Botany Bay City Council v Saab Corp Pty Ltd

Saab Corp Pty Ltd - First Respondent The Owners Strata Plan No 76317 - Second Respondent William Peter O'DWYER - Third Respondent Joseph SAAB - Fourth Respondent Anthony Mark SAAB - Fifth Respondent Anthony SAAB - Sixth Respondent Representation: Counsel:

Mr T S Hale SC/Mr L D Shipway - Appellant Mr A E Galasso SC/Mr B K Koch - First, Third, Fourth, Fifth, Sixth Respondents Submitting appearance - Second Respondent Solicitors:

Houston Dearn O'Connor - Appellant Harris & Company - First, Third, Fourth, Fifth, Sixth Respondents Strathfield Partners Strata Management - Second Respondent File Number(s): 2010/390372 Decision under appeal Citation: Botany Bay city Council v Ralansaab Pty Limited [2010] NSWLEC 225 Date of Decision: 2010-10-29 00:00:00 Before: Sheahan J File Number(s): 40023/2010

HEADNOTE [This headnote is not to be read as part of the judgment] On 21 May 2003 the appellant, Botany Bay City Council, granted to Moscat Pty Limited two development consents for the development of two lots located on the corner of O'Riordan Street and Church Avenue, Mascot, with a total area of approximately 5000 square metres. The first consent related to demolition of the existing buildings on the site, bulk excavation of earthworks and the provision of infrastructure. The second consent was a deferred commencement consent for the construction of a building comprising of residential flats. Condition 32 of the latter development consent provided that the existing aboveground electricity and telecommunications cables be placed underground at the applicant's expense. In July 2003 Moscat Pty Limited sold the site to Ralansaab Pty Limited, a joint venture vehicle of the Saab family and Mr William Peter O'Dwyer. At all material times Mr O'Dwyer and Anthony Saab were directors of Ralansaab. The development consents were implemented on behalf of Ralansaab by Saab Corp Pty Limited, a building company directed by Joseph Saab and Anthony Mark Saab. The abovementioned parties formed the eight respondents to the proceedings. On 18 February 2009 Ralansaab went into voluntary liquidation and is subsequently not a party to the appeal. At the time the development consents were originally granted, there were aboveground electricity and telecommunications cables adjacent to the site in both O'Riordan Street and Church Avenue. During later developments of the site, the aboveground cables adjacent to the site on Church Avenue were removed and placed underground; those adjacent to O'Riordan Street stayed aboveground. Botany Bay City Council sought orders in the Land and Environment Court requiring the respondents, at their own expense, to undertake all necessary works with respect to the existing aboveground telecommunications cables, and the poles on which they were carried, and replace them with underground cables and appropriate street light standards, alleging a breach of Condition 32 if such works were not completed. The proceedings were heard by Sheahan J in the Land and Environment Court, in late 2009 and March 2010. On 29 October 2010, his Honour rejected the Council's claim essentially for three reasons; first, that Condition 32 was invalid and unenforceable; second, if there had been a breach of Condition 32 that breach was committed only by Saab Corp and Ralansaab and not by the individual respondents, as only the former and not the latter carried out the development; and third, even if Condition 32 had been valid, his Honour would have declined to exercise his discretion to grant the relief the Council sought. It is from those orders that the Council appealed to this Court. The issues for determination on appeal were: (i) whether the primary judge erred in determining the invalidity of Condition 32 of the development consent; (iii) if valid, was Condition 32 complied with; (iii) assuming that there was a breach of Condition 32, whether the primary judge erred in respect of finding the non-corporate individual respondents not liable The Court held, allowing the appeal against the developer, Saab Corp Pty Ltd but dismissing it in respect of the individual respondents: In relation to (i)

1. When assessed by reference to the scope and purpose of the statutory power under which it was imposed as well as its practical effect, the condition is within this power: [2] - [11], [25] and [80] - [86]. Discussion of tri-partite Newbury test: [4]-[16] and [25]. Newbury District Council v Secretary of State for the Environment [1981] AC 578; Planning Commission (WA) v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323; The Queen v Toohey; Ex parte Northern Land Council [1981] HCA 74; 151 CLR 170 considered. In relation to (ii)
2. The obligation was not restricted to cables providing services to the development itself; a practical construction of Condition 32 requires the replacement of aboveground electricity and communication cables along the road reserves of Church Avenue and O'Riordan Street as adjacent to the frontages the sites: [1], [19], [25] and [90]. 3 Improvement to the amenity of the area immediately adjacent to the development was a proper subject of a development approval: [19] - [20], [25] and [90]. Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; 58 ALJR 386 applied In relation to (iii)
3. Given the nature of the company and the task it was performing, its directors were doing no more than performing the directorial duties of the building company, which carried out the development: [1], [25], and [113]-[118]. R v Goodall (1975) 11 SASR 94 considered; O'Brien v Dawson (1942) 66 CLR 18; Keller v LED Technologies Pty Limited [2010] FCAFC 55; 185 FCR 449 applied.
