Calardu Penrith Pty Ltd v Penrith City Council

Calardu Penrith Pty Ltd (the applicant) sought judicial review of a decision by Penrith City Council (the respondent) to grant development consent for a shopping centre. The applicant contended that the Council had acted *ultra vires* in granting the consent, arguing that the development had a capital investment value exceeding $10 million, which would have placed it under the jurisdiction of the Minister for Planning, not the local council. The dispute centred on whether the costs associated with a tenancy fit-out should be included in the determination of the development's capital investment value. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the Council had the authority to grant development consent for the project. This required the court to determine the correct interpretation of the relevant provisions of the *Environmental Planning and Assessment Act 1979* (NSW) concerning the threshold for capital investment value that dictates whether a development requires ministerial approval or can be determined by the local council. Specifically, the court had to decide whether the costs of a tenancy fit-out were to be included in the calculation of the capital investment value for the purposes of this threshold.

The Court of Appeal reasoned that the capital investment value of a development should be assessed at the time of the development application. It held that the costs of a tenancy fit-out, being integral to the overall development and its intended use, were properly included in the calculation of the capital investment value. Therefore, the court found that the development's capital investment value did not exceed the $10 million threshold, meaning the Council had the authority to grant development consent. The court applied the principle that the "capital investment value" encompasses all costs reasonably incurred in bringing the development to fruition, including those related to making the premises suitable for their intended tenants.

The appeal was dismissed, and Calardu Penrith Pty Ltd was ordered to pay the costs of Penrith City Council.