HOROKIWI HOLDINGS LIMITED V REGISTRAR GENERAL OF LAND HC WN CIV 2006-485-1414

HOROKIWI HOLDINGS LIMITED V REGISTRAR GENERAL OF LAND HC WN CIV 2006-485-1414 29 May 2007IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2006-485-1414BETWEEN HOROKIWI HOLDINGS LIMITED Applicant AND REGISTRAR GENERAL OF LAND Respondent Hearing: 15 February 2007 Counsel: P S J Withnall for Applicant J A L Oliver and M Gordon for Respondent Judgment: 29 May 2007RESERVED JUDGMENT OF RANDERSON JThis judgment was delivered by me on 29 May 2007 at 3 pm, pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Solicitors: Crown Law, PO Box 2858, Wellington Costa Varuhas & Co, PO Box 13-453, Johnsonville, Wellington Counsel: P S J Withnall, PO Box 10-201, WellingtonIntroduction[1] The applicant company owns some 37.8 hectares of land at Horokiwi. The company wished to divide the land and on 6 March 2006 lodged a request with Land Information New Zealand for the issue of 57 new titles. But the Wellington Processing Centre rejected the dealing on the ground that the proposal constituted a subdivision of land within the meaning of s 218 Resource Management Act 1991. In the absence of a resource consent to the subdivision, s 226 Resource Management Act prohibits the District Land Registrar from issuing the titles requested. [2] The company (Horokiwi) then referred the matter to the Registrar-General of Land for reconsideration under s 216 Land Transfer Act 1952. The Registrar- General confirmed the rejection of the request for the issue of titles in a decision dated 7 June 2006. [3] Horokiwi then issued an originating application to this Court under s 217 Land Transfer Act calling upon the Registrar-General to appear before the Court to substantiate and uphold the grounds of his decision.The Issue:[4] The issue is whether Horokiwi's request for the issue of the titles constitutes a subdivision for the purposes of s 218 Resource Management Act which relevantly provides:Meaning of "subdivision of land"(1) In this Act, the term subdivision of land means— (a) The division of an allotment— (i) By an application to a District Land Registrar for the issue of a separate certificate of title for any part of the allotment; (2) In this Act, the term allotment means—(a) Any parcel of land under the Land Transfer Act 1952 that is a continuous area and whose boundaries are shown separately on a survey plan, whether or not— (i) The subdivision shown on the survey plan has been allowed, or subdivision approval has been granted, under another Act; or (ii) A subdivision consent for the subdivision shown on the survey plan has been granted under this Act; (4) For the purposes of subsection (2), the balance of any land from which any allotment is being or has been subdivided is deemed to be an allotment.[5] The expression "survey plan" is relevantly defined in s 2 Resource Management Act:Survey plan means a plan of subdivision of land, or a building or part of a building, prepared in a form suitable for deposit under the Land Transfer Act 1952 or with the Registrar of Deeds; and any Crown plan prepared for a similar purpose as the case requires, and includes— (a) A unit plan; and (b) A plan to give effect to the grant of a cross lease or company lease:[6] Horokiwi submitted that the request did not constitute a subdivision because it would not amount to "the division of an allotment" in terms of s 218. In particular, Horokiwi submitted that the boundaries of the subject land are not shown separately on a survey plan and therefore the proposal does not amount to an allotment. Horokiwi added that the lack of definition of boundaries was demonstrated by the fact that the subject land has always been limited as to parcels for the purposes of the Land Transfer Act. [7] To the contrary, the Registrar-General submitted that the request for the titles amounts to a subdivision of land. He submitted that Horokiwi is seeking to divide an allotment and that the subject land constitutes a parcel of land the boundaries of which are shown separately on a survey plan. He also submitted it was irrelevant that the title is limited as to parcels. [8] It is common ground that if the proposal does amount to a subdivision of land under s 218, the Registrar-General was obliged to reject it.Factual Background[9] The parties placed before the Court an agreed statement of facts. This was supplemented by an affidavit by Mr A G McLeod, a registered surveyor. An agreed bundle of documents was also provided containing relevant plans, titles and correspondence. [10] The factual background may be conveniently dealt with under four headings: a) The early history and the approval of Maori Land Plan 1976. b) The changes brought about by Deposited Plan 89282. c) The further changes under Deposited Plan 306892. d) The 57 lot proposal (Plan 366995).The early history and the approval of Maori Land Plan 1976[11] Until relatively recently, the land was native land (subsequently known as Maori land). By an order of the Native Land Court in 1888, an area of