Transfer of Land (Surveys) Regulations 1995

The regulations define several critical terms that shape their operation. “Authorised survey” takes its meaning from the Licensed Surveyors Act 1909, referring to surveys that a licensed surveyor is authorised to perform under that Act. “Covenant” is defined expansively to include both a restrictive covenant registered under the Transfer of Land Act that is capable of being shown spatially on a plan, and a covenant referred to in section 15 of the Land Administration Act 1997 that is similarly spatially capable (reg 2). This dual sourcing reflects the interaction between freehold and Crown land regimes. “Interest” means an easement, memorial, or notification that is capable of being shown spatially on a plan, or a covenant. This is an important limitation: not all caveats or statutory charges trigger the plan requirements, only those that can be spatially depicted. “Monument” means a building, permanent structure, or permanent survey mark, which grounds the physical reference points for surveys. “Plan” is defined as a plan to be presented for lodgment with the Registrar, so the regulations apply only to plans intended for lodgment, not to internal working plans. “Surveyor” means a surveyor licensed under the Licensed Surveyors Act 1909 who holds a practising certificate. This restricts who can prepare a plan for lodgment to licensed, practising professionals, creating a barrier to entry and a compliance bottleneck. “Terminals” means the ends or extents of an easement, a concept critical for reg 7 which requires the surveyor to connect the easement’s position to relevant monuments and to show connections to the nearest parcel corner. The “Inspector of Plans and Surveys” is defined as a surveyor on the staff of the Authority (presumably Landgate or its predecessor) appointed by the Governor to approve plans of authorised surveys. This official has gatekeeping power: approval under reg 11 is a precondition for the plan to take effect. The “Registrar” is not defined in these regulations but has powers under regs 5, 8, 9, and 10 to determine plan content, exempt residue land requirements, require new plans, and specify formatting. These discretionary powers introduce uncertainty: a surveyor cannot know in advance exactly what the Registrar will require under reg 8, though the regulation lists matters the Registrar “may determine” to be set out. The word “may” gives the Registrar latitude but also implies that the listed matters are not mandatory unless the Registrar so directs. This creates a gap between the regulation’s text and the practical expectation that surveyors will include all relevant details to avoid rejection. The concept of “compiled plan” in reg 4 allows a plan to be based on existing surveys rather than a new field survey, but only if the surrounding parcel boundaries are already defined by existing surveys. The compiled plan must be certified by a licensed surveyor in the prescribed table form, and must record all source documents. Angles, total distances, and abuttals must be shown, but intermediate distances or marks are not shown, and angles and distances cannot be annotated “orig” or “cal”. This reduces some survey cost but shifts risk to the certifying surveyor.

These regulations primarily affect licensed surveyors who prepare plans for lodgment under the Transfer of Land Act. Any surveyor undertaking an authorised survey for a subdivision, easement, covenant creation, or land acquisition must comply with the formatting, content, and certification rules. The requirement for a digital electronic record in a format specified by the Inspector (reg 3) means surveyors must invest in compatible software and data standards; a plan without the correct digital record cannot be approved. Landowners and developers who need to subdivide, create easements, or acquire parts of titles are indirectly affected because they must engage a licensed surveyor to prepare the plan and must pay the associated costs. Delays can arise if the Registrar exercises discretion under reg 8 to require additional information, or under reg 9 to require a new plan entirely if an existing easement or covenant is modified. The regulations also affect the Registrar, the Inspector of Plans and Surveys, and authorised land officers who exercise approval and direction powers. The Registrar can direct under reg 5(6) that any of the residue land requirements do not apply to a particular plan of Crown land, which gives the Crown a dispensation not available to freehold landowners. The Inspector and authorised land officers are the approving authorities under reg 11; they may only approve a plan when all necessary instruments, applications, or dealings transferring or disposing of the land are registered. This creates a dependency: a surveyor cannot obtain plan approval until the underlying transactions are registered, which may cause sequencing problems if the plan is needed to support the transactions in the first place. The regulations also affect purchasers, mortgagees, and other parties who rely on the integrity of the Torrens register, as the plan becomes part of the register and must accurately depict boundaries and interests. Finally, the regulations intersect with the Licensed Surveyors Act and its subordinate regulations, so the body of licensed surveyors as a profession is directly regulated by the mechanics of plan preparation. The regulations do not exempt small-scale or low-value transactions; any plan for lodgment must comply. There is no threshold for de minimis surveys. The cost impact falls most heavily on those dealing with small parcels or minor easements, as the fixed costs of engaging a surveyor, producing a digital record, and complying with formatting requirements may be disproportionate to the value of the transaction.

