate for

which the Registrar has prepared a certificate of title undersection 17 must be read as a reference to that certificate of

title.

No certificates of title for electronic transactions land 20

No certificates of title for electronic transactions land

The registrar must not issue a certificate of title for electronictransactions land.

If land is declared under section 27 to be electronic transactions

land, all (current) certificates of title (whether referred to as 25certificates of title or outstanding duplicate certificates of title)for the land are cancelled as from the date on which the

declaration takes effect.

Directions and requirements for electronic transactionsland 30

This section applies to land subject to this Act that is elec-tronic transactions land.

A requirement or authorisation for the Registrar to issue acertificate of title is satisfied by creating an appropriate com-puter register. 35

A requirement that any person produce or deliver a certificateof title does not apply.

15

Part 1 cl 21

(4)

(5)

(6)

(7)

(8)

(9)

22

(1)

(2)

16


Survey Legislation

A requirement or authorisation for the Registrar to cancel a

certificate of title is satisfied by doing an act in relation to acomputer register that has the same effect.

A reference in any enactment for the purpose of describing a(unit) parcel of land must be read as a reference with 5

equivalent effect to a computer register.

If any enactment contains an authorisation or direction of a

type described in subsection (7), the Registrar may instead do

either or both of the following:(a) make an equivalent entry in a computer register: 10(b) create an appropriate computer register.

Subsection (6) refers to an authorisation or direction to--

(a) make an entry in the register; or

(b) enter a memorandum in the register or endorse one on acertificate of title or on a duplicate certificate of title; or 15

(c) amend a certificate of title; or

(d) make any other entry or endorsement or notation in theregister or on a certificate of title or on a duplicatecertificate of title; or

(e) file or deposit any instrument or covenant, notice, or 20resolution in a Land Registry Office.

If any enactment contains an authorisation or direction to

certify, endorse, note, notify, or record, any matter, informa-tion, or thing against, in, or on a document held in any LandRegistry Office, the Registrar may instead make an appropri- 25ate entry in a computer register.

If the Registrar takes action under subsection (6) or subsection (8)in relation to an authorisation or direction, any requirementunder any enactment that the Registrar take action in relationto a duplicate or triplicate of a document affected by that 30authorisation or direction does not apply.

References to certificates of title for electronic

transactions land

This section applies to references in any enactment to certifi-cates of title in relation to land subject this Act that is elec- 35tronic transactions land.

A reference to a folium of the register must be read as areference to the appropriate computer register.

(3)

(4)

23

(1)

(2)

24

(1)

(2)

(3)



A reference to a certificate of title or duplicate certificateissued or capable of being issued to the registered proprietorof an estate or interest in any land must be read as a reference

to the appropriate computer register.

A reference to a certificate of title in section 7 and section 8 of 5

the Unit Titles Act 1972 in relation to a stratum estate must be

read as a reference to the appropriate computer register.

Easements

How easement recorded

Whenever any easement or incorporeal right (other than an 10annuity or rentcharge) in or over any land under this Act or theprincipal Act is created for the purpose of being annexed to, orused and enjoyed together with, other land under this Act orthe principal Act, the Registrar must enter a unique identifieror a memorial of the instrument creating that easement or 15incorporeal right on the computer register and any certificateof title for the other land.

That memorial or unique identifier has, as from the date of itsentry, the effect of including the easement or incorporeal rightin the computer register and certificate of title (if any). 20

Electronic instruments

Electronic workspace facilities

The Registrar may approve 1 or more electronic workspace

facilities for use in the preparation of electronic instrumentsfor presentation to the Registrar. 25

The Registrar must not approve an electronic workspace facil-ity unless he or she is satisfied that adequate provision is madeto ensure that--

(a) instruments prepared in the facility comply with therequirements of this Act and the principal Act when 30lodged; and

(b) the Registrar is able to carry out his or her functionsunder this Act.

The Registrar may monitor activities in any electronic work-

space facility for the purpose of detecting fraud or improper 35

dealings.

17

1

Part 1 cl 24

18


Survey Legislation

(4) The Registrar may withdraw approval of any electronic work-space facility at any time if the facility fails to meet therequirements referred to in subsection (2).

(5) The chief executive may (but is not required to) provide anapproved electronic workspace facility. 5

(6) If the chief executive does provide an electronic workspacefacility, he or she may-

(a) set conditions for its use, including (the payment ofcharges) his or her right to carry out audits to ensure aperson's compliance with the conditions, and prevent 10its use by persons who do not comply with the condi-tions; and

(b) monitor activities in it for the purpose of maintaining itseffectiveness and efficiency.

25 When electronic instruments are in order for 15

registration

(1) An electronic instrument is in order for registration if-(a) the instrument has been prepared in an electronic work-

space facility approved by the Registrar; and(b) the instrument is in an acceptable form; and 20(c) the instrument contains or is associated with a certifica-

tion under section 164A of the principal Act; and


(d) the instrument is otherwise in order for registration.

New (unanimous)

1

(d) in respect of any matter not provided for in this Act, theinstrument is in order for registration under the princi- 25pal Act.

(2) If an electronic instrument is not in order for registration,-(a) the Registrar must notify the person who submitted the

instrument, and that notification constitutes an effective

return of the instrument under section 43(1)(a) of the 30

principal Act; and

1 1

1 1

26

27

(1)

(1)

(2)

(3)

(4)

(2)



(b) section 43 of the principal Act applies with any neces-sary modifications.

Electronic lodgement may be made compulsory forconveyancers

The Governor-General may, by Order in Council made on the 5recommendation of the Minister, apply this section toconveyancers.

The Minister must not make a recommendation under sub-

section (1) unless-

(a) he or she is satisfied that the organisations that he or she 10considers are representative of conveyancers have beenconsulted; and

(b) an (approved) electronic workspace is available.

If this section applies, conveyancers may only lodge instru-ments of a specified class electronically and not otherwise 15unless-

(a) the conveyancer has been barred from giving certifica-tions under section 1648 of the principal Act; or

(b) the Registrar has determined that it is impractical orinappropriate to present an instrument electronically. 20

The Registrar may refuse to accept a paper instrumentpresented by any person if he or she believes on reasonablegrounds that acceptance of the paper instrument would defeatthe purpose of an Order in Council made under subsection (1).

Electronic transactions land 25

Land is electronic transactions land if it is subject to this Actand-

(a) the Registrar makes an entry (to that e#ect on a com-

puter register) on a computer register to the effect thatthe land is electronic transactions land; or 30

(b) the Registrar has, by notice in the Gazette, declared theland to be electronic transactions land; or

(c) the land forms part of an area of land (in a Land Regis-tration District) that the Registrar has, by notice in theGazette, declared to be electronic transactions land. 35

Land ceases to be electronic transactions land if-

(a) the Registrar makes an entry to that effect on a com-puter register; or

19

Part 1 cl 27

20


Survey Legislation

(b) the Registrar has, by notice in the Gazette, declared thatthe land is no longer to be regarded as electronic trans-actions land; or

(c) the land forms part of an area of land (in a Land Regis-tran'on District) that the Registrar has, by notice in the 5Gazette, declared no longer to be electronic transactionsland.

28 Acceptable forms for electronic instruments(1) An electronic instrument is in an acceptable form only if it is

in a form specified by the Registrar. 10

(2) Without limiting subsection (1), a specification under that sub-section may relate to-

(a) the information contained in the form:

(b) the electronic fonnat to be used:

(c) the way a certification is included in, or associated with, 15the form.

(3) Despite any rule of law to the contrary, an electronic instru-ment need not contain an operative provision that gives effectto the object of the instrument.

Registration and access to register 10

29 Registrar's copy of instrument to be definitive

(1) Whenever, after the commencement of this Act, an instrument

or other document is presented to the Registrar under theprincipal Act, this Act, or any other Act, the Registrar may-(a) produce, as often as the Registrar thinks necessary, a 25

record or copy or image of the instrument or documentin any medium determined by the Registrar; and

(b) return the instrument or document (and any extra copiespresented) to the person who presented it with an indi-cation that it has been copied or imaged under this 30subsection unless the instrument or document needs to

be retained to enable the copy or image to beunderstood.

(2) When the Registrar produces, under subsection (1), a record orcopy or image of an instrument or other document and accepts 35the record or copy or image for the purposes of registrationunder section 32 or the performance of any other statutoryfunction, the record or copy or image must be taken to be the

(3)

(4)

(5)

(6)

1

30

(1)

(2)

(3)



definitive form of the instrument or document on and from the

day on which it was presented to the Registrar.

The Registrar may produce a record or copy or image of-(a) any instrument in respect of which registration has been

completed under the principal Act; or 5(b) any other document that has been deposited under the

principal Act.

When the Registrar produces, under subsection (3), a record orcopy or image of an instrument or other document, the recordor copy or image must be taken to be the definitive form of the 10instrument or other document.

In the absence of proof to the contrary, every matter arisingunder the principal Act or this Act relating to an instrument orother document recorded or copied or imaged under thissection must, for all purposes, be effected and determined as if 15the instrument or other document had been presented in thatform.

If the Registrar acts under subsection (1), section 38(1) of theprincipal Act does not apply.


Instrument presented but copying, imaging, or 20instrument defective

In addition to the powers under section 43 of the principal Act,the Registrar may refuse to complete or proceed with theregistration of an instrument, to do any act, or to make anyentry if the copying or imaging of the instrument, any related 25instrument, or the instrument itself has proved to be defectivefor any reason or corrupted.

If subsection (1) applies, the Registrar must notify the personfrom whom the instrument was received and arrange for it tobe resubmitted for copying or imaging. 30

If this section applies,-

(a) the priority of the instrument is not affected so long asthe instrument is resubmitted within 2 months or anyother period that the Registrar may allow; and

1

21

Part 1 cl 30

22


Survey Legislation


1 1

(b) the Registrar must contribute, to the extent prescribed,to the costs or expenses incurred in resubmitting theinstrument; and

(c) if any instrument is not resubmitted in accordance withthis section within the period applicable under paragraph 5(a), it must be treated as not having been presented forregistration.1 1

New (unanimous)

30 Instrument presented but copying, imaging, or datacapture defective

(1) In addition to the powers under section 43 of the principal Act, 10the Registrar may refuse to complete or to proceed with theregistration of an instrument, to do any act, or to make anyentry if, after the instrument has been presented, for anyreason it is impracticable,-(a) in the case of a paper instrument, to properly copy or 15

image it; or

(b) in the case of an electronic instrument, to properlycapture the data in it.

(2) If subsection (1) applies, the Registrar must notify the personfrom whom the instrument was received and arrange for it to 20be resubmitted.

(3) If subsection (1) applies,-(a) the priority of the instrument is not affected so long as

the instrument is resubmitted within 2 months or anyother period that the Registrar may allow; and 25

(b) the Registrar must contribute, to the extent prescribed,

to the costs or expenses incurred in resubmitting theinstrument; and

(c) if any instrument is not resubmitted in accordance withthis section within the period applicable under paragraph 30(a), it must be treated as not having been presented forregistration.

1 1

1 1

31

32

(1)

(2)

33

(1)

(2)

(3)

34

35

(1)



Unique identifiersThe Registrar may assign a unique identifier-(a) for every instrument or other document presented to,

deposited with, or registered by the Registrar; and(b) for every computer register created by the Registrar. 5

How registration effected

The registration of an instrument or other matter under thisAct is effected when a unique identifier for the instrument ormatter is entered in the relevant computer register.

Section 34 of the principal Act does not apply if registration is 10effected under this Act.

Information to become part of register

All information at any time registered under this Act is part ofthe register.

This section does not affect the limitation imposed by section 15155A(5) of the principal Act.

This section does not apply to any information if any otherenactment expressly provides that the information does notform part of the register.

Information to be retained 20

All information at any time recorded in a computer registermust be retained by the Registrar either in the computer sys-tem or elsewhere, even if-

(a) the information was erroneous and has been corrected;or 25

(b) the information is an old description that has beensuperseded; or

(c) the information was, but is no longer, current informa-tion; or

(d) the computer system is no longer being maintained. 30


Rights to search and copy informationThe right to have access to the register for the purpose ofinspection under section 46 of the principal Act does not apply

to computer registers.

23

1

(5)

35

(1)

(2)

Part 1 el 35

(3)

(4)

(6)

24


Survey Legislation


The following rights and powers have effect as provided for insubsections (3) to (6):

(a) the power of the Registrar to provide a search copyunder section 45A of the principal Act:

(b) the power of the Registrar to provide a copy of an 5instrument under any other enactment:

(c) the right of a person to receive a copy of an instrumentunder any enactment.

The rights and powers referred to in subsection (2) have effectas rights to receive and powers to provide,- 10(a) in the case of an instrument recorded or registered in the

medium of paper, a paper document that is a copy ofthat instrument; or

(b) in the case of an instrument recorded in a medium other

than paper, a paper document that records the content of 15the instrument and complies with section 37(a) and (b).

The rights and powers referred to in subsection (2) also haveeffect as rights to receive and powers to provide informationin forms other than in paper document form, if the chiefexecutive so determines. 20

The chief executive may make a determination under sub-section (4) subject to conditions specified by him or her.

The rights and powers referred to in subsection (2) are subject tothe payment of any fee or charge-

(a) prescribed in regulations; or 25(b) provided for in any contract or arrangement entered into

by the chief executive; or

(c) set by the chief executive as a condition of using anyservice or facility.

1

New (unanimous)

Rights to search and copy information 30The right to have access to the register for the purpose ofinspection under section 46 of the principal Act does not applyto computer registers.

1 1

1 1


Survey Legislation

New (unanimous)

Part 1 cl 36

(2) The following have effect as provided for in subsections (3) to

(6):

(a) the power of the Registrar to provide a search copyunder section 45A of the principal Act:

(b) the power of the Registrar to provide a copy of an 5instrument under any other enactment:

(c) the right of a person to receive a copy of an instrumentunder any enactment.

(3) The right and the powers referred to in subsection (2) have

effect individually as a right to receive and a power to 10

provide,-

(a) in the case of an instrument recorded or registered in the

medium of paper, a paper document that is a copy ofthat instrumentS or

(b) in the case of an instrument recorded in a medium other 15

than paper, a paper document that records the content ofthe instrument and complies with section 37(a) and (b).

(4) In addition, the right and the powers referred to in subsection (2)have effect individually as a right to receive and a power to

provide information in forms other than in paper document 20form if the chief executive so determines.

(5) The chief executive may make a determination under sub-

section (4) subject to conditions specified by him or her.

(6) The exercise of the right or of any power referred to in sub-section (2) is subject to the payment of any fee or charge 25

prescribed in regulations.

Evidentiary provisions

36 Evidentiary effect of certificates of title and computer

registers

(1) This section applies to a document or instrument that- 30(a) either-

(i) appears to record the contents of a computer

register under this Act; or(ii) if the land is not electronic transactions land,

appears to be in the form prescribed for a certifi- 35cate of title; and

25

1 1

1 1

Part 1 cl 36

26


Survey Legislation

(b) does not appear to have been altered in any way.

(2) The document or instrument-

(a) must be received in all courts as evidence of-

(i) the information it contains; and

(ii) the recording of that information in the register; 5and

(b) is conclusive evidence that, at the time it was issued, theinformation shown on it identified all of the interests

and other matters in the computer register concerned;and 10

(c) unless the contrary is proved by the production of astatement by the Registrar under subsection (3), is conclu-sive evidence that-

(i) the person named in the certificate or computerregister (or in any information forming part of it) 15as holding an estate or interest in land to which itrelates holds that estate or interest as from the

date of the certificate or as from the date from

which it is expressed to take effect; and(ii) the land to which it relates is subject to the princi- 20

pal Act and this Act.

(3) In the absence of proof to the contrary, a statement certified byor on behalf of the Registrar as to any matters recorded underthis Act is conclusive evidence of those matters.

(4) In the absence of proof to the contrary, the fact that a state- 25ment relating to any matter referred to in subsection (3) purportsto be certified by or on behalf of the Registrar is conclusiveevidence that it is certified by or on behalf of the Registrar.

37 Computer printout, etc, admissible in evidenceIf an instrument is recorded or registered in any medium other 30than paper, a document that records the contents of the instru-ment is admissible in evidence if the document-

(a) is generated by or produced from the computer system;and

(b) is in a readily understandable form; and 35(c) is certified by or on behalf of the Registrar as a true

representation of the instrument.

38

39

40

(1)

(1)

(2)

(2)

(3)


Survey Legislation Part 1

Sections 65 to 69 of principal Act excluded

Certain provisions of principal Act not to apply tocertificates of title issued under this Act

Sections 65 to 69 of the principal Act do not apply in relationto any land or interest if a computer register has been created 5under this Act for the land or interest.

Administration

Abolition of offices of Registrar of Deeds and DeputyRegistrar of Deeds

The offices of Registrar of Deeds and Deputy Registrar of 10Deeds under the Deeds Registration Act 1908 are abolished.

No compensation is payable to any holder of the office ofRegistrar of Deeds or Deputy Registrar of Deeds by reason ofthe abolition of the offices in subsection (1).

Statutory references to District Land Registrars 15This section applies to every reference in any enactment otherthan this Act to-

(a) a District Land Registrar generally; or(b) the District Land Registrar of a specified district; or(c) the District Land Registrar of the district in which any 20

land is situated.

Every reference to which this section applies must be read as areference to the Registrar.

The references to a Registrar in sections 225 and 226 of theprincipal Act include District Land Registrars. 25

Subpart 3-Amendments to Land Transfer Act 1952


1 1

41 Interpretation

Section 2 of the principal Act is amended by inserting, afterthe definition of mortgagor, the following definition:

"prescribed form means a form prescribed by regulations 30made under this Act, or specified or approved by theRegistrar".

1 1

27

28

(1)

Part 1 cl 42


Survey Legislation

42 Registrar-General of Land


Section 4(2) of the principal Act is amended by omitting thewords "is a barrister and solicitor of the High Court", andsubstituting the words "is qualified, because of his or her skilland expertise, to exercise or perform the powers and duties of 5that office or that particular power or duty".

(2) Section 4 of the principal Act is amended by adding thefollowing subsection:

"(3) In exercising or performing the powers and duties of theRegistrar, the Registrar and every delegate of the Registrar 10must have regard to the following objectives:

"(a) ensuring an efficient and effective system for register-ing dealings in land:

"(b) managing the risk of fraud and improper dealings:66

(c) ensuring public confidence in the land titles system: 15

New (unanimous)

"(d) ensuring the maintenance of the integrity of the registerand the right to claim compensation under Part XI."

43 Delegation of Registrar's powers and duties(1) Section 5(1) of the principal Act is amended-

(a) by inserting, after the words "any employee of the chief 20executive of the Department", the words "or any other

suitable person":(b) by inserting, after the words "powers or duties", the

words "under this Act or any other Act".

(2) Section 5 of the principal Act is amended by adding the 25

following subsection:

"(8) If any person who is not an employee of the chief executive ofthe Department is purporting to act under a delegation underthis section, that person is presumed to be acting in accor-dance with the terms of a delegation in the absence of proof to 30the contrary but must provide evidence of the delegation if sorequested."

1 1

1 1


Survey Legislation Part 1

Struck out (unanimous)1 1


The principal Act is amended by inserting, after section 46,the following section:

"47 Presentation of instruments for registration

"(1) A person claiming under an instrument, or anyone acting on 5his or her behalf, may present the instrument-

"(a) by hand at the public counter in the Land RegistryOffice for the district in which the land is situated; or

"(b) by depositing the instrument in a secure facility pro-

vided for that purpose in the Land Registry Office for 10the district in which the land is situated; or

"(c) by posting it to the Registrar at the Land Registry Officefor the district in which the land is situated.

