Survey dispensation requests

Dispensations issued under RCS 2010

Overview

Dispensation requests can be made to seek an exemption from or variation to the requirements of the CSR 2021 and the Lodgement Standard.

Dispensations cannot be granted to waive the requirements of primary legislation such as the Resource Management Act 1991, the Manukau Harbour Control Act 1911 or the Marine and Coastal Area (Takutai Moana) Act 2011.

A request must be made using the ‘Survey_Survey Dispensation’ request type in Landonline. The request must be clear as to whether it relates to the Rules or the Lodgement Standard. If the request is seeking clarity on a matter relating to survey definition, it must be submitted as a ‘Survey_Survey Information Complex’ request type.

Requests for dispensation need to be clear and specific, and include all relevant information to enable them to be processed efficiently.

LINZ aims to respond to these requests within 10 working days.

Dispensations from the Rules

Section 47(5) of the Cadastral Survey Act 2002 permits the Surveyor-General to grant a licensed cadastral surveyor an exemption from one or more of the requirements of the Rules, or specify alternative requirements, in situations where compliance is considered impractical or unreasonable.

The granting of an exemption or specification of alternative requirements is commonly referred to as a dispensation. The dispensation becomes part of the rules for the purpose of the surveyor's certification for that survey (s 47(6) of the Cadastral Survey Act 2002). The surveyor must either fully comply with the terms of the granted dispensation or with the normal rule.

Applications are treated on a case-by-case basis so a previous decision may provide some guidance but does not set a precedent. The approval of a dispensation is based on information provided by the surveyor. The decision depends on whether compliance with a rule requirement is impractical or unreasonable. Factors taken into account include:

• the impact on the cadastre and the affected land tenure. Where necessary the tenure manager will be consulted, for example, the Registrar-General of Land or a Judge at the Māori Land Court.
• the risks to the Crown and future landowners. In this respect, the nature of any new land right is a fundamental consideration rather than the purpose of the survey.

Dispensations from the Lodgement Standard

Item 3(b) of the Lodgement Standard provides that if the Chief Executive considers compliance with the requirements of the Lodgement Standard is impractical or unreasonable:

• an exemption from the requirements may be granted
• alternative requirements may be specified.

As with a dispensation from the Rules, applications are considered on a case-by-case basis.

How to apply for dispensation

Dispensation requests should be made as a Landonline request using the 'Survey_Survey Dispensation' option. Details of the request should be captured directly into the Notes/Comments dialogue box where possible. The dialogue box now has the capacity of 16,000 characters (about 3000 words) which should be ample for most requests. In the event that the explanation exceeds this capacity a supporting document may be attached.

If the request is complex with a lot of supporting documentation it may exceed the Landonline upload limits. In this instance, the request must include a note stating that further information is available. The team processing the request will then request this information by email or will provide a drop box location.

Required information

A request for dispensation should include the following information:

• the purpose of the survey (particularly where it is not an LT subdivision)
• the rule(s) or standard(s) that exemption is being sought from
• the reasons that the surveyor signing the dataset considers the requirements of the rule(s) or standard(s) are impractical or unreasonable
• a diagram of the full extent of the land under survey showing the proposed new parcels, approximate areas, title references, any amalgamation details and relevant abuttals (examples are a scheme plan or draft CSD diagram). LINZ is not able to view the spatial view related to a CSD and can only view plan diagrams once the ‘complete’ button has been pushed in Plan Generation. Colour images must be uploaded to the request in JPEG format.

Note the following requirements that apply:

