The taxpayer expended $11.2 million in obtaining zoning changes that were desirable for the proposed Phase II of the Eaton Centre (i.e., eliminating a requirement that the development have a residential component, and obtaining a "transfer" of density rights from four City of Toronto sites and a Church) represented a cost of modifying restrictions of the rights that the taxpayer, as land owner, was subject to with respect to the use of the land.
Bowman J stated (at pp. 413-414):
[T]he right to use property, whether restricted by zoning by-laws or not, is a right that inheres in the ownership of the property. … The cost of a modification of the restrictions of the rights that a landowner has with respect to the use of land is a part of the cost of the land. …Density rights have to do with what the owner can do with the land. …
It requires something of a leap of faith to claim capital cost allowance under Class 3 on a building that does not exist and may never exist.
Accordingly, such expenditures were an addition to the cost to the taxpayer of the land, rather than being a cost of the proposed building expansion.