105Environment Court may give directions in respect of land subject to controls

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

2. Despite subsection (1), a person with an interest in land to which a provision of a land use plan or a proposed plan applies, and who considers that the provision would severely impair the reasonable use of that interest in land, may challenge the provision on those grounds—

3. in a submission made under Part 1 of Schedule 3 in respect of a proposed plan; or
4. in a change request under clause 49 of Schedule 3 in respect of a plan.

5. Despite subsection (1), if an appeal is made to the Environment Court in relation to a provision of a proposed plan, the court may give a direction under subsection (4) after—

6. being satisfied that the provision—
   1. would severely impair the reasonable use of land; and
   2. places an unfair and unreasonable burden on any person who has an interest in that land; and
7. having regard to—
   1. subpart 2 of Part 2 (including the effect of section 17(1)); and
   2. the effect of subsection (1) of this section; and
   3. Part 4 of Schedule 3; and
8. taking into account any relief provided under Part 4 of Schedule 3 in relation to the land.

9. The Environment Court may direct the local authority to do 1 or more of the following:

10. at the local authority’s election,—
    1. modify, delete, or replace the provision in the plan, proposed plan, or private plan change in the manner directed by the court; or
    2. acquire all or part of an estate or interest in the land under the Public Works Act 1981, as long as—
       1. the person with the estate or interest in the land or part of it agrees; and
       2. the requirements of subsection (5) are met:
11. make a monetary payment:
12. waive or reduce local government rates or fees for planning consent applications:
13. grant similar or alternative development rights elsewhere:
14. offer alternative parcels of land in exchange for the affected site:
15. provide access to targeted grant programmes for restoration, fencing, planting, or other mitigation activities.

16. The local authority must not elect a direction under subsection (4)(a)(ii) unless—

17. the person with the estate or interest in 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 before the date on which the provision was first notified or otherwise included in the relevant plan or proposed plan; and
    2. the provision remained in substantially the same form; and
18. the person with the estate or interest in the land consents to the giving of the direction.

19. A direction given under subsection (4) has effect under this Act as if it were made or given under clause 48 of Schedule 9.

20. Nothing in subsections (3) to (6) limits the powers of the Environment Court under clause 48 of Schedule 9 on an appeal under Schedule 3.

21. Part 4 of Schedule 3 does not provide relief for any matter to which subsection (1) may apply, but is relevant for the purposes of this section to the extent that any relief provided under that subpart must be taken into account for the purposes of subsection (3).

22. In this section,—

    provision of a plan or proposed plan does not include a designation or proposed designation

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