just over 103 acres was determined to be native land in terms of the Native Land Court Act 1886. The land was described as Section 11, Lot VIII Belmont Survey District. It was later depicted on a plan approved by the Chief Surveyor in 1901 and known as Maori Land Plan 1976. The plan shows a rectangular block of land with all the boundaries marked and also showing the relationship of the block to adjoining parcels. [12] As native land, the land was entered on the Maori Provisional Register under the Land Transfer Act (Consolidated) 1908. A title was issued for the land in 1909. Nearly 80 years later, an order was made by the Maori Land Court in 1987 declaring the land to be general land within the meaning of the Maori Affairs Act 1953. Then, in 1988, a new title for the land was issued, limited as to parcels (CT 28D/668).The changes brought about by deposited plan 89282[13] In 2000, a Mr and Mrs D'Arcy-Smith owned the land. On their behalf, Mr McLeod prepared a new plan for the land which was later accepted as deposited plan 89282. That resulted in CT 28D/668 being cancelled on 5 September 2000 and five new titles being issued. Four new lots were created (Lots 1, 2, 3 and 5) with the balance lot being described as Lot 4. [14] The plan was prepared in accordance with the Survey Act 1986 and the Survey Regulations 1998 then in force. Lots 1, 2, 3 and 5 were located at the western end of the property and were all relatively small parcels. Of the total land area of 41.86 hectares, the balance Lot 4 comprised 38.3 hectares. A full Class II survey was carried out in accordance with the Survey Regulations. It is accepted that the lots created to that survey standard had fully defined boundaries and dimensions. [15] But in respect of the balance Lot 4, the Surveyor-General accepted what is known as a parcel diagram under Regulation 44 of the Survey Regulations. It was stipulated that Lot 4 be shown on a separate title sheet of the same plan and that Lot 4 was to remain limited as to parcels. [16] Under Regulation 44, a parcel diagram may be used with the approval of the Chief-Surveyor. Chapter 11 of the Cadastral Survey Guidelines issued in April 2002 suggests that approval will be justified in "exceptional circumstances". Exceptional circumstances may include the purpose of the survey and the proposed land use; the underlying title being limited as to parcels; a case where parcel boundaries are comprised of a significant amount of natural boundary and it is unreasonable to require refixing; a case where parent parcel dimensions cannot be determined in full from the current cadastral records; physical difficulties in the land being subdivided; and survey costs relative to land value. [17] In his affidavit, Mr McLeod states that the only places where the boundary of the balance Lot 4 was surveyed, properly measured and plotted on DP89282 were atthe western end of the land where Lot 4 adjoined Lots 1 and 2, Horokiwi Road and neighbouring land in the north-west corner. Measurements for all remaining parts of the boundaries of Lot 4 were not shown. He states this was because survey practice does not allow for the fixing of boundaries by adoption on land limited as to parcels. The balance Lot 4 is described on the plan as "38.3029 hectares (not determined by survey)" and "limited as to parcels". The plan was approved as to survey on behalf of the Chief Surveyor on 19 April 2000. [18] An important fact relied upon by Horokiwi in respect of DP89282 is that the District Land Registrar accepted (although obviously with some reluctance) that the changes effected by the plan did not constitute a subdivision and did not therefore require the grant of a resource consent by the Wellington City Council as the relevant territorial authority. The essence of the argument relied upon by the solicitor representing the then owners of the land (Mr and Mrs D'Arcy-Smith) was stated in a letter to the District Land Registrar dated 23 May 2000 :Does the abovementioned plan "subdivide" the land in CT 28D/668 in terms of The Resource Management Act 1991? It is my contention that it does not. 1. In terms of Section 218 "subdivision of land" means either the division of an allotment (subsection (1) paragraph (a)) or an application to a DLR for the issue of a separate Certificate of Title in circumstances where the issue of that title is prohibited by Section 226 (subsection (1) paragraph (b)). 2. "Allotment" is defined in Section 218(2). 3. Assuming that the deeming provision in Section 218(3) applies, Section 218(2) requires the parcel of land to have boundaries shown separately on a "survey plan" in order for the parcel of land to be an "allotment". 4. Section 2 defines "survey plan". However, Certificate of Title 28D/668 (i.e. D'Arcy-Smith's title) was derived from plan ML1976. This ML plan, not being a plan of subdivision of land prepared in a form suitable for deposit under the Land Transfer Act 1952 or with the Registrar of Deeds, does not fall within the definition of "survey plan". 