The regulations impose several specific duties on surveyors and confer discretionary powers on the Registrar and the Inspector. The primary duty is to accompany every plan with a digital electronic record in a format specified by the Inspector (reg 3(1)). This digital record is treated as part of the plan for certification and approval purposes (reg 3(2)), so a surveyor cannot submit a hard-copy plan alone. For compiled plans, the surveyor must show the word “compiled” instead of a field record number, record all source documents, show angles, total distances, and abuttals but not intermediate distances or marks, and sign a certificate in the prescribed table form confirming the plan is a correct and accurate representation of the surveys and is in accordance with relevant law (reg 4). The certificate is a personal warranty by the licensed surveyor, creating potential professional liability if inaccurate. For plans involving residue land (where only part of a certificate of title is dealt with), the surveyor must show the residue land to scale and number it as a new lot or lots (reg 5(1)-(4)). This duty applies to acquisitions, subdivisions, and amalgamations. The Registrar, Inspector, or authorised land officer may allow the residue to be compiled without distances, angles, or bearings if boundaries are extensive (reg 5(5)). The Registrar or authorised land officer may also direct that any of these residue requirements do not apply to a particular plan of Crown land (reg 5(6)), a right that is not available to freehold landowners. For easement-only plans, the surveyor must connect the easement’s position by measurement to relevant monuments, determine the existing parcel boundary relative to the terminals and intersection of the easement, show those connections to the nearest corner, and show the position and extent of the easement (reg 7). If the easement is over underground pipes or conduits whose precise location cannot reasonably be determined, the surveyor may show approximate positions with notations (reg 7(5)). The Registrar has a broad right under reg 8 to determine which existing interests, proposed modifications, and proposed new interests must be set out in a plan and the manner of their depiction. This right extends to all matters listed in reg 8(a)-(j), including burdens, benefits, easements in gross, and covenants. The surveyor has a correlative duty to comply with the Registrar’s determination, but the regulation does not specify a mechanism for the surveyor to obtain that determination before preparing the plan. This creates practical uncertainty. The Registrar also has the right under reg 9 to direct that a new plan be lodged if the position or extent of any existing easement or covenant is to be modified. This power can impose additional survey costs. The surveyor’s duty regarding formatting is to comply with the manner of dimensions, arrangement, format, and medium as specified or approved by the Registrar (reg 10(1)). A plan may only exceed four sheets if the Inspector or authorised land officer approves the number before lodgment (reg 10(2)). Each sheet must be consecutively numbered, contain the plan number, and be signed and dated by the surveyor (reg 10(3)). The plan must refer to the purpose of the survey, show tenure type (Crown, freehold, or both), and refer to each relevant certificate of title or Crown land title (reg 10(4)). The Inspector or authorised land officer has a duty not to approve a plan until all necessary instruments, applications, or dealings transferring or disposing of the land are registered (reg 11). This is a gatekeeping prohibition, not a discretionary power. The surveyor has no right to have a plan approved before the underlying dealings are registered.