4. The fact that a director is the primary actor on behalf of the company does not mean that the act becomes that of the director as distinct from that of the company: [1], [25] and [119]. King v Milpurrurru (1996) 99 FCR 474 applied.

Judgment 1BASTEN JA: Botany Bay City Council ("the Council") sought orders in the Land and Environment Court requiring the respondents to complete the placement underground of electricity and telecommunication cables adjacent to a development carried out by the respondents in O'Riordan Street, Mascot. Relief was refused by Sheahan J in the Land and Environment Court: Botany Bay City Council v Ralansaab Pty Ltd [2010] NSWLEC 225; 178 LGERA 144. The appeal should be allowed to the extent that orders are made against the developer, Saab Corp Pty Ltd. Subject to what follows, I agree with the reasons of Tobias AJA.

Validity of condition of consent 2The validity of condition 32 of the development consent, is closely connected with its operation. The first task, logically, is to construe it. However, that exercise must take into account the limitations on the power under which it was imposed, so that, in the event of competing readings, a construction which does not result in it exceeding the power is preferred: Interpretation Act 1987 (NSW), s 32. Further, the validity of the condition must be assessed primarily by reference to the scope and purpose of the statutory power under which it is imposed. 3In discussing the validity of the condition, the primary judge stated at [171]: "The three-part test laid down in Newbury District Council v Secretary of State for the Environment [1981] AC 578 has frequently been applied in this court when dealing with the validity of conditions of consent. The tests were stated by McHugh J in Planning Commission (WA) v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, at [57], in the following terms: 'A condition attached to a grant of planning permission will not be valid therefore unless:

1. The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
2. The condition reasonably and fairly relates to the development permitted.
3. The condition is not so unreasonable that no reasonable planning authority could have imposed it.' " 4Although McHugh J stated, in a footnote, that the test he set out was "articulated by the House of Lords in Newbury District Council ", no reference to any particular passage in the various opinions is identified: in fact, the test expressed by McHugh J appears to be an amalgam of language used in different opinions, being also reflective of earlier decisions of the High Court in, for example, Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; 123 CLR 490 at 499-500 (Walsh J) and Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; 195 CLR 566 at 577. 5Secondly, all five members of the House of Lords in Newbury District Council expressed the test in slightly different language which, in part, owed its origin to earlier authorities, including that of Lord Denning in Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554 at 572. Thirdly, each exposition in Newbury was obiter, all members of the House of Lords having accepted that no planning permission was required, so that the validity of the condition was irrelevant. Fourthly, the test was formulated in circumstances where the statute conferred a right of appeal from the planning authority to the appropriate Minister, on grounds identified in the statute. The appeal to the courts was limited to a review of the Minister's decision and, thus, only indirectly the validity of the condition imposed on the development. 6Of the majority in Temwood , Gummow and Hayne JJ referred, with apparent approval, to the opinion of Lord Scarman: Temwood at [93] and fn 131. McHugh J was also in the majority in Temwood . Newbury has been applied by this Court in Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313; 123 LGERA 225 (Tobias JA, Mason P and Young CJ in Eq agreeing) in respect of contributions required as a condition of development under s 94(1) of the Environmental Planning and Assessment Act 1979 (NSW) ("the EP&A Act"). It has, however, also been held not to diminish the reasonableness requirements found in sub-ss 94(8) and (12). Newbury has been described as "a standard guideline" by the New Zealand Court of Appeal: see Meads Brothers Ltd v Rotorua District Licensing Agency [2001] NZCA 386 at [55]-[56] (McGrath J, Tipping and Anderson JJ); see also Estate Homes Ltd v Waitakere City Council [2005] NZCA 271 (Chambers, Baragwanath and Goddard JJ). 7In Australia the question is not so much whether the " Newbury test" has been adopted by the High Court, or courts of intermediate appeal, but rather what it requires. Labels are frequently adopted without sufficient reference to the specific statutory and factual context in which they are to be applied. The " Newbury test", even more than the test of " Wednesbury unreasonableness", is the subject of varying expressions. As explained by McMurdo P in Ajana Park Pty Ltd v Mackay City Council [2009] QCA 404; [2011] 1 Qd R 403 at [25]-[27] (with the agreement of Fraser JA and McMeekin J), although Callinan J in Temwood took issue with aspects of the formulation by Viscount Dilhorne (at 599-600) and by Lord Fraser of Tullybelton (at 607-608 - see Temwood at [155]) - his Honour applied a not dissimilar test. 8It is convenient to summarise the principles to be applied in this case in addressing the validity of condition 32, although, as with most attempts to classify grounds of judicial review, the boundaries will be blurred and the categories will overlap: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ). 9First, the validity of a condition imposed on a development approval under the EP&A Act falls to be considered within the terms of s 80A of the Act. (Other provisions may be relevant in specific circumstances: see, eg, s 83D in respect of staged developments.) Section 80A empowers the consent authority to impose a condition if "it relates to any matter referred to in s 79C(1) of relevance to the development the subject of the consent": s 80A(1)(a). Section 79C(1) identifies general matters for consideration by the consent authority in determining a development application. Those matters include "the likely impacts of that development ... on both the natural and built environments and social and economic impacts in the locality": s 79C(1)(b). These will obviously involve matters of evaluative judgment for the consent authority. In respect of any specific condition, there may be a question as to how distant, remote or indirect the relationship may be between that development and the likely impacts on the environment. The limits of the authority's power will be determined, as explained by Gummow and Hayne JJ in Temwood at [93], referring to the judgment of Walsh J in Allen Commercial Constructions , in the following manner: "His Honour had pointed out that a power to attach conditions to development consents was to be understood as a power to impose conditions reasonably capable of being regarded as related to the purpose for which the functions of the responsible authority were being exercised; that purpose was to be ascertained from a consideration of the applicable legislation and town planning instruments rather than from 'some preconceived general notion of what constitutes planning'." 10That test may be described as objective, in the sense that the reviewing court, having regard to the statutory regime and the circumstances of the case, will identify the outer bounds of the limits of the power. 