"(2) Subject to subsections (3), (4), and (5), an instrument presented for

registration under this section has priority as provided in 15section 37.

"(3) An instrument presented in the manner provided in subsection

(1)(b) or (c) is deemed to have been presented for registrationon the business day after the day on which it is received by the

Registrar and before any other matter presented on the day of 20

registration in relation to the same land.

"(4) Any caveat of any kind or notice of claim under the Matrimo-nial Property Act 1976 that is presented to the Registrar in themanner provided in subsection (1)(b) or (c) is deemed to have

been presented for entry after any other instrument presented 25

to the Registrar in the same manner on the same day.

"(5) Except where subsection (4) applies, if 2 or more instruments

are received in the manner provided in subsection (1)(b) or (c),they have priority as between themselves,-

"(a) if section 41(2) applies to the instruments, in accor- 30

dance with that provision:

"(b) if section 41(2) does not apply to the instruments, in the

order in which they were date and time stamped as

received by the Registrar."1 1

29

Part 1 cl 44

30


Survey Legislation

New (unanimous)



"47 Presentation of instruments for registration

"(1) A person claiming under an instrument, or anyone acting on 5his or her behalf, may present the instrument at a designatedland transfer office-

"(a) by hand at the public counter; or

"(b) by depositing the instrument in a secure facility pro-vided for that purpose; or 10

"(c) by posting it to that office.

"(2) For the purpose of subsection (1), designated land transferoffice means any land transfer office designated for that pur-pose by the Registrar.

"(3) Subject to subsections (4), (5), and (6), an instrument presented for 15registration under this section has priority as provided for insection 37.

"(4) An instrument presented in the manner provided for in sub-section (1)(b) or (c) is deemed to have been presented for regis-tration on the business day after the day on which it is received 20

by the Registrar and before any other matter presented on theday of registration in relation to the same land.

"(5) Any caveat of any kind or notice of claim under the Property(Relationships) Act 1976 that is presented to the Registrar in

the manner provided for in subsection (1)(b) or (c) is deemed to 25have been presented for entry after any other instrumentpresented to the Registrar in the same manner on the sameday.

"(6) Except where subsection (5) applies, if 2 or more instrumentsare received in the manner provided for in subsection (1)(b) or (c), 30they have priority as between themselves,-

"(a) if section 41(2) applies to the instruments, in accor-

dance with that provision:"(b) if section 41(2) does not apply to the instruments, in the

order in which they were date and time stamped as 35received by the Registrar."

1 1

1 1




The principal Act is amended by repealing section 70, andsubstituting the following section:

"70 Removal of easements and profits d prendre fromregister 5

"(1) If any easement or profit d prendre has been determined or

extinguished, or appears to the Registrar to be redundant, theRegistrar must, on proof to his or her satisfaction of the

determination or extinguishment or that the easement isredundant, make an entry to that effect in the register. 10

"(2) For the purposes of subsection (1), an easement may be regardedas redundant if--

"(a) the dominant tenement or any part of it has become

separated from the servient tenement as a result of asubdivision or otherwise; and 15

" (b) the easement no longer (serves) benefits the dominant

land.

"(3) A person who wishes the Registrar to make an entry to the

effect that an easement is redundant must apply to the Regis-trar, and give the Registrar a statutory declaration or declara- 20tions to the effect that specific circumstances exist that meet-" (a) the criteria set out in subsection (2); or

" (b) any other criteria specified by the Registrar for deter-

mining that easements are redundant.


"(4) The Registrar may make an entry that an easement is deter- 25

mined, extinguished, or redundant if-

"(a) he or she has given-

"(i) notice of his or her intention to do so to all per-

sons appearing to him or her to be entitled to anyinterest under the easement; and 30

"(ii) 1 month's public notice of his or her intention todo so; and

"(b) no objections have been received.i

31

Part 1 cl 45

32


Survey Legislation

New (unanimous)

"(4) The Registrar may make an entry that an easement is deter-

mined, extinguished, or redundant if he or she-

"(a) has given notice of his or her intention to do so to all

persons appearing to him or her to be entitled to anyinterest under the easement; and 5

"(b) has given the prescribed period of public notice of his orher intention to do so; and

"(c) no objections have been received.

"(5) The estate or interest of the registered proprietor of the ease-

ment orprojit dprendre and of every person claiming through 10or under the registered proprietor ceases and determines on

the making of the entry in the register, but does not release any

person from any liability to which that person is subject at thetime of the entry.

"(6) The requirement to give notice under subsection (4) does not 15apply if the determination or extinguishment was by effluxionof time or merger."

46 New sections 90 to 9OF substituted

The principal Act is amended by repealing sections 90 to 9OF,and substituting the following sections: 20

"90 Transfers and creation of easements, etc, by registeredproprietor

"(1) A transfer instrument may be used for the purpose of register-ing under this Act-

"(a) the transfer of any land or estate or interest in land; or 25

"(b) the creation of any easement or profit d prendre.


1 1

"(2) A transfer instrument must-

"(a) specify the estate or interest to be transferred or created;and

"(b) include a reference to the register; and 30"(b) specify the person who is to take the interest.1 1

1 1

1 1


Survey Legislation

New (unanimous)

Part 1 cl 46

"(2) A transfer instrument must include the following information:"(a) the estate or interest to be transferred or created, which

must include a reference to the register in the prescribedmanner; and

"(b) the person who is to take the interest. 5

"(3) A transfer instrument must be executed by-

"(a) the registered proprietor of the estate or interest; and"(b) if an easement or profit a prendre is created or the

transfer contains covenants binding on that party, the

person who is to take the interest; and 10

New (unanimous)

"(c) if an easement is reserved, the transferee.

"90A Creation and surrender of easements by easementinstrulnent

"(1) This section does not limit other provisions by which ease-ments may be created or surrendered. 15

"(2) An easement that could be created or surrendered by a transfer

under section 90 may be created or surrendered by an easementinstrument under this section.


1 1

"(3) An easement instrument must,-

"(a) in the case of an easement not in gross, specify by 20

reference to the register the dominant and servient tene-ments; and

"(b) in the case of an easement in gross, specify the servient

tenement and the person to whom the easement is to begranted; and 25

"(c) specify the nature and extent of any easement to becreated; and

"(d) specify the rights and powers that will apply to anyeasement to be created; and

1 1

33

1 1

1 1

1 1

1 1

Part 1 cl 46

34


Survey Legislation


1 1

"(e) specify, by reference to the register number or uniqueidentifier for the instrument that created it, any ease-ment to be surrendered.

1 1

"(3)

"(4)

"(5)

"(6)

New (unanimous)

An easement instrument must include the followinginformation: 5

"(a) in the case of an easement not in gross, the dominantand servient tenements, which must include a reference

to the register in the prescribed manner; and"(b) in the case of an easement in gross, the servient tene-

ment, which must include a reference to the register in 10the prescribed manner, and the person to whom theeasement is to be granted; and

"(c) the nature and extent of any easement to be created; and"(d) the rights and powers that will apply to any easement to

be created; and 15

"(e) any easement to be surrendered, which must include areference to the register in the prescribed manner.

An easement instrument must be executed by, (or on behalfof,)-

"(a) in the case of an easement not in gross, the registered 20proprietors of the dominant and servient tenements; and

"(b) in the case of an easement in gross, the registered pro-prietor of the servient tenement and the grantee.

Easements are created or surrendered under this section when

the easement instrument specifying them is registered. 25

Section 69 of this Act and section ( 17) 23 of the Land Transfer

and Cadastral Survey Legislation Act 2001, with any necessarymodifications, apply to easements created under this section.


"908 Creation and surrender of easements on deposit of plan"(1) The provisions of this section do not limit other provisions by 30

which easements may be created or surrendered.

1 1

1 1




1 1

"(2) An easement that could be created or surrendered by transferunder section 90 may be created or surrendered under thissection.

"(3) The creation of an easement under this section requires that-

"(a) the servient tenement be specified by reference to the 5register; and

"(b) the nature and extent of the easement be specified; and"(c) the rights and powers that will apply to the easement

created under this section be specified by referringwithout modification to applicable rights and powers- 10

"(i) prescribed in regulations; or

"(ii) contained in a memorandum registered undersection 155A.

"(4) The matters set out in subsection (3) may be specified either-"(a) in a deposit document specified by the Registrar under 15

section 167A; or

"(b) on a plan in a form specified under Part 2 of the LandTransfer and Cadastral Survey Legislation Act 2001.

"(5) The consent of the following persons is required for the crea-tion or surrender of easements under this section: 20

"(a) in the case of an easement not in gross, the registeredproprietors of the dominant and servient tenements; and

"(b) in the case of an easement in gross, the registered pro-

prietor of the servient tenement and the grantee.

"(6) Easements are created or surrendered under this section,- 25

"(a) if specified in a deposit document, when the plan towhich that document relates is deposited under section167:

"(b) if specified on a plan, when that plan is deposited undersection 167. 30

"(7) Section 69 of this Act and section 17 of the Land Transfer and

Cadastral Survey Legislation Act 2001, with any necessarymodifications, apply to easements created under this section.1 1

35

Part 1 cl 46

36


Survey Legislation

New (unanimous)

"9OB Creation and surrender of easements on deposit of plan"(1) The provisions of this section do not limit other provisions by

which easements may be created or surrendered.

"(2) An easement that could be created or surrendered by transferunder section 90 may be created or surrendered under this 5section.

"(3) An easement may be created under this section byspecifying-

"(a) the dominant or servient tenement or both (as the case

requires), which must include a reference to the register 10in the prescribed manner; and

"(b) the nature and extent of the easement; and

"(c) the rights and powers that will apply to the easement

created under this section by referring without modifi-cation to applicable rights and powers- 15"(i) prescribed in regulations made under this Act; or"(ii) contained in a memorandum registered under

section 155A.

"(4) The matters set out in subsection (3) may be specified either-"(a) in a deposit document specified by the Registrar under 20

section 167A; or

"(b) on a plan in a form specified in rules made under Part 2of the Land Transfer and Cadastral Survey LegislationAct 2002.

"(5) The consent of the following persons is required for the crea- 25tion or surrender of easements under this section:

"(a) in the case of an easement not in gross, the registeredproprietors of the dominant and servient tenements; and

"(b) in the case of an easement in gross, the registered pro-prietor of the servient tenement and the grantee. 30

"(6) Easements are created or surrendered under this section,-

"(a) if specified in a deposit document, when the plan towhich that document relates is deposited under section167:

"(b) if specified on a plan, when that plan is deposited under 35section 167.

1 1

1 1


Survey Legislation

New (unanimous)

Part 1 cl 46

"(7) Section 69 of this Act and sections 23 and 32 of the Land

Transfer and Cadastral Survey Legislation Act 2002, with anynecessary modifications, apply to easements created underthis section.

"90C Variation of easements 5

"( 1) An easement variation instrument may be registered to effectany of the following changes to any term, covenant, or condi-tion of any easement created or registered under this Act:"(a) varying it:

"(b) negativing it: 10"(c) adding to it.

"(2) An easement variation instrument must specify the easementto be varied by reference to the (registration number orunique identifter for the instrument under which it wascreated) register in the prescribed manner. 15

"(3) An easement instrument must be executed by,-"(a) in the case of an easement not in gross, the registered

proprietors of the dominant and servient tenements; and"(b) in the case of an easement in gross, the registered pro-

prietor of the servient tenement and the grantee. 20

"9OD Rights and powers implied in certain easements"(1) Regulations made under this Act may specify, for the pur-

poses of this section,-"(a) different classes of easements; and

"(b) the rights and powers that are to be implied in them. 25

"(2) Subject to subsection (3), when an easement of a class specifiedin the regulations is (created) registered, the grantee must beregarded as having the implied rights and powers (as specifiedfor that class of instrument by the regulations).

"(3) An instrument creating an easement may alter the rights and 30powers implied under subsection (1) by-"(a) varying any implied rights and powers:"(b) negativing any implied rights and powers:"(c) providing additional rights and powers:

37

1 1

1 1

Part 1 cl 46

38


Survey Legislation

"(d) substituting rights and powers for any implied rightsand powers.

"(4) Subsection (3) does not apply to easements created undersection 908.

"(5) The rights and powers that apply by virtue of this section 5become binding on the grantor and the grantee on the (crea-tion Of the easement instrument) registration of the easement.

"(6) The provisions of this section are in addition to, and not inderogation, of the provisions of sections 26(4), 27(3), and

28(3) of the Housing Act 1955. 10

"9OE General provisions relating to easements"(1) Despite any rule of law or equity to the contrary, an easement

may be created or varied under any of sections 90A, 908, or 90Ceven though the same person is the registered proprietor ofboth the dominant and servient tenements or is both the gran- 15tor and grantee.

"(2) When easements are created under section 90A or section 908,-

"(a) the registered proprietor of the servient tenement is the

grantor:

"(b) the registered proprietor of the dominant tenement is 20the grantee:

"(c) in the case of Crown land, the registered proprietor isHer Majesty the Queen:

New (unanimous)

"(d) if the land is land of the Crown for which there is no

certificate of title or computer register, the Registrar 25must constitute a separate folium of the register or com-puter register for the easement or easements.

"(3) Consent in the prescribed form is needed as follows:"(a) the creation or variation of an easement under any of

sections 90A, 908, or 90C needs consent by any mortgagee 30of the land that is to become the servient tenement:

"(b) the variation of an easement under section 90C needs

consent by any mortgagee of the easement or dominanttenement:

1 1

1 1



"(c) the surrender of an easement under section 90A or section

908 needs consent by any mortgagee of the easement ordominant tenement.

"(4) If a mortgagee gives a consent under subsection (3), the mortga-gee and all persons who subsequently derive any interest from 5the mortgagee are bound by the easement or profit d prendre,variation, or surrender.

"(5) Sections 9OA, 908,90C, and 909, and subsections (1) to (4), apply asif-

"(a) easement includes a profit d prendre; and 10"(b) rights and powers includes terms, covenants, and

conditions.

"9OF Creating and noting land covenants"(1) Any covenant that could be contained in an instrument to

which section 126A of the Property Law Act 1952 applies 15may be created in the same way as an easement can be createdunder section 90A or section 9OB, but has effect only as a deedinter partes.

"(2) Sections 9OA to 9OE apply with any necessary modifications tocovenants created under subsection (1), subject to the following 20exceptions:

"(a) sections 90145) and 908(6) operate only to create cove-nants with effect only as a deed inter partes:

"(b) sections 90A(6) and 908(7) do not apply.

"(3) Sections 63 to 71, 126, 126A, and 126G of the Property Law 25Act 1952 apply to covenants created under subsection (1).

"(4) A notification under section 126A of the Property Law Act1952 does not give a covenant created under subsection (1) anygreater force than it would have had if created in some otherway. 30

"(5) Subsection (4) is for the avoidance of doubt."

47 New heading and section 99B inserted

The principal Act is amended by inserting in Part V, aftersection 99A, the following heading and section:

39

Part 1 cl 47

48

40


Survey Legislation

" Instruments for adoption by other enactments

"99B Forms for instruments available for adoption by otherenactments

"(1) Regulations made under this Act may (specifr) prescribeinstruments under this Act that are available for adoption 5

(with or without modification) by any other enactment thatprovides for the registration or noting of any thing under thisAct.

"(2) Neither this section nor any regulations made for the purposes

of it affect the operation of any enactment that- 10

"(a) provides for the registration or noting of any thingunder this Act; but

"(b) does not expressly adopt a form specified in regulationsreferred to in subsection (1)."

New sections 101 to 103 substituted 15

The principal Act is amended by repealing sections 101 to

103, and substituting the following sections:


1 1

" 101 Forms of mortgage"

(1) A mortgage instrument or an encumbrance instrument isrequired for the purposes of charging any estate or interest 20under this Act or making any such estate or interest security

for payment of any money.

"(2) A mortgage instrument must specify,-"(a) by reference to the register, the estate or interest to be

mortgaged; and 25

"(b) the registered proprietor of the estate or interest; and"(c) the person who is to take the mortgage; and"(d) the nature of the debt secured by the mortgage; and

"(e) the covenants and conditions (if any); and

"(f) the priority amount under section 8OA of the Property 30Law Act 1952 (if any).

"(3) A mortgage instrument must be executed by the mortgagor.

"(4) An encumbrance instrument must specify,-"(a) by reference to the register, the estate or interest to be

encumbered; and 35

1




1 1

"(b) the registered proprietor of the estate or interest; and"(c) the person for whose benefit the estate or interest is to

be encumbered; and

"(d) the nature of the sum, annuity, or rentcharge secured;and 5

"(e) the events (if any) on which the sum, annuity, orrentcharge becomes or ceases to be payable; and

"(f) the covenants and conditions (if any).

"(5) An encumbrance instrument must be executed by theencumbrancer. 10

1

New (unanimous)

" 101 Forms of mortgage66

(1) A mortgage instrument or an encumbrance instrument isrequired for the purposes of charging any land or estate orinterest under this Act or making any such land or estate orinterest security for payment of any money. 15

"(2) A mortgage instrument must contain the followinginformation:

"(a) the land or estate or interest to be mortgaged, whichmust include a reference to the register in the prescribedmanner; and 20

"(b) the person who is to take the mortgage; and"(c) the nature of the debt secured by the mortgage; and"(d) the covenants and conditions (if any); and

"(e) the priority amount under section 80A of the PropertyLaw Act 1952 (if any). 25

"(3) A mortgage instrument must be executed by the registeredproprietor.

"(4) An encumbrance instrument must contain the followinginformation:

"(a) the land or estate or interest to be encumbered, which 30must include a reference to the register in the prescribedmanner; and

"(b) the person for whose benefit the land or estate orinterest is to be encumbered; and

41

1 1

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Part 1 cl 48

42


Survey Legislation

New (unanimous)

"(c) the nature of the sum, annuity, or rentcharge secured;and

"(d) the events (if any) on which the sum, annuity, orrentcharge becomes or ceases to be payable; and

"(e) the covenants and conditions (if any). 5

"(5) An encumbrance instrument must be executed by theencumbrancer.

"(6) In this section, debt includes future indebtedness and interest.

"102 Variation of mortgage terms"(1) A mortgage variation instrument is required for the purpose of 10

varying, in respect of any mortgage registered under thisAct,-

"(a) the amount secured by the mortgage; or"(b) the rate of interest; or

"(c) the term or currency of the mortgage; or 15"(e) the covenants, conditions, and powers contained or

implied in the mortgage.


"(2) A mortgage variation instrument must specify,-"(a) by reference to the register number or unique identifier,

the mortgage; and 20

"(b) the nature of the variation.

New (unanimous)

"(2) A mortgage variation instrument must contain the followinginformation:

"(a) the mortgage, which must include a reference to theregister in the prescribed manner; and 25

"(b) the nature of the variation.

"(3) A mortgage variation instrument must be executed by-"(a) the mortgagor, except where the variation only operates

to reduce the amount secured or rate of interest; and

1

1

1 1

1 1



"(b) the mortgagee, except where the variation only operatesto increase the amount secured or rate of interest.


1 1

"(4) If the land is subject to a prior mortgage, the consent of theprior mortgagee must be obtained.1 1

New (unanimous)

"(4) If the land is subject to another mortgage, the consent of the 5

mortgagee under that mortgage must be obtained.

"103 Variation of priority of mortgages

"(1) Despite anything in section 37 or section 47, the priority

between themselves of the mortgages affecting any land may,

from time to time, be varied by a mortgage priority 10instrument.


