The tenancy fit-out costs should be excluded
51 In my opinion Calardu's submissions should be rejected and those of Pipven and the Council accepted. It is critical for the exercise required by cl 13B(1)(a) of the SEPP that the "development", the capital investment value of which is to be assessed in accordance with the definition of that expression, should be capable of accurate identification. True it is, as the primary judge found, that that development and, certainly, the cost necessary to establish it, may go beyond the four corners of the development application depending, no doubt, on its detail.
52 The type of detail that would be included in an application for a construction certificate would, more often than not, be missing from a development application. I exemplify in this context such matters as details relating to plumbing, water supply points, mechanical requirements such as for air conditioning, electrical wiring, the provision of wet areas and amenities, the provision for an electricity substation and matters of that nature.
53 In my opinion, all those costs, including those not of a capital nature such as consultants fees, are required to be included for the purpose of determining the "capital investment value" of the development as defined. In this respect, I respectfully disagree with the primary judge that such costs are confined to capital items.
54 Nevertheless, it is the identification of the consent authority to determine the particular development application to which clauses 13B(1)(a) and 13F(1)(a) are directed. In the present case it is clear that the development in respect of which consent was being sought, whichever authority was empowered to grant it, did not include any particular bulky goods retail use of any part of the extension. Certainly, the extension was designed with a particular purpose in mind but, as is apparent from the various descriptions of the development by the proponent as well as by the Council planner to which I have referred at [18]-[24] above, what was being proposed was the erection of a building divided into mall space and 10 tenancy units together with minor alterations to the existing external walls and internal tenancy walls at the eastern end of the existing building to enable the two to be married together.
55 In this context, it needs to be recollected that Mr Mee included in his assessment of the capital investment value of the development, and which was not the subject of challenge, some $574,425 for internal tenancy division walls. The application documents made it plain that although the general use of the proposed extension would be for bulky goods retailing, specific uses would be the subject of separate development applications and the Council imposed a condition upon its consent to give effect to that intention and for good reason: see [24] above.
56 When those separate applications are made, they are to include as part of the cost of the development the subject of those applications (as required by cl 1(h) of Schedule 1 to the Regulation) the estimated cost of the development that, in the present context, would be the applicant's fit-out costs. Although the expenditure of those costs may be necessary to "establish and operate" the particular use the subject of such a development application, it was not a cost necessary to "establish and operate" the development, being the extension per se whose capital investment value was at issue in the present case.
57 In this respect I accept the submissions of Pipven and the Council that the word "operate" where used in the definition of "capital investment value" refers, in the present case, to the building the subject of the application being in such a condition as to be available to be occupied by bulky goods retail tenants. That did not require the inclusion of the fit-out costs of those tenants let alone the inclusion of such costs estimated on a generic basis. It did include the cost of the internal tenancy division walls about which there was no issue.
58 Accordingly, in my opinion, the primary judge was correct in finding at [74] of his reasons that the tenancy fit-out costs estimated by Mr Mee should be excluded from the determination of capital investment value of the subject development.
59 As it was conceded by Calardu that in order for its appeal to succeed, it was necessary for it to overturn the primary judge's finding to which I have referred, it follows that its failure to do so mandates that the appeal be dismissed. However, as the other questions were fully argued, I will deal shortly with them to the extent I consider appropriate.