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Survey Ordinance 1961

CONSOLIDATED ACTS OF SAMOA 2009

SURVEY ORDINANCE 1961

Arrangement of Provisions

TITLE

1. Short title
2. Interpretation

PART I
LICENSING OF SURVEYORS AND SURVEYS

3. Licence
4. Conduct of surveys

PART II
SUBDIVISIONS

5. Responsibility for this Part and submission of scheme plans of subdivisions
6. Consideration of scheme plan
7. Subdivision plan may be deposited
8. Persons entitled to be heard on appeals
9. Conditions as to use of land
10. Chief Executive Officer to hold scheme plan
11 Variation or revocation of scheme plan or conditions imposed
12. Roads and rights of way
13. Dedication of roads
14. Rights of way and drainage easements
15. Access ways and service lanes
16. Reserves
17. Vesting of reserves, etc.
18. Documents in contravention of Ordinance not to be registered

PART III
GENERAL

19. Removal of buildings or hoardings erected contrary to condition
20. Delegation of Minister's powers
21. Offences
22. Regulations
23. Repeals and savings

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THE SURVEY ORDINANCE 1961
1961 No. 12

AN ORDINANCE to consolidate and amend the law relating to surveys and the subdivision of land.

(12th October 1961)
(Date of Commencement 12th October 1961)

1. Short title- This Ordinance may be cited as the Survey Ordinance 1961.

2. Interpretation - (1) In this Ordinance, unless the context otherwise requires:

"Any land" means all land in physical contiguity under the one ownership, whether purchased at the same or at different times and whether held under one or more instruments of title.

"Court" means the Supreme Court of Samoa.

"Chief Executive Officer" means the Chief Executive Officer of the Ministry and in the Chief Executive Officer’s absence the person lawfully acting in place of the Chief Executive Officer.

"Disposition of land" includes an exchange, sale, gift, devise or other dealing affecting the fee simple, and a lease for any term (including renewals under the lease) of not less than 10 years; and includes any dealing affecting the leasehold interest.

"Dominant tenement" means land which has attached to it an easement over other land.

"Easement" means a legal right to use of land of another, without the right to possession of that land, or to take any part of the soil or produce of such land.

"Easement in gross" means an easement over land, which is not appurtenant to other land, but which belongs to a person independently of the ownership of land.

"Minister" means the Minister for Lands.

"Owner" means the owner in fee simple whether beneficially or as trustee, and includes a mortgagee acting in exercise of power of sale, the Public Trustee, and any Board or other body or authority, howsoever designated, constituted, or appointed, having power to dispose of land or interest therein by way of sale.

"Registrar of Land" or "Registrar" means the Registrar of Land appointed under the Samoa Land Registration Order 1920 (NZ).

"Right of way" means an easement entitling the owner of a dominant tenement, or in the case of an easement in gross, the person entitled to the easement to pass and repass over the servient tenement.

"Servient tenement" means land over which there is an easement.

"Surveyor" means a person for the time being licensed as a surveyor under this Ordinance.

(2) For the purposes of this Ordinance any division of land, whether into two or more parcels, shall be deemed to be a subdivision of that land for the purposes of sale if at least one of those parcels is intended for sale.

PART I
LICENSING OF SURVEYORS AND SURVEYS

3. Licence - (1) Every adult person shall be entitled to a licence as a surveyor who satisfies the Minister:

(a) That he or she is duly registered as a surveyor under the Surveyors Act 1938 (NZ).

(b) That at the commencement of this Ordinance he or she holds the restricted authority of the Survey Board of New Zealand to practise surveying in Samoa.

(c) That he or she holds any other qualification declared by the Head of State to be an acceptable qualification for the purposes of this Ordinance.

(2) The fact that a person holds a licence under the last preceding subsection shall not relieve that person of any requirement of the Business Licences Act.

(3) Every person who, not being the holder of a licence as a surveyor under this section, acts as a surveyor commits an offence and is liable to a fine of 1 penalty unit.

4. Conduct of surveys - All surveys of land for the purposes of this Ordinance shall be subject to the control of the Chief Executive Officer and shall be made in a manner prescribed by regulations made under this Ordinance or any former enactment.

PART II
SUBDIVISIONS

5. Responsibility for this Part and submission of scheme plans of subdivisions – (1) Notwithstanding any provision of this Ordinance and any other Act, the Planning and Urban Management Agency shall be responsible for the consideration of plans submitted under this Part and for making recommendations to the Minister in relation to the approval of such plans.

