Section 85 of the RMA provides that 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. This means compensation is not normally payable in respect of heritage restrictions. However, a landowner may challenge a provision or proposed provision which would render that interest in land incapable of reasonable use. 4043  The term reasonable use 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. 4044 This is likely to include any permitted activity in the relevant plan.

If a provision is challenged, the Environment Court must determine whether the provision renders any land incapable of reasonable use, and places an unfair and unreasonable burden on any person having an interest in the land. If so, the Court may direct the local authority to modify, delete, or replace the provision. 4045  In Steven v Christchurch City Council [1998] NZRMA 289 the Environment Court considered an application to remove an old dwelling from the heritage schedule of a district plan. The applicant claimed the listing caused her significant financial hardship as the property required significant expenditure to bring it up to a minimum standard and she was unable to sell the property at a fair value. 4046  The Court determined that the property would have no reasonable use if the house could not be demolished and directed the deletion of the listing of the property.

  1. Section 85(2) RMA

  2. Section 85(6) RMA

  3. Section 85(3) RMA

  4. The applicant has paid $220,000 for the property. Expenditure of $300,000 was required. This would yield a property with a sale value of $360,000 to $375,000. The value of the bare land was $295,000 to $318,000.

Last updated at 10:46AM on November 27, 2015