5. Consequently, Section 218(1)(a) has no application. In terms of Section 218(1)(b), has an application being [sic] made for the issue of a separate Certificate of Title in circumstances where the issue of that Certificate of Title is prohibited by Section 226? No, the provisions of Section 226 do not inhibit the DLR from issuing a separate Certificate of Title in the present circumstances.[19] The reply on behalf of the District Land Registrar was contained in a letter dated 29 June 2000 which relevantly stated:I have read your arguments as to why this plan and dealing does not constitute a subdivision in terms of the Resource Management Act and agree with your conclusion that technically they fall outside the definition of subdivision. This is a technicality because I am sure that it was never intended by the authors of the legislation that land defined on a Maori Land Plan should fall outside the provisions of Part X of the above Act. However the definition of "survey plan" in s 2 is exclusive of these plans and as this section is pivotal to the definition of "allotment" and therefore what constitutes a subdivision it is not possible for me to disagree with your argument even though I am certain that The Wellington City Council would be dismayed at this outcome. Section 226 does not come into play because issuing titles from this plan will not be giving effect to any subdivision.[20] It is clear from the exchange of correspondence that the central point relied upon by the then owners and accepted by the District Land Registrar was that the title at that time was derived from the early plan ML1976 which was not considered to be a plan of subdivision prepared in a form suitable for deposit under the Land Transfer Act 1952 and did not therefore fall within the definition of a "survey plan" under s 2 Resource Management Act. It followed that this plan was not a survey plan for the purposes of the definition of an allotment under s 218. [21] The plan was therefore accepted for deposit and fresh titles issued for all five lots.Deposited Plan 306892[22] This plan was not prepared by Mr McLeod. Rather, it was prepared by a surveyor engaged by a Mr and Mrs Hacking who were neighbours of Mr and Mrs D'Arcy-Smith. [23] Essentially, Mr and Mrs Hacking purchased part of the north-western corner of the land from Mr and Mrs D'Arcy-Smith. Another neighbour (a Mr Ogden) purchased a one metre wide strip between the subject land and Mr and Mrs Hacking's new boundary. The plan prepared and subsequently deposited as DP306892 is described as "Lots 1-3 being subdivision of Lots 1 and 2 DP57531 andLot 4 DP89282". Lots 1 and 2 DP57531 were owned by the Hackings and Mr Ogden respectively. Their lots were enlarged by 4,381 square metres and 27 square metres respectively. That was achieved by the D'Arcy-Smiths selling the additional land areas to their neighbours thereby reducing the balance Lot 4 DP89282 from 38.0329 hectares to 37.8623 hectares. The old balance Lot 4 DP89282 then became the new balance Lot 3 DP306892. [24] Just as on the previous occasion with balance Lot 4 DP89282, dispensation was granted to show balance Lot 3 306892 as a Class IV parcel diagram on the proviso that it remained within a title limited as to parcels. The plan was approved as to survey on 13 May 2002 by the Deputy Chief Surveyor. However, unlike the previous plan DP89282, the plan was approved by the Wellington City Council under s 223 Resource Management Act. No attempt appears to have been made to contend that the issue of titles following the deposit of the plan would not amount to a subdivision within the meaning of s 218. [25] DP306892 describes Lot 3 as "limited as to parcels 37.8621 hectares (area not determined by survey)". A title (limited as to parcels) was subsequently issued for the new balance Lot 3 and new titles were issued for Lots 1 and 2 for the Hackings and Mr Ogden respectively.The current 57 lot proposal Plan 366995[26] In December 2005, Mr McLeod prepared the plan to subdivide the balance of Lot 3 DP306892 into 57 lots plus a balance lot. Twenty-eight of these lots were clustered at the western end of the land and a further 29 were grouped towards the eastern end. The balance lot would comprise 32.6106 hectares. This plan was approved as to survey by Land Information New Zealand on 27 March 2006 on the basis that the balance lot would be limited as to parcels. As indicated earlier, no approval to the plan was obtained from the Wellington City Council as the relevant territorial authority.The Decision of the Wellington Processing Centre[27] The request for the issue of 57 new titles under plan 366995 was rejected by the Wellington Processing Centre of Land Information New Zealand. In the letter dated 6 March 2006 conveying the decision, reference was made to the relevant parts of s 218 Resource Management Act. The letter went on to state:In this case, the land in CR (Lot 3 DP 306892) is depicted as an allotment on DP 306892. The latter is certainly a survey plan for the purposes of the RMA and any