(1A) Where this Ordinance and the Planning and Urban Management Act 2004 make no or insufficient provision to give effect to subsection (1), the Minister, the Chief Executive Officer of the Ministry of Natural Resources and Environment (formerly the Chief Executive Officer of the Department of Lands, Surveys and Environment), the Ministry of Natural Resources and Environment (formerly the Department of Lands, Surveys and Environment) and the Planning and Urban Management Agency may make such adaptations and modifications to the provisions of this Ordinance and take such action as they consider necessary to ensure that subsection (1) has full force and effect.

(1B) Where any land is subdivided into allotments for the purposes of any disposition of land, a scheme plan showing the proposed subdivision shall conform to the requirements of section 41 of the Planning and Urban Management Act 2004 and shall be submitted to the Minister for the Minister’s approval:

PROVIDED THAT nothing in this subsection shall apply to any alienation of customary land by way of lease under the provisions of section 12 of the Samoan Lands and Titles Protection Ordinance 1934.

(2) No person shall offer or advertise for sale, or build upon, any allotment in any subdivision to which this section applies, or form any proposed road in connection therewith, unless the scheme plan has been previously approved by the Minister.

(3) Every scheme plan prepared for the purposes of this section shall show the whole of the land being subdivided and the several allotments and their areas and dimensions, and, in addition to existing roads, reserves, access ways, and service lanes, and land affected by existing easements, shall also show the proposed roads and their approximate grades, the proposed reserves, access ways, and service lanes, the situation of any land to be affected by easements, which are to be created and the nature of the easements, and such other particulars as may be prescribed by regulations made under this Ordinance.

6. Consideration of scheme plan - (1) The Minister may refuse to approve any scheme plan, or may approve the plan either unconditionally or upon or subject to such conditions as the Minister thinks fit:

PROVIDED THAT before approving any scheme plan the Minister shall submit a copy thereof to the Minister responsible for Works and the Minister of Health for their comments.

(2) The Minister may refuse to approve any scheme plan:

(a) If in the Minister’s opinion closer subdivision or settlement of the land shown on the scheme plan is not in the public interest or the land for any other reason whatsoever is not suitable for subdivision.

(b) If in the Minister’s opinion adequate provision has not been made for the drainage of any allotment or the disposal of sewage therefrom.

(c) If the subdivision would in the Minister’s opinion interfere with or render more difficult or costly the carrying out of any public work or scheme of development which is proposed or contemplated by the Minister of Works or any other Minister or any public body.

(d) If in the Minister’s opinion the proposed subdivision does not conform to recognised principles of the close settlement of land.

(3) The Chief Executive Officer shall give notice of any conditions upon or subject to which a scheme plan has been approved to the person who made application for the approval of the scheme plan.

(4) In any case where the Minister has refused to approve a scheme plan or has approved a scheme plan upon or subject to conditions, any person aggrieved by the decision of the Minister may appeal in the prescribed manner to the Court, whose decision shall be final.

7. Subdivision plan may be deposited - (1) A plan of subdivison prepared by a surveyor complying with any approved scheme plan, and approved by the Chief Executive Officer, may be deposited in the office of the Chief Executive Officer within 2 years after the date of approval of the scheme plan, or, in the case of a scheme plan approved before the commencement of this Ordinance, within 2 years after the commencement of this Ordinance.

(2) Any approval to a scheme plan shall be deemed to have lapsed if a subdivisional plan is not deposited as provided in the last preceding subsection.

(3) Until a plan of subdivision has been deposited, it shall not be lawful for any person to sell any land comprised therein.

8. Persons entitled to be heard on appeals - Where an appeal under this Ordinance is made, the following persons shall be entitled to be heard and to produce evidence and cross-examine witnesses, namely:

(a) The owner of the land to which the appeal or dispute relates;

(b) Any Board, Commissioners, trustees, or other person or body however designated, having authority under any enactment to undertake in the locality in which the land is situated the construction or management of any public work;

(c) The Minister responsible for Works;

(d) The Minister responsible for Lands;

(e) The Minister of Health.

9. Conditions as to use of land - (1) Without prejudice to the generality of section 6, the Minister may approve a scheme plan subject to all or any of the following conditions:

(a) A condition restricting the use of all or any of the allotments shown on the plan;

(b) A condition restricting in the interests of public safety the use of land at road intersections or angles;

(c) A condition imposing a building line restriction by restricting the use of lane adjoining any road or access way or service land, by prohibiting the erection of buildings or hoardings within a specified distance of one of the side lines or of the middle line of the road or access way, or service lane, or between a specified line and one of the side lines of the road, access way, or service lane.