"(2) A mortgage priority instrument must specify,-

"(a) by reference to the register, each mortgage that will be

affected by the change in priority; and"(b) the priority of the mortgages intended, following 15

registration.

"(2)

New (unanimous)

A mortgage prionty instrument must contain the followinginformation:

"(a) each mortgage that will be affected by the change in

priority, which must include a reference to the register 20

in the prescribed manner; and

"(b) the priority of the mortgages intended followingregistration.

"(3) If any mortgage so postponed is subject to a submortgage, themortgage priority instrument is not effective unless the sub- 25mortgagee has consented.

43

1 1

1 1

1 1

1 1

Part 1 cl 48

44

"(4)

"(5)

"(6)

"(7)


Survey Legislation

Upon the registration of the mortgage priority instrument,there is implied in every mortgage so postponed the cove-nants, conditions, and powers set out in the Third Schedule,except as otherwise expressed in the priority instrument.

Upon the registration of a mortgage priority instrument, the 5Registrar must notify it on the register.

A mortgage priority instrument must be executed by-"(a) the mortgagor(, except where the variation only over-

ates to reduce the amount secured or rate of interest);and 10

"(b) every mortgagee under every mortgage that, as a resultof the mortgage priority instrument, will be ranked after

any mortgage over which it previously had priority.

For the purposes of this section, mortgage includes any (reg-istered) lien, charge, or other registered security for the pay- 15ment of money."



"111 Discharge of mortgage 20"(1) A mortgage discharge instrument is required for the purpose

of registering a discharge of any mortgage under this Act.


1 1

"(2) A mortgage discharge instrument must specify,-"(a) by reference to the register, the land to be discharged

from the mortgage; and 25"(b) by reference to the register, the mortgage to be dis-

charged; and

"(c) the part of the principal sum or annuity to be dischargedif it is not to be fully discharged.1 1

New (unanimous)

"(2) A mortgage discharge instrument must contain the following 30information:

1 1

1 1

1

"(3)

66(4)

.(2)

"(a)

"(b)

"(C)


Survey Legislation

New (unanimous)

Part 1 cl 50

the land to be discharged from the mortgage, whichmust include a reference to the register in the prescribedmanner; and

the mortgage to be discharged, which must include areference to the register in the prescribed manner; and 5the part of the principal sum, annuity, or other sum to bedischarged if it is not to be fully discharged.

A mortgage discharge instrument must be executed by themortgagee.

Upon the registration of a discharge instrument,- 10"(a) the Registrar must record the discharge in the register

and on the certificate of title for the land (if any); and"(b) the land identified in the discharge instrument ceases to

be subject to or liable for the debt or annuity secured bythe mortgage." 15

50 New sections 115 and 116 substituted

The principal Act is amended by repealing sections 115 and116, and substituting the following sections:

"115 Form and registration of leases

"(1) A lease instrument is required for the purposes of registering 20under this Act the lease or demise of any land for a life orlives, or for a term of not less than 3 years.


A lease instrument must specify,-"(a) by reference to the register, the land to be leased; and"(b) the person who is to acquire the interest as lessee; and 25"(c) the term of the lease; and

"(d) the rent payable; and*'(e) the terms and conditions that are to apply to the lease.

45

1 1

1 1

Part 1 cl 50

46

"(2)


Survey Legislation

New (unanimous)

A lease instrument must contain the following information:"(a) the land or estate or interest to be leased, which must

include a reference to the register in the prescribedmanner; and

"(b) the person who is to acquire the interest as lessee; and 5"(c) the term of the lease; and

"(d) the rent payable; and

"(e) the terms and conditions that are to apply to the lease.

"(3) A lease instrument must be executed by-

"(a) the registered proprietor; and 10"(b) the lessee.

"(4) If the land or estate or interest to be leased is subject to amortgage, the consent of the mortgagee must be obtained.

"(5) (An instrument of lease) A lease instrument may be registered

even though it is for a term of less than 3 years, but no lease or 15agreement for lease for a (less) period less than 3 years is voidmerely because no (instrument of) lease instrument has been

executed or registered.

" 116 Variation of lease

"(1) A lease variation instrument is required for the purpose of 20varying, in respect of any lease registered under this Act,-"(a) the term of the lease by way of extension; or"(b) the covenants, conditions, and restrictions contained the

lease.

"(2) A lease variation instrument extending the term of a lease 25must be registered before the expiry of the then current termof the lease.


1 1

"(3) A lease variation instrument must specify,-"(a) by reference to the register, the lease to be varied; and"(b) the nature of the variation. 301 1

1 1

1 1


Survey Legislation

New (unanimous)

Part 1 cl 51

"(3) A lease variation instrument must contain the followinginformation:

"(a) the lease to be varied, which must include a reference tothe register in the prescribed manner; and

"(b) the nature of the variation. 5

"(4) A lease variation instrument extending the term of a lease hasthe same effect as if it were a lease instrument for the extended

term subject to the same covenants, conditions, and restric-tions, with any necessary modifications, as are contained orimplied in the lease. 10

"(5) Upon the registration of the lease variation instrument, theestate of the lessee under the instrument is deemed to be

subject to all encumbrances, liens, and interests to which the

lease is subject at the time of the registration. For the purposesof this subsection, all references in any Act or in any agree- 15ment, deed, instrument, notice, or other document to the lease

or to the estate of the lessee under the instrument must, unless

inconsistent with the context or with the provisions of thissection, be read as references to the lease as varied by thelease variation instrument or to the estate of the lessee under 20

the instrument, as the case may be.

"(6) A lease variation instrument must be executed by the lessorand lessee.

"(7) If the land subject to the lease is subject to a mortgage, theconsent of the mortgagee must be obtained." 25



" 120 Surrender of lease

"(1) A lease surrender instrument is required for the purpose of 30surrendering any lease registered under this Act.


1 1

"(2) A lease surrender instrument must specify, by reference to theregister, the lease to be surrendered.1 1

47

1 1

1 1

Part 1 cl 51


Survey Legislation

New (unanimous)

"(2) A lease surrender instrument must state the lease to be surren-

dered, which statement must include a reference to the register

in the prescribed manner.

"(3)

"(4)

48

"(5)

A lease surrender instrument must be executed by the lessorand the lessee. 5

Upon the registration of a lease surrender instrument,-"(a) the Registrar must record the surrender in the register

and on the certificate of title for the land (if any); and"(b) the estate and interest of the lessee vests in the person

entitled to the reversion. 10

A lease subject to mortgage or underlease must not be surren-dered without the consent of the mortgagee or sublessee."


The principal Act is amended by repealing sections 136 to139, and substituting the following sections: 15

" 136 Caveat against bringing land under Act"(1) A person who has or claims to have an interest in any land that

is the subject of an application seeking to bring the land underthis Act may, within the Uime limited for that purpose byadvertisement under this Act) prescribed period set out in a 20

public notice given by the Registrar, lodge with the Registrara caveat against bringing the land under this Act.

"(2) A caveat under this section must (speci&) contain the follow-ing information:

"(a) the name of the caveator; and 25

"(b) the nature of the land or estate or interest claimed and

the ground on which the claim is founded; and


1

"(c) with sufficient accuracy the Iand subject to the claim;and

"(d) the date the notice required by section 23 was given; 30and

1 1

1 1

1

"(2)


Survey Legislation

New (unanimous)

Part 1 cl 52

"(c) the land subject to the claim; and

"(d) the date the public notice required by subsection (1) wasgiven; and

"(e) an address for service for the caveator; and

"(f) any other information or evidence that may be required 5by regulations made under this Act.

"(3) Caveats under this section must be (signed) executed by thecaveator or the caveator' s attorney or agent.

"137 Caveat against dealings with land under Act

"(1) Any person may lodge with the Registrar a caveat against 10

dealings in any (land, estate,) land or estate or interest underthis Act if the person-

"(a) claims to be entitled to, or to be beneficially interested

in, the (land, estate,) land or estate or interest by virtueof any unregistered agreement or other instrument or 15transmission, or of any trust expressed or implied, orotherwise; or

"(b) is transferring the (land, estate,) land or estate orinterest to any other person to be held in trust.


1

A caveat under this section must- 20

"(a) specify the name of the caveator; and

"(b) specify with sufficient certainty the nature of the estate

or interest claimed by the caveator; and"(c) show how the estate or interest claimed is derived from

the registered proprietor; and 25

"(d) include any other information or evidence that may be

required by regulations made under this Act; and

"(e) specify whether it is intended to forbid the making of all

entries that would be prevented by section 141 or aspecified subset of them; and 30

"(f) specify with sufficient accuracy the land subject to theclaim; and

"(g) specify an address for service for the caveator; and

49

1 1

1 1

Part 1 cl 52


Survey Legislation


1 1

"(h) include any other information or evidence that may berequired by regulations made under this Act.1 1

"(2)

50

New (unanimous)

A caveat under this section must contain the followinginformation:

"(a) the name of the caveator; and 5"(b) the nature of the land or estate or interest claimed by the

caveator, which must be stated with sufficient certainty;and

"(c) how the land or estate or interest claimed is derived

from the registered proprietor; and 10"(d) whether or not it is intended to forbid the making of all

entries that would be prevented by section 141 or aspecified subset of them; and

"(e) the land subject to the claim, which must be stated withsufficient certainty; and 15

"(f) an address for service for the caveator.

"(3) Caveats under this section must be lsigned'i executed by the

caveator or the caveator' s attorney or agent.

"(4) Caveats under this section must be entered on the register asof the day and hour of their receipt by the Registrar." 20

53 Effect of caveat against dealings(1) Section 141(3)(d) of the principal Act is repealed.

(2) Section 141 of the principal Act is amended by adding thefollowing subsection:

"(5) Without limiting subsection (3), a caveat under section 137 25does not prevent the Registrar making an entry to give effectt-

"(a) a transmission to an executor, administrator, or trustee

in respect of the estate or interest of a deceased regis-tered proprietor; or 30

"(b) a transmission to the Official Assignee on bankruptcyof a registered proprietor; or

1 1

1 1

55

"(C)

"(i)

.u,

"(d)

"(e)

66(f)

"(g)"(h)



dealings having the effect of discharging or extinguish-ing secondary interests if the caveat affects the feesimple (such as a discharge of a mortgage or surrenderof a lease); or

a change in, or a correction to, the name of a proprietor 5where the ownership remains the same; or

a transfer consequent on a rating sale under the RatingPowers Act 1988; or

dealings with secondary interests if the caveat affectsthe fee simple (such as the transfer of a mortgage); or 10appurtenant easements; or

an application for an amalgamated certificate of title orseparate certificates of title if there is more than 1 regis-tered proprietor for land or for an estate or interest inland; or 15

further caveats, statutory land charges, or chargingorders; or

a vesting or dealing effected by an enactment or courtorder that expressly or by implication requires or per-mits a recording to be made in the register despite the 20presence of the caveat."



" 142 Notices to be given to persons affected 25

Upon the receipt of any caveat, the Registrar must givenotice,--

"(a) in the case of a caveat under section 136, to the personagainst whose application to bring land under this ActCor to be registered as proprietor consequent on any 30

transmission) the caveat has been lodged; or"(b) in the case of a caveat under section 137, to the registered

proprietor against whose title to deal with land underthis Act the caveat has been lodged."

New section 145A inserted 35


51

Part 1 cl 55

52


Survey Legislation

" 145A Early lapse of caveat against dealings6.

(1) The registered proprietor of any estate or interest in the landprotected by a caveat against dealings (other than a caveatlodged by the Registrar) may apply to the Registrar for thecaveat to lapse. 5

"(2) The Registrar must give the caveator notice of an applicationunder subsection (1).

"(3) The caveat lapses (14 day s) with the close of the prescribed

period after the date on which the notice under subsection (2) is

given unless- 10"(a) the caveator has earlier given to the Registrar notice that

an application for an order to the contrary has beenmade to the High Court; and

"(b) an order to that effect has been made and served on the

Registrar within (28 days) the prescribed period after 15the date on which the notice under paragraph (a) is givento the registrar."


The principal Act is amended by inserting, after section 147,the following section: 20

" 147A Electronic registration with caveator's consent subject

to rights of caveator

If an electronic instrument is registered with the consent of thecaveator, the dealing must be regarded as having been made

subject to the rights of the caveator for the purposes of section 25147."

57 New sections 148 to 148B substituted

The principal Act is amended by repealing section 148, andsubstituting the following sections:

" 148 No second caveat may be entered 30

"(1) If a caveat has (lapsed or been removed under section 143)been removed under section 143 or has lapsed, no second

caveat may be lodged by or on behalf of the same person inrespect of the same interest except by order of the High Court.

"(2) For the purposes of verifying that a caveat does not contra- 35vene the prohibition in subsection (1), the Registrar is notobliged to inquire further than the current folium of the regis-

ter or computer register for the land.



"148A Registrar not required to verify caveator's entitlementto estate or interest claimed

Except to the extent of ensuring that a caveat lodged underany provision of this Act complies on its face with the require-ments of this Act and with the requirements of any regulations 5made for the purposes of this Act, the Registrar is not requiredto be satisfied that the caveator is in fact or at law entitled to

the estate or interest claimed in the caveat.

" 148B Registrar's powers if caveat does not comply with thisAct 10

If a caveat does not comply with the requirements of this Act,the Registrar may deal with it under section 43 as if it were aninstrument not in order for registration."


The principal Act is amended by repealing section 155, and 15substituting the following section:

" 155 Short forms of covenant

"(1) In the case of paper instruments, those covenants set out in fullin the Fourth Schedule that are intended to be implied in anyinstrument prepared for the purpose of registration under this 20Act are, if expressed in the short form of words prescribed inthat schedule, to be implied in that instrument as fully andeffectually as if set out in full with all the modifications thatmay be necessary in order to adapt them to the instrument.

"(2) In the case of an electronic instrument, those covenants set out 25in full in the Fourth Schedule that are intended to be implied inany instrument prepared for the purpose of registration underthis Act are to be implied in that instrument as fully andeffectually as if set out in full with all the modifications thatmay be necessary in order to adapt them to the instrument. 30

"(3) The covenant relating to insurance contained in the FourthSchedule does not apply to a mortgage under this Act exceptas otherwise expressed in the mortgage."


The principal Act is amended by repealing sections 157 to 35162, and substituting the following section:

53

Part 1 cl 59

54


Survey Legislation

" 157 Paper instruments to be executed

"(1) Every paper instrument for the purpose of creating, transfer-ring, or charging any estate or interest under this Act must be

executed by the registered proprietor and any party to it speci-fied in regulations made under this Act. 5

"(2) The regulations may (specib) prescribe the manner in which

instruments to which subsection (1) applies must be executed,witnessed, or attested.

"(3) Every instrument executed in accordance with this section has

the same effect as a deed executed by the parties signing it. 10".

(4) This section is subject to the provisions of section 3 of theOfficial Appointments and Documents Act 1919."

60 New sections 164A to 164E inserted

The principal Act is amended by inserting, after section 164,

the following sections: 15

" 164A Certification

"(1) Every instrument to which this subsection applies must con-tain a certification that complies with subsection (3).

"(2) Subsection (1) applies to-"(a) electronic instruments; and 20

"(b) paper instruments of a class specified for the purpose byregulations made under this Act.

"(3) Certifications must specify that-"(a) the person giving the certification has authority to act

for the party specified in regulations in relation to that 25class of instrument and that party has legal capacity togive such authority; and

"(b) the person giving the certification has taken reasonable

steps to confirm the identity of the person who gave theauthority to act; and 30

"(c) the instrument complies with any statutory require-ments specified by the Registrar for that class of instru-ment; and

"(d) the person giving the certification has evidence (ver*-ing and supporting) showing the truth of the certifica- 35tions in paragraphs (a) to (c) and that the evidence will be

retained for the period prescribed for the purpose byregulations made under this Act.



"(4) Regulations made under this Act may (spec(&) prescribe theform of certifications under this section.

" 164B Who may give certification

"(1) A certification under section 164A may be given only by aconveyancer. 5

"(2) The Registrar may revoke a person's right to give a certifica-tion under section 164A at any time if he or she believes on

reasonable grounds that the person-

"(a) has given a fraudulent certification; or"(b) has given a certification that is materially incorrect; or 10"(c) has failed to comply with any requirement under section

164C.

" (3) The Registrar must give notice as soon as possible to any

person whose ability to give certifications is removed undersubsection (2). 15

"(4) The Registrar may reinstate the right of a person to givecertifications if the Registrar is satisfied that the person will-"(a) give certifications that are not of the kinds referred to in

subsection (2)(a) and (b); and

"(b) comply with requirements under section 164C. 20

" 164C Retention of evidence and audit of certifications

"(1) Any person who gives a certification must retain evidence

showing the truth of the certification for the period prescribed

for the purpose by regulations made under this Act.

"(2) Without limiting what may be considered to show the truth of 25

certifications, the Registrar may specify requirements that, if

met, must be regarded as satisfying the obligation in subsection(1).

"(3) The Registrar may require a person who has given a certifica-

tion to do either or both of the following: 30

"(a) produce to him or her the evidence referred to in sub.section (1):

55

Part 1 cl 60

56


Survey Legislation


1 1

"(b) provide, on oath, a statement as to the circumstances

surrounding the preparation and electronic transmissionof any instrument.

1

New (unanimous)

"(b) provide a statement on oath as to-

"(i) any further information required by the Registrar; 5or

"(ii) the circumstances surrounding the preparationand electronic transmission of any instrument.

"(4) Any requirement by the Registrar under subsection (3) must be

complied with within 10 working days of its receipt. 10

" 164D Requirements about execution do not apply if

certification given

If a certification has been given in relation to an instrument to

which section 164A(1) applies, the following (sections) provi-sions do not apply to that instrument: 15"(a) section 164 (which relates to the certification of the

correctness of instruments):

"(b) section 157 (which relates to the execution of paperinstruments):

"(c) any provision in any enactment or rule of law relating to 20the execution, signing, witnessing, or attestation ofinstruments.

" 164E Effect of certification

"(1) When an instrument certified under section 164A (other than a

discharge of mortgage under section 111) is registered, the 25instrument has the same effect as a deed executed by the

parties specified in regulations (referred to section 1643)Ca))made under this Act.

"(2) This section is subject to the provisions of section 3 of the

Official Appointments and Documents Act 1919. 30

1

1

"(3)

"(3)

"(4)

"(5)



Struck out (unanimous)1

When an instrument certified under section 164A is registered,the instrument must be regarded for the purposes of everyenactment and rule of law as if-64 /

Ca) the instrument were made in writing; and"(b) the instrument were duly executed, by every party 5

specified for the purpose in regulations made under thisAct, as an instrument in respect of which a certificateunder section 164A must be made.

New (unanimous)

When an instrument certified under section 164A is registered,

the instrument must be regarded for the purposes of every 10enactment and rule of law as if-

"(a) the instrument had been made in writing; and

"(b) the instrument had been duly executed by every party

specified for the purpose in regulations made under thisAct. 15

When an instrument certified under section 164A is registered,

the provisions of section 49A of the Property Law Act 1952

must be regarded as having been fully satisfied.

Subsection (4) is for the avoidance of doubt."

Struck out (unanimous)I

61 New section 167A inserted 20


"167A Deposit documents

"(1) The Registrar may specify a form for any consent or approval

required for the deposit of a plan under section 167. 25

"(2) If a consent or approval is required under this Act, the form (ifany) specified for it must be used.

