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 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 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

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

LandA Land ParcelThe Cadastre Land Administration, Rights, Restrictions and Responsibilities Theory suggests LAS should manage all RRRs relating to a parcel. However, current systems focus only on organising RIGHTS (using TENURE theory & systems) Part 1: Background and Problem Definition Planning Zone Heritage Protection Area Noise Restriction Mining Lease What about Restrictions and Responsibilities? How do we administer them?

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 Part 1: Background and Problem Definition Some of the 180 QLD ACTS including RRs over land

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. Part 1: Background and Problem Definition Some of the 180 QLD ACTS including RRs over land

“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.” So LAS are lacking… Part 1: Background and Problem Definition

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

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

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

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. What does having no model result in? 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 Part 1: Background and Problem Definition.....Any Solutions?.....

Part 2 Current Ideas & Proposals

Victoria has 2 strategies - 1.Use Title Certificate –Planning agreements (s173 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??? 1. The “Expanded Register” Approach Part 2: Current Ideas and Proposals

Example: Western Australia: Legislative Council Report 2001 Recommendations 35 and 36: –In the short term the DoLI 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 DoLI introduce as soon as practical an electronic 3d CT which records all interests affecting the land on the CT.. 2. The “All In” Approach 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 DoLI And –Cross-referenced with the relevant CT. See also federal report: Public Good Conservation Part 2: Current Ideas and Proposals

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

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 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 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 2: Current Ideas and Proposals

Part 3 Our Thoughts & Future Work A Functional Approach

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 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

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

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

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

More about the Tool Box (Step 4) (Just some we are thinking about) Part 3: Our Thoughts and Future Work 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

Some More Tools (Step 4) Part 3: Our Thoughts and Future Work Use government standards and systems – eForms, eGovernment, eLand 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……

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

How should LAS deal with these kinds of multi- faceted responsibilities? –e.g. Responsibility to pay CGT –Physical property x use x liabilities x tax variables – something like: Land parcel plus + Use as non- principal 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 Dealing with the Uncertainty

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. Potential Trouble Cases 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 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 critiques to