(2) Any such condition as aforesaid shall be shown or referred to on the scheme plan and, where necessary, shall be more fully described in a separate notice signed by the Minister which shall be referred to on the scheme plan.

(3) For the purposes of subsection (1) (b) and (c) "road" includes a proposed road and any area of land which in the opinion of the Minister may be used for the purposes of a road in any further subdivision, and "access way" and "service lane" include a proposed access way and proposed service lane, respectively.

(4) In every case where a building line restriction affecting land shown in a scheme plan has previously been imposed under section 4 of the Building Alignment Ordinance 1932 or under any previous approved scheme plan of subdivision, the Minister on the approval of the scheme plan shall either impose the same or some other building line restriction or, with the approval of the Minister responsible for Works, declare the building line restriction to be wholly cancelled, and in either case the building line restriction previously imposed shall cease to have effect.

(5) In cases where the frontage on either side of any road has been set back by the operation of this or any other Ordinance, or voluntarily by the owner, or by arrangement with the Minister responsible for Lands, the side line or the middle line of the road shall, for the purposes of any building line restriction, be taken to be the side line or the middle line of the road, as the case may be, as shown in the notice describing the building line restriction.

10. Chief Executive Officer to hold scheme plan - (1) Every scheme plan approved by the Minister together with any notice of conditions restricting the use of any land shall be held by the Chief Executive Officer.

(2) A copy of every scheme plan approved by the Minister together with a copy of any notice of conditions restricting the use of any land shall be forwarded by the Chief Executive Officer to the Minister responsible for Works.

11. Variation or revocation of scheme plan or conditions imposed - (1) Any scheme plan approved by the Minister may, on the application of the owner of the land affected thereby, be varied or revoked by the Minister as to the whole or any part of that land:

PROVIDED THAT before any such variation or revocation the Minister shall refer the matter to the Minister responsible for Works for his or her comments.

(2) Any building line restriction or other condition of a class referred to in section 9 of this Ordinance may, either on the application of the owner of the land affected thereby made with the approval of the Minister responsible for Works, or on the application of the Minister of Works, be revoked or from time to time varied by the Minister either wholly or as to any part of the land affected thereby.

(3) Any variation or revocation of the scheme plan or of any building line restriction or other such conditions as aforesaid shall be noted on the scheme plan and, where necessary, on the separate notice referred to in section 9.

12. Roads and rights of way - (1) The proposed roads shown on any scheme plan shall be laid off and constructed to the best advantage having regard to the position of existing roads in the locality and the possible future requirements in the district.

(2) Subject to the provisions of this section, the proposed roads shall be of such widths and have such grades as seem to the Minister most suitable having regard to the matters aforesaid and probable traffic on the roads.

13. Dedication of roads - (1) Every proposed road and every piece of land shown on the scheme plan as road which is not an existing public road shall be dedicated by instrument in writing which shall be registered by the owner in the office of the Registrar of Land.

(2) The Registrar shall refuse to register any instrument of dedication unless he or she is satisfied that the requirements of the last preceding section have been complied with.

14. Rights of way and drainage easements - (1) Land shown on any scheme plan as being land over which it is proposed to grant or reserve a right of way shall be of such width and length as may be approved by the Minister.

(2) No land which is the subject of a scheme plan shall become subject to a right of way, except with the approval of the Minister.

(3) Where the Minister approves a scheme plan conditionally on any specified rights of way or drainage easements shown on the plan being duly granted or reserved, the following provisions shall apply:

(a) No such right of way or drainage easement may be surrendered by the owner of the dominant tenement or, in the case of a drainage easement in gross, the grantee of the easement or be merged by transfer to the owner of the servient tenement, except with the approval of the Minister. The Registrar of Land shall endorse on the instrument by which the right of way or drainage easement is granted or reserved a memorial that the right of way or drainage easement is subject to the provisions of this paragraph.

(b) There shall be endorsed on the scheme plan and on every plan of subdivision of the land deposited under the Samoa Land Registration Order 1920 (NZ), a memorandum showing with respect to each such right of way or drainage easement which is the dominant tenement and which is the servient tenement or, in the case of a drainage easement in gross, the name of the proposed grantee and which is the servient tenement.

(c) The Registrar of Lands shall refuse to register any instrument of conveyance of any allotment shown on the plan, unless he or she is satisfied that all rights of way and drainage easements so specified which are appurtenant to that allotment or to which that allotment is subject have been duly granted or reserved.

(4) Subsection (3) shall not apply with respect to any scheme plan that was approved before the commencement of this Ordinance.