11As explained by Aickin J in The Queen v Toohey; Ex parte Northern Land Council [1981] HCA 74; 151 CLR 170 at 235: "It is however not now open to doubt that a court may investigate whether statutory powers conferred on Ministers, public authorities, municipal councils and statutory authorities have been validly exercised for the purpose for which they have been conferred by the Parliament or by regulations." 12In relation to municipal councils, the importance of identifying a legitimate purpose was identified in Sydney Municipal Council v Campbell [1925] AC 338 at 343 (PC) and Council of Shire of Werribee v Kerr [1928] HCA 41; 42 CLR 1. That requirement was satisfied in the present case so long as the requirement to place cables underground was restricted to so much of the street in question as was adjacent to the development. 13Secondly, the validity of a condition of planning approval may be challenged on the basis that, although ostensibly within power, the condition was imposed for an ulterior or improper purpose. Although that language is often used more broadly, to include an objective assessment as to whether the condition is within power, it can also apply more narrowly to circumstances where, objectively speaking, the condition is within power but the consent authority acts for an invalid reason. A challenge based on the subjective purpose held by the decision-maker falls within the first and second cases identified by Aickin J in Ex parte Northern Land Council (at 232-233): "There are three distinct bases upon which an exercise of administrative power or authority and delegated legislative power or authority may be attacked; they are first the existence of a corrupt purpose, second the existence of an improper purpose and third ultra vires in the narrow sense of the act done being beyond the power of the body concerned, irrespective of the motive or intention of the person or body exercising the power. ... I use the adjective 'corrupt' to mean an act done for personal gain, including a gain for the person doing the act or his family or friends. Where some act is authorized to be done for a purpose, the doing of that act 'falsely avowing a legitimate purpose to cover the actual pursuit of an object outside the scope of the power' is better classified as 'improper' rather than 'corrupt' in the absence of an endeavour to obtain personal gain, though the ultimate result of invalidity would follow on either view." 14It is not necessary to explore further the circumstances in which a corrupt or improper purpose challenge may be made good: there is no suggestion of any such subjective motivation in the present case. 15Thirdly, an exercise of discretionary power may be capable of challenge as manifestly unreasonable, in the Wednesbury sense. However, that assessment will usually involve a comparison of the condition imposed with the scope and operation of the power being exercised. In circumstances where the condition must, for the purposes of the first test, be reasonably related to the purposes for which the power may be exercised, the practical significance of this test may be limited to cases where the severity of the burden placed on the applicant is disproportionate to the consequences attributable to the proposed development. Thus, whereas it may be reasonable to impose on a developer of a significant subdivision an obligation to contribute to the cost of upgrading a dirt road to a sealed road, it may not be reasonable and appropriate to include the expense of expanding the road from two lanes to four: see Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; 58 ALJR 386 at 388 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ agreeing) in relation to a legitimate upgrading condition. Even where the expense sought to be recovered is thus disproportionate to the costs of a reasonable level of upgrading, there would, in all likelihood, be an available challenge on the basis of an improper purpose, under the first or second principles set out above. 16Accepting that the tripartite test set out above broadly reflects the principles adopted by the majority in Temwood , the language used by McHugh J at [57], should not be seen to be problematic. However, his Honour's juxtaposition of the second and third conditions, one adopting an affirmative test of reasonableness and the other a negative test of manifest unreasonableness may tend to confuse. Similarly, the second test requires the court to determine whether the condition "reasonably and fairly relates to the development". That appears to impose an objective test to be assessed by the reviewing court, rather than a legal boundary, within which the consent authority may legitimately determine what is reasonable and fair. Further, the second limb ("fairly relates") should not be understood to permit judicial review for substantive unfairness, which exercise would not be consistent with established authority in Australia. 17There remains the need to construe condition 32. It provided: "The existing above ground electricity and telecommunications cables within the road reserves and within the site, shall be replaced, at the applicant's expense, by underground cable and appropriate street light standards, in accordance with Energy Providers guidelines." 18The condition should be read as giving effect to the development control plan, and in particular C98 thereof, which provided: Underground cabling C98 At the full costs of the developer, all service cables in the street, adjacent to and within the confines of any development site within the Mascot Station Precinct, are required to be placed underground.