further division of Lot 3 must therefore amount to a subdivision under Section 218. Even if Lot 3 had only been shown as a residue parcel, it too would have presumably been caught by subsection 4. Prior plan DP 306892, which created the underlying Lot 3, was a fully approved subdivision plan under the RMA. In addition, the proposed Lots 1-28 and 38-67 are all shown as separate allotments on a new survey plan – LT 366995. Under Section 226,226. Restriction upon issue of CT for subdivision –(I) A DLR shall not issue a CT for any land that is shown as a separate allotment on a survey plan (being a CT issued to give effect to the subdivision shown on that survey plan) unless (a) The plan has been deposited in accordance with section 224 No such territorial approval for LT 366995 exists and there is no option for WPC except to reject Dealing 6777662.The Decision of the Registrar-General[28] Horokiwi requested the Registrar-General to reconsider the decision made by the Wellington Processing Centre. His decision dated 7 June 2006 upholding the rejection of the dealing states:I have now had a chance to fully consider the above matter, and to clarify the survey aspects it [sic]. I support the Processing Centre's rejection of the dealing. Dealing 6777662 is a "subdivision of land" 1. I am prevented from issuing the new titles without territorial approval of LT 366995 2. Your client's adviser Bob Roche suggests that this is not a subdivision because Lot 3 is not an allotment 3. He argues it's boundaries are not "shown" on DP306892. I disagree.The surveys recorded on DP 89282 and DP 306892 were carried out under the Survey Regulations 1998. This meant that, like the current Surveyor- General's Rules for Cadastral Survey to which Mr Roche has referred, the surveys had to account for every new parcel resulting from the subdivision (including every balance or residual parcel). In this respect, Lot 4 DP 89282 and Lot 3 DP 306892 were the balance parcels that were shown to comply with this requirement. The lack of field survey for some of the boundaries is irrelevant. I understand that in respect of DP 306892 at least, the Survey-General's delegate agreed to a dispensation from normal field survey requirements, enabling Lot 3 to be shown as a Class IV Parcel Diagram. This was given recognition that the title would be "limited as to parcels". Whether or not that dispensation allowed the absence of boundaries dimensions, it does not alter the status of the boundaries or the parcel. As the Processing Centres deal with fees, I will pass your request for an extension to them. Yours faithfully Robbie Muir Registrar-General of Land ______________________________________________1s218(1)(a)(i) of the Resource Management Act 1993. [sic]2s 226 Resource Management Act 1993.3218(2) of the Resource Management Act 1993.The Approach under Sections 217 and 218 Land Transfer Act[29] Sections 217 and 218 Land Transfer Act provide:217 Notice to Registrar to appearAny such person may, if he thinks fit, call upon the Registrar to appear before the High Court to substantiate and uphold the grounds of such refusal, direction, or decision as aforesaid, by a notice served upon the Registrar 6 clear days at least before the day appointed for hearing.218 Hearing of appealUpon the hearing by the High Court of any proceeding under section 217, the Registrar or his counsel shall have the right of reply, and the Court shall, if any question of fact is involved, direct an issue to be tried to decide that fact; and the Court shall thereupon make such order in the premises as the circumstances of the case may require, which order shall be binding upon the Registrar.[30] Relying on the decision of Wilson J in Paparua County v District Land Registrar [1968] NZLR 1017, 1019, Mr Withnall for Horokiwi accepted that, notwithstanding the language of s 217, the onus was on Horokiwi as the applicant to satisfy the Court that the Registrar-General's decision was wrong. Mr Oliver for the Registrar-General agreed this was the correct approach. [31] I regret that I reach a different view from that of Wilson J. Section 217 is explicit that any person aggrieved by the Registrar-General's decision may call upon him to appear before this Court "to substantiate and uphold the grounds of such refusal, direction or decision ". And, as Wilson J accepted in Paparua County, the fact that s 218 gives the Registrar-General or his counsel the right of reply clearly implies that the Registrar-General is also to begin. [32] Wilson J's reasoning seems to have been that, before the Registrar-General could be called upon to justify his decision, it must appear, prima facie, that the conditions prescribed by s 216 have been fulfilled. But those conditions are merely that the Registrar-General must have made a decision upon a reconsideration under s 216 and furnished the aggrieved person with written reasons. Other than providing proof of that fact, the aggrieved party need do no more than file and serve the application under s 217 calling upon the Registrar-General to justify the decision. [33] I conclude that the onus under s 217 is on the Registrar-General to substantiate and uphold the grounds of his decision. In order to fulfil that obligation, he has the right to begin and a right of reply. There is no onus on the aggrieved party to establish that the Registrar-General's decision was wrong. Nor is there any presumption that the Registar-General's decision is correct. [34] I do not see an application under s 217 as being similar in nature to an appeal as Anderson J did in Public Trustee v Miller & Anor HC HM A41/86 27 July 1987. The matter is to be approached afresh with the onus on the Registrar-General as already indicated.