15. Access ways and service lanes - (1) Subject to the approval of the Minister, any scheme plan may provide for the laying out and construction of access ways and service lanes complying with the provisions of this section.

(2) Every access way shall be of a width approved by the Minister and every service lane shall be of a width and grade approved by the Minister.

(3) Any person who is dissatisfied with the decision of the Minister under this section may appeal in the prescribed manner to the Court, whose decision shall be final.

(4) Every proposed access way or service lane and every piece of land shown on the scheme plan as access way or service lane which is not vested in the Government as access way or service lane shall be transferred to the Government of Samoa by instrument in writing which shall be registered by the owner in the office of the Registrar of Land, and the Registrar shall refuse to register any such instruments aforesaid unless he or she is satisfied that the requirements of this section have been complied with.

(5) The control and management of access ways and service lanes created under this section shall vest in the Minister responsible for Works, who shall have power to maintain and repair any access way or service lane.

16. Reserves - (1) On every scheme plan submitted under the foregoing provisions of this Ordinance there shall be set aside as reserved for public purposes a strip of land 10 metres in width along the mean high water mark of the sea and of its bays, inlets, or creeks, and, unless the Minister considers it unnecessary so to do, along the banks of all rivers and streams which have an average width of not less than 3 metres:

PROVIDED THAT the Minister may approve the reduction of the width of the strip of land along the mean high water mark to a width of not less than 3 metres if in his or her opinion the reduced width will be sufficient to give members of the public reasonable access to the sea:

PROVIDED ALSO THAT nothing in this subsection shall apply with respect to the subdivision of any land which is customary land within the meaning of Article 101 of the Constitution.

(2) In any case where a strip of land is set aside as required by the last preceding subsection and any land below the mean high water mark of the sea or of its bays, inlets, or creeks or, as the case may be, any part of the bed of the lake or river or stream is vested in the person in whom the land shown in the scheme plan is vested, the Minister may require as a condition of his or her approval of the scheme plan that the owner shall execute, or obtain the execution of, and register, a transfer to the Government of Samoa of the whole or a specified part of the land below the mean high water mark or, as the case may be, of the bed of the river or stream which is vested as aforesaid.

17. Vesting of reserves, etc. - (1) On the deposit of any plan of the subdivision of the whole or any part of the land shown on a scheme plan, all lands shown on the plan of subdivision as public reserves shall vest in the Government of Samoa, free from encumbrances other than such existing easements as may be approved by the Minister, and shall be held as provided in the next succeeding subsection:

PROVIDED THAT the Chief Executive Officer shall not accept for deposit any plan of subdivision as aforesaid which includes land set aside as reserves unless consent to the subdivision has been given in writing by every person having a registered interest in the land which may be prejudicially affected by the vesting of the land in the Government as aforesaid.

(2) Land shown as a public reserve which is vested in the Government under the last preceding subsection shall be held as a reserve set apart for the purposes indicated on the plan.

18. Documents in contravention of Ordinance not to be registered - The Registrar of Land shall not register any document in any case where he or she is of opinion that the approval of the Minister to a scheme plan is required under the foregoing provisions of this Ordinance unless the Registrar is satisfied that a scheme plan has been so approved and a plan of subdivision has been deposited.

PART III
GENERAL

19. Removal of buildings or hoardings erected contrary to conditions - (1) Where a building or hoarding has been erected contrary to any condition imposed by the Minister under this Ordinance, the Court may, on the application of the Minister, order the owner to take down, remove, or shift such building or hoarding at his or her own expense.

(2) If the owner fails to comply with the order, the Minister may take down, remove or shift the building or hoarding, and may recover from the owner in any Court of competent jurisdiction all costs and expenses in connection therewith.

20. Delegation of Minister's powers - (1) The Minister may from time to time, by writing under his or her hand, delegate to the Chief Executive Officer any of the powers conferred on the Minister under this Ordinance.

(2) Every delegation under this section shall be revocable at will, and no such delegation shall prevent the exercise of any power by the Minister.

(3) Any delegation under this section may be made subject to such restrictions and conditions as the Minister thinks fit, and may be either general or in relation to any particular case.

(4) Unless and until any delegation under this section is revoked, it shall continue in force according to its tenor. In the event of the Minister by whom any such delegation has been made ceasing to hold office, it shall continue to have effect as if made by the person for the time being holding office as Minister, and in the event of the Chief Executive Officer to whom any delegation has been made ceasing to hold office, it shall continue to have effect as if made to the person for the time being holding office as Chief Executive Officer.

(5) The fact that the Chief Executive Officer exercises any power conferred on the Minister under this Ordinance shall, in the absence of proof to the contrary, be sufficient evidence of his or her authority so to do.