19It is apparent that the obligation imposed on the developer is to place underground "all service cables" in the street (or, in the language of the condition, road reserve - nothing was suggested as turning on this variation in language) "adjacent to" the site and thus not in the part of the street which is not so adjacent. There is no reason to limit the obligation to cables providing services to the development itself. First, the condition is not in terms so restricted. Secondly, it must cover cabling that predates the development. Thirdly, it is clear from the authorities, that no such constraint should be implied as a limitation on power. As explained by Gibbs CJ in Cardwell Shire Council (referred to at [15] above) at 388, a condition requiring the upgrading of a road and bridge away from the development site (and not exclusively used by residents of the development) could properly be the subject of a condition attaching to the development approval. 20Improvement to the amenity of the area immediately adjacent to the development is a proper subject of an approval; it is not advanced by restricting the obligation to cables providing services to the development itself. The condition requires that if the cables are in that part of the street adjacent to the site, they must go underground at the developer's expense.

Orders 21Parties are expected to formulate orders they may seek on appeal, unless potentially complex contingencies render that course inefficient, in accordance with s 56 of the Civil Procedure Act 2005 (NSW). Were it not for the change in circumstances of Saab Corp, the Court should now make orders to give effect to its judgment. An order should be made dismissing the appeal in relation to the individual respondents. However, the Court should not make an order against the company, which went into voluntary liquidation whilst judgment was reserved, without allowing the liquidator and the appellant an opportunity to be heard. 22With respect to costs, the appellant has been successful in obtaining relief against the grantee of the development approval and should have at least part of its costs, both here and in the Court below. Full recovery is not appropriate in circumstances where the individual respondents are not to be held responsible for non-compliance with the conditions of the consent. The respondents were jointly represented and costs may not be readily apportioned except on a global basis. Given the manner in which the appeal was presented and resisted, both in writing and orally, the appellant should have two-thirds of its costs. The proper apportionment in the Court below is less clear and should be addressed in that Court. If any party seeks another or different order from this Court, it can apply by notice of motion within 14 days. 23The Court should now make the following orders: (1) Allow the appeal in relation to the respondent Saab Corp Pty Ltd (In liq), but otherwise dismiss the appeal. (2) Direct the appellant to serve a copy of this judgment upon the liquidator of Saab Corp Pty Ltd (In liq) within 7 days of the date hereof. 24The Court will, in the absence of any application made within 28 days of the date of this judgment, make the further following orders: (3) In relation to Saab Corp Pty Ltd (In liq), set aside order 1 made in the Land and Environment Court on 29 October 2010 and in lieu thereof: (a) order that Saab Corp Pty Ltd (In liq) arrange for Energy Australia, or its authorised contractors, within 3 months of the date of these orders, to cause to be carried out all necessary works to place underground any electricity and telecommunication cables within the O'Riordan Street road reserve adjacent to the premises at 109-123 O'Riordan Street, Mascot and to erect appropriate street light standards in accordance with Energy Australia guidelines, in respect of all such work, at the expense of Saab Corp Pty Ltd (In liq); (b) order that the Owners Corporation - Strata Plan No 76317 grant all necessary access to its premises to enable Saab Corp, Energy Australia, and any authorised contractor, to carry out the work required in the preceding order, subject to an appropriate undertaking to make good any damage; (c) order Saab Corp Pty Ltd (In liq) to pay two-thirds of the appellant's costs of the proceedings in this Court. (4) Grant Saab Corp Pty Ltd (In liq) a certificate under the Suitors' Fund Act 1951 (NSW) in relation to its costs of the appeal, if not disentitled pursuant to s 6(7). 25MACFARLAN JA: Subject to the observations of Basten JA (with which I agree) I agree with Tobias AJA. 26TOBIAS AJA: On 21 May 2003 the appellant, Botany Bay City Council (the Council), granted to Moscat Pty Limited (Moscat) two development consents for the development of Lots 16 and 17 in Deposited Plan 45642 and located at 109-123 O'Riordan Street, Mascot (the site). The site has an area of approximately 5000 square metres and is located on the corner of O'Riordan Street and Church Avenue, Mascot. 