[35] Of course, it is always open for the parties to agree on a different order of addresses as occurred in the present case. But that does not alter the onus as I have described it.The statutory framework[36] The starting point is s 226 Resource Management Act which relevantly provides:226 Restriction upon issue of certificates of title for subdivision(1) A District Land Registrar shall not issue a certificate of title for any land that is shown as a separate allotment on a survey plan (being a certificate issued to give effect to the subdivision shown on that survey plan), unless he or she is satisfied, after due inquiry, that— (a) The plan has been deposited in accordance with section 224 or has been approved by the Chief Surveyor for the purposes of section 228 and the provisions of section 228(2) have been complied with;[37] The District Land Registrar may not issue a certificate of title under this provision unless the relevant survey plan has been deposited in accordance with s 224. Under s 224, a survey plan may not be deposited under the Land Transfer Act unless there is lodged with the District Land Registrar a certificate signed by the Chief Executive or other authorised officer of the territorial authority stating that it has approved the survey plan under s 223 and that all or any conditions of the subdivision consent have been complied with: s 224(c). In order to obtain the s 224 certificate from the territorial authority, s 223 enables a landowner to submit for approval a survey plan if a subdivision consent has been obtained or a certificate of compliance has issued. [38] The subdivision consent or a certificate of compliance is required by s 226 if the certificates of title requested are to give effect to a subdivision shown on a survey plan. That brings into play s 218 Resource Management Act and the definition of "survey plan" already cited.Applicant's submissions[39] The essential submission made on behalf of Horokiwi was that a subdivision of land within the meaning of s 218 Resource Management Act required that there be a division of an allotment. The submission was that the balance Lot 3 DP306892 was not an allotment in terms of s 218(2) first because there had not been a subdivision of the land for such an allotment to come into existence in the first place and secondly because the boundaries of that lot were not shown separately on DP306892 or plan 366995. [40] Mr Withnall submitted that since it had been accepted DP89282 was not the division of an allotment in terms of the Resource Management Act, the same reasoning should be applied to Lot 3 DP306892. Effectively, DP306892 was not a survey plan in terms of the Resource Management Act for the balance Lot 3. That parcel of land had simply been carried over from Lot 4 DP89282 and, before that, from Maori Land Plan 1976. [41] Mr Withnall relied upon the evidence of Mr McLeod and the plans themselves to support an argument that only the fully surveyed lots created by DP89282 and DP306892 could be regarded as the division of an allotment. He accepted that DP306892 could be regarded as a survey plan for the purpose of defining Lots 1 and 2 on that plan with the adjusted boundaries. However he submitted the plan was not a survey plan in respect of the balance Lot 3. [42] Mr Withnall also submitted that, although the term "boundaries" used in s 218(2)(a) was not defined, the relevant plans could not be described as showing boundaries for the balance lots in terms of s 218(2)(a). He referred to s 2 Survey Act 1986 which was in force at the time of the preparation of DP306892 and to the definition sections in the Cadastral Survey Act 2002 to support a submission that a boundary required something which was fixed and certain. [43] Because the balance lots had always had titles limited as to parcels, he submitted that the boundaries of the balance lots had never been shown as requiredby s 218(2)(a). At best, there was an approximation of what a landowner might expect to own but with no guarantee that a subsequent full survey and precise definition of boundaries might not change substantially.Discussion[44] In my view, the resolution of this matter turns on the definition of "allotment" in s 218(2) and the definition of "survey plan" in s 2. On closer analysis this series of definitions is circular. A subdivision is a