The Transfer of Land (Surveys) Regulations 1995 do not themselves prescribe any monetary penalties, offences, or criminal sanctions for non-compliance. The enforcement mechanism is primarily administrative: a plan that does not meet the regulatory requirements will not be approved by the Inspector of Plans and Surveys or an authorised land officer. Regulation 11 imposes a mandatory condition that approval can only occur when all necessary instruments, applications, or dealings are registered. If a surveyor fails to provide a digital electronic record (reg 3), fails to include the required certificate for a compiled plan (reg 4), or fails to show residue land to scale (reg 5), the plan will likely be rejected before it reaches the approval stage. The Registrar can also exercise powers under reg 9 to require a new plan if an existing easement or covenant is modified, which effectively invalidates the original plan. Non-compliance may also expose the surveyor to professional liability under the Licensed Surveyors Act 1909 and the Licensed Surveyors (Guidance of Surveyors) Regulations 1961, which contain their own disciplinary provisions. The regulations do not create a private right of action for affected landowners. A person harmed by a defective plan would need to rely on the general law of negligence, contract, or the statutory regime of the Transfer of Land Act for compensation from the assurance fund (if applicable). The regulations are directed at the integrity of the register; they protect the system’s accuracy rather than providing direct remedies to individuals. Because the regulations impose no fines, the primary deterrent is the cost of delay and rework. A surveyor who lodges a non-compliant plan may face repeated rejections, increased costs, and loss of client goodwill. The Inspector’s power to specify digital formats and approve sheet numbers (reg 10(2)) also acts as a soft enforcement tool: a plan presented in an unapproved format or with too many sheets can be rejected without substantive review. The absence of explicit penalties does not mean enforcement is weak; it means the regulatory design relies on gatekeeping and professional discipline rather than punitive fines. This is typical of survey regulations, where the quality of the plan is self-enforcing through the requirement for licensed surveyors to certify and the threat of de-registration for misconduct.

The Transfer of Land (Surveys) Regulations 1995 are subordinate legislation made under the Transfer of Land Act 1893. Their primary interaction is with that Act, which establishes the Torrens system of title by registration in Western Australia. The regulations fill a procedural gap that the Act does not cover in detail: the technical standards for plans that accompany dealings. The Licensed Surveyors Act 1909 and its subordinate regulations, particularly the Licensed Surveyors (Transfer of Land Act 1893) Regulations 1961 and the Licensed Surveyors (Guidance of Surveyors) Regulations 1961, are directly referenced. Regulation 4(2)(d) requires a certificate under regulation 54 or 55E of the Guidance of Surveyors Regulations for certain certifications; the digital record under reg 3(2) is regarded as part of the plan for those certifications. The definition of “authorised survey” in reg 2 imports the meaning from the Licensed Surveyors Act 1909, so only surveys authorised under that Act count. The definition of “covenant” in reg 2 also reaches into the Land Administration Act 1997, s 15, which deals with Crown land covenants. This means the regulations apply both to freehold and Crown land dealings, though with some Crown-specific exemptions under reg 5(6). The regulations also interact with the general law of easements and restrictive covenants, which define the substantive rights that the plans must depict spatially. There is no direct interaction with the Planning and Development Act 2005 or local government subdivision approvals; however, in practice a subdivision plan must also satisfy planning requirements, and the regulations do not override those. The condition in reg 11 that approval can only occur after all necessary instruments are registered creates an interaction with the Act’s registration provisions; a plan cannot be used to support an application if the application itself needs to be registered first. This sequencing issue may cause practical conflicts if the plan is needed to lodge the instruments. The regulations also interact with the Electronic Conveyancing National Law (ECNL) in states that have adopted it, though WA has not fully implemented electronic conveyancing for all transactions. Regulation 3’s requirement for a digital electronic record anticipates electronic lodgment but does not mandate e-conveyancing. The regulations do not purport to override or modify the substantive rules of the Torrens system, such as indefeasibility or priority. They sit as a procedural layer: compliance with them is a prerequisite for a plan to be accepted, but the plan’s legal effect once approved is governed by the Act. The absence of a direct penalty provision leaves enforcement to the profession’s own standards and the Registrar’s administrative powers.