27The first consent was known as the " Stage One Consent" and related to demolition of the existing buildings on the site, bulk excavation of earthworks and the provision of infrastructure. It is not directly relevant to the issues in the appeal. The other consent was known as the " Stage Two Consent" and was a deferred commencement consent for the construction of a residential flat building upon the site comprising 108 residential units together with associated parking (the development). Where necessary I shall refer to the two consents as "the Consents". 28Condition 32 of the Stage Two Consent was relevantly in the following terms: "The existing above ground electricity and telecommunications cables within the road reserves and within the site, shall be replaced, at the applicant's expense, by underground cable and appropriate street light standards, in accordance with the Energy Providers (sic) guidelines ." (Emphasis added) 29At the time of the grant of the Consent there were aboveground electricity and telecommunication cables carried on timber telegraph/power poles adjacent to the site in both Church Avenue and O'Riordan Street. During the course of certain road widening of Church Avenue adjacent to the frontage of the site to such street and required by Condition 34 of the Stage One Consent, the aboveground cables and poles adjacent to the site were removed in Church Avenue and undergrounded. However, those in O'Riordan Street adjacent to the site remained aboveground (the O'Riordan Street cables). The Council contended that the failure of both the corporate and individual respondents to remove those cables and the poles on which they were carried and to underground them constituted a breach of Condition 32. 30In July 2003 Moscat contracted to sell the site to Ralansaab Pty Limited (Ralansaab), the first respondent below. Ralansaab was a joint venture vehicle of the Saab family on the one hand and the third respondent, William Peter O'Dwyer (Mr O'Dwyer), on the other. The sixth respondent, Anthony Saab (known as Tony), and Mr O'Dwyer were at all material times directors of Ralansaab. 31The first respondent, Saab Corp Pty Limited (Saab Corp), was a building company and implemented consents on behalf of Ralansaab. The fourth respondent, Joseph Saab (known as Joseph), and the fifth respondent, Anthony Mark Saab (known as Anthony), were directors of that company. Anthony Saab held a builders' licence under the relevant building legislation and was the supervisor of Saab Corp's contractor licence. Without meaning any disrespect I shall for convenience refer to the relevant individual respondents as Joseph, Anthony and Tony. 32On 18 February 2009 Ralansaab went into voluntary liquidation. Accordingly, it is not a party to the appeal. The second respondent, the Owners Strata Plan No. 76317, is a respondent to the appeal but has filed a submitting appearance. 33By its Further Amended Summons dated 9 September 2009 and filed in Class 4 of the Land and Environment Court jurisdiction, the Council sought declarations that Saab Corp, Mr O'Dwyer, Joseph, Anthony and Tony were in breach of Condition 32 and therefore s 76A(1)(b) of the Environmental Planning and Assessment Act 1979 (the Act). It sought an order that those parties carry out all necessary works with respect to the existing aboveground electricity and telecommunication cables within the O'Riordan Street road reserve adjacent to the site and replace them, at their expense, by underground cables and appropriate street light standards. The only relief sought against the Owners Corporation was that it provide access to its premises to enable the relevant respondents to undertake the works required to comply with the condition. 34The proceedings were heard by Sheahan J. On 29 October 2010, his Honour rejected the Council's claim essentially for three reasons: first, that Condition 32, was invalid and unenforceable; second, if there had been a breach of Condition 32 that breach was committed only by Saab Corp and Ralansaab and not by the individual respondents as only the former and not the latter carried out the development; and third, that even if Condition 32 had been valid, his Honour would have declined to exercise his discretion to grant the relief the Council sought. Accordingly, his Honour dismissed the Amended Summons and reserved the question of costs; Botany Bay City Council v Ralansaab Pty Limited & 7 Ors [2010] NSWLEC 225. It is from those orders that the Council appeals to this Court.

