Hojsgaard v Chief Executive of Land Information New Zealand

• Jurisdiction: New Zealand
• Judge: French J
• Judgment Date: 02 April 2019
• Neutral Citation: [2019] NZCA 84
• Court: Court of Appeal
• Docket Number: CA223/2018
• Date: 02 April 2019

Between

Peter Hojsgaard

Appellant

and

Chief Executive of Land Information New Zealand

First Respondent

Robin Patrick Brill

Second Respondent

[2019] NZCA 84

Court:

French, Clifford and Gilbert JJ

CA223/2018

CA520/2018

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Environment — alleged error in Cadastral survey — Cadastral Survey Act 2002

Counsel:

P H Thorp and M Singh for Appellant

M J Bryant and D J Watson for First Respondent

M C Harris and M J Hammer for Second Respondent

Appeal CA223/2018

• A The appeal CA223/2018 is allowed to the extent that we find the High Court erred in declining to quash the decision of the first respondent approving the survey of the second respondent for integration into the cadastre under s 9 of the Cadastral Survey Act 2002.

• B The decision of the first respondent is quashed and the first respondent is directed to reconsider the correctness of the second respondent's survey in light of all the evidence now available to the first respondent.

• C In all other respects the decision of the High Court is affirmed.

• D The first respondent must pay the appellant costs for a standard appeal on a band A basis with usual disbursements. We certify for second counsel.

• E The appellant must pay the second respondent costs for a standard appeal on a band A basis with usual disbursements. We certify for second counsel.

Appeal CA520/2018

• A The appeal in CA520/2018 is dismissed.

• B There is no order as to costs.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by French J)

Introduction

1 Mr Hojsgaard owns land in Omapere near the Hokianga Harbour. He challenges a recent survey of a neighbouring property which he says adversely affects him because the boundaries depicted in the survey do not allow for the location of an historic stream.

2 The survey was undertaken by the second respondent Mr Brill and approved by the first respondent the Chief Executive of Land Information New Zealand (the Chief Executive).

3 Mr Hojsgaard commissioned his own survey by another surveyor Mr Thomson which he considered accurately depicted the boundaries. 1 Mr Hojsgaard then issued proceedings in the High Court. He sought judicial review of the Chief Executive's decision approving the Brill survey. He also sought declarations under the Declaratory

Judgments Act 1908 to the effect that the Thomson survey was correct and should be substituted for the Brill survey

4 The claim was heard by Jagose J. The Judge found that in deciding whether to approve the Brill survey, the Chief Executive had failed to consider a mandatory relevant consideration and directed him to reconsider his decision. 2 The Judge was not however prepared to quash the decision. 3 He was also not prepared to grant the declarations sought by Mr Hojsgaard. 4

5 Mr Hojsgaard now appeals. He also separately appeals a subsequent costs decision made by Jagose J. 5 The substantive appeal has been allocated the filing number CA223/2018. The costs appeal is CA520/2018.

6 In order to explain the factual and legal issues arising on the appeals, it is necessary first to examine the statutory context.

The statutory context

7 At the heart of this case is the Cadastral Survey Act 2002 (the Act). The term “cadastral survey” is not one used in common parlance. It means the determination and description of the spatial extent — including boundaries — of interests under land tenure systems. 6 The term “cadastre” which is also used in the Act means all the cadastral survey data held by or for the Crown and Crown agencies. 7 Under the New Zealand system of land tenure, the cadastre underpins the issue and guarantee of titles.

8 The cadastre's integrity is therefore of paramount importance and this is reflected in one of the express purposes of the Act which is to promote and maintain the accuracy of the cadastre. 8 Section 3(a) states this is to be achieved by requiring

cadastral surveys to be undertaken by licensed cadastral surveyors, who must meet certain standards before being licensed, and by making provision for the setting of standards for cadastral surveys and cadastral survey data. Both Mr Brill and Mr Thomson are licensed cadastral surveyors

9 As we go on to explain in greater detail, the standards include provisions about boundaries and water boundaries. 9 Land bounded by water boundaries is subject to specific legal and surveying considerations and as an expert witness put it in their evidence before the High Court, it is accordingly essential that surveys record current and former positions of relevant water body margins correctly, clearly and unambiguously.