"(3) If a consent or approval is required by or under an enactmentother than this Act, it may be given either-"(a) as provided for in the other enactment; or 30

57

1 1

1

Part 1 cl 61

6,(4)

6(5)

58

"(6)


Survey Legislation


1

"(b) in the form specified by the Registrar.

A form specified under subsection (1) must provide for execu-

tion by the person giving the consent or approval.

A form specified under this section must include a representa-tion or reference- 5

"(a) that links it unequivocally to the plan that it deposits:

"(b) that gives appropriate information to the person approv-ing or consenting about the effect of the depositing ofthe plan.

For the purposes of regulations made under section 236(1)(g), 10and of sections 22 to 27 of the Land Transfer and Cadastral

Survey Legislation Act 2001, forms specified under thissection must be regarded as capable of being electronic instru-ments that are not capable of being registered."

1

New (unanimous)

61 New section 167A inserted 15


" 167A Deposit documents

"(1) The Registrar may specify a form for any matter referred to insubsection (2) that is a prerequisite for- 20"(a) the deposit of a plan under section 167; or

"(b) the issue of a certificate of title.

"(2) The matters referred to are-

"(a) any consent, approval, or certification:

"(b) any other matter that any enactment provides may be 25included in a deposit document under this section.

"(3) A form specified under subsection (1) may differ from any formprescribed in relation to the same matter by regulations madeunder this Act.

"(4) If a form is specified under subsection (1) for a consent, 30

approval, certification, or other matter under this Act or theLand Transfer and Cadastral Survey Legislation Act 2002, thatform must be used on all appropriate occasions.

1

1 1


Survey Legislation

New (unanimous)

Part 1 cl 62

"(5) If a form is specified under subsection (1) for a consent,

approval, certification, or other matter under an enactmentother than this Act or the Land Transfer and Cadastral Survey

Legislation Act 2002, the consent, approval, certification, orother matter may be given or done- 5"(a) as provided for in the other enactment; or

"(b) in the form or manner specified by the Registrar.

"(6) A form specified under this section must include a representa-tion or reference-

"(a) that links it to the plan that is allowed to be deposited; 10and

"(b) gives to the person approving or consenting appropriateinformation about the effect of the depositing of the

plan; and

"(c) indicates that person's approval or consent to the 15deposit of the plan.

"(7) For the purposes of regulations made under section 236(1)(d),and for the purposes of sections 22 to 27 of the Land Transfer

and Cadastral Survey Legislation Act 2002, a form specified

under subsection (1)- 20

"(a) may take the form of an electronic instrument; but

"(b) must not be registered."


The principal Act is amended by repealing section 205, andsubstituting the following section: 25

"205 Caveats in respect of applications under this Part

"(1) A caveat against bringing land under this Act is not capable of

being lodged in respect of an application under this Part, but

any person entitled to lodge a caveat against bringing land

under this Act that is subject to an application under Part II 30

may register under the Deeds Registration Act 1908 a caveatat any time prior to the issue of a certificate of title in respect

of the land to which the application under this Part relates.

"(2) A caveat under subsection (1) must-

"(a) specify the name of the caveator; and 35

"(b) specify the land subject to the claim; and

59

1

1 1

Part 1 cl 62

60


Survey Legislation

"(c) specify the nature of the land or estate or interestclaimed by the caveator and the ground on which theclaim is founded; and

"(d) give an address for service.

"(3) When the Registrar proceeds with an application in respect of 5any land against which a caveat under subsection (1) has beenregistered, he or she must include in the Registrar' s minutes aminute in respect of the claim of the caveator.

"(4) Any occupier of land that is the subject of an applicationunder the provisions of this Part, and any adjoining occupier 10or proprietor, may, so long as the land is comprised in acertificate of title limited as to parcels, lodge a caveat under

this section at any time after the issue of that certificate of title.

"(5) The provisions of sections 138(1), 139, 143, and 145 to 148,with any necessary modifications, apply to caveats referred to 15in subsection (4). However, a caveat under this section does not

prevent the registration of any dealing with the land com-prised in any certificate of title limited as to title.

"(6) Notice of the issue of a certificate of title under the provisionsof this Part must be given by the Registrar to the caveator of 20every caveat under subsection (1) that is registered against theland comprised in that certificate of title.

"(7) Subject to the provisions of this Part, the provisions of this Actrelating to caveats under subsection (1), with any necessarymodifications, apply to caveats referred to in subsection (4)." 25

63 Fees or charges(1) The heading of section 235 of the principal Act is amended by

adding the words "or charges".

(2) Section 235 of the principal Act is amended by repealingsubsection (1), and substituting the following subsection: 30

"(1) Without limiting section 236, regulations made under this Actmay specify-

"(a) the fees or charges payable for-

"(i) the performance or exercise of functions, duties,or powers of the Registrar under this Act or any 35other enactment:

1

1




"(ii) the performance of functions of the chief execu-tive in relation to the administration or operationof this Act:

"(iii) the provision of facilities or services by the chiefexecutive for the administration or operation of 5this Act:

New (unanimous)

"(ii) the performance or exercise of functions, duties,or powers of the chief executive under this Act or

the Land Transfer and Cadastral Survey Legisla-tion Act 2002: 10

"(iii) the performance of functions of the chief execu-

tive in relation to the administration or operationof this Act or the Land Transfer and Cadastral

Survey Legislation Act 2002, including the provi-

sion of facilities or services by the chief 15executive:

1 1

"(b) the amount of those fees or charges, or the method or

rates by which they are to be assessed:

"(c) the persons liable to pay the fees or charges:

"(d) the circumstances in which the payment of the whole or 20any part of those fees or charges may be remitted orwaived:

"(e) the manner in which the fees or charges are to be paid."

(3) Section 235 of the principal Act is amended by repealingsubsections (5) to (7), and substituting the following 25subsection:

"(5) Without limiting subsection (1), fees may be specified by regu-

lations made under this Act having regard to the costs and

expenses incurred by the department of State for the timebeing responsible for the administration of Part 2 of the Land 30Transfer and Cadastral Survey Legislation Act 2001 in provid-ing a national survey control system for-"(a) cadastral surveys supporting title to land under this Act;

and

"(b) the maintenance of cadastral survey data." 35

61

1 1

Part 1 cl 63

62


Survey Legislation


1 1

"(6) The chief executive may set a fee or charge for any function,facility, or service under this Act or Part 1 of the Land Transfer

and Cadastral Survey Legislation Act 2001 if a fee is not set forthe function, facility, or service by regulations made underthis Act." 5



"236 Regulations

"(1) The Governor-General may, by Order in Council, make 10regulations-

"(a) specifying fees or charges that are payable under thisAct or Part 1 of the Land Transfer and Cadastral Survey

Legislation Act 2001:

"(b) regulating the practice and conduct of business under 15this Act:

"(c) specifying procedures by which mortgagees of elec-

tronic transactions land may prevent instruments affect-

ing electronic transactions land over which they hold amortgage from being registered without their consent: 20

"(d) prescribing the form of paper instruments and consentsunder this Act:

"(e) prescribing rights and powers that are to be incor-

porated or implied in easements, profits d prendre, orcovenants: 25

"(f) prescribing time periods for the retention of documentsunder section 164A(3)([1):

"(g) specifying the classes of instruments that are capable of

being electronic instruments:"(h) specifying, for the purposes of section 998, instruments 30

under this Act that are available for adoption (with orwithout modification) by any other enactment:

"(i) prescribing how matters that are required to be specifiedin instruments by reference to the register must bestated: 35




"(j) specifying different classes of easements, and rightsand powers to be implied in them, for the purposes ofsection 900:

"(k) providing for any other matters contemplated by thisAct or the Land Transfer and Cadastral Survey Legisla- 5tion Act 2001, necessary for their administration, or

necessary for giving them full effect.

"(2) Without limiting subsection (1)(g), a specification under that

provision may be expressed in terms of how an instrument isassociated with other instruments when presented for 10

registration."

New (unanimous)


The principal Act is amended by repealing section 236, and

substituting the following section:

"236 Regulations 15

"(1) The Governor-General may, by Order in Council, make

regulations--.

(a) regulating the practice and conduct of business underthis Act:

"(b) prescribing periods of time for the purposes of giving 20notices and other matters under this Act:

"(c) prescribing the manner in which instruments must refer

to the register:

"(d) specifying the classes of instruments that are capable of

being electronic instruments: 25

"(e) specifying procedures by which mortgagees of elec-tronic transactions land may-

"(i) prevent electronic instruments affecting elec-tronic transactions land over which they hold a

mortgage from being registered without their 30consent:

"(ii) be notified of the registration of electronicinstruments:

63

1

1 1

Part 1 cl 64

64


Survey Legislation

New (unanimous)

"(f) prescribing the form of any memorandum to be regis-tered under section 155A and of any instrumentintended for use in conjunction with a memorandumunder that section:

"(g) specifying different classes of easements, and the rights 5and powers to be implied in them, for the purposes ofsection 9OD:

"(h) specifying, for the purposes of section 998, instruments

under this Act that are available for adoption (with orwithout modification) by any other enactment: 10

"(i) prescribing the manner in which paper instrumentsmust be executed, witnessed, or attested for the pur-poses of section 157:

"(j) specifying classes of paper instrument that may be cer-tified under section 164A(2)(h): 15

"(k) specifying the parties for the purpose of section 164/43)(a)(which relates to a certifier's authority to act):

"(1) prescribing time periods for which evidence may beheld under section 164A(3)(d).

"(In) prescribing the form of certifications under section 164A: 20"(n) specifying the parties for the purpose of section 164E(1)

(which provides that a certified instrument has effect asa deed executed by those parties):

"(o) prescribing the physical properties of paperinstruments: 25

66

(p) prescribing forms of paper instruments for the purposeof section 238(1):

.'

(q) prescribing forms for notices and consents under thisAct:

'(r) providing for any other matters contemplated by this 30Act or the Land Transfer and Cadastral Survey Legisla-tion Act 2002, necessary for their administration, ornecessary for giving them full effect.

"(2) Without limiting subsection (1)(d), regulations made under thatprovision may- 35"(a) express a specification in terms of how an instrument is

associated with other instruments when presented forregistration:

1 1

1 1


Survey Legislation

New (unanimous)

Part 1

"(b) specify classes of instrument by reference to--"(i) how instruments are dealt with:

"(ii) how shares and interests are dealt with:

"(iii) whether all the interests comprised and describedin a certificate of title are affected by the 5instrument:

"(iv) the enactment that provides for an instrument:

"(v) the purpose for which an interest is held.

"(3) In subsection (2)(b), the term interest includes land, estates,

rights, covenants, and conditions." 10



The principal Act is amended by repealing sections 237 and

238, and substituting the following sections:

"237 Approval of paper forms

The Registrar must not receive or register an instrument 15

unless the instrument complies with the requirements of thisAct in relation to information content.

"238 Content of paper forms

"(1) Paper instruments comply with the requirements of this Act as

to their information content only if they- 20

"(a) are in a prescribed form or a form approved by the

Registrar; and

"(b) are properly completed; and

"(c) comply with any requirements as to paper size and

quality prescribed in regulations made under this Act. 25

"(2) However, a paper instrument must be regarded as complying

with the requirements of this Act as to information content if

the instrument does not comply with subsection (1) but the non-

compliance relates to a matter that is not substantive."

65

1

1

Part 1 cl 65

66


Survey Legislation

New (unanimous)



"237 When paper instrument is in acceptable form

"(1) A paper instrument is in an acceptable form if- 5

"(a) it contains the information required by this Act; and"(b) it meets the requirements for the physical properties of

paper instruments that are prescribed by regulationsmade under this Act.

"(2) A paper instrument must be regarded as containing the infor- 10mation required by this Act if-"(a) either-

"(i) it is in a form prescribed by regulations madeunder this Act; or

"(ii) it is in a form specified by the Registrar prior to 15its lodgement; and

"(b) it is properly completed.

"(3) However, a paper instrument must be regarded as being in an

acceptable form if it does not comply with subsections (1) and (2),but the non-compliance relates to a minor matter that, in the 20

opinion of the Registrar, will not affect the operation or effectof the instrument once it is registered.

"238 Content of paper forms

"(1) Regulations made under this Act may prescribe forms fornotices and consents under this Act. 25

"(2) If a form for any notice or consent is not for the time beingprescribed by regulations, the Registrar may specify one.

"(3) If a form is for the time being prescribed by regulations orspecified under subsection (2), that form must be used on allappropriate occasions. 30

"(4) However, a notice or consent is not invalid because it fails to

comply with the prescribed or specified form if the non-compliance relates to a minor matter that, in the opinion of theRegistrar, will not affect the operation or effect of the noticeor consent." 35

1 1

1 1



66 New sections 239 to 24OD substituted


"239 Description of person to include personal representativeIn any form under this Act, the description of any person as 5proprietor, transferor, transferee, mortgagor, mortgagee, les-sor, or lessee, or as trustee, or as seised of, having, or takingany estate or interest in any land, includes the heirs, executors,(administrators) successors, and assigns of that person.

"240 How Registrar gives public notice 10If this Act requires that the Registrar give public notice of anymatter but does not specify how the notice is to be given, it issufficient that the Registrar-"(a) publishes a notice in the Gazette and in 1 or more

newspapers published in the area where the land affec- 15ted by the matter is located; and

"(b) the notice gives sufficient information about the matterto enable persons who might respond to it to understandits effect.

"240A Specifications by Registrar 20

"(1) If this Act requires or permits the Registrar to specify anymatter, the specification-"(a) is made when it is published by notice in the Gazette:

and

"(b) takes effect on its publication or on a later date specified 25in the notice.

"(2) When the Registrar makes any specification under subsection(1), he or she must make copies of it available at every landtitles office.

"24OB Notice by Registrar to particular persons 30

"(1) If this Act specifies that the Registrar must give a notice to anyperson but does not specify how it is to be given, the noticemay be given by-

"(a) delivering it to that person; or"(b) delivering it to that person's usual or last known place 35

of abode or business; or

67

Part 1 cl 66

68


Survey Legislation

"(c) posting it to that person or that person's place of abodeor business or address; or

"(d) sending a fax if the person has nominated a fax address;or

"(e) electronic mail or other similar means of communica- 5

tion if the person has nominated an email or similaraddress; or

"(f) directing it to the person at an electronic workspacefacility if the instrument to which the notice relates was

generated in the facility. 10

"(2) In subsection (1), person includes a person' s agent.

"(3) A person is taken to have nominated an address if the personhas expressly nominated it as an address to which notices forthe relevant purpose may be sent.

"240C Notices to Registrar 15

If this Act specifies that a person must give a notice to the

Registrar but does not specify how it is to be given, the noticemay be given by-

"(a) delivering it to any Land Registry Office; or

"(b) posting it to the Registrar at any Land Registry Office; 20or

"(c) sending a fax if the registrar has specified a fax addressfor that class of notice; or

"(d) electronic mail or other similar means of communica-

tion if the Registrar has specified an electronic mail or 25similar address for that class of notice; or

"(e) directing it to the Registrar from an electronic work-

space facility if the registrar has specified that means as

a way of giving that class of notice.

"24OD When notices taken to be delivered 30

"(1) In the absence of proof to the contrary, notices are taken to bedelivered,-

"(a) in the case of notices sent by post, at the time when theletter would in the ordinary course of post be delivered;

and, in proving the delivery, it is sufficient to prove that 35the letter was properly addressed and posted:

"(b) if sent by fax, at the time indicated on a record of itstransmission:

(2)

67

(1)

"(2)

"(3)

(3)

68

(1)



"(c) if sent by electronic mail or similar means or to or froman electronic workspace facility, at the time a record ofthe transmission indicates it was received in the rele-

vant electronic communications system.

For the purposes of subsection (1)(c),- 5"(a) relevant electronic commumcations system

means,--

"(i) in the case of an electronic mail or similaraddress, the electronic communications systemassociated with that address; or 10

"(ii) in the case of an electronic workspace facility, theelectronic communications system by whichusers of the facility can receive electroniccommunications:

"(b) without limiting what may constitute a record of trans- 15mission, it may, in appropriate circumstances be,-"(i) an acknowledgement from the relevant electronic

communications system; or

"(ii) the absence of a notification that the transmissionhas not been received into or processed by the 20relevant electronic communications system.

Despite subsection (1), a notice delivered to the Registrar at aland titles office is taken to be delivered at 9 am on the next

day on which the office is open for business if the time atwhich it would be taken to be delivered under subsection (1) is 25outside the business hours of the office."

Repeals

Sections 49, 124, 127, (and 134) 134, and 229 to 234, the

heading immediately before section 229, the Sixth Schedule,and the Seventh Schedule, of the principal Act are repealed. 30Section 3 of the Land Transfer Amendment Act 1961 is

repealed.

The Land Transfer (Automation) Amendment Act 1998 isrepealed.

Other amendments to principal Act and amendments to 35other Acts

The principal Act is amended in the manner set out in Schedule1.

69

69

(1)

(2)

(3)

(4)

Part 1 cl 68

(2)

(3)

(4)

70


Survey Legislation

The pnncipal Act is amended in the manner set out in Schedule2.

The Deeds Registration Act 1908 is amended in the mannerset out in Schedule 3.

The Acts specified in Schedule 4 are amended in the manner set 5out in that schedule.

Transitional provisions relating to easementsDespite the repeal of sections 9OA to 9OF of the principal Actby section 46, but subject to subsections (2), (3), and (4), thosesections of the principal Act (as they read immediately before 10the commencement of section 46) continue to apply to anyeasement certificate registered or executed before the com-mencement of this Act.

Despite anything contained in sections 9OA to 9OD of theprincipal Act (as they read immediately before the com- 15mencement of section 46) or any other rule of law to thecontrary, on the date of the coming into force of this section,

any easement specified in an easement certificate registeredunder the former section 9OA that has not previously beencreated by registration of an instrument of disposition is 20deemed to have been created under this subsection (by) as if

an instrument of disposition of the land (that) had beenregistered.

All covenants and conditions contained or implied in anyeasement certificate referred to in subsection (2) apply to an 25easement created under subsection (2) as if an instrument of

disposition had created the easement.

The provisions of section 9OE of the principal Act (as substi-tuted by section 46), so far as they are applicable, apply to anyeasement created under this section. 30

New (unanimous)

(5) Despite section 23 of this Act and section 69 of the principal

Act, the recording of an easement certificate specifying anyeasement to be created under this section must be regarded ascomplying with those sections (so far as they are applicable).

1 1

1 1


Survey Legislation

New (unanimous)

Part 2 cl 71

69A Transitional provisions relating to landbrokers

(1) This section applies to persons who, immediately before thecommencement of this section, held a licence as a landbroker

under section 229 of the principal Act.

(2) Despite the repeal of sections 229 to 234 and the Sixth Sched- 5ule of the principal Act by section 67(1), those sections of theprincipal Act continue to apply to persons to whom thissection applies until the close of the appointed date.

(3) The Governor-General may, by Order in Council made on therecommendation of the Minister, declare the appointed date 10for the purposes of subsection (2).

(4) The Minister must not make a recommendation under sub-

section (3) unless he or she is satisfied that persons to whomthis section applies are eligible to be licensed under an enact-ment providing for the licensing of conveyancers. 15

Part 2

Cadastral survey

Subpart 1-Preliminary provisions70 Commencement

This Part and Schedules 5 to 8 come into force on the day after 20the date on which this Act receives the Royal assent.