division of an allotment. An allotment is a parcel of land that is a continuous area and whose boundaries are shown separately on a survey plan. A survey plan means "a plan of subdivision of land ". The element of circularity arises from the inclusion of the term "subdivision" in the survey plan definition. [45] In order to give meaning to this series of definitions, the relationship between "subdivision", "allotment", and "survey plan" and its reference to "subdivision" needs to be examined. The two critical elements of "subdivision" for the purposes of s 218 are "division" of an "allotment". Logically there can be no division without an existing allotment. Therefore, an "allotment" must precede any division. [46] The critical elements of "allotment" are: (1) a continuous area of land; and (2) the boundaries of that land being displayed on a "survey plan". The circularity arising from the definition of "survey plan" could be avoided if the reference to "subdivision" in the survey plan definition were treated in a non-technical sense as simply referring to a division of land. Such an interpretation is needed in the light of the context of the legislation and to make it work effectively. [47] Viewed in this way, "subdivision" under s 218 for the purposes of the present case requires: (i) The division of a continuous area of land; (ii) Whose boundaries are shown separately on a survey plan; (iii) That is prepared in a form suitable for deposit under the Land Transfer Act 1952.[48] The first requirement is not in dispute but the other two requirements are contested. It is convenient to examine the third requirement next i.e. was the plan prepared in a form suitable for deposit under the Land Transfer Act?[49] With some limited exceptions, where a deposited plan is required it must comply with "the regulations for the time being in force in that behalf": Section 167(1) Land Transfer Act. The regulations currently contemplated by s 167 are the Land Transfer Regulations 2002. However, when DP89282 and DP306892 were prepared the Land Transfer Regulations 1966 were in force. Apart from Regulation 31 as to the manner and time of presentation, there were no detailed provisions in regulations made under the Land Transfer Act in relation to the deposit of plans.[50] But the Survey Act 1986 and regulations made thereunder prescribed in detail the requirements for surveys and approval of plans by the Chief Surveyor. Section 2 of the Survey Act defined a plan as " a graphical representation of any survey or surveys". A survey was in turn defined as:The determination for boundary purposes of the form, contour, position, area, shape, height, depth, or nature of any part of the earth or of any natural or artificial features, and the position, length, and direction of bounding lines on, below, or above any part of the earth; and includes the making of a plan or plans of any matter so determined:[51] The Survey Regulations 1998 provided the standards which all surveys conducted under the Survey Act had to meet. The Regulations contained, among other things, prescribed distances to markers (Regulation 13); directions for all land in a subdivision to be accounted for (Regulation 19); and prescribed standards of accuracy (Regulations 26 and 29). Those standards could be varied by the Chief Surveyor in such a manner as he/she considered necessary: Regulation 44. The Surveyor-General's Rules for Cadastral Survey 2002/2 in conjunction with the Cadastral Survey Act 2002 have substantially re-enacted this regime. [52] Significantly, before any survey data could be used for the purpose of any enactment relating to or affecting title to or interests in land, it had to be approved by the Chief Surveyor: Regulation 4. While this regulation has no specific counterpart under the current legislative and regulatory regime, a plan approval mechanism hasbeen retained. It is now overseen by the Chief Executive of Land Information New Zealand. [53] In the present case, a delegate of the Chief Surveyor approved DP89282 and DP306892 as to survey subject to the residue lot being limited as to parcels. Given the Chief Surveyor's overriding responsibility for prescribing standards of compliance for surveys and monitoring such compliance, it followed that the plan in each instance complied with the survey regulations and was suitable for use for the purpose of any enactment relating to title to land. [54] The fact that the residue lot was approved as a parcel diagram does not affect the conclusion that the entire plan was prepared in a form suitable for deposit under the Land Transfer Act. Under Regulation 19 of the Survey Regulations 1998, a survey subdividing a parcel must account for every new parcel resulting from the subdivision, including every balance or residue parcel. The Chief Surveyor could accept a lower standard of survey under Regulation 44 but his approval nevertheless related to the entire plan including the residue lot. [55] The fact that the titles issued for the balance lots under both DP89282 