Under the Torrens system the cadastral register is regarded as conclusive evidence of current ownership and interests about a person's parcel of land, with the government effectively guaranteeing the register entries are correct. Within Tasmania the recordings on a Torrens title are guaranteed by the Recorder of Titles under the Land Titles Act 1980. However, it is crucial to note that the boundaries of land described in a title or shown on a title plan indicating the extent of a parcel ARE NOT subject to that same guarantee.
Australia and New Zealand both inherited the system of "common law" from England, a uniform system of law based upon previous decisions or precedents developed by judges applying the Kings justice over the centuries. Under common law the unequivocal location of a property, or cadastral, boundary can only be determined by a court of law. In practice, there are very few occasions where a court has been required to determine a cadastral boundary location in Australia or New Zealand due to the long standing statutory role of land surveyors in physical property boundary creation and identification.
What is cadastral or land surveying?
A land tenure system that provides for private real property rights and interests requires the system to support the establishment and recognition of cadastral boundaries in a physical form i.e. while the interests in a parcel of land are suited to being documented and confirmed as authorative by entry into a register the extent of those interests, or their boundaries, requires some physical or visible presence on the ground to be useful to the holders of those rights.
Plan of actual survey in New Town from 1855
Australia and New Zealand required a whole new boundary framework to be established across the landscape in support of these private property rights and very few of those boundaries are defined by natural features like rivers or cliffs. The vast majority of these property boundaries are "artificial" in that they require humans to "define" their position using some other method and be described accordingly. Typically this has meant locations of boundaries are indicated on the ground by a monument or mark and the most common method for describing the physical locations of those marks is by measured directions and distances on plan drawn by a land surveyor. The human element of artificial boundary marking, coupled with the fact no survey measurement is ever error free and most monuments are not permanent, means a state guarantee of boundary locations described in a surveyors plan isn't practical.
Boundary creation is a legal process
Boundary creation is a legal process rather than a measurement or mathematical one. That is, boundaries are created when parties to a legal dealing, such as a transfer, execute the dealing and boundary locations reflect all available evidence as to the intent of the parties.
Land surveyors act in a quasi-judicial fashion and endeavour to emulate the decision making process a court would apply in determining the location of a previously established property boundary. Fundamentally, where there is doubt or conflicting evidence as to the location of a boundary a surveyor is obliged to consider the totality of evidence available - the determination does not simply reflect the dimensions recorded on a survey plan, and dimensions are often not the highest priority evidence used in the interpretation of the location of a property boundary. In endeavouring to emulate the courts a land surveyors overarching professional responsibility is to the cadastral system and the cadastral boundary fabric. While a land surveyor has a responsibilty to meet the needs of their immediate client this service must be provided whilst respecting the rights of all parties with an interest in the land including adjoining owners - current and future - and the Crown.
Who is permitted to survey and depict the location of boundaries?
The combination of specialised legal knowledge - inclusive of common law precedents and statutory requirements - together with measurement skills associated with the determination of cadastral boundaries in the physical world has resulted in the practice of boundary surveying being regulated in Australia and New Zealand i.e a system of state approved land surveys and land surveyors applies. Since the 19th century only "authorised" or "registered" land surveyors have been legally entitled to interpret, re-define or mark the location of property boundaries in any survey of land granted by the Crown or held under the Torrens system.
A surveyor listed in the
Register of Surveyors with the Land competency is the only person authorised to undertake cadastral surveys in Tasmania.
This restriction applies to any survey which depicts the location of a boundary or other legal interest in real property (e.g. an easement). That is, any document or plan - in electronic or hard copy form - that shows the result of a survey which includes the location of boundaries in relation to site features must only be prepared by a registered land surveyor or by someone under their close supervision. Determining, for fee or reward, whether improvements such as buildings and fences are, or are not, within boundaries of land is also restricted to individuals who are registered land surveyors.
Cadastral plans, cadastral maps and digital boundary data
Example of current cadastral survey plan
A cadastral plan is simply a description in pictorial form that is intended to describe what happened on the ground at the time boundaries of estates and interests in land were created. Historically, that plan would sometimes be created from a purely verbal description (for example "..then from the bank of the creek along the fence tothe road....") but generally in Tasmania a cadastral plan supporting the description of the location and extent of interests included in the Torrens register has been derived from a field survey by a registered land surveyor where corner marks were actually placed.
At common law, where interests in land are described by reference to a cadastral plan it is treated as though it is actually part of the description and so the plan and the information in it has legal effect i.e. it is a legal document. However, as noted previously a plan is not necessarily definitive as to the on-ground location of cadastral boundaries.
cadastral plans were collated into paper cadastral maps with the primary purpose being to show parcels as they relate to one another for use in land administration - in other words an index of the surveys and parcels. It follows that cadastral maps had no purpose in relation to definitively describing the location of property boundaries. The emergence of the digital age has meant that instead of paper maps being used for this purpose the data is now represented in the digital environment and this Land Parcel and Property dataset, commonly referred to as the digital cadastral database or
more recently as the spatial cadastre, is a fundamental component of a modern, integrated land and property information system.
Historic Cadastral Map of New Town
Tasmanian cadastral parcels on the LIST
The LIST is Tasmania's integrated land and property information system. It enables both easy public access to property information and the indicative location of land boundaries via the Cadastral Parcels layer on
LISTmap. This and other overlays displayed over topographical maps or aerial imagery provide a wealth of spatial context that adds value in land administration. However, it is extremely important to remember that this layer is effectively only a digital version of a cadastral map and the same limitations apply to it as applies to cadastral maps in relation to indicating the absolute location of cadastral boundaries.
A description of those limitations is available
Screenshot of some LISTmap cadastral layers plotted with the original cadastral map of New Town
Remember: boundary creation is primarily a legal process and only a land surveyor listed in the Register of Surveyors is authorised to survey the location of a property boundary in Tasmania.