71 Purpose

The purpose of this Part is-(a) to promote and maintain the accuracy of the cadastreby-- 25

(i) requiring cadastral surveys to be done by, orunder the direction of, licensed cadastral survey-ors; and

(ii) requiring cadastral surveyors to meet standardsof competence to be licensed; and 30

(iii) providing for the setting of standards for cadas-tral surveys and cadastral survey data; and

71

1 1

1 1

Part 2 cl 71

72


Survey Legislation

(b) to provide, either on an optional or mandatory basis, forthe electronic lodging and processing of cadastralsurveys; and

(c) to provide for a national geodetic system and a nationalsurvey control system to be maintained. 5

72 Interpretation

In this Part, unless the context otherwise requires,-

Board means the Cadastral Surveyors Licensing Board ofNew Zealand established by section 78

cadastral survey means the determination and description of 10the spatial extent (including boundaries) of interests under a

tenure system

cadastral survey data-

(a) means information in or derived from cadastral surveys,and related information; and 15

(b) includes survey system information and tenure systeminformation

cadastral survey dataset means the set of cadastral survey

data necessary to integrate a cadastral survey into the cadastre

cadastral survey mark means a mark placed for the purposes 20of a cadastral survey

cadastre means all the cadastral survey data held by or for the

Crown and Crown agencies

chief executive means the chief executive of the department

of State that, with the authority of the Prime Minister, is 25responsible for the administration of this Part

digital cadastral survey dataset means cadastral survey

dataset in digital form

document has the same meaning as in the Official Informa-tion Act 1982 30


1 1

geodetic system means a system that describes the position ofpoints on the Earth by reference to a mathematical model thatdescribes the size and shape of the Earth


Survey Legislation

New (unanimous)

Part 2 cl 72

geodetic system means a system that enables positions on thesurface of the Earth to be determined by reference to a mathe-

matical model that describes the size and shape of the Earth

land includes-

(a) subsoil, airspace, and water and marine areas; and 5(b) interests in or over land

licensed cadastral surveyor or cadastral surveyor means a

person-

(a) licensed as a cadastral surveyor under subpart 3 of thisPart; or 10

(b) deemed to be licensed as a cadastral surveyor under that

subpart

Minister means the Minister of the Crown who, under the

authority of any warrant or with the authority of the Prime

Minister, is for the time being responsible for the administra- 15tion of this Part

national survey control system means a system used to

determine the position of points, features, and boundaries in

cadastral surveys, other surveys, and land informationsystems 20

plan means a graphical representation of 1 or more cadastralsurveys


1 1

Surveyor-General means the Surveyor-General appointedunder section 73

survey mark means a cadastral survey mark or a mark used 25

for a national survey control system

survey-system information means information derived

from, or relating to, survey observations in cadastral surveys

73

1 1

1 1

Part 2 cl 72

74


Survey Legislation

New (unanimous)

Surveyor-General means the Surveyor-General appointedunder section 73

tenure means the kind of right or title by which land is held

tenure system means a system that provides for the creationand transfer of interests in land 5

tenure-system information means the information necessaryto enable the creation or transfer of interests under a tenure

system.

Subpart 2-Administration

Sun>eyor-General 10

73 Surveyor-General

(1) A person must be appointed under the State Sector Act 1988to hold office as the Surveyor-General.

(2) No person may be appointed to hold office as Surveyor-General, and no person may be directed under section 62(1) of 15

the State Sector Act 1988 to exercise or perform any power,act, or duty of the Surveyor-General, unless the person is(qualified because of his or her skills and experience to exer-cise or pe}form the powers and duties of that office) or has

been-- 20

New (unanimous)

(a) a licensed cadastral surveyor; or(b) a registered surveyor under the Survey Act 1986; or(c) entitled to practise cadastral surveying outside New

Zealand.

(3) The office of Surveyor-General may be held in conjunction 25with the office of chief executive.

(4) However, a chief executive who has, at any time, beenappointed to the office of chief executive in accordance with adirection given under section 35(11)(a) of the State Sector Act

1 1

1 1

1 1

1 1

74

(1)

(2)

(3)

75

(1)



1988 may not, at any time, hold the office of Surveyor-General in conjunction with the office of chief executive.

Compare: 1986 No 123 s 7

Deputy Surveyor-GeneralA person must be appointed under the State Sector Act 1988 5to hold office as the Deputy Surveyor-General.

The Deputy Surveyor-General has and may exercise, subjectto the control of the Surveyor-General, all the functions,duties, and powers of the Surveyor-General.

The Deputy Surveyor-General has and may exercise all the 10functions, duties, and powers of the Surveyor-Generalwhile-

(a) there is a vacancy in the office of the Surveyor-General;or

(b) the Surveyor-General is absent from duty. 15


1 1

04) The office of Deputy Surveyor-General may be held in con-junction with the office of the chief executive.1 1


Functions and duties of Surveyor-GeneralThe functions and duties of the Surveyor-General are- 20

(a) to maintain a national geodetic system:(b) to maintain a national survey control system:(c) to determine how the spatial extent (including bounda-

ries) of interests under a tenure system must be definedand described, by setting standards under section 116: 25

(d) to advise the Board of any significant failures by cadas-tral surveyors to comply with the standards referred toin paragraph (c):

(e) to set standards for integrating new cadastral surveysinto the cadastre by the chief executive: 30

(f) to set standards for the structure, storage, and provisionof cadastral survey data by the chief executive:

(g) to set standards for determining when cadastral surveydatasets may be used to define interests under tenuresystems: 35

75

Part 2 cl 75

76

(i)

G,

(h)


Survey Legislation

to provide advice to agencies or officers responsibleunder any enactment for tenure systems on mattersrelating to the spatial definition of interests under thosesystems:

to undertake research and liaise with persons and 5organisations for the purposes of his or her functions:(auditing) to audit compliance by cadastral surveyorswith the standards referred to in paragraph (c):


(k) auditing the application by the chief executive of thestandards referred to in paragraphs (e) and (f): 101 1

New (unanimous)

(k) to audit the exercise of the chief executive's functions

under section 77(a), (ca), and (cb):

(1) to perform any other functions conferred on him or herby this Part, any other enactment, or the Minister.

(2) In exercising his or her functions, the Surveyor-General must 15have regard to--(a) the risks to the Crown and owners of interests in land of

inaccuracies in cadastral surveys; and(b) the efficiency and effectiveness of measures to manage

risks to the accuracy of cadastral surveys; and 20(c) (how) the efficiency with which the costs and benefits

of those measures (should be distributed) will be allo-

cated among the Crown, cadastral surveyors, (and) cur-rent and future owners of land, and other parties; and

(d) the use of cadastral survey data for purposes other than 25cadastral surveys.


76 Delegation of Surveyor-General's functions, duties, andpowers

(1) The Surveyor-General may delegate any of his or her func- 30tions, duties, and powers under this Part (except this power ofdelegation) to any employee of the chief executive or to anyother suitable person.

1 1

1 1



(2) A delegation may be made to a specified person or to personsof a specified class, or to the holder or holders of a specifiedoffice.

(3) A delegation is revocable in writing at any time.

(4) No delegation affects or prevents the exercise of any power or 5the performance of any duty by the Surveyor-General for theactions of a person acting under the delegation.

(5) A delegation continues in force according to its tenor despite

any change in the person holding office as the Surveyor-General. 10

(6) Subject to any general or special directions given by theSurveyor-General, the person to whom any powers or dutiesare delegated may exercise those powers or perform thoseduties in the same manner and with the same effect as if they

had been conferred on the person directly and not by 15delegation.

(7) In the absence of proof to the contrary, a person purporting toact under a delegation under this section is presumed to beacting in accordance with its terms.

Compare: 1986 No 123 s 12 20

Chief executive

77 Functions of chief executive

For the purposes of this Part, the functions of the chief execu-tive are-

(a) to determine whether cadastral survey datasets and 25cadastral surveys comply with standards set undersection 75(1)(c)

(b) to provide facilities to receive cadastral survey datasets:(c) to set conditions for the use of the facilities referred to

in paragraph (11)(, including payment for their use): 30

New (unanimous)

(ca) to integrate new cadastral surveys into the cadastre:(cb) to determine the structure of, and to store and provide

access to, cadastral survey data:(cc) to audit compliance with conditions set under paragraph(C): 35

77

1 1

1 1

78

78

(1)

Part 2 cl 77

(2)

79

(1)

(2)

(3)


Survey Legislation

(d) to exercise any other functions conferred on the chiefexecutive by this Part or the Minister.

Cadastral Sun)eyors Licensing Board of New Zealand

Cadastral Surveyors Licensing Board of New Zealand

The Cadastral Surveyors Licensing Board of New Zealand is 5established.

The Board is a body corporate with perpetual succession.

Compare: 1986 No 123 s 13(1)

Functions and duties of Board

The functions and duties of the Board are- 10

(a) to maintain a register of cadastral surveyors licensedunder this Part:

(b) to receive applications for licences under this Part as

cadastral surveyors and to issue licences in propercases: 15

(c) to set fees for the issue and renewal of licences underthis Part:

(d) to issue and update standards that persons applying forlicences, or the renewal of licences, under this Part must

Ineet: 20

(e) to investigate complaints about cadastral surveyors andtake disciplinary action in appropriate cases under thisPart:

(f) to provide statistical information to the Minister about

(cadastral surveying and) cadastral surveyors as 25requested by the Minister:

(g) to perform any other functions or duties conferred on itby this Part or any other enactment.

Fees set under subsection (1)(c) must be set to cover only thecost of the functions of the Board. 30

For the purposes of subsection (1 Md),-(a) the standards must relate to the competencies required

by cadastral surveyors to meet the standards set by theSurveyor-General under section 75(1)(c):

(b) the standards must also relate to the legislative require- 35ments for the subdivision of land to the extent that theyare relevant to cadastral surveying:



(c) the standards must take into account any assignmentsfor the Survey Board of New Zealand begun by appli-cants before the commencement of this Part for comple-tion after the commencement of this Part:

(d) the Board may conduct, or arrange for the conduct of, 5examinations for the purpose of determining whetherpersons proposing to apply or applying for licencesunder this Part meet the standards set under subsection

(4) The Board must, from time to time, for the purpose of setting 10

standards under subsection (1)(d), consult the Surveyor-General

about the competencies required by licensed cadastral survey-

ors to meet standards for cadastral surveying set by or underthis Part.

(5) For the purposes of subsection (1)(d), the Board may, before 15

issuing standards under that provision, adopt and apply the

competencies that applied, immediately before the com-

mencement of this Part, to the registration of surveyors.


1 1

(6) For the purposes of subsection (5),-(a) members of the Survey Board of New Zealand must 20

complete the assessments of applicants for registration

under the Survey Act 1986 made but not determinedbefore the commencement of this Part; and

(b) those assessments must be accepted by the Cadastral

Surveyors Licensing Board of New Zealand. 25


80 Powers of Board

(1) For the purpose of performing its functions and duties, theBoard-

(a) has full capacity to undertake any activity, do any act, 30

or enter into any transaction; and

(b) for the purposes of paragraph (a), has full rights, powers,

and privileges.

(2) Subsection (1) applies subject to this Part, any other enactment,

and the general law. 35

79

Part 2 cl 80

(3)

81

(1)

(2)

(3)

(4)

82

83

80


Survey Legislation

The capacity, rights, powers, and privileges of the Board arenot affected by a vacancy in its membership.

Membership of Board

The membership of the Board consists of-(a) 5 members appointed by the Minister in accordance

with subsection (2); and

(b) the Surveyor-General.

The Minister must, by notice in the Gazette, appoint-(a) 2 persons, of whom-

(i) at least 1 is or has been a licensed cadastral sur-

veyor; and

(ii) both have been nominated by a body or bodiesrepresenting licensed cadastral surveyors; and

(b) 2 persons who are or have been licensed cadastral sur-veyors and who have not been nominated by a body orbodies representing licensed cadastral surveyors; and

(c) 1 person who is not and never has been a licensedcadastral surveyor and who is not employed in, anddoes not represent, the surveying profession.

The Board must elect 1 of the persons appointed under sub-section (1)(a) to be the chairperson of the Board.

In this section, licensed cadastral surveyor includes a personwho, immediately before the commencement of this Part, was

a registered surveyor under the Survey Act 1986.

Compare: 1986 No 123 s 13(2)

Further provisions relating to Board and its membersSchedule 5 applies to the Board and its members

Liability of members and employees

No member or employee of the Board is personally liable for

any-

(a) liability of the Board; or

(b) act done or omitted to be done by the Board, or anymember or employee of the Board, in good faith in theperformance or intended performance of the functions,duties, or powers of the Board.

5

10

15

20

25

30

35

85

84

(1)

(2)

(3)

86

87

(1)

(2)

(3)



Application of fees received by Board

All money paid to the Board under this Part must be paid intoa bank account as determined by the Board.

The money may be applied only to the payment of any expen-

diture incurred by the Board in the performance of its func- 5tions and duties or the exercise of its powers.

The Board may invest any money for the time being notrequired for any of the purposes referred to in subsection (2) inaccordance with the provisions of the Trustee Act 1956 as tothe investment of trust funds. 10


Fees and allowances

There may be paid out of the funds of the Board to membersof the Board and any committee appointed by the Boardremuneration by way of fees, salary, or allowances, and 15travelling allowances and expenses, in accordance with (rulesmade by the Board) the framework determined by the Govern-ment for the remuneration of statutory and other bodies.


Unauthorised expenditure 20

The Board may, in any financial year, expend for purposes notauthorised by any Act or law any sum or sums not amountingin total to more than $500.


Accounts 25

The Board must keep full and true accounts of all moneyreceived and expended by it.

As soon as practicable after the end of each financial yearending with 30 June, the Board must prepare and submit to aqualified auditor for auditing full and true statements and 30accounts of all its income and expenditure in that year and ofits assets and liabilities at the end of that year.

In this section, qualified auditor means a person eligible to

be appointed as an auditor under the Companies Act 1993.

Compare: 1986 No 123 s 78 35

81

Part 2 cl 88

(4)

89

(1)

(2)

(3)

(4)

82


Survey Legislation

88 Annual report

(1) The Board must, in each year, make a report to the Minister onthe performance of its functions and duties and the exercise ofits powers.

(2) The report must contain a copy of the board's audited 5accounts and the auditor' s report on them.


(3) The Board must make a copy of its annual report available toall cadastral surveyors.1 1

New (unanimous)

(3) The Board must-

(a) notify, in writing, all cadastral surveyors- 10(i) that it has made its annual report to the Minister;

and

(ii) specifying how they can obtain the annual report;and

(b) make a copy of its annual report available to all cadas- 15tral surveyors.

The Board complies with subsection (3)0) if it publishes itsannual report on the Internet.


Subpart 3-Licensing of cadastral surveyors 20

Register of cadastral surveyors

The Board must maintain a register of cadastral surveyorswho hold current licences issued under this Part.

The Board must enter in the register the name and address ofevery person who holds a current licence issued under this 25Part, and make any other entries that may be required, permit-ted, or directed to be entered by or under this Part.

The register must be open for public inspection during ordi-nary office hours at the place where it is kept.

The Board must, on payment of the prescribed fee (if any), 30supply-

1

1 1

(5)

(6)

90

(1)

(2)

91

(1)


Survey Legislation Part 2 c191

(a) a licence to a cadastral surveyor whose name is enteredin the register; and

(b) a certified copy of any entry in the register to any personrequesting it.

The Board may- 5(a) cause the register or any part of it to be published in the

form, whether abbreviated or not, that it thinks fit; and

(b) charge any person who wishes to purchase a copy of theregister or part of the register.

The fee charged under subsection (5)(b) must be not more than 10

the fee that may be charged by a department of State forproviding information under the Official Information Act1982.



Transitional provision 15

Every person who, immediately before this Part comes into

force, was registered under the Survey Act 1986 and held an

annual practising certificate under that Act-(a) is to be treated as if he or she held a licence issued under

this Part with an expiry date of 30 June 2003; and 20

(b) must be entered in the register of cadastral surveyors;and

(c) must pay to the Board, for the purposes of this section,

the amount and at the time determined by the Board.

A person who does not pay the amount determined by the 25Board by the time determined by the Board is to be treated on

and from that time as not holding a licence under subsection


Entitlement of applicant for licence 30

A person, on payment of the prescribed fee, is entitled to belicensed as a cadastral surveyor if the person satisfies theBoard-

(a) that he or she meets the Board's standards for the

licensing of cadastral surveyors; and 35

83

84

94

(1)

Part 2 c191


Survey Legislation

(b) that he or she is not precluded from holding a licencebecause of an order made by the Board under section106.

New (unanimous)

(2) This section applies subject to section 92.

92

(1)

(2)

(3)

93

(2)


Character of applicant

A person must not be licensed under this Part if the personhas, within 5 years before applying to be licensed under thisPart, been convicted of an offence under any of sections 217to 281 of the Crimes Act 1961. 10

Subsection (1) does not apply if the District Court makes anorder exempting the person from that subsection.

An order may be made on the terms and conditions (if any)that the court thinks fit.

Applications for licence 15Every application for a licence under this Part must be madeto the Board and must be in the form and contain the informa-

tion required by the Board.


Board to consider applications 20

The Board must consider an application for a licence underthis Part as soon as practicable after the Board receives theapplication.

In considering an application for a licence, the Board must-(a) observe the rules of natural justice; and 25

(b) without limiting paragraph (a), give the applicant-(i) notice of any matter that might result in his or her

application being declined; and(ii) a reasonable opportunity to make submissions to

the Board on the matter. 30


5

1 1

1 1

95

(1)

(2)

96

(1)

(2)

(3)

97

(1)

(2)

(3)

98

(1)

(2)



Board to license applicant or decline applicationIf, after considering an application, the Board is satisfied thatthe applicant is entitled to be licensed under this Part, theBoard must-

(a) licence the applicant; and 5(b) notify the applicant that he or she is licensed.

If, after considering an application, the Board is not satisfiedthat the applicant is entitled to be licensed as a cadastralsurveyor, the Board must notify the applicant-(a) of its decision and the reasons for it; and 10

(b) of the applicant' s right to appeal against the decision.

Duration of licence

A licence must specify the date of its expiry.

The date of expiry must not be later than 3 years after the dateof the issue or renewal of the licence. 15

A licence continues in force until the close of the date of its

expiry unless sooner suspended or cancelled under this Part.

Renewal of licence

A licensed cadastral surveyor, on payment of the fee set by theBoard, is entitled to a renewal of his or her licence if the Board 20

is satisfied that the cadastral surveyor complies with the cur-rent standards for cadastral surveyors issued by the Board.

An application for renewal of a licence must not be madeearlier than 3 months before the licence's date of expiry.

If an application to renew a licence is made before the 25licence' s expiry date but the licence has not been renewedbefore that date, the licence continues in force until the appli-cation is determined.

Cadastral surveyor to notify change of business addressA licensed cadastral surveyor who changes his or her business 30address must, within 3 months after the change, notify theBoard of his or her new address.

The Board must enter the new address in the register.Compare: 1986 No 123 s 43

85

1

1

Part 2 cl 99


Survey Legislation

99 Amendment of register on change of name and removalof name on request

(1) If the Board is satisfied that a licensed cadastral surveyor haschanged his or her name or that the name of a licensed cadas-tral surveyor is incorrectly stated in the register, the Board 5must correct any entry in the register relating to the cadastralsurveyor.

