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Incorporating Restrictions and Responsibilities (RRs) into Land Administration Systems Jude Wallace and Rohan Bennett Incorporating Restrictions and Responsibilities (RRs) into Land Administration Systems Jude Wallace and Rohan Bennett Geomatics Seminar Series 19 August 2004

Today’s Objectives…. • Explain why management of RR’s is important. • Illustrate the poor Today’s Objectives…. • Explain why management of RR’s is important. • Illustrate the poor state of RR’s management in Australia. • Outline proposed solutions to the problem and why they won’t work. • Present a new functional approach for solving the RR problem.

Outline Part 1: Background and Problem Definition – Sustainability, LAS and RRRs explained Part Outline Part 1: Background and Problem Definition – Sustainability, LAS and RRRs explained Part 2: Current Ideas and Proposals – From Government, LAS literature and other fields Part 3: Our Proposal and Future Work – A functional approach

Part 1 Background and Problem Definition Part 1 Background and Problem Definition

Part 1: Background and Problem Definition Our Starting Point - Sustainability • All human Part 1: Background and Problem Definition Our Starting Point - Sustainability • All human activity potentially falls into the range of regulated behavior. • According to Sustainable Development Theory, land related activities have special claims to attract regulation. • Modern understanding of land use exposes the externalities, affects and consequences of activities on neighbors, later land users, and the public.

Part 1: Background and Problem Definition Land Administration, Rights, Restrictions and Responsibilities Mining Lease Part 1: Background and Problem Definition Land Administration, Rights, Restrictions and Responsibilities Mining Lease Planning Zone The Cadastre A Land Parcel Noise Restriction • Theory suggests LAS What about should manage all Restrictions and a RRRs relating to Responsibilities? parcel. • How do wecurrent However, administer them? on systems focus only organising RIGHTS Area tion rotec (usingri. TENURE theory age P He t & systems)

Part 1: Background and Problem Definition But wait there’s more…. • Aboriginal Land Act Part 1: Background and Problem Definition But wait there’s more…. • Aboriginal Land Act 1991 • Aboriginal & Torres Strait Islanders (Land Holding) Act 1985 • Acquisition of Land Act 1991 • Acquisition Of Land Amendment Act 1999 • Administrative Boundaries Terminology Act 1985 • Allan And Stark Burnett Lane Subway Authorisation Act 1926 • Ambulance Service Act 1991 • Ambulance Service Amendment Act 1997 • Anzac Square Development Project Act 1982 • Associations Incorporation Act 1981 • Associations Incorporation Amendment Act 1995 • Auctioneers And Agents Act 1971 • Australia And New Zealand Banking Group Limited (Nmrb) Act 1991 Some of the 180 QLD ACTS including RRs over land

Part 1: Background and Problem Definition Still more…. • Bank Of New Zealand (Transfer Part 1: Background and Problem Definition Still more…. • Bank Of New Zealand (Transfer Of Undertaking) Act 1997 • Beach Protection Act 1968 • Body Corporate And Community Management Act 1997 • Brisbane City Council Business And Procedure Act 1939 • Brisbane Forest Park Act 1977 • Building Legislation Amendment Regulation (No. 1) 1998 • Building Units And Group Titles Act 1994 • Building Units And Group Titles Regulation 1998 • Canals Act 1958 • Central Queensland Coal Associates Agreement Amendment Act 1997 • Central Queensland Coal Associates Agreement Variation Act 1996 • C. . • D…. . • • • Z. Some of the 180 QLD ACTS including RRs over land

Part 1: Background and Problem Definition So LAS are lacking… “A serious omission in Part 1: Background and Problem Definition So LAS are lacking… “A serious omission in current land administrating systems is the absence of records of encumbrances and restrictions pursuant to public law. …” • Mild - accept the presence of a lamppost on the land, or a slight financial burden • Severe - mandatory use of the land and, in the most extreme form, expropriation. It is important that attention should be devoted to the retention of up-to-date records of this information. ”

Is there a ‘quick fix’…? ? Rights are well organised and managed Why don’t Is there a ‘quick fix’…? ? Rights are well organised and managed Why don’t we borrow the model and related theory for RRs? ?

Part 1: Background and Problem Definition Land Rights Organisation Organising Theory LAND TENURE THEORY Part 1: Background and Problem Definition Land Rights Organisation Organising Theory LAND TENURE THEORY PRIVATE PUBLIC Own Lease Classifications Sharecrop COMMON Mortgage OPEN ACCESS

Part 1: Background and Problem Definition Land RRs Organisation ? ? Organising Theory Public Part 1: Background and Problem Definition Land RRs Organisation ? ? Organising Theory Public ? ? Private? ? Classifications Global/ International ? ?

