85Environment Court may give directions in respect of land subject to controls

1. An interest in land shall be deemed not to be taken or injuriously affected by reason of any provision in a plan unless otherwise provided for in this Act.

2. Notwithstanding subsection (1), any person having an interest in land to which any provision or proposed provision of a plan or proposed plan applies, and who considers that the provision or proposed provision would render that interest in land incapable of reasonable use, may challenge that provision or proposed provision on those grounds—

3. in a submission made under Schedule 1 in respect of a proposed plan or change to a plan; or
4. in an application to change a plan made under clause 21 of Schedule 1.

5. Subsection (3A) applies in the following cases:

6. on an application to the Environment Court to change a plan under clause 21 of Schedule 1:
7. on an appeal to the Environment Court in relation to a provision of a proposed plan or change to a plan.

8. The Environment Court, if it is satisfied that the grounds set out in subsection (3B) are met, may,—

9. in the case of a plan or proposed plan (other than a regional coastal plan or proposed regional coastal plan), direct the local authority to do whichever of the following the local authority considers appropriate:
   1. modify, delete, or replace the provision in the plan or proposed plan in the manner directed by the court:
   2. acquire all or part of the estate or interest in the land under the Public Works Act 1981, as long as—
      1. the person with an estate or interest in the land or part of it agrees; and
      2. the requirements of subsection (3D) are met; and
10. in the case of a regional coastal plan or proposed regional coastal plan,—
    1. report its findings to the applicant, the regional council concerned, and the Minister of Conservation; and
    2. include a direction to the regional council to modify, delete, or replace the provision in the manner directed by the court.

11. The grounds are that the provision or proposed provision of a plan or proposed plan—

12. makes any land incapable of reasonable use; and
13. places an unfair and unreasonable burden on any person who has an interest in the land.

14. Before exercising its jurisdiction under subsection (3A), the Environment Court must have regard to—

15. Part 3 (including the effect of section 9(3); and
16. the effect of subsection (1) of this section.

17. The Environment Court must not give a direction under subsection (3A)(a)(ii) unless—

18. the person with the estate or interest in the land or part of the land concerned (or the spouse, civil union partner, or de facto partner of that person)—
    1. had acquired the estate or interest in the land or part of it before the date on which the provision or proposed provision was first notified or otherwise included in the relevant plan or proposed plan; and
    2. the provision or proposed provision remained in substantially the same form; and
19. the person with the estate or interest in the land or part of the land consents to the giving of the direction.

20. Any direction given or report made under subsection (3A) has effect under this Act as if it were made or given under clause 15 of Schedule 1.

21. Nothing in subsections (3) to (3D) limits the powers of the Environment Court under clause 15 of Schedule 1 on an appeal under clause 14 of that schedule.

22. In this section,—

    provision of a plan or proposed plan does not include a designation or a heritage order or a requirement for a designation or a heritage order

    reasonable use, in relation to land, includes the use or potential use of the land for any activity whose actual or potential effects on any aspect of the environment or on any person (other than the applicant) would not be significant.

23. Repealed