(2) The Board may at any time, if it thinks fit, on the writtenapplication of a licensed cadastral surveyor, remove the nameof the cadastral surveyor from the register. 10


100

86

Offences relating to (registration) licences

Every person commits an offence and is liable on summaryconviction to imprisonment for a term not exceeding 3 monthsor a fine not exceeding $5,000 who, for the purpose of 15obtaining a licence or renewal of a licence under this Part

(either for himself or herself, or for any other person),-(a) either orally or in writing, makes any declaration or

representation that to his or her knowledge is false ormisleading in a material particular; or 20

(b) produces to the Board or makes use of any document,knowing it to contain any such declaration or represen-tation; or

(c) produces to the Board or makes use of any document,knowing that it is not genuine. 25



New (unanimous)

10OA Transitional provision: registered surveyors(1) Every person who, immediately before this Part comes into

force, was registered under the Survey Act 1986 and held anannual practising certificate under that Act must- 30(a) be treated as if he or she held a licence issued under this

Part with an expiry date of 30 June 2003; and

1 1

1 1


Survey Legislation

New (unanimous)

Part 2 cl 10OB

(b) be entered in the register of cadastral surveyors; and(c) pay to the Board, for the purposes of this section, the

amount determined by the Board.

(2) The amount determined by the Board under subsection (1)(c)must- 5

(a) be paid by a date determined by the Board; and(b) not exceed the fee payable under section 47(4) of the

Survey Act 1986 for the year 1 July 2001 to 30 June2002.

(3) A person who does not pay the amount determined by the 10Board by the date determined by the Board must be treatedfrom that date as not holding a licence under subsection (1)(a)


10OB Transitional provision: applications to be registeredsurveyor 15

(1) This section applies to a person who, before the commence-ment of this Part,-

(a) had qualified to sit the examinations specified in regula-tions 6 and 7(1)(b) of the Surveyors Professional Regu-lations 1977; and 20

(b) had applied to the Survey Board of New Zealand to sitthe examinations.

(2) The person may continue to sit the examinations and to com-plete, before 30 June 2003, the other requirements for a certifi-cate of competency under the Surveyors Professional Regula- 25tions 1977.

(3) The members of the Survey Board of New Zealand holdingoffice at the commencement of this Part must-

(a) conduct the examinations referred to in subsection (1),

and do everything else necessary to determine whether 30a certificate of competency should be issued to theperson; and

(b) issue a certificate of competency to the person if theperson satisfies the members about the matters specifiedin regulation 3 of the Surveyors Professional Regula- 35tions 1977; and

87

1 1

1 1

Part 2 cl 10OB

(4)

(5)

(6)

101


Survey Legislation

New (unanimous)

(c) advise the Cadastral Surveyors Licensing Board of NewZealand accordingly.

On receiving advice under subsection (3), the Cadastral Survey-ors Licensing Board of New Zealand must-

(a) enter the name of the person concerned in the register of 5cadastral surveyors; and

(b) issue a licence to the person.

This section applies subject to section 92.

For the purposes of this section, the Surveyors ProfessionalRegulations 1977 continue to apply as if they had not been 10revoked by this Part.

Subpart 4-Discipline


For the purposes of this subpart, professional misconductmeans the professional misconduct described in Schedule 6. 15


102 Complaints of professional misconduct

(2)

88


1 1

(1) The Board may receive complaints about-(a) the conduct of a licensed cadastral surveyor in carrying

out a cadastral survey: 20

(b) the suitability of a licensed cadastral surveyor to carryout cadastral surveys.1 1

New (unanimous)

(1) The Board may receive complaints alleging that-(a) a licensed cadastral surveyor has been guilty of profes-

sional misconduct: 25

(b) a licensed cadastral surveyor is not entitled to be alicensed cadastral surveyor.

Any person may make a complaint, including

1 1

1 1

1 1

1 1

(3)

(4)

(5)

(6)

103

(2)

104

(1)



(a) any member of the Board:

(b) any person in the service of the Crown acting in his orher official capacity.

On receipt of a complaint, the Board-(a) must inform the cadastral surveyor concerned of the 5

complaint; and(b) may proceed to investigate the complaint.

For the purposes of an investigation, the Surveyor-Generalmust provide to the Board any information he or she holds that

is relevant to the complaint. 10

As soon as practicable after receiving the complaint or com-

pleting an investigation of the complaint, as the case may be,the Board must decide whether to accept or decline the

complaint.

The Board must, immediately after making a decision under 15subsection (5), give written notice of the decision to the personwho made the complaint and the cadastral surveyorconcerned.


Vexatious or trivial complaints 20

The Board is not required to investigate, and may decline to

accept, a complaint that the Board considers vexatious ortrivial.

Procedure if Board accepts complaint

If the Board accepts a complaint, the Board must, in the notice 25to the cadastral surveyor concerned given under section102(6),--

(a) state that the Board has reason to believe that 1 or more

grounds exist entitling it to exercise its disciplinary

powers under section 106; and 30

(b) provide particulars that will clearly inform the cadastral

surveyor of the ground or grounds; and(c) specify a date, being not less than 28 days after the

service of the notice, on which the board intends to hear

the matter. 35

The notice may also require the cadastral surveyor to notifythe board in writing, not later than 14 days before the date

89

(2)

105

(1)

Part 2 cl 104

(3)

(3)

(4)

(5)

(6)

90


Survey Legislation

proposed for the hearing, whether or not he or she intends toappear before the Board at the hearing.

If the cadastral surveyor fails to notify his or her intentionunder subsection (2), the cadastral surveyor is entitled to appearand be heard only on any conditions as to the payment of costs 5and expenses or otherwise as the Board thinks fit.

Compare: 1986 No 123 s 50(1) to (4)

Hearing of complaint

In hearing a complaint against a licensed cadastral surveyor,the Board- 10

(a) must observe the rules of natural justice; and(b) may receive evidence even though it would not be

admissible in a court of law.

A member of the Board must not act as a member of the Board

when it is hearing a complaint if the member- 15(a) made the complaint; or(b) has a conflict of interest; or

(c) is the Surveyor-General.

The hearing of the complaint is not open to the public unlessthe Board otherwise directs. 20

The Board' s decision on the hearing of the complaint is the

decision of the majority of members present at the hearing.

An order of the Board made under section 106 must-

(a) be recorded in writing; and(b) contain a statement of the reasons on which the order is 25

based; and

(c) contain a clear statement-(i) of the cadastral surveyor' s right to appeal against

the order; and

(ii) the time within which notice of an appeal must be 30given; and

(d) be signed by the Chairperson.

An order made in accordance with subsection (5)-

(a) must be served on the cadastral surveyor; and(b) takes effect from- 35

(i) the date it is served on the cadastral surveyor; or



(ii) a later date (if any) specified by the Board in theorder.

Compare: 1986 No 123 s 50(6) to (12)

106 Disciplinary powers of Board

(1) This section applies if the Board, after conducting a hearing in 5accordance with this subpart, is satisfied that a licensed cadas-tral surveyor-(a) has been convicted, whether before or after the cadas-

tral surveyor became licensed, by any court in NewZealand of an offence against any of sections 217 to 281 10of the Crimes Act 1961, or by any court overseasagainst similar provisions; or

(b) has been guilty of professional misconduct.

(2) The Board may do 1 or more of the following:

(a) order that the cadastral surveyor' s licence be cancelled 15and the name of the cadastral surveyor be removed fromthe register:

(b) order that the cadastral surveyor' s licence, and his orher entitlement to obtain a renewal of the licence, be

suspended for a period not exceeding 3 years: 20(c) order that the cadastral surveyor may, for a period not

exceeding 3 years, practise but only subject to anyconditions as to employment, supervision, relevanttraining or education, or otherwise that the Board may

specify in the order. 25

(3) The Board may order the cadastral surveyor concerned to payany costs and expenses of, and incidental to, the hearing orany investigation conducted under section 102 in relation to acomplaint forming the subject of any hearing, including thecosts of any field inspections undertaken for the purpose of 30testing the accuracy of any cadastral survey and the costs ofremedying any defect in any such cadastral survey.

(4) The Board must not make an order in respect of any offencecommitted by any person before the date on which he or shebecame licensed if, at that date, the Board was aware of his or 35

her conviction in respect of the offence.

(5) While any order of suspension of a licence remains in force,

the person is to be treated for the purpose of this Part as not

being licensed but, on the expiry of the order, the person' s

91

Part 2 cl 106

(6)

(7)

(8)

107

92

(1)

(2)

(3)

(4)

108

(1)


Survey Legislation

rights and privileges as a licensed cadastral surveyor arerevived as from the date of expiry.

In an order under this section directing the name of any personto be removed from the register, or in any subsequent order ofthe Board, the Board may fix a time after which the person 5whose name has been removed may apply for a licence.

The Board, on hearing the application, may order that thename of the applicant be restored to the register, and mayorder that the person may, for a period not exceeding 3 years,practise but only subject to any conditions as to employment, 10supervision, or otherwise that the Board may specify in theorder.

All costs and expenses payable, under this section are recover-able as debts due to the Board.

Compare: 1986 No 123 s 51 15

Powers and rights of Board and persons involved inproceedings of Board

The Board has and may exercise, for the purposes of anyhearing under section 105, the same powers as are conferred onCommissions of Inquiry by sections 4,4B, and 4D to 8 of the 20Commissions of Inquiry Act 1908.

Sections 4,4B, and 4D to 8 of the Commissions of Inquiry Act1908 apply to all persons involved in any capacity in anyhearing under section 105 as if it were an inquiry conducted bya Commission under that Act. 25

A cadastral surveyor in respect of whom a hearing is con-ducted under section 105 is entitled to appear and be heard,

either personally or by his or her representative, at the hearing.

The Board has, in relation to any hearing under section 105, andany decision or order made on any such hearing, the same 30immunities and privileges as a District Court Judge has in theexercise of his or her civil jurisdiction.Compare: 1986 No 123 s 52

Appeals from decisions of Board

This section applies to a person who is dissatisfied with the 35whole or any part of-



(a) any decision of the Board relating to an application bythe person for a licence:

(b) any decision by the Board under section 102 or section 103

to decline to accept a complaint:

(c) any order of the Board under section 106 relating to him 5or her.

(2) The person may, within 28 days after notice of the decision or

order has been communicated to him or her by the Board or

within any further time that the District Court may allow on

application made before or after the expiration of that period, 10appeal to the District Court against the decision or order, as

the case may be.

(3) The Court must, as soon as practicable, hear the appeal, and

may confirm, reverse, or modify the decision of the Board, or

may refer the matter back to the Board in accordance with 15

rules of Court, and may give any decision that the Board could

have given in respect of the matter.

(4) This section does not give the Court power to review any part

of the Board's decision other than the part against which the

appellant has appealed. 20

(5) Subject to any order of the Court, every decision or order of

the Board against which an appeal is lodged continues in force

and has effect according to its tenor pending the determination

of the appeal.

(6) On any appeal under this section, the Court may make an 25

order for the payment by the Board, or by the appellant, of the

costs incurred in respect of the appeal by the other party to the

appeal.

(7) The decision of the District Court on any such appeal is final.

Compare: 1986 No 123 s 53 30

109 Suspensions and conditions must be entered in register

(1) The Board must enter in the register at the entry for theappropriate cadastral surveyor the fact that any suspension or

condition of practice has been imposed upon him or her under

section 106 and the terms of the suspension or condition. 35

93

Part 2 cl 109

(2)

(2)

(2)

111

(1)

110

(1)

112

113

94


Survey Legislation

An entry made in the register under subsection (1) must beremoved on the expiry of the period of suspension or thelifting of the suspension by the Board or the District Court.


Surrender of licences 5

A cadastral surveyor whose licence is cancelled or suspendedunder this subpart must, within 14 days after the date on whichwritten notice of the cancellation or suspension has been givento him or her, deliver to the Board the current licence issued tohim or her under this Part. 10

Every person commits an offence and is liable on summaryconviction to a fine not exceeding $1,000 who wilfully fails tocomply with subsection (1).

Publication of orders

This section applies to- 15(a) a decision or order made by the board under section 106

in respect of any licensed cadastral surveyor and noappeal has been brought against the decision or order:

(b) an order made by any court in respect of any appealunder section 108 by a licensed cadastral surveyor. 20

The Board may publish a notice stating the effect of the

decision or order in the Gazette and any other publications asthe Board thinks fit.


Copies of rules and procedures to be made available on 25request

The Board must, if requested by any person, provide to theperson a copy of the rules and procedures relating to discipli-nary matters under this subpart.

Transitional provision 30

Complaints, investigations, hearings, proceedings, and other

matters begun but not completed under the Survey Act 1986before the commencement of this Part may be continued andcompleted by the Board as if the Survey Act 1986 had not

been repealed by this Part. 35

(2)

(3)

(4)

(5)

(6)

115

(1)

114

(1)



Subpart 5-Conduct of cadastral surveys

General duties in relation to cadastral surveysA cadastral survey must be conducted by a cadastral surveyoror a person acting under the direction of a cadastral surveyor.

In conducting a cadastral survey, a cadastral surveyor or a 5person acting under his or her direction must comply with thisPart and any regulations, standards, and rules made under it.

A cadastral surveyor is responsible for a cadastral surveyconducted by a person acting under his or her direction.

Subsection (2) applies subject to subsection (5) and section 167 10of the Land Transfer Act 1952.

If the Surveyor-General considers in a particular case that

compliance with the requirements of any standards or rulesunder this Part is impractical or unreasonable, the Surveyor-

General may- 15(a) grant an exemption from the requirements; or(b) specify alternative requirements.

Compliance with alternative requirements must be treated ascompliance with subsection (2)

Regulations 20The Governor-General may, by Order in Council made on therecommendation of the Minister, make regulations requiringcadastral surveyors to provide cadastral survey datasets, orspecified parts or classes of cadastral survey datasets, to thechief executive as digital cadastral survey datasets. 25

New (unanimous)

(lA) The Minister must not make a recommendation under sub-section (1) unless the Minister has consulted the body orbodies representing cadastral surveyors.

(2) The Governor-General may, by Order in Council, make regu-lations prescribing- 30(a) the matters in respect of which fees or charges are

payable for-

(i) the exercise of the functions, duties, and powersof the Surveyor-General under this Part:

95

1

Part 2 cl 115

(3)

(b)

(e)

(C)

(d)


Survey Legislation

New (unanimous)

(iia) the exercise of the functions, duties, and powersof the chief executive under this Part:

(ii) (the exercise of the functions of, or) the provisionof facilities and services (provided) by the chiefexecutive in relation to the administration of this 5

Part:

the amounts of those fees or charges, or the method orrates by which they are to be assessed:the persons liable for payment of those fees or charges:the circumstances in which the payment of the whole or 10any part of those fees or charges may be remitted orwaived:

the manner in which the fees or charges are to be paid.


The chief executive may set fees and charges for a function,facility, or service if a fee is not set for the function, facility, or 15service under this section.

New (unanimous)

(3) The Survey (Departmental Fees and Charges) Regulations1998, to the extent applicable,-(a) continue in force as if they had been made under sub-

section (2); and 20(b) may be amended or revoked as if they had been made

under subsection (2).

116

(1)

96


Surveyor-General may make rules about conduct of

cadastral surveying 25The Surveyor-General may, by notice in the Gazette, makerules specifying-

(a) standards for the conduct of cadastral surveys (includ-ing the use of cadastral survey marks):

(b) standards for cadastral survey datasets. 30

1 1

1 1

1 1

1 1

(2)

(3)

(4)

(5)

(6)



Before making any rules under this section, the Surveyor-General must consult-

(a) the Board in relation to rules that have implications forthe standards set by the Board under section 79(1)(d); and

(b) the body or bodies representing cadastral surveyors; 5and

(c) if the standards will affect a tenure system, the agencyor officer responsible for the tenure system.

Before making rules under this section, the Surveyor-Generalmust have regard to the following matters: 10(a) the extent to which the proposed standards will promote

the purpose of any tenure system:(b) the costs and benefits of consistency in standards relat-

ing to more than 1 tenure system:(c) the costs and benefits of maintaining the accuracy of the 15

cadastre:

(d) the costs involved in cadastral surveys and cadastralsurvey datasets complying with the proposed standards:

(e) maintaining public confidence in the cadastre.Rules made under this section- 20

(a) apply subject to regulations made under this Part; and(b) are regulations for the purposes of the Regulations (Dis-

allowance) Act 1989 (but not for the Acts and Regula-tions Publications Act 19891


Rules made under this section must be publicly notified. 25

Subsection (5) is complied with if the rules are published on theInternet.

New (unanimous)

1 1

(5) The Surveyor-General must-(a) notify rules made under this section in a publication of a

body referred to in subsection (2)(b); and 30(b) supply, on request for a reasonable fee, a copy of rules

made under this section.

97

1 1

Part 2 cl 116A

98


Survey Legislation

New (unanimous)

116A Transitional provision: Surveyor-General's rules(1) On and from the commencement of this Part, the provisions

specified in subsection (2k-

(a) have effect as if they-(i) were rules made under section 116; and 5

(ii) had been amended in the manner specified inSchedule 6A; and

(b) may be amended or replaced under section 116.

(2) The provisions are-(a) sections 57,58, and 60 of the Survey Act 1986; and 10

(b) the Survey Regulations 1998.

116B Expiry of section 116ASection 116A expires at the end of 12 months after the com-mencement of this Part.

117 Correction of errors in survey 15(1) If an error is found in a cadastral survey dataset affecting any

title under the Land Transfer Act 1952 or any title or tenureunder any other Act, the Surveyor-General may, in writing,require the cadastral surveyor responsible for the error toundertake the work necessary to correct the error. 20

(2) Subsection (1) does not limit-

(a) the powers granted in sections 7 and 46 of the CrownGrants Act 1908:

(b) the powers of the Registrar under sections 80 and 81 of

the Land Transfer Act 1952, or the provisions of section 25170 of that Act:

(c) the powers of any court under any enactment.

118 Powers of entry for cadastral survey purposes(1) A cadastral surveyor authorised either generally or specifi-

cally by the Surveyor-General may, for the purpose of con- 30ducting a cadastral survey or the installation of a surveymark,-

1 1

1 1



(a) enter and re-enter any land at reasonable times, with orwithout any assistants, aircraft, boats, vehicles, appli-

ances, machinery, and equipment that are reasonablynecessary for the conduct of the cadastral survey or toinstall the survey mark; and 5

(b) on any land, do all things necessary or required of himor her for the proper conduct of the cadastral survey orthe installation of the survey mark.

(2) Before exercising any of the powers conferred by subsection (1)in respect of any land that is not a road, the person doing so 10must, if practicable, give reasonable notice to the occupier ofthe land of the intention to exercise those powers.

(3) Subsection (1) does not confer on any person the power to enterany dwellinghouse or other building unless the entry isauthorised by a warrant given by a District Court Judge on 15written application on oath, which must not be granted unlessthe Judge is satisfied that reasonable efforts have been made toobtain consent to the entry and that the entry is necessary forthe purpose of conducting a cadastral survey.

(4) A person exercising any power under subsection (1) must pro- 20duce evidence of his or her identity and authority to exercisethe powers conferred by this section-

(a) if practicable on first entering the land or premises; and(b) whenever subsequently reasonably requested to do so.Compare: 1986 No 123 s 61 25

119

Subpart 6-Offences and penalties

Obstruction of cadastral surveyor

Every person commits an offence and is liable on summaryconviction to a fine not exceeding $1,000 who knowinglyobstructs or hinders a cadastral surveyor, or a person assisting 30a cadastral surveyor, in-

(a) performing the cadastral surveyor' s duties and func-tions in relation to a cadastral survey; or

(b) ascertaining or marking out a boundary or cadastralsurvey line; or 35

(c) fixing, placing, restoring, repairing, or setting up acadastral survey mark.