and DP306892 were limited as to parcels under s 190 Land Transfer Act does not affect the status of those lots as part of the survey plan approved. A certificate of title which is "limited as to parcels" is one in which the position, area or boundaries cannot be guaranteed: Melville-Smith v Attorney-General [1996] 1 NZLR 596, 603. Under s 209 Land Transfer Act, no action can be brought against the Crown for compensation owing to any error or omission in the description of the parcels of land comprised in that certificate of title where the title is "limited as to parcels". The purpose of land limited as to parcels is to put the landowner or prospective purchaser on notice that if the boundaries are defective they will not have a right to compensation from the Crown. The fact that a title may be issued on a limited as to titles basis does not operate to exclude that land from the ambit of the survey plan. [56] The remaining issue is whether the boundaries for the balance lots were shown separately on the relevant survey plans. As noted, the term "boundaries" is not defined in the Resource Management Act, the Survey Act 1986, the CadastralSurvey Act 2002 or the relevant regulations and rules under those Acts. In the ordinary meaning of the words, the boundaries of a property are its outer limits:Hampton v Environment Court [2002] NZRMA 458 at [17]. [57] Undoubtedly, the 1998 Regulations and the 2002 Rules permit varying degrees of precision in relation to boundaries. But there is nothing in the relevant legislation, regulations or rules to suggest that boundaries must be fixed and immoveable. Neither the former regulations nor the current rules demand 100 percent accuracy for the survey of boundaries. For example, "natural boundaries" are provided for in relation to natural features such as rivers or streams which are subject to variation from movements in the course of the natural feature or stream. Boundaries subject to accretion and erosion are envisaged. And, in relation to land limited as to parcels, it is implicit that the location of boundaries and the area of land may vary when a full survey is conducted. That does not however prevent a title being issued on that basis. [58] In the present case, dimensions were not stipulated for much of the northern, southern and western boundaries of the balance lots on DP89292 and DP306892. But the boundaries were drawn on the relevant plans and approved as to survey despite the absence of those dimensions. The area of the balance lots was also stated on the plans on the basis that the underlying title would be issued limited as to parcels. There is nothing in the Resource Management Act to suggest that the requirement for boundaries to be shown separately on a survey plan in terms of the definition of allotment in s 218(2)(a) means dimensions must be shown for the boundaries. I am satisfied that the relevant plan did show the boundaries for the balance lots on a survey plan for the purposes of s 218(2)(a). [59] The Registrar-General referred to s 218(4) Resource Management Act in his letter upholding the rejection of the 57 lot proposal. This recognises that the balance of any land from which an allotment is being or has been created is deemed to be an allotment for the purposes of s 218(2). Once it is accepted that the balance Lot 3 DP306892 is a "parcel of land whose boundaries are shown separately on a survey plan" it is clearly an "allotment" for the purposes of s 218(1)(a). And, by virtue ofs 218(4), any residue lot after any further division of the land is also deemed to be an allotment.Conclusion[60] For the reasons given, I conclude that the Registar-General was right to decide that plan 366995 did amount to a subdivision of land under s 218 Resource Management Act. In consequence, the Registrar-General was also correct to reject the relevant dealing on the basis that the certificate of the territorial authority under s 224 Resource Management Act had not been provided. In those circumstances, s 226 Resource Management Act meant there was no authority to issue the relevant certificates of title. [61] The Registrar-General has therefore substantiated and upheld the grounds for his refusal to register the dealing and to issue the titles requested.Costs[62] Section 219 Land Transfer Act provides in respect of a proceeding of this type:219 Expenses of appealAll expenses attendant upon any such proceeding shall be borne and paid by the person initiating the proceedings, unless the Court orders that the same be paid out of the Crown Bank Account, which the Court is hereby empowered to do.[63] Prima facie, Horokiwi Holdings Limited as applicant must meet its own costs as well as those of the respondent. If agreement is not reached between the parties on the issue of costs, the respondent is to file and serve a memorandum as to costs within one month of the date of this decision and the applicant will have 14 days thereafter to file and serve any reply. ______________________________ A P Randerson, J Chief High Court Judge