These regulations were originally gazetted on 14 July 1995 and commenced the same day. They came as a short instrument of two pages. The first major amendment was by the Transfer of Land (Surveys) Amendment Regulations 2001, gazetted on 16 February 2001, which inserted new regulations 2 (definitions), 3 (electronic records), 5 (residue land), 6 (identification of parcels), 7 (easement-only plans), 8 (depiction of interests), 9 (Registrar requiring new plan), 10 (formatting), and 11 (approval condition). The 2001 amendments effectively rewrote the regulations into a more detailed form. Prior to 2001, the regulations were very brief. Reprint 1, compiled as at 16 February 2004, incorporated those amendments. The next amendment was by the Transfer of Land (Surveys) Amendment Regulations 2006, gazetted 29 December 2006, which amended regulation 2 definitions. It commenced on 1 January 2007. The 2006 amendment appears to have tweaked the definition of “authorised survey” or related terms, though the text of the amendment merely cites the amending provision as affecting reg 2. The most recent amendment was by the Transfer of Land (Surveys) Amendment Regulations 2021, gazetted 31 August 2021 as SL 2021/152. Regulation 1 and 2 commenced on that date; the remaining regulations commenced on 1 September 2021. The 2021 amendment altered regulation 4(2)(d) regarding the certificate for compiled plans. The original reg 4(2)(d) required a certificate “in the form of the table to this subregulation” but the table was not shown in earlier versions; the 2021 amendment inserted the table into the regulation text, making explicit the form of the certificate. The amendment also made minor renumbering. The compilation table indicates the regulations have not been reprinted since 2004, meaning the current text is the Act as amended by the 2006 and 2021 amendments. No other amendments are listed. The amendment history is notable for its long gaps: the 2001 amendments were substantial, then only minor definitional changes in 2006, and a single table insertion in 2021. This suggests the regulatory framework has been stable for over two decades, with the core requirements set in 2001 still in force. The 2021 amendment appears to have been a housekeeping measure to clarify the certificate form, not a policy shift. The compilation does not indicate any sunset or expiry clauses; the regulations remain in force indefinitely unless revoked.

The text of the Transfer of Land (Surveys) Regulations 1995 does not mention any court decisions, and no litigation history is provided in the source document. The regulations are procedural and technical, so they are unlikely to be the subject of frequent judicial interpretation. Disputes about survey plans more commonly arise under the Transfer of Land Act itself, the Licensed Surveyors Act, or the general law of boundaries and easements. The regulations themselves do not create private rights or causes of action. A landowner who suffers loss due to an inaccurate plan might sue the surveyor in negligence but would need to rely on the surveyor’s common law duty of care, not a breach of these regulations, though compliance or non-compliance with the regulations would be relevant evidence of the standard of care. There is no mention of any judicial consideration of the regulations in reported Western Australian cases. The Registrar’s discretionary powers under regs 8 and 9 could be subject to judicial review if exercised unreasonably or for an improper purpose, but no such cases appear in the source. The absence of litigation history does not mean the regulations are never contested; it may reflect that administrative remedies (such as requesting the Registrar to reconsider) are typically exhausted before any court challenge, and that the high cost of litigation discourages disputes over survey plan technicalities. The regulations are also not listed as having been the subject of any successful constitutional challenge. The annotation “Notes” at the end of the compilation is purely a note from the Parliamentary Counsel’s office and has no legal force. For a practitioner, the lack of case law interpreting these regulations means that the plain text and the Registrar’s practice are the primary guides, creating some uncertainty about how the broad discretionary powers will be exercised in novel situations.

Several provisions in these regulations can catch unwary practitioners. The first is the breadth of the Registrar’s power under reg 8 to determine both what matters must be set out in a plan and the manner in which they are set out. The regulation uses the word “may”, which suggests the Registrar has discretion. However, the listed matters are comprehensive (ten subparagraphs covering existing interests, proposed modifications, burdens, benefits, easements in gross, covenants in gross, and details of persons with benefit). A surveyor who prepares a plan without including one of these matters risks having it rejected if the Registrar later determines that it should have been shown. There is no advance determination process in the regulations; the surveyor must either guess or seek informal guidance. The second gotcha is reg 9, which gives the Registrar the power to direct that a new plan be lodged if the position or extent of any existing easement or covenant is to be modified. This can impose a wholly new survey cost even if the modification is minor. A surveyor cannot assume that an amended plan on the same sheet will suffice. Third, reg 11 prohibits plan approval until “all the necessary instruments, applications or dealings transferring or disposing of the land are registered.” This creates a chicken-and-egg problem: if the plan is needed to support an application for registration, the application cannot be registered until the plan is approved, but the plan cannot be approved until the application is registered. In practice, the Registrar likely interprets “transferring or disposing” narrowly to exclude the plan itself, but the text does not say so explicitly. Fourth, reg 5(6) allows the Registrar or authorised land officer to direct that any one or more of subregulations (1)-(5) do not apply to a particular plan of Crown land. This creates an unequal playing field: a freehold owner cannot seek an exemption from showing residue land to scale, but the Crown can. Surveyors working on Crown land must check whether a direction has been given. Fifth, the definition of “interest” in reg 2 is limited to easements, memorials, notifications, and covenants that are capable of being shown spatially. A caveat that is not capable of being shown spatially need not be depicted. But the line between “capable” and “not capable” may be contested. Sixth, reg 3 requires a digital electronic record in a format specified by the Inspector. The regulations do not specify what happens if the Inspector changes the format without notice. A surveyor who uses an outdated format may have to resubmit. Seventh, reg 10(2) restricts plans to four sheets unless the Inspector or authorised land officer approves a higher number before lodgment. A surveyor who prepares a plan with five sheets without prior approval must rework it. Eighth, the certificate for compiled plans under reg 4(2)(d) uses a table form that must be signed and dated by a licensed surveyor. The certificate certifies that the compiled plan is “a correct and accurate representation of the survey(s) of the subject land” and “is in accordance with the relevant law.” This is a strong warranty; if the source surveys are inaccurate, the certifying surveyor may be liable even without negligence. Ninth, reg 5(1)-(3) require residue land to be shown “to scale” but do not define the acceptable scale. The Registrar’s specifications under reg 10 may fill this gap, but a surveyor who uses an unusual scale risks rejection. Tenth, the regulations do not address what happens if a plan is approved but later found to be non-compliant. There is no provision for revocation of approval. This gap leaves the Registrar without an express tool to correct errors, though the Act itself may provide powers.