99

Part 2 cl 120

100


Survey Legislation

120 Interference with cadastral survey marks(1) Every person commits an offence and is liable on summary

conviction to a fine not exceeding $2,000 who knowingly orrecklessly takes, destroys, or alters the position of, or mark-ings on, a survey mark that has been placed or set up- 5(a) for the control of cadastral surveys; or(b) for the purposes of any cadastral survey conducted

under, or for the purposes of, this Part or another Act.

(2) Every person commits an offence and is liable on summaryconviction to a fine not exceeding $500 who (having taken, 10destroyed, or altered the position of, or markings on, a surveymark) fails to notify the taking, destruction, or alteration to theSurveyor-General as soon as practicable after doing so.

(3) Every person who is convicted of an offence against subsection

(1) or subsection (2) is also liable to pay the costs (including any 15associated cadastral survey costs) of repairing, replacing, orrestoring to its proper position, or restoring the markings on,the cadastral survey mark concerned.

(4) The costs in subsection (3) are-(a) the costs as assessed by a District Court Judge; and 20(b) recoverable as if they were a fine.

(5) This section does not apply to anything done with the priorwritten approval of the Surveyor-General.

New (unanimous)

(6) The Surveyor-General may give approval under subsection (5)

subject to any terms and conditions that the Surveyor-General 25thinks fit relating to-

(a) repairing, replacing, or restoring to its proper position,or restoring the markings on, a cadastral survey mark;or

(b) making payment for any of those things to be done. 30


121 False cadastral survey marks

Every person commits an offence and is liable on summaryconviction to a fine not exceeding $2,000 who places in posi-tion in relation to any land a peg or mark- 35

1 1

1 1



(a) that is not a cadastral survey mark properly placed; and(b) with the intention of causing any person to believe that

it is a cadastral survey mark placed in that position forthe purposes of a cadastral survey.

Compare: 1986 No 123 s 69 5

122 Unlicensed persons not to act as licensed cadastralsurveyors

(1) Every person commits an offence and is liable on summaryconviction to a fine not exceeding $1,000 who, not being alicensed cadastral surveyor or a person acting under the direc- 10tion of a licensed cadastral surveyor, performs or executes, orundertakes to perform or execute, anything for the purposes ofa cadastral survey.

(2) However, subsection (1) does not apply to anything done underthe authority of another enactment by a person who is not a 15licensed cadastral surveyor.


123 Offences relating to terms implying person is licensedcadastral surveyor

Every person commits an offence and is liable on summary 20conviction to a fine not exceeding $5,000 who,-

(a) not being a licensed cadastral surveyor, uses, or causesor permits to be used, written words, titles, or initials, oran abbreviation of words, titles, or initials, that are

intended to cause or may reasonably cause a person to 25believe that the person using them is a licensed cadas-tral surveyor or is qualified to act as a licensed cadastralsurveyor:

(b) knowing that another person is not licensed under thisPart, and with intent to deceive, makes a statement or 30

does an act calculated to suggest that the other person isa cadastral surveyor or is licensed under this Part; or

(c) with intent to deceive, makes use of a licence issued tohim or her or to another person under this Part.

Compare: 1986 No 123 s 71 35

101

(2)

126

(1)

Part 2 cl 124

124

125

(3)

(4)

102


Survey Legislation

Infringement off'ences

Infringement offencesIn sections 125 to 128,-

infringement fee, in relation to an infringement offence,means $200 5

infringement offence means an offence under any of sections119 to 122.

Commission of infringement offenceIf any person is alleged to have committed an infringement

offence, the person may either- 10(a) be proceeded against for the alleged offence under the

Summary Proceedings Act 1957; or(b) be served with an infringement notice under section 126.

Infringement noticesIf the chief executive has reasonable cause to believe that a 15

person has committed an infringement offence, an infringe-

ment notice in respect of the offence may be served on theperson.

An infringement notice may be served-

(a) by delivering it personally to the person who appears to 20

have committed the infringement offence; or

(b) by sending it by post addressed to the person at theperson's last known place of residence or business.

For the purposes of the Summary Proceedings Act 1957, an

infringement notice sent to a person under subsection (2)(h) is to 25be treated as having been served on the person when it was so

posted.

An infringement notice must be in the prescribed form and

must contain the following particulars:

(a) such details of the alleged infringement offence as are 30

sufficient fairly to inform a person of the time, place,and nature of the alleged offence; and

(b) the amount of the infringement fee; and

(c) the address of the place at which the infringement feemay be paid; and 35

(d) the time within which the infringement fee must be

paid; and



(e) a summary of the provisions of section 21(10) of theSummary Proceedings Act 1957; and

(f) a statement that the person served with the notice has a

right to request a hearing; and

(g) a statement of what will happen if the person served 5with the notice neither pays the infringement fee norrequests a hearing; and

(h) any other particulars that are prescribed.

(5) If an infringement notice has been issued under this section,

proceedings in respect of the offence to which the notice 10relates may be commenced in accordance with section 21 of

the Summary Proceedings Act 1957; and, in that case, the

provisions of that section apply with all necessarymodifications.

127

128

Payment of infringement fees 15

All infringement fees paid in respect of infringement offencesmust be paid into the Crown Bank Account.

Regulations

The Governor-General may, by Order in Council, make regu-

lations prescribing the form of infringement notices, and any 20

other particulars to be contained in infringement notices.

Subpart 7-Dissolution of Survey Board of NewZealand and New Zealand Institute of Surveyors

129 Dissolution of Survey Board of New Zealand

(1) In this section,- 25

new Board means the Cadastral Surveyors Licensing Board

of New Zealand established by section 78

old Board means the Survey Board of New Zealand consti-

tuted by the Survey Act 1986.

(2) On and from the commencement of this Part,- 30

(a) the old Board is dissolved:

(b) all property belonging to the old Board vests in the newBoard:

(c) all money payable to or by the old Board becomespayable to or by the new Board: 35

103

Part 2 cl 129

(2)

(3)

(4)

(5)

130

(1)

104

(d)

(e)


Survey Legislation

all liabilities, contracts, engagements, rights, andauthorities of the old Board become the liabilities, con-

tracts, engagements, rights, and authorities of the newBoard:

all proceedings by or against the old Board may be 5continued, completed, or enforced by or against the newBoard.

Dissolution of New Zealand Institute of Surveyors

Despite section 133(2), the New Zealand Institute of Surveyors

(the Institute) continues in existence for the purposes of this 10section.

The Institute must, as soon as practicable after this Part comes

into force, nominate, by notice in the Gazette, for the purposes

of this section, a society (the society) registered under theIncorporated Societies Act 1908, whether registered before or 15after the commencement of this section.

On a date appointed by the Governor-General by Order inCouncil,-

(a) the Institute is dissolved:

(b) all property belonging to the Institute vests in the 20

society:

(c) all money payable to or by the Institute becomes pay-

able to or by the society:

(d) all liabilities, contracts, engagements, rights, andauthorities of the Institute become the liabilities, con- 25

tracts, engagements, rights, and authorities of thesociety:

(e) every employee of the Institute becomes an employee

of the society on the same terms and conditions as

applied immediately before becoming an employee of 30the society:

(f) all proceedings by or against the Institute may be con-tinued, completed, or enforced by or against the society.

The employment agreement of an employee who becomes anemployee of the society under subsection (3)(e) is to be treated as 35

not having been broken, and the employee is not entitled toany payment or benefit because the employee becomes anemployee of the society under that provision.

In this section, property-

(a)

(b)



means every type of property; andincludes-

(i) every type of estate and interest in property; and(ii) money.

Subpart 8-Miscellaneous 5

131 Certification of plans and descriptionsIf a certified cadastral survey dataset or description is requiredfor any purpose, a cadastral survey dataset or descriptioncontaining a statement that it has been certified for that pur-pose by the Surveyor-General and authenticated by the Sur- 10veyor-General is, in the absence of proof to the contrary,sufficient evidence that the cadastral survey dataset ordescription has been certified by the Surveyor-General.


132

(3)

(4)

Certificate by or on behalf of Board to be evidence of 15(registration) being licensed, etcA certificate given by or on behalf of the Board to the effectthat a person was or was not a licensed cadastral surveyorunder this Part or under any previous Act at any time or duringany period specified in the certificate, or as to any entry in the 20register of cadastral surveyors or as to any act or proceedingof the Board, is sufficient evidence of the matters specified init, in the absence of evidence to the contrary.


133 Consequential amendments and repeals 25(1) The Acts specified in Schedule 7 are amended in the manner

indicated in that schedule.

(2) The enactments specified in Part 1 of Schedule 8 are repealed.

New (unanimous)

The regulations specified in Part 2 of Schedule 8 are revoked.

All surveys, matters, and proceedings commenced under the 30Survey Regulations 1998 that were pending or in progress onthe commencement of this Part-

105

1 1

1 1

Part 2 cl 133

106


Survey Legislation

New (unanimous)

(a) may be continued, dealt with, and completed underthose regulations as if they had not been revoked; and

(b) may be enforced under rules made under section 116, orunder provisions that have effect as if they were rulesmade under that section, as if continued, dealt with, and 5completed under those rules.

134 References in other enactments

(1) A reference in another enactment to a chief surveyor in thecontext of cadastral surveys or an interest under a tenuresystem is to be read as a reference to the Surveyor-General. 10

(2) A reference in another enactment to a plan that subsection (3)applies to is to be read as including a digital cadastral surveydataset.

(3) This subsection applies to the following references:(a) a reference to a survey plan: 15(b) a reference to a plan approved by a chief surveyor or the

Surveyor-General:

(c) a reference to a plan deposited under the Land TransferAct 1952:

(d) a reference to a plan to be noted, notified, registered, or 20recorded in the register under the Land Transfer Act1952.

1 1

1


Survey Legislation Schedule 1

Schedule 1 s 68(1)

Other amendments to principal Act coming intoforce on 1 (April) June 2002

Section 2

Insert, after the definition of bankruptcy: 5"computer register has the same meaning as in the section 6of Land Transfer and Cadastral Survey Legislation Act 2001".

Insert, before the definition of endorsement:

"electronic instrument has the same meaning as in section 6of the Land Transfer and Cadastral Survey Legislation Act 102001 ".

Repeal the definition of instrument and substitute:"instrument-

"(a) means any printed or written document, map, or planrelating to the transfer of or other dealing with land, or 15evidencing title to land; and

"(b) includes a memorandum within the meaning of section155A(1) and an electronic instrument".

Insert, after the definition of land:

"medium includes- 20

"(a) any electronic, electromagnetic, optical, digital, orphotographic process or system; and

"(b) any paper; and

"(c) any other means of recording or storing information".Insert, after the definition of mortgagor: 25

"paper instrument means an instrument that is not anelectronic instrument".

Insert, after the definition of proprietor:

"register includes a computer register".Omit from the definition of the Land Transfer Acts the words "and 30

the Land Transfer (Automation) Amendment Act 1998" and

substitute the words "and the Land Transfer and Cadastral SurveyLegislation Act 2001".

Section 3(3)

Omit the words "Land Transfer (Automation) Amendment Act 351998" and substitute the words "Land Transfer and Cadastral

Survey Legislation Act 2001".

Section 12(1)

Repeal paragraph (b), and substitute:

107

Schedule 1

108


Survey Legislation

Section 12(1)-continued

"(b) create a computer register for the land and, if the land isnot electronic transactions land, issue a certificate of

title accordingly."

"or create an appropriate computer register". 5

Section 14

Add the words

Section 15

Insert, after the word "issued",created".

the words "or computer register

New (unanimous)

Section 23

Omit the words "one month from the publication thereof in the 10Gazette" and substitute the words "the prescribed period".

Section 27(2)

Repeal paragraph (b) and substitute:

"(b) create a computer register for the land and, if the land isnot electronic transactions land, issue a certificate of 15

title accordingly."

Section 32

Omit the words "any Registrar of Deeds" and substitute the words"the Registrar".

Section 36 20

Add:

"(4) The requirement that instruments be presented for registrationin duplicate or triplicate does not apply to any instrumentregistered under the Land Transfer and Cadastral Survey Leg-islation Act 2001." 25

Section 39(1)

Insert, before the words "the name", the words ", if appropriate,".

Section 41

Omit from subsection (1) the words "Land Transfer (Automation)Amendment Act 1998" and substitute the words "Land Transfer and 30

Cadastral Survey Legislation Act 2001".Add:

1 1

1 1



Section 41--continued

"(3) Subsection (2) does not apply to any electronic instrumentsintended to be registered against any electronic transactionsland.

"(4) If the instrument does not contain an operative provision thatgives effect to the object of the instrument, then on 5registration-"(a) the estate or interest specified in the instrument passes

to the person identified as the party taking the estate orinterest; or

"(b) in the case of a mortgage, the land specified becomes 10liable as security; or

"(c) in the case of a surrender, discharge, or variation of aninstrument, the interest is extinguished or varied accor-dingly(; or).


1 1

subject to the covenants, conditions, and contingencies speci- 15fied or otherwise incorporated or implied in the instrument."1 1

New (unanimous)

"(5) The provisions of subsection (4) are subject to-

"(a) the covenants, conditions, and contingencies specifiedor otherwise incorporated or implied in the instrument;and 20

"(b) in the case of a discharge of a mortgage, the provisionsof section 111 to the extent that the discharge is for thewhole or part of the principal sum, annuity, or othersum."

Section 43 25

Repeal subsection (3) and substitute:

"(3) If any instrument is returned as provided in subsection (1)(a),the Registrar may determine that either-"(a) any fees paid to the Registrar in respect of the instru-

ment are forfeited; or 30

"(b) any fees paid to the Registrar are forfeited unless anymatter required to be rectified to enable the instrument

109

1 1

1 1

Schedule 1

110


Survey Legislation

Section 43-continued

to be registered is so rectified and the instrument isagain lodged with the Registrar within a period speci-fied by the Registrar."

New (unanimous)

Section 44(2)

Omit from the proviso the expression " 14 days .9.

and substitute the 5

words "the prescribed period of'.

Section 73

Omit the words " 14 days from the time limited in the

advertisement" and substitute the words "the prescribed period".

Section 75

Add, as subsection (2):

"(2) Nothing in thisland."

section applies to electronic transactions

Section 78



Section 80


"(2) The Registrar may cancel or correct any computer register 20and, if appropriate, create a new computer register in order tocorrect any error or supply any omission in any computerregister."

Section 81

Add: 25

"(2) If the Registrar is satisfied as to any matter referred to in this

section and there is a computer register involved, the Registrarmay cancel or correct any computer register and, if appropri-ate, create a new computer register.

"(3) The Registrar must not take action under subsection (2) without 30first giving notice to any person appearing to be affected andgiving a reasonable period for any response."

10

1 1

1 1


Survey Legislation

New (unanimous)

Schedule 1

Section 87(4)

Omit the expression " 14 days ,I.

and substitute the words "the

prescribed period of".

Section 89C(2)

Omit the words "one month from the date of the notice" and 5

substitute the words "the prescribed period of notice".

Section 109


"(2) This section does not apply if the land to which the estate orinterest applies is electronic transactions land." 10

Section 111

Add:

"(4) Subsection (3) does not apply if the entry on the register ismade under the Land Transfer and Cadastral Survey Legisla-tion Act 2001." 15

New (unanimous)

Section 121(1)

Omit from the proviso the words "one calendar month's"substitute the words "the prescribed period of".

and

Section 121C(2)



New (unanimous)

Section 145

Omit the expression " 14 days" in both places where it appears andsubstitute in each case the words "the first prescribed period". 25Omit the words "a further period of 28 days" and substitute thewords "the second prescribed period".

111

1 1

1 1

1 1

1 1

1 1

1 1

Schedule 1

112


Survey Legislation

Section 152


"(1) The grantor of any revocable power of attorney that has beendeposited with the Registrar may, by notice to the Registrar,revoke the power of attorney in whole or in part." 5

Section 163

Repeal and substitute:

" 163 Instruments as evidence

Every paper instrument executed and registered under this Act

is presumed to have been sufficiently executed in the absence 10

of evidence to the contrary, and is sufficient evidence in anyCourt of the matters to which it relates."

Section 167


"(5) For the purposes of this Act, a plan is deemed to be deposited 15when the Registrar creates a record to that effect in a computerregister. The date of deposit is the date on which all require-ments, statutory or otherwise, precedent or incidental to the

deposit of the plan have been complied with to the satisfaction

of the Registrar." 20

Section 169(2)

Insert, after the word "defined", the words "or appropriatelyreferred to".

Section 172(a)

Omit the word "imposed" and substitute words ", function, or 25

power imposed or conferred .Insert, after the word "Department", the words "or person to whoma delegation has been made under section 5".

Section 175

Omit from subsections (lA) and (1B) the word "solicitor"wherever 30

it appears and substitute in each case the word "conveyancer".Omit from subsection (lA) the word "solicitor's" and substitute the

word 66 conveyancer's".

Section 183(1)

Omit the words "Land Transfer (Automation) Amendment Act 35

1998" in both places where they appear and substitute in each case

the words "Land Transfer and Cadastral Survey Legislation Act2001".



Section 184

Add to the definition of ordinary certificate of title the words "oran equivalent computer register".

Section 191(2)

Insert, after the words "this Act", the words "or an equivalent 5computer register".

Section 205(5)

Omit the words "by registered letter through the post".

Section 211

Omit the words "hereinbefore vested" and substitute the words 10

"otherwise conferred by this or any other Act .

Section 212

Insert, after the words "last preceding section", the words"confirming any matter entered or intended to be entered on acomputer register". 15

Section 215A

Insert, after the words "his records", the words "or any computerregister".

Section 215B

Insert, after the words "his records", the words "or any computer 20register".

Section 225(1)

Repeal paragraph (ab)(i) and substitute:

"(i) the recording, lodgement, presentation, orregistration of any information, instrument, 25matter or thing under the Land Transfer andCadastral Survey Legislation Act 2001; or".

Add the expression "; or" and add:

"(d) knowingly or recklessly gives a certificate under section164A that contains an incorrect material particular." 30

Section 226

Omit from paragraphs (a), (c), and (f) the words "any former LandTransfer Act" and substitute in each case the words "the LandTransfer Acts".

Omit from paragraphs (fa) and (fb) the words "any information 35under the Land Transfer (Automation) Amendment Act 1998" andsubstitute in each case the words "any instrument or other document

113

Schedule 1

114


Survey Legislation


or information under the Land Transfer and Cadastral Survey

Legislation Act 2001".

Omit from paragraph (fc)(i) the words "Land Transfer (Automation)Amendment Act 1998" and substitute the words "Land Transfer and

Cadastral Survey Legislation Act 2001 ". 5Add the expression "; or" and add:

"(h) gives a fraudulent certificate under section 164A."



Schedule 2 s 68(2)

Other amendments to principal Act coming intoforce on date to be appointed by Order in Council

Section 2

Add: 5"working day means a day on which the Land RegistryOffice is to be open to the public in accordance withregulations made under this Act."

Section 20(1)

Insert, after the words "Form A in the Second Schedule to this Act", 10

the words "or other prescribed form" .

Section 26

Omit the words "by registered letter through the Post Office".

Section 43(2)

Omit the words "by registered letter through the post". 15

Section 139

Omit the words "served at the place appointed in the caveat, orforwarded through the Post Office by registered letter addressed asaforesaid" and substitute the words "forwarded to the address for

service specified in the caveat". 20

Section 150

Omit the words "in Form O in the Second Schedule to this Act or".

Section 155A(2)

Add the words "and is approved by the Registrar".

Section 192 25

Omit the words "through the post by registered letter".

Section 193(2)

Omit the words "by registered letter" and the words "through the

post".