Some further background facts 35The site is governed by the City of Botany Bay - Development Control Plan No. 30-Mascot Station Precinct (the DCP) which came into force on 2 July 2002. It relevantly contained the following provisions: " Road Widening (Item C39 at p93): 'Dedication of land to Council for road widening purposes. Approval for development on sites, listed in the table below, shall be subject to the dedication of land (for road widenings), without cost, to Council. The area of the land to be dedicated shall be taken into account when calculating the permitted floor area of the development'. Underground Cabling (Item C98 at p125): 'At the full cost of the developer, all service cables in the street, adjacent to and within the confines of any development site within the Mascot Station Precinct, are required to be placed underground'. " It does not seem to be in dispute that Condition 32 of the Stage Two Consent was imposed pursuant to the " Underground Cabling" provision being Item C98, of the DCP. 36Moscat's development application was dated 5 July 2002 and was accompanied by a Statement of Environmental Effects (the SEE) which, the primary judge found (at [16]), tailored the development to the DCP. The SEE contained what was referred to therein as a Compliance Table ("Compliance Table"). Under the heading " Provision of Services " the following appears: CONTROL REQUIREMENT PROPOSAL ASSESSMENT SERVICES Provision of Services Objectives: To ensure developments make adequate provision for services and achieve a high quality street presentation in keeping with the vision and likely quality of development within the Mascot Station Precinct. Services that are required as a result of the proposed residential development will be provided as detailed in the Building Service Report prepared by Egis - Building Engineering Design , submitted with this application. Complies Development Controls: Underground Cabling Underground Cabling Complies - At the full cost of the developer, all service cables in the street, adjacent to and within the confines of any development site within the Mascot Station Precinct, are required to be placed underground. - All cabling required in conjunction with the proposal will be located underground

37The consents were granted on 21 May 2003 and a Notice of Determination as required by the Act was dated 30 May 2003. Being a deferred commencement consent, the Stage Two Consent became operative on 16 June 2004. As I have indicated, it contained Condition 32. 38Condition 34 of the Stage One Consent relevantly required the developer at no cost or expense to the Council to dedicate a portion of land adjoining the Church Avenue frontage of the site for the purpose of the widening of that street. The condition required a deed to be entered into with the Council. The terms of this deed were to require the dedication and construction of the road widening and the existing aboveground electricity and telecommunication cables in Church Avenue adjoining the site to be replaced, at the developer's expense, by underground cables, together with the provision of appropriate street light standards. Such a deed was duly entered into on 15 March 2004. 39The Stage Two Consent also contained Condition 1 which, relevantly, required the development to be carried out in accordance with the SEE. It did not in terms purport to incorporate the provisions of the DCP. 40Condition 32 required compliance with the "Energy Providers [sic] Guidelines". At [44] of his reasons the primary judge noted that it was common ground that Energy Australia was the relevant energy provider. His Honour also noted that no evidence was given in the proceedings on behalf of Energy Australia although a number of its documents were tendered. At [47] he observed that a perusal of the relevant part of the documentation indicated that a Mr Jason Henniker (Mr Henniker) from the Customer Service Section of Energy Australia was continuously involved in the project from March 2002. He was in contact from time to time with a Mr Frank Palermo (Mr Palermo) from the Building and Engineering Section, Egis Consulting Australia Pty Limited (Egis), which had been engaged by and on behalf of Moscat. In March 2002 there was correspondence between Mr Palermo and Mr Henniker relating to the necessary specifications for the electrics in the project. Issues as to whether an existing substation would accommodate the additional load was referred to. In a letter dated 22 March 2002 faxed by Mr Palermo to Mr Henniker on 25 March 2002 the following was stated: " Relocation of existing aerial lines In addition to the above, Botany Council has requested as part of our development that the existing aerial lines adjacent to our site along Church Avenue and O'Riodan (sic) Street be relocated underground. To assist us could you please advise what procedures are required for these existing cables to be relocated underground." 