Part 1: Background and Problem Definition What does having no model result in? Conversations Part 1: Background and Problem Definition What does having no model result in? Conversations about how to approach restrictions and responsibilities are impeded: – No standard model for organization of RRs exists. – No solutions are emerging. – Ad hoc responses are evident. – Confusion between policy clashes and administrative failures.

Part 1: Background and Problem Definition Summing up: We have a few problems… • Part 1: Background and Problem Definition Summing up: We have a few problems… • Only limited RRs are included in current LAS • The number of RRs is increasing and this is compounding the problem • We have no model or existing uniform framework to help us organise and manage our RRs . . . Any Solutions? . . .

Part 2 Current Ideas & Proposals Part 2 Current Ideas & Proposals

Part 2: Current Ideas and Proposals 1. The “Expanded Register” Approach Victoria has 2 Part 2: Current Ideas and Proposals 1. The “Expanded Register” Approach Victoria has 2 strategies 1. Use Title Certificate – Planning agreements (s 173 planning legislation) are ON TITLE. 2. Transaction driven access through VSCO – Vendors Statement Certificate On-Line: electronic certificate system for zoning, land tax, road access, rates, heritage controls, pollution? ? ?

Part 2: Current Ideas and Proposals 2. The “All In” Approach Example: . Western Part 2: Current Ideas and Proposals 2. The “All In” Approach Example: . Western Australia: Legislative Council Report 2001 Recommendations 35 and 36: – In the short term the Do. LI continue to implement its aim of establishing itself as a ‘one stop shop’ database of all interests affecting land as an urgent priority. – For the long term the Do. LI introduce as soon as practical an electronic 3 d CT which records all interests affecting the land on the CT.

Part 2: Current Ideas and Proposals Example (continued): Western Australia: Legislative Council Report 2001 Part 2: Current Ideas and Proposals Example (continued): Western Australia: Legislative Council Report 2001 Recommendation 37: . – Government pass legislation with 2 year phase in– Any policy, strategy, plan or other document impacting on administrative decision-making with respect to land use that affects one or more specific certificates of title, is to be of no effect unless registered with Do. LI And – Cross-referenced with the relevant CT. See also federal report: Public Good Conservation 2004

Part 2: Current Ideas and Proposals 3. The “Technology Solves All” Approach “By the Part 2: Current Ideas and Proposals 3. The “Technology Solves All” Approach “By the year 2002, customers will be Title Auctions / Land Sales & Valuations able to point to a piece of land on an electronic map, and have all the ? information relevant to that piece of land at their fingertips. ” Ownership & occupant details Planning zones & restrictions Council Rates & other information Provider #3 Things we haven’t yet thought of. . . Provider #2 Provider #1 Mapping & survey information Click here! Jacoby et al, Click here! The Land Victoria ‘Point and Click’ Vision Transport / Infrastructure Land rights, interests & easements Education / Schools Natural Resources Health & Hospitals Environmental Information Crime Statistics

Part 2: Current Ideas and Proposals 4. The “Control Land Regulation” Approach • Land Part 2: Current Ideas and Proposals 4. The “Control Land Regulation” Approach • Land Regulation Theory is needed to support governments’ efforts to influence land owners’ behaviour. • But this task is very different from the tasks of informing land policy and organizing management and administration. • Land administrators can assist the regulators’ decisions, but can’t do their job for them

Part 2: Current Ideas and Proposals 5. The “National Harmonization of Property Rights” Approach Part 2: Current Ideas and Proposals 5. The “National Harmonization of Property Rights” Approach • The “big bang” through the front door- no more land regulation. • Failed systems – Oregon, Measure 7 • This is the play ground of political scientists, politicians, and big debates between free market economists and the Greens. • Land administrators can’t settle regulatory theory or property rights harmony, but we can build a theory of access to information, and a system to aid implementation.

Part 2: Current Ideas and Proposals 6. The “Themed Functions” Approach • Organise RRs Part 2: Current Ideas and Proposals 6. The “Themed Functions” Approach • Organise RRs on 6 thematic functions (LDC) – Policy, Determinations, Transactions handling, Information, Compliance and Appeals – This helps. It focuses attention on the management of activities related to land, not on mere provision of information. – But it is still very big. And its scope is much broader than necessary.

Part 3 Our Thoughts & Future Work A Functional Approach Part 3 Our Thoughts & Future Work A Functional Approach

Part 3: Our Thoughts and Future Work Sketch of ingredients for LAS Functional Approach Part 3: Our Thoughts and Future Work Sketch of ingredients for LAS Functional Approach (4 Steps) 1. Generate a list of underlying first principles 2. Develop an organizing theory to categorize restrictions and responsibilities 3. Organise administration of restrictions and responsibilities around three management functions: – Create – Maintain – Remove. 4. Find tools appropriate in each category to manage each of the three basic functions

Part 3: Our Thoughts and Future Work Step 1: Underlying First Principals to date Part 3: Our Thoughts and Future Work Step 1: Underlying First Principals to date 1. Treat government and private restrictions similarly. 2. Treat land management the same as other government responsibilities. 3. Make core restriction information available FREE. 4. Focus on RRs that affect later owners. 5. Use a whole of government, not whole of land approach. 6. Share information to off-set costs of collection and maintenance. The principle of collect once and use many times should be mercilessly applied. 7. Use rights based management tools where possible to manage restrictions. 8. ? ? 9. ? ?