Section 204 30

Omit from subsection (1)(a) the words "in Form Q in the SecondSchedule to this Act" and substitute the words "under section 205".

Section 208

Insert, after the word "upon" in the second place where it appears,the words "or relating to". 35

115

Schedule 3

116


Survey Legislation

s 68(3) Schedule 3

Amendments to Deeds Registration Act 1908

Section 5

Omit the word "In" and substitute the word "For".

Add: 5

"(2) A Deeds Register Office may be the office for more than 1district."

Section 6


"6 Registrar of Deeds 10

"(1) The Registrar-General of Land appointed under section 4 ofthe Land Transfer Act 1952 is the Registrar for every DeedsRegister Office.

"(2) The Registrar may delegate any of the Registrar's powers andduties under this Act in accordance with section 5 of the Land 15

Transfer Act 1952."

Section 7

Omit the words "any Registrar or Deputy Registrar" and substitutethe words "the Registrar".Omit the words "such Registrar or Deputy Registrar" and substitute 20the words "the Registrar".

Section 45


"45 Instruments to be keptThe Registrar must ensure that all deposited instruments are 25indexed, marked with the date of deposit, and reasonablyavailable for reference or copying within the custody of theRegistrar."

Section 47(1)

Omit the words "of the first-mentioned district with the Registrar of 30

such other district" and substitute "in the register for that otherdistrict".

Section 48

Omit the words "Every Registrar of Deeds" and substitute thewords "The Registrar". 35

Section 49

Omit the words "no Registrar of Deeds shall be" and substitute thewords "the Registrar is not".



Section 49--continued

Omit the words "custody as such Registrar" and substitute thewords "custody as Registrar for the purposes of this Act".

Section 52(1)

Omit the word "Every" and substitute the word "The".

Section 53 5

Omit the words "Registrar-General of Land" and substitute theword "Registrar".

Section 54


"54 Practice of Deeds Register Offices 10

The Registrar may make rules regulating the practice of DeedsRegister Offices, but the rules must not be inconsistent withthe provisions of this Act."

117

Schedule 4

s 68(4)


Survey Legislation

Schedule 4

Amendments to other Acts

New (unanimous)

Land Transfer Amendment Act 1963 (1963 No 61)

Omit from section 7(3) the words "being not less than one monthnor more than 12 months from the date of the first publication of the 5notice under paragraph (a) of subsection (1) of this section" and

substitute the words "within the limits prescribed".Omit from section 10(1) the words "3 months after the giving of thenotice" and substitute the words "the prescribed period".

Omit from section 12(1) the words "3 months after the giving of the 10

notice" and substitute the words "the prescribed period".

Land Transfer (Hawke's Bay) Act 1931 (1931 No 27)

Omit from section 11(4) the words "one month from the date of the

last publication thereof" and substitute the words "the prescribedperiod". 15Omit from section 17(5) the words "6 calendar months from the date

of such notice" and substitute the words *'the prescribed period".

Property Law Act 1952 (1952 No 51)

Insert, in section 126A(1)(a) after the words "burden of thecovenant", the words "and the land with the benefit of the 20

covenant".

New (unanimous)

Property (Relationships) Act 1976 (1976 No 166)

Omit from section 42(3) the words "in Form N in the Schedule 2 tothe Land Transfer Act 1952".

Insert in section 42(3)(a), after the expression "section 145 ", the 25words "or section 145A".

Resource Management Act 1991 (1991 No 69)

New (unanimous)

Repeal section 223(3) and (4) and substitute:

118

1 1

1 1

1 1

1 1

1 1

1 1



Resource Management Act 1991 (1991 No 69)-continued

New (unanimous)

"(3) The principal officer or an authorised officer of the territorialauthority must certify that a survey plan has been approvedunder this section.

"(4) A certification under subsection (3) may be made either- 5"(a) by signing the plan or a copy of it; or"(b) by any other means that-

"(i) identifies the person giving the certification andlinks the certificate to the survey plan; and

"(ii) is as reliable as is appropriate to the purposes of 10this section.

"(5) A certificate under subsection (3) is conclusive evidence that all

roads, private roads, reserves, land vested in the authority inlieu of reserves, and private ways shown on the survey plan

have been authorised and accepted by the territorial authority 15under this Act and under the Local Government Act 1974.

"(6) Nothing in subsection (3) affects any obligation of the subdivid-ing owner under any condition of a subdivision consent orbond entered into relating to the subdivision."

Repeal section 224(a). 20Insert in section 224(c), after the words "stating that", the words ",(within the previous 3 years the territorial authority) jl has approvedthe survey plan under section 223 (which approval states the date ofthe approval), and".

New (unanimous)

Add to section 224(g) the expression "; and" and add: 25

"(h) less than 3 years has elapsed since the territorialauthority approved the plan under section 223."

119

1 1

1 1

1 1

1 1

3

(1)

(2)

1

(1)

Schedule 5

s 82

(3)

2

(1)

(2)

(3)

120


Survey Legislation

Schedule 5

Further provisions applying to Board

Term of appointment

A member of the Board appointed by the Minister holds officefor the term, not exceeding 3 years, specified in his or her 5notice of appointment.

A member of the Board appointed by the Minister may bereappointed to the Board.

Even though a member' s term of appointment may have

expired, the member continues in office until his or her suc- 10

cessor is appointed.

Compare: 1986 No 123 s 13(3) and (4)

Extraordinary vacancies

This section applies to--

(a) any member of the Board appointed by the Minister; 15and

(b) the substitute member of the Board appointed underclause 4.

A member may-

(a) be removed from office by the Minister for inability to 20

perform the duties of office, bankruptcy, neglect ofduty, or misconduct proved to the satisfaction of theMinister; or

(b) resign his or her office by notice in writing delivered tothe Minister. 25

If a member or substitute member dies, resigns, or is removedfrom office,-

(a) the vacancy so created must be filled in the manner in

which the appointment to the vacant office was origi-nally made; and 30

(b) the person appointed to fill the vacancy must beappointed for the residue of the term for which his or

her predecessor was appointed.


Meetings of Board 35

Meetings of the Board are to be held at the times and placesthe chairperson appoints.

4

(1)

(7)

(8)

(9)

(2)

(3)

(4)

(5)

(6)

(10)

(2)



Any 2 members of the Board may require the chairperson to

appoint a time and place for the holding of a meeting of theBoard within 14 days after the giving to him or her of notice ofthat requirement.

At every meeting of the Board, the quorum necessary for the 5transaction of business is 3 members.

However, the quorum is 4 members and must include the

member appointed under section 81(2)(c) if the Board is con-

sidering any matter under subpart 4 of Part 2.

Every question before a meeting of the Board must be deter- 10mined by a majority of the votes of the members present at the

meeting of the Board.

No member of the Board is entitled to be present or vote or

otherwise participate in his capacity as a member of the Board

at any part of a meeting of the Board if the member has a 15conflict of interest.

The chairperson has a deliberative vote and, in the case of an

equality of votes, also has a casting vote.

The chairperson must preside at all meetings of the Board at

which he or she is present. 20

In the absence of the chairperson from any meeting of theBoard, the members present must elect 1 of their number to

preside at the meeting, and the member presiding has all the

powers of the chairperson for the purposes of the meeting.

Subject to Part 2 and any regulations made under that Part, the 25

Board may regulate its procedure as it thinks fit.


Substitute for members

The Minister may appoint, for a term not exceeding 3 years, 1

licensed cadastral surveyor as a substitute member of the 30

Board, who is entitled, in the absence from any meeting of theBoard of a member appointed under section 81(2)(a) or (b), to

attend the meeting in his or her place.

The Minister may appoint, for a term not exceeding 3 years, a

suitably qualified person as a substitute member of the Board, 35

who is entitled, in the absence from any meeting of the Board

of a member appointed under section 81(2)(c), to attend the

meeting in his or her place.

121

(5)

(6)

Schedule 5

5

(1)

(2)

(3)

(4)

122


Survey Legislation

(3) A person appointed under this clause who attends a meeting ofthe Board is to be treated for the purposes of Part 2 as amember of the Board, except that he or she must not act as

chairperson of the Board.

Compare: 1986 No 123 s 18 5

Committees

The Board may appoint committees, consisting of 2 or moremembers of the Board and any other persons as the Boardthinks fit,-

(a) to inquire into and report to the Board on matters within 10

the scope of its functions that are referred to them by theBoard; or

(b) to exercise on behalf of the Board any of its functions or

powers and may, from time to time, delegate to anysuch committee any such function or power, other than 15

the functions and powers conferred on the Board by

subparts 3 and 4 of Part 2 (which relate to licensing anddiscipline).

A committee appointed under this section-(a) is subject to the control of the Board; and 20

(b) may, at any time, be discharged, altered, or reconsti-tuted by the Board.

Subject to any general or special directions given or condi-tions imposed by the Board, a committee may exercise a

function or power, delegated to it under this clause, in the 25same manner and with the same effect as if it had been

conferred directly by Part 2 and not by delegation.

A committee appearing to act under a delegation must, in the

absence of proof to the contrary, be presumed to be acting inaccordance with the delegation. 30

A delegation may be revoked at any time.

No delegation prevents the exercise of any function or power

by the Board.


1



Schedule 6 s 101


A licensed cadastral surveyor is guilty of professional mis-conduct if the cadastral surveyor is found in any proceedingsor appeal under subpart 4 of Part 2- 5(a) to have been negligent in the conduct of, or failure to

conduct, any cadastral survey:

(b) to have certified to the accuracy of any cadastral surveyor cadastral survey dataset without having personallycarried out or directed the cadastral survey and the 10related field operations:

(c) to have certified to the accuracy of any cadastral survey

or cadastral survey dataset without having carried outsufficient checks to ensure the accuracy of the entries in

any field book and the accuracy of all calculations, 15working plans, and other cadastral survey records thatmay have been made by any person employed by himor her in relation to the cadastral survey:

(d) to have certified to the accuracy of any cadastral survey

carried out by the cadastral surveyor or under his or her 20personal direction if the operation of pegging andground marking, and all other requirements of thecadastral survey, have not been carried out in accor-dance with standards set under subpart 5 of Part 2:

(e) to have certified to the accuracy of any cadastral survey 25or cadastraI survey dataset, knowing it to be defective:

(f) to have made any entry in any field book or otherrecord that purports to have been derived from actualobservation or measurement in the field, if in fact it has

not been so derived: 30

(g) to have supplied to the Surveyor-General any errone-ous information in relation to any cadastral survey,cadastral survey mark, or boundary, knowing the infor-mation to be erroneous in any material particular:

(h) to have been convicted of any offence against 35section 100 or section 123(b) or (c)

(i) to have failed to comply with any conditions imposedby the Board under section 106(2)(c) or (7) or the HighCourt on any appeal against an order under section 106:

(i) to have failed to comply with any requirement imposed 40under section 117:

123

Schedule 6

124


Survey Legislation

(k) to have persistently exercised the powers of entry con-ferred by section 118 in an unreasonable manner:

(1) to have failed, without reasonable cause, to perform

any duty imposed on licensed cadastral surveyors bystandards set by rules made under section 116. 5

2 For the purposes of determining whether or not a licensedcadastral surveyor is guilty of professional misconduct, thefact that a cadastral survey or cadastral survey dataset mayhave been (approved by or on behalf of the Surveyor-General) the subject of a determination by the chief executive 10

that it complies with standards specified in rules made undersection 116 is not relevant.


Survey Legislation

New (unanimous)

Schedule 6A

Schedule 6A s 116141)(a)(ii)

Amendments to Survey Act 1986 and SurveyRegulations 1998 for purposes of section

116A(1)(a)(ii)

Part 1

Amendments to Survey Act 1986

Section 57


"57 Measures of length and area

"(1) All measurements of length in cadastral surveys and cadastral 10

survey datasets must be expressed in metres and decimals ofmetres.

"(2) All measurements of area in cadastral surveys and cadastral

survey datasets must be expressed in hectares and decimals ofa hectare, or, where the area is less than 1 hectare, must be 15

expressed in square metres."

Section 58

Omit from subsection (1) the words "or section 64 of this Act".

Omit from subsection (1) the words "any survey affecting any title

under the Land Transfer Act 1952 or any title or tenure under any 20other Act shall" and substitute the words "a cadastral survey must".

Repeal subsection (1)(c) and substitute:

"(c) supply to the chief executive all relevant cadastral

survey data obtained by him or her in relation to the

survey:" 25

Omit from subsection (1)(d) the words "Chief Surveyor" and

substitute the words "Surveyor-General".


"(2) Every cadastral survey to which subsection (1) applies mustbe certified-- 30

"(a) personally by the cadastral surveyor who is responsible

for the survey; and

"(b) in a form specified by the Surveyor-General."

Section 60

Repeal subsection (1) and substitute: 35

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Schedule 6A

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Survey Legislation

New (unanimous)

Part 1-continued


"(1) When conducting a cadastral survey, a cadastral surveyormust examine all relevant documents, from the sources speci-fied in subsection (1A), relating to the land to be surveyed and allland adjacent to the land to be surveyed.

"(lA) The sources are- 5"(a) cadastral survey data and other information held by the

chief executive:

"(b) information held by the Registrar-General of Land:"(c) information held by the Maori Land Court."

Part 2 10

Amendments to Survey Regulations 1998

Regulation 2Omit from the definition of the national survey control system in

subsection (1) the expression "section 11(a)" and substitute the

expression "section 72". 15

Omit from the definition of the principal Act in subsection (1) the

words "the Survey Act 1986" and substitute the words "Pa,t 2 of theLand Transfer and Cadastral Survey Legislation Act 2001."

Revoke the definitions of surveyor and survey-system informationin subsection (1) and substitute: 20

"survey means a cadastral survey as defined in section 72 of the

Land Transfer and Cadastral Survey Legislation Act 2001

"surveyor means a licensed cadastral surveyor as defined insection 72 of the Land Transfer and Cadastral Survey Legislation Act

2001". 25

Revoke subclause (2) and substitute:

"(2) Terms and expressions used but not defined in these regula-tions have the same meaning as in Part 2 of the Land T,ansfer andCadastral Survey legislation Act 2001."

Regulation 3 30Omit.

Regulation 4Revoke and substitute:

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Survey Legislation

New (unanimous)

Part 2-continued

Schedule 6A

Regulation 4-continued"4 Cadastral survey datasets

A cadastral survey dataset and any related cadastral surveydata required by these regulations must be submitted to thechief executive before they can be incorporated in thecadastre." 5

Regulation 18(2)(b)

Insert, after the word "surveyor", the words "(or certified by thesurveyor in a form approved by the Surveyor-General)".

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Schedule 7

s 133(1)

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Survey Legislation

Schedule 7

Acts amended

Foreshore and Seabed Endowment Revesting Act 1991(1991 No 103)Omit from section 9(1) the words "registered surveyor and 5substitute the words "licensed cadastral surveyor .

Forestry Rights Registration Act 1983 (1983 No 42)Omit from section 5A(3) the words "registered surveyor"substitute the words "licensed cadastral surveyor".

and

Forests Act 1949 (1949 No 19) 10

Omit from section 67K(4) the words "registered surveyor" andsubstitute the words "licensed cadastral surveyor".

Harbour Boards Dry Land Endowment Revesting Act 1991(1991 No 104)

Omit from section 9(1) the words "registered surveyor" and 15substitute the words "licensed cadastral surveyor".

Land Act 1948 (1948 No 64)Omit from the definition of the term Commissioner in section 2 the

words "12A(1) of the Survey Act 1986" and substitute theexpression "24AA". 20

New (unanimous)

Repeal the definition of department in section 2 and substitute:"department means the department of State that, with theauthority of the Prime Minister, is for the time beingresponsible for the administration of this Act".

Omit from the definition of surveyor in section 2 the words 25"registered surveyor within the meaning of the Survey Act 1986"and substitute the words "licensed cadastral surveyor within themeaning of the Land Transfer and Cadastral Survey Legislation Act 2001".Insert, before section 24, the following sections:

"24AA Commissioner of Crown Lands 30

"(1) A person must be appointed under the State Sector Act 1988to hold office as the Commissioner of Crown Lands.

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Land Act 1948 (1948 No 64)-continued

"(2) The Commissioner must report directly to the Minister on theexercise and performance of the Commissioner's statutorypowers and functions.

Compare: 1986 No 123 s 12A

"24AB Delegation of Commissioner's functions, duties, and 5powers

The Commissioner may, under section 41 of the State SectorAct 1988, delegate to the employees of the department, in thesame manner and to the same extent as if the Commissioner

were the chief executive of the department, any power- 10"(a) conferred by statute on the Commissioner; or"(b) delegated under statute to the Commissioner by a Min-

ister of the Crown.

Compare: ]986 No 123 s 128".

Omit from section 184(2)(a) the words "Imposing reasonable 15charges for services rendered by officers of the Department, and".Insert, after section 184:

"184A Regulations for fees"(1) The Governor-General may, by Order in Council, make regu-

lations prescribing- 20"(a) the matters in respect of which fees or charges are

payable for functions of, or facilities or services pro-vided by, the chief executive:

"(b) the amounts of those fees or charges, or the method orrates by which they are to be assessed: 25

"(c) the persons liable for payment of those fees or charges:"(d) the circumstances in which the payment of the whole or

any part of those fees or charges may be remitted orwaived:

"(e) the manner in which the fees or charges are to be paid. 30

"(2) This section does not apply to functions of, or facilities orservices provided by, the chief executive under (the) Part 2 ofthe Land Transfer and Cadast,al Su,vey Legislation Act 2001.

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Schedule 7

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Survey Legislation

Land Act 1948 (1948 No 64)-continued


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"(3) The chief executive may set fees and charges for any function,facility, or service if a fee is not set for the function, facility, orservice under this section."

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New (unanimous)

"(3) The Survey (Departmental Fees and Charges) Regulations 51998, to the extent applicable,-

"(a) continue in force as if they had been made under sub-section (1); and

"(b) may be amended or revoked as if they had been madeunder subsection (1)." 10

Land Transfer Amendment Act 1963 (1963 No 61)

Omit from sections 14(2)(d) and 16(2)(a) the words "registered

surveyor" and substitute in each case the words "licensed cadastralsurveyor .

Maori Affairs Restructuring Act 1989 (1989 No 68) 15Omit from section 73(2) the words "registered surveyors" andsubstitute the words "licensed cadastral surveyors".

Marine Farming Act 1971 (1971 No 29)Omit from section 43(2) the words "registered surveyor" andsubstitute the words "licensed cadastral surveyor . 20

Public Audit Act 2001 (2001 No 10)

Omit from Schedule 2 the words "Survey Board of New Zealand".Repeal so much of Schedule 4 as relates to the Survey Act 1986.

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Survey Legislation

Schedule 8

Enactments repealed or revoked

New (unanimous)

Part 1

Enactments repealed

Schedule 8

s 133(2), (3)

Crown Minerals Act 1991 (1991 No 70)Repeal so much of the Third Schedule as relates to the Survey Act1986.

Survey Act 1986 (1986 No 123)

Trustee Amendment Act 1988 (1988 No 119) 10Repeal so much of the Second Schedule as relates to the Survey Act1986.

New (unanimous)

Part 2

Regulations revoked

Survey Regulations 1998 (SR 1998/441) 15

Surveyors Professional Regulations 1977 (SR 1977/290)

5 November 2001

13 November 2001

Price code: K

Legislative history

Introduction (Bill 169-1)

First reading and referral to Primary ProductionCommittee

Wellington, New Zealand: Published under the authority of theHouse of Representatives-2002 169bar2.pag

15-APR-02

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