10 Under the Act, the function of approving a new cadastral survey for integration into the cadastre is reposed in the Chief Executive. 10 He or she must first be satisfied that the survey complies with the Act and with standards promulgated by the Surveyor-General regulating the conduct of surveys. The standards are contained in the Rules for Cadastral Survey 2010 (the Rules). The Rules have the status of regulations. 11

11 Boundaries including water boundaries are governed by r 6. Rule 6.1 stipulates that when a cadastral surveyor is defining a boundary by survey, they must:

• (a) gather all evidence relevant to the definition of the boundary and its boundary points;

• (b) interpret that evidence in accordance with all relevant enactments and rules of law; and

• (c) use that evidence to determine the correct position of the boundary and boundary points in relation to other boundaries and boundary points.

12 Rule 6.2 lists the types of boundaries or boundary points which must be defined by survey. These include not only “a new water boundary or irregular boundary”, 12 but also “an existing irregular boundary that has been converted into one or more right-line boundaries” and a “boundary where its extent and location as defined in an approved CSD [cadastral survey dataset] are insufficient for the determination of its compliance with the applicable accuracy standard.” 13 A “right-line” boundary is defined as one that follows the shortest distance between two boundary points.

13 Rule 6 goes on to say that when the margin of the water body defining a water boundary has moved but the boundary has not moved, that boundary must be converted to one or more right-line boundaries or may become an irregular boundary if it meets certain specified criteria. 14

14 Significantly for present purposes, r 3.4(a)(i) provides that the position of a water boundary or an irregular boundary, including one defined by adoption, must be determined to a sufficient level of accuracy to take into account the risk of overlap or ambiguity in boundaries including the water boundary on the other side of the water body. 15

15 Also significant for present purposes is r 8. It requires a cadastral survey dataset to include a survey report. 16 The report must amongst other things provide details of any conflict between the new survey being submitted for approval and an

existing survey in the cadastre. 17 The survey report is also required to provide details of how the surveyor resolved the conflict. 18

16 In a previous judgment — Chief Executive Land Information New Zealand v Te Whanau O Rangiwhakaahu Hapu Charitable Trust (Otito Reserve) 19 — this Court held that if there is a conflict between surveys, compelling evidence is required before the decision maker can conclude the earlier plan is in error and should be replaced, notwithstanding the consequential prejudice that might otherwise be caused to those with interests in the land. 20 A very “high standard of satisfaction” as to the existence of error was said to be required. 21

17 The Court's statements reflect long established surveying practice. In the present case, for example, all the expert surveying witnesses agreed as a matter of surveying practice that existing survey plans are presumed to be correct once approved as to survey (the presumption of correctness). They also agreed that compelling evidence is required to move boundaries established by such survey plans. Certainty is important for obvious reasons. 22

18 Once a survey is integrated into the cadastre, it is not however set in stone. The Act provides a mechanism for correction in s 52. Section 52 empowers the Surveyor-General to correct errors in a cadastral survey dataset affecting title. The provision features large in this case and accordingly we set out its text in full.

52 Correction of errors in survey

(1) If an error is found in a cadastral survey dataset affecting any title under the Land Transfer Act 2017 or any title or tenure under any other Act, the Surveyor-General may, in writing, require the cadastral surveyor responsible for the error to undertake, or arrange to be undertaken, the work necessary to correct the error within a time that the Surveyor-General considers reasonable.

(2) Subsection (1) does not limit–

• (a) the powers granted in sections 7 and 46 of the Crown Grants Act 1908:

• (b) the powers of the Registrar under section 21 of the Land Transfer Act 2017, or the provisions of section 226 of that Act:

• (c) the powers of any court under any enactment.

(3) In subsection (1), cadastral surveyor includes a former licensed cadastral surveyor and a person who was a registered surveyor under the Survey Act 1986.

19 Otito Reserve confirmed that in exercising the power of correction under s 52, the Surveyor-General must adopt the same standard as applies to the Chief Executive when making decisions at the approval stage. 23 That is to say, he or she should only find error if there is compelling evidence of error. 24

20 In the Otito Reserve litigation, the then Surveyor-General gave evidence that in order to exercise the s 52 jurisdiction he considered he needed to be satisfied that the effect of the error was sufficiently serious to...