Part 3: Our Thoughts and Future Work Steps 2, 3, 4: Classifications, Functions and Part 3: Our Thoughts and Future Work Steps 2, 3, 4: Classifications, Functions and the Tool Box RR Classification Theory UNIVERSAL SUB - UNIVERSAL Management Functions CREATE Tool Box TOOL MAINTAIN RARE TOOL FUZZY REMOVE TOOL

Part 3: Our Thoughts and Future Work An Example: A new type of restriction Part 3: Our Thoughts and Future Work An Example: A new type of restriction on every parcel RR Classification Theory UNIVERSAL SUB - UNIVERSAL Management Functions CREATE Tool Box TOOL MAINTAIN RARE TOOL FUZZY REMOVE TOOL

Part 3: Our Thoughts and Future Work Another Example: Changing Status of Historic Building Part 3: Our Thoughts and Future Work Another Example: Changing Status of Historic Building RR Classification Theory UNIVERSAL SUB - UNIVERSAL Management Functions CREATE Tool Box TOOL MAINTAIN RARE TOOL FUZZY REMOVE TOOL

Part 3: Our Thoughts and Future Work More about the Tool Box (Step 4) Part 3: Our Thoughts and Future Work More about the Tool Box (Step 4) (Just some we are thinking about) • Reliance on public record • Transaction driven access • ICT systems – web enabled access, location enabled platforms • Land registration system (above and below line) • Rights based systems (priority order) • Use an overreach system (delete on transfer) • Move risk of information accuracy/provision to creator

Part 3: Our Thoughts and Future Work Some More Tools (Step 4) • Use Part 3: Our Thoughts and Future Work Some More Tools (Step 4) • Use government standards and systems – e. Forms, e. Government, e. Land • Develop risk matrix • Sunset restrictions • Develop convenience information to attract public • Separate out activity and business regulation systems • Service restrictions generated by private sector • Negative Register But there is still many problems to solve……

Part 3: Our Thoughts and Future Work Government activities are not neat and tidy Part 3: Our Thoughts and Future Work Government activities are not neat and tidy • Uncertainties and relativities must be managed This is not a problem. Science is happy with uncertainty. Spatial science is no different. – Relativity – Einstein. Certainty is the relationship between objects and the relationship is relative. – Uncertainty principle – Heisenberg. The more precisely the position is determined, the less precisely the momentum is known in this instant, and vice versa.

Part 3: Our Thoughts and Future Work Dealing with the Uncertainty • How should Part 3: Our Thoughts and Future Work Dealing with the Uncertainty • How should LAS deal with these kinds of multifaceted responsibilities? – e. g. Responsibility to pay CGT – Physical property x use x liabilities x tax variables – something like: Land parcel plus + Use as nonprincipal place of residence Ownership liability $ Sell price minus $ Buy price minus $ costs Tax liability 50% of personal income tax rate for tax period $ Tax Amount

Part 3: Our Thoughts and Future Work Potential Trouble Cases • Three kinds – Part 3: Our Thoughts and Future Work Potential Trouble Cases • Three kinds – Multi-faceted information, only part of which is land information. – Regulatory information, often “fuzzy”. – Responsibilities and restrictions are taking on more international flavour through regional arrangements, sharing, treaties and conventions.

Part 3: Our Thoughts and Future Work Dealing with ‘Fuzzy’ RRs • How should Part 3: Our Thoughts and Future Work Dealing with ‘Fuzzy’ RRs • How should LAS deal with fuzzy restrictions? – “Build so as to conserve coastal views, neighbourhood amenity, mountain ridge line”. – One solution • These are not land based, but activity based restrictions to be managed through the processes of control of the activity. • Move out of LAS and into regulatory control system.

Part 3: Our Thoughts and Future Work Dealing with large amounts of data • Part 3: Our Thoughts and Future Work Dealing with large amounts of data • How can EPA Qsld 600, 000 permits pa be tracked? • LAS can assist regulator by tracking the relationship between decision, owner, property and time. • Technology is developing solutions.

The End (really, The Beginning) Thanks for your time Any Questions? ? Queries and The End (really, The Beginning) Thanks for your time Any Questions? ? Queries and critiques to j. [email protected] edu. au or [email protected] sli. unimelb. edu. au