• Accuracies - where the dispensation relates to boundary accuracies, analysis in terms of rule accuracy classes must be included, as opposed to miscloses and representative fractions. For each boundary (or group of boundaries) that a dispensation is requested for, the request must state the accuracy class that the rules require the boundary to be and the accuracy class that can actually be achieved. A colour-coded diagram with boundaries highlighted specific colours based on the accuracy class that can be achieved should be attached.
• Referencing - if the dispensation relates to referencing, the request must include the distances to the nearest reference marks from the relevant boundary points.
• Ground marking – where the dispensation relates to ground marking:
  • the relevant boundary points must be highlighted on a plan
  • the request must note whether it relates to rule 35(1) or 35(2)
  • details must be provided of when it is anticipated the boundary points will be ground marked, if it is intended that they be marked at a later time.
• Treaty settlements – surveys relating to Treaty settlements can be complex particularly if the underlying survey is very old and the location is remote. A checklist has been prepared to assist surveyors in providing the required information for a request for dispensation for a Treaty settlement survey. See link at the bottom of this section.
• Limited Titles –
  • Ground marking – the ground marking required when limitations are uplifted is part of the process that includes adjoining owners being served notice by the RGL or giving consent. Therefore, dispensations will rarely be given in this case. Where a boundary point is required to be marked by 35(2)(d), the surveyor is exempt from ground marking if ground marking is impracticable. For further information see:
    Boundary marking
  • Leaving a parcel limited - if the request is to leave a parcel limited where it does not meet the area or percentage requirements of rule 15(2), 15(4) or 24, the request must provide the area of the new parcel, its percentage of the existing primary parcel, the accuracies that the boundaries can meet and information about any amalgamations, including what the total area of the resulting title will be.

Surveyors are strongly encouraged to use the following checklists to ensure appropriate information is provided and to avoid delays while further information is requested:

Common dispensation requests

Historically, dispensations have been requested from some rules more than others. The following guidance is provided to help surveyors when considering requesting dispensation from these rules.

Irregular boundaries (rule 9)

Surveyors were previously encouraged to apply for a dispensation to allow an existing irregular boundary that follows the centreline of a stream or river to remain an irregular boundary. This is no longer necessary as rule 11 allows existing boundaries that follow the line midway between the margins of a stream or a riverbed to be a water centre-line boundary. Also, the CSR 2021 requires that a non-primary parcel boundary must be in the same form as the underlying parcel boundary with which it coincides (r 46(3)). Therefore, dispensation to allow such a boundary to be an irregular boundary is no longer necessary.

Acceptance of a boundary (rule 15)

In some cases, dispensation may be granted to allow an existing boundary to be accepted where the new parcel size is very close to the threshold of 80% or 20 ha criteria set out in rule 15(2) or 100ha criteria set out in rule 15(4).

Accuracy of water, water-centreline and irregular boundaries (rule 29(2))

The determination of whether the current position of a water boundary represents the original position, within the accuracy standards of rule 29(2), is sometimes mistakenly considered too onerous. In rural situations this can often be confirmed from suitable current and historic imagery – fieldwork is often not needed. In these cases a dispensation to reduce the level of accuracy is not approved.

Accuracy of water boundaries

Boundary points to be referenced (rule 31)

The permanent reference mark requirements are seldom fully exempted, however there have been circumstances where the distances of these marks to boundary points have been extended (r 32(1)). Please note that non-primary parcel boundary points are only required to be referenced when they are ground marked (r 64), height-limited in the case of a unit (r 61(1)) or in certain circumstances where the relationship with the underlying parcel is not known (r 51(2)). Other non-primary parcel boundary points are not required to be referenced.

Boundaries to be marked (rule 35)

Dispensation from boundary marking is often requested in situations where the rules do not require boundary points to be marked.

A dispensation is not required from marking a new boundary point on a new primary parcel if any of the exemptions of rule 35(1) apply. However, these exemptions cannot be applied to existing boundary points that are required to be marked by rule 35(2).

A dispensation is also not required if a boundary point is not practicable to mark, that is, not reasonably possible to mark. For instance, the point may be on a power pole or box, in a lake or close to the edge of an unstable cliff that would be unsafe to access.

However, a dispensation is required if a surveyor considers the requirement to mark a boundary point is impractical or unreasonable, rather than it being impracticable to mark.

For example, it is likely to be impractical or unreasonable to mark a boundary point within an active construction site, but it would be practicable to mark it later, even if it’s not until after construction is completed. Dispensation must be obtained for such a boundary point to remain unmarked when the CSD is lodged for approval by LINZ. It is likely the dispensation will be conditional on the point being marked when construction is completed.

Also see Boundary marking.

It is important that the reasons for not marking a boundary are clearly documented in the Survey Report (refer to rules 72(m) and 72(n)). This should include a reference to the applicable clause under 35(1) in the case of an exemption.

Also see Reporting on ground marking.

Occupation information must be provided in accordance with rule 81 even if a boundary point is exempt from marking under rule 35(1) or is impracticable to mark.