Compliance requires a systematic approach by the surveyor. First, the surveyor must hold a current licence and practising certificate under the Licensed Surveyors Act 1909 (reg 2 definition). The plan must be prepared with the intention of lodgment. Before drafting, the surveyor should obtain from the Registrar or Inspector any current specifications on digital format (reg 3), formatting and arrangement (reg 10), and the manner of depicting dimensions and area. The digital electronic record must be in the specified format and lodged with the plan; it must be identical to the plan content because it is deemed part of the plan for certification and approval (reg 3(2)). If the plan is compiled from existing surveys, ensure that the surround of the parcel is already defined by existing surveys (reg 4(1)). The compiled plan must show the word “compiled” instead of the field record number, list all source documents, and show angles, total distances, and abuttals without intermediate distances or marks, and without “orig” or “cal” annotations (reg 4(2)). The certificate in the table form must be written on the plan and signed and dated by the licensed surveyor (reg 4(2)(d)). If the plan involves only part of a title, show the residue land to scale as a new lot or lots (reg 5(1)-(4)). If the residue boundaries are extensive, seek prior approval from the Registrar, Inspector, or authorised land officer to compile the residue without distances, angles, or bearings (reg 5(5)). For Crown land, check whether the Registrar has issued a direction exempting any residue requirements (reg 5(6)). Identify each parcel with a number of no more than five numerals (reg 6). For easement-only plans, connect the easement’s position to relevant monuments by measurement, determine the parcel boundary relative to the terminals and intersection, show connections to the nearest corner, and show the full position and extent of the easement (reg 7). For underground pipes or conduits, show approximate positions with notations if precise location cannot reasonably be determined (reg 7(5)). Comply with the Registrar’s determination under reg 8 regarding which existing and proposed interests must be depicted and how. If the Registrar directs under reg 9 that a new plan is required for a modified easement or covenant, prepare and lodge a new plan rather than amending the existing one. Ensure the plan does not exceed four sheets unless prior approval is obtained (reg 10(2)). Number each sheet consecutively, show the plan number, and have each sheet signed and dated by the surveyor (reg 10(3)). The plan must refer to the purpose of the survey, show whether the land is Crown or freehold or both, and refer to each relevant certificate of title or Crown land title (reg 10(4)). Do not submit the plan for approval until all necessary instruments, applications, or dealings transferring or disposing of the land are registered (reg 11). This means the surveyor must coordinate with the client and the Registrar to ensure the underlying dealings are lodged and registered first. There is no shortcut. If the plan is for a transaction that itself requires registration of the plan, the sequencing may be impossible; in that case, seek legal advice or a practice direction from the Registrar. Finally, maintain records of all communications with the Registrar or Inspector regarding specifications and directions, as these may be critical if the plan is challenged.