21. Offences - (1) Every person commits an offence who acts in contravention of or fails to comply in any respect with the provisions of this Ordinance or with any condition or requirement imposed by the Minister acting under the authority of this Ordinance or with any order of the Court under section 19 of this Ordinance.

(2) Every person who commits an offence as aforesaid shall be liable on summary conviction to a fine of 2 penalty units and, if the offence is a continuing one, to a further fine of 1 penalty unit for every day during which the offence continues.

(3) The continued existence of any building or any use of land which is contrary to any condition imposed by the Minister under this Ordinance shall be deemed to be continuing offence within the meaning of this section.

(4) Any information in respect of any offence to which this section applies may be laid at any time within 3 years from the time when the matter of the information arose.

22. Regulations - (1) The Head of State, acting on the advice of Cabinet may from time to time make such regulations as may in the Head of State’s opinion be necessary or expedient for giving full effect to the provisions of this Ordinance and for the due administration thereof.

(2) Without limiting the general power conferred by subsection (1), it is hereby declared that regulations may be made for all or any of the following purposes:

(a) Prescribing qualifications for the licensing of surveyors under this Ordinance.

(b) Regulating the conduct of surveys, including provision for ensuring accuracy of plans and surveys, and providing for amendments and additions to plans in accordance with requisitions in that behalf made by the Chief Executive Officer.

(c) Fixing fees and charges for any surveys, plans or other work of a like nature.

(d) Prescribing methods of making applications under this Ordinance, and forms and documents required under this Ordinance.

(e) Prescribing fees payable in respect of the examination of applications under this Ordinance, in respect of the preparation of copies of scheme plans and notices, and in respect of other matters arising under this Ordinance.

(f) Regulating areas and frontage of allotments shown on scheme plans.

(g) Regulating the widths of roads and making provision for the imposition of specified building-line restrictions in prescribed circumstances.

(3) It shall be the responsibility of the Minister to lay all regulations made under this Ordinance before the Legislative Assembly within 28 days after the making thereof if the Assembly is then in session, and if not to lay such regulations before the Assembly within 28 days after the commencement of the next ensuing session.

23. Repeals and savings - (1) The Land Survey Ordinance 1937 is hereby repealed.

(2) Any scheme plan or plan of subdivision heretofore approved or deposited shall be deemed to have been approved or deposited under this Ordinance.

(3) Any building line imposed before the commencement of this Ordinance shall enure for the purposes of this Ordinance as fully and effectually as if it had originated under this Ordinance, and accordingly shall, where necessary, be deemed to have so originated.

REVISION NOTES 2008

This law has been generally edited as provided for by section 5 of the Revision and Publication of Laws Act 2008. The following general revisions have been made –

(a) References to Western Samoa have been amended to Samoa in accordance with an amendment to the Constitution of Samoa in 1997.

(b) The fines have been amended and are stated as penalty units as provided for by the Fines (Review and Amendment) Act 1998.

(c) All references to the male gender have been made gender neutral.

(d) Amendments have been made to conform to modern drafting styles and to use modern language as applied in the laws of Samoa.

(e) Amendments have been made to up-date references to offices, officers and statutes.

(f) Other minor editing has been done in accordance with the lawful powers of the Attorney General.

The following amendments have been made to specific sections of the Act to incorporate amendments made by Act of Parliament passed since the publication of the Western Samoa Statutes Reprint 1978-1996 –

Section 5 was amended by the Planning Urban and Management Act 2004.

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2007. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.

Aumua Ming Leung Wai
Attorney General of Samoa

Revised and consolidated by Noumea Loretta Afamasaga.
Under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel).

REVISION NOTES 2008 No. 2

Section 4 (general powers of the Attorney General) of the Revision and Publication of Laws Act 2008 is used to insert the commencement date. By virtue of section 8 of the Acts Interpretation Act 1974, in the absence of an expressed commencement date, the date of assent is the commencement date.

There were no amendments made to this law since the publication of the Consolidated and Revised Statutes of Samoa 2007.

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2008. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.

Aumua Ming Leung Wai
Attorney General of Samoa

Revised and consolidated by the Legislative Drafting Division under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)

REVISION NOTES 2009

There were no amendments made to this law since the publication of the Consolidated and Revised Statutes of Samoa 2007.

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2009. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.

Aumua Ming Leung Wai
Attorney General of Samoa

Revised and consolidated under the supervision of Papalii Malietau Malietoa (Parliamentary Counsel)

The Survey Ordinance 1961 is administered in the Ministry of Natural Resources and Environment.