Abuttals - significance of the surrounding titles
In the relocation of titles bounded by abuttals, surveyors should comply with the established rule of law stated in Small v. Glen (1880) 6 VLR (L) 154, known as the 'rule of abuttals’:
'A description by abuttals will, as a rule, override measurements expressed in figures if conflict exists between description and measurement'.
See “Some Aspects of Title Boundary Location in NSW” Hamer, 1967.
The surveyor must ensure that the survey adopts a common boundary with the adjoining parcels. Instances have occurred where the adoption of measurements only has resulted in either a hiatus being created between titles or the titles overlap.
Alignment - the effect on subdivision
Ignoring the effects of alignment on side roads and street frontages is a common source of error in the relocation of title boundaries. Where roads in a subdivision have been the subject of alignment (or re-alignment) action, it is the accepted convention that only the parcels adjacent to the aligned road are affected.
Where alignment of the side roads has occurred subsequent to the base subdivision, any gain or loss of land will accrue to, or be borne by, the adjacent corner parcels. The position of internal subdivision boundaries will, in such circumstances, be unaffected by the alignment action.
Alignment of the road that fronts lots in a subdivision may affect the angular relationship that road has with the internal subdivision boundaries. Care should be taken to redefine the road and side boundaries independently, and not simply adopt the angular relationship shown on the base plan without corroborative evidence. The length of side boundaries may be affected by any alignment action, and so all rear boundaries must also be redefined independently of the alignment.
NOTE: The above section applies only to cases where the alignment (or re-alignment) has occurred subsequent to the base subdivision plan being surveyed. For cases where the alignment preceded the subdivision, please refer to the following excess or shortage in measurement section.
Excess or shortage in measurement
If excesses and/or shortages in dimensions are disclosed in a new survey, every effort must be made to ensure that adjoining (and other) parcels within the base subdivision have sufficient land to satisfy their entitlement. Careful consideration must be given to the intent of the original subdivision. For example, if the parcels show equal frontage, every effort should be made to retain this relationship. The final decision on the boundary fixation will be affected by:
- the extent of the original subdivision (that is, does the excess/shortage lie between two streets that are part of a single base plan)
- the position and age of occupations
- the relationship of monuments
- the standards of measurement applied over the years.
It will require substantial evidence to justify the inclusion of an excess in a title if doing so will re-locate the boundaries outside the existing occupations. However, it should be noted that the successive adoption of original title dimensions for each lot will, irrespective of the starting point, have the unsatisfactory effect of moving the excess (or shortage) through the subdivision until it eventually becomes located in the last remaining lot to be dealt with. It may be more desirable in many cases to apportion the excess or shortage between established corners.
In all cases where a surveyor intends either to include excess land in a title, exclude a shortage of land from a title, or otherwise apportion that excess or shortage across multiple titles, it is highly recommended that a plan of redefinition be lodged in the appropriate form prior to the commencement of any construction or other works. See Plans of redefinition section.
Rear boundaries
Where lots facing parallel (or approximately parallel) roads share a common rear boundary, and no supporting evidence is available to independently fix that boundary, the surveyor may have to redefine both roads to verify the existence of any excess or shortage over the original dimensions. This is particularly relevant if the lots on either side of the common rear boundary form part of the same base subdivision. The line of the rear boundaries may then be re-established from end to end, avoiding the creation of steps or bends in the rear line of adjacent lots.
Depths of lots can be affected by a change in the position of the road, either by acceptance of a different definition upon resurvey or by alignment of the road after the original subdivision (see Alignment – the effect on subdivision section above). Modern survey techniques may also disclose excesses or shortages inherent in the base subdivision. Original title depths should therefore not be adopted from any road without verifying that:
- the position of the road is the same as shown in the original plan, and
- title depth is available to the rear street or
- where excesses or shortages are detected, the occupational pattern supports the adoption of title depth
Where an excess or shortage between streets has been identified in earlier surveys, every effort should be made to follow the accepted survey pattern and maintain the rear boundary as a continuous line.
Boundaries defined by occupations
In the absence of satisfactory original markings, occupations and other structures such as garages that have been erected on the subject land and nearby parcels may be reliable indicators of boundary position. Where boundaries are to be defined by occupations alone, all (or at least most) of the occupations along the road frontage, and as many as practicable along the rear lot boundaries, should be measured, together with any other structure that may be relevant to the definition. Comparisons are made with the original lot dimensions and, where discrepancies exist, appropriate weighting given to each occupation or structure according to its age, originality, and agreement with similar occupations. The age and nature of all fences and other structures must always be shown on the plan.
While long and undisturbed occupation provides strong evidence that the fences are erected on the boundary as originally laid, it is not indisputable. Further supporting evidence should be sought. For example, offsets from original houses that were constructed shortly after the base subdivision may reveal a consistent pattern of development.
Boundaries defined by physical features
It is possible for new lot boundaries to be defined by a physical feature. An example is a plan where the lot boundary is positioned along the face of a line of 600mm diameter cylindrical concrete pilings and the linear boundary is formed by a series of secants along part of the face of each piling.
As conventional definition of the boundary (arc lengths, chords and radii) would be extremely difficult to show on the plan, it is permissible to define the boundary by a traverse through the centres of the pilings and show typical profiles of the pilings in the manner set out on diagram - click on diagram to enlarge.
Detailed diagrams showing the arc details, connections, intercepts and offsets from the centreline traverse are required for each change in angle, each change in diameter of pillar and each end of the secant wall. The diagrams should also indicate the number of columns and their relationship to the corners of the parcel.