Progress at the expense of accuracy
Property briefing: Scottish land registration is based on Ordnance Survey mapping – but cases are emerging of revisions to the maps resulting in inaccurate boundaries being shown in title sheets
Advances in technology are supposed to make our lives better. They are supposed to make our lives easier. Sometimes, they are supposed to make things more certain.
However, in the case of Ordnance Survey mapping, the use of more advanced technology is giving rise to new land registration challenges. As the OS maps are being updated, we are seeing an increasing number of boundary disputes arising between proprietors (particularly in rural areas) as the cadastral map struggles to keep up with new delineations in its base map.
The OS maps are constantly being updated. There are a couple of reasons for this. The first is to keep up with changes (natural and manmade) to the landscape. The second is to ensure that the existing maps remain accurate. To do this, Ordnance Surveys combine traditional field survey techniques with the latest technology, including aerial photography.
The natural inclination is to believe that updating OS maps in this way is a good thing. However, the problem that I am encountering more and more frequently is that the updates are simply inaccurate. Historic physical features, long since collapsed, eroded or reclaimed by nature, continue to be shown. Boundary features such as walls and fences are supposedly shown, but are in fact a considerable distance from their true location.
What seems to be happening at Ordnance Survey is that there is an over-reliance on aerial imagery. That causes a huge problem in rural areas in particular, due to the presence of trees. The trouble with aerial imagery is that a line of mature trees overhanging a boundary feature on the land shields that feature from view. The effect in those cases is that the line shown on the OS map, delineating a physical feature, is actually the tree line.
Keeper’s reliance on Ordnance Survey
In terms of s 11(6) of the Land Registration etc (Scotland) Act 2012, the base map for the cadastral map is currently the Ordnance map. The Keeper must plot each cadastral unit on the Ordnance map until such time as the Scottish ministers determine that some other mapping system may be used.
Two issues arise from this. First, having mapped cadastral units on existing Ordnance maps, the Keeper does not always update the cadastral unit to reflect changes in the Ordnance map. Sometimes the changes are not noticed until a proprietor realises that the issue exists and raises it with the Keeper’s office. This is not a criticism of the Keeper’s office; if the base map for land registration in Scotland is an ever-changing source outwith her control, the Keeper can hardly be criticised for not keeping up.
Secondly, the Keeper’s practice is to align title boundaries with physical boundaries shown on the Ordnance map. However, if those physical boundaries are shown inaccurately, the Keeper’s practice will consequently give rise to manifest inaccuracies in the Land Register.
Extent of the issue
Over the course of the last 12 months, I have regularly received enquiries from proprietors whose original land certificates were accurately shown, but whose subsequently updated titles contain a discrepancy which has given rise to a title challenge and a new dispute. The stream of enquiry flows strongly indicates that this issue is a wide ranging one.
However, what is perhaps the most obvious sign that the problem is widespread is the fact that there are surveyors across Scotland who now offer a specialist service to prepare title plans and reports for the purposes of challenging the OS/cadastral map. There is a growing feeling that the Ordnance map is not fit for the purpose of land registration.
Options to resolve
There are a number of options available to resolve these sorts of issues. The first is to try to get the Ordnance map corrected. However, the difficulty is that, due to the regularity with which the Ordnance map is updated, there is a strong likelihood that it was recently updated and is therefore unlikely to change.
The second is to apply to the Keeper under s 80 of the 2012 Act to request a correction of a manifest inaccuracy. The difficulty here is that, if the problem is the accuracy of the Ordnance map itself, the Keeper will find it difficult to stray from the features shown on that map without clear and unequivocal evidence of the location of the true boundary features. Even then, if the difference between the true features and the Ordnance map is within the Keeper’s parameters of tolerability, the preference will still be to align to the Ordnance map.
The third is to apply to the Lands Tribunal for Scotland under s 82 of the 2012 Act for a determination of accuracy of the Land Register and what is required to rectify it.
However, perhaps the most obvious way to resolve these issues is to look again at what the cadastral map is and what information it shows. It is a map showing the cadastral units of registered titles. It delineates their boundaries. However, in terms of s 11(4) of the 2012 Act, it may also show “such other information as the Keeper considers appropriate”. Whilst we have moved away from a deed based system of land registration to a plan based system, there is no reason why the deed based information that traditionally underpinned our system of title recording cannot be incorporated into the cadastral map if the result is to clarify the location of boundaries. Indeed, the 2012 Act expressly permits the Keeper
to do so.
One thing appears certain: unless and until we find a way to guarantee the accuracy of the base map for our system of land registration, we will continue to see inaccuracies arising where none previously existed.
Andrew Upton, senior associate, Harper Macleod LLP
Friday December 21, 2018, 18:39
You may note my article in today's Journal - Land Registration: an owner's view.
I noted your article with extreme interest but I believe that the problem is not wholly the Ordnance Survey (OS) fault. The 2012 Act and the Keeper's practices and procedures are in my opinion largely to blame.
An urgent amendment of the 2012 Act is required, at present the Keeper follows its dictate that when a new OS map update is received (450-500 per week ) the title plan is changed by the Keeper automatically.
The Keeper does not check the new changes against the current title plan for validity, and where necessary request OS to re-survey.
Or indeed send a copy of the amended "Legal Title Map" to the owner for approval/challenge.
Also the Keeper-induced Registrations are automatic; these amended title plans, as required by statute, are not approved/challenged by owners. (Circa 60,000 already completed.)
Let us not forget prescription and limitation. If an owner does not find out that title plan has changed before 20 years' ownership has passed, correction of the title plan, retribution or compensation will not be given by the Keeper. See for an example Scottish Parliament Petition PE 1672.
When will these unprofessional practices of the Keeper CEASE!!
Public Petition PE 1672 http://www.parliament.scot/GettingInvolved/Petitions/prescriptionandlimitation
Public Petition PE 1676 http://www.parliament.scot/GettingInvolved/Petitions/landregistration
NB: The Keeper will not refer to or use the Sasine Maps, according to the RoS website!