41Mr Henniker responded on 26 March 2002 which, according to his Honour (at [51]), concentrated on the question of " relocation of Energy Australia overhead assets at the above address underground" . The following paragraphs of Mr Henniker's response were recorded by his Honour: " To confirm your request, you have asked Energy Australia to underground the overhead mains in surrounding (sic) the proposed development in O'Riordan St and Church Ave. This may involve the following: Replacement of existing wood poles and street lights with steel standard street lighting structures in order to maintain or enhance current street lighting levels. Undergrounding of electricity mains on both sides of the street(s). Undergrounding the existing overhead services to affected customers and remove the respective overhead services. It is advisable that the relocation of overhead mains to underground be carried out in whole street block so as to minimise the visual anomalies, however other requests may be considered depending on the site conditions . (emphasis added)" As his Honour noted at [52], the site was large but did not occupy a " whole street block" . 42Caverstock Group Pty Limited (Caverstock) was a consultant to Moscat. On 23 August 2002, before the grant of the Consents, Energy Australia issued a quotation (the 2002 quotation) to Caverstock. The work described in the quotation was: "undergrounding of Overhead Wires surrounding the proposed development at 109-123 O'Riordan Street Mascot" The cost of the work as set out in Schedule 1 to the quotation was $235,609. Schedule 3 of the quotation was headed " General description of works (excl. service work) " and included the following item: "Removal of 8 wood poles and associated overhead wires (including low voltage/street lighting & service wires)" The quotation was said to be valid for two months from its date. 43At [64] the primary judge noted that Mr O'Dwyer's primary role as a director of Ralansaab was to negotiate the terms of sale from Moscat to Ralansaab and to market the apartments for sale to the public. 44At [65] ff his Honour described the Saab family. Joseph and Anthony were the sons of Tony. The latter was a director and secretary of Ralansaab from its incorporation on 2 July 2003 until 4 December 2007. He had had a lifetime in the building/development industry and was the holder of a building contractor's licence but at the time he gave evidence he informed the court that he had retired from active work in his family's ventures. 45Joseph had been secretary and a director of Saab Corp from 24 March 2000 to the date of the hearing whereas Anthony was a director of that company from 20 March 2000 to 17 July 2007. Anthony was a graduate in engineering from Sydney University and held a builder's licence and was a supervisor of Saab Corp's contractor's licence. 46At [70] his Honour noted that it was the Council's case that each of Mr O'Dwyer and the four Saab men (which included Michael Saab who was not made a party to the appeal) gave instructions for the carrying out of the development and were thereby to be regarded as having carried out the development in breach of Condition 32. All individual respondents denied that they "carried out the development" as alleged by the Council although they admitted signing various documents but only as either directors of Saab Corp or as agents for Ralansaab. 47The Stage One Consent was duly implemented and, as already noted, involved the widening of Church Avenue adjacent to the site. It would appear that this work was carried out pursuant to a quotation provided to Saab Corp by Enerserve, a business entity of Energy Australia. The work was carried out on 27 May 2004, for a contract price of $238,777 (the 2004 quotation). According to the Scope of Works, the brief involved the relocation of high voltage underground mains and the undergrounding of the existing overhead low voltage mains in Church Avenue and O'Riordan Street as detailed in Energy Australia Design CCZ011603 dated 6 April 2004. 48There were two plans having that identification number: one dated 13 August 2002 which formed part of the 2002 quotation; and the other dated 6 April 2004 which formed part of the 2004 quotation. The earlier of the two designs indicated the existing wooden poles along both the Church Avenue and O'Riordan Street frontages to the site. As noted at [42] above, the 2002 quotation involved the removal of some eight wooden poles and associated overhead wires. One of those poles was in Church Avenue and the rest were in O'Riordan Street. 49Of the seven poles in O'Riordan Street, four could be said to adjoin the site and were on the same side of the road as the site, whereas three were on the opposite side of the road. When the road widening work was carried out only three wooden poles were removed, being the one in Church Avenue and two in O'Riordan Street, generally at the intersection of that street and Church Avenue. 50In the plan accompanying the 2004 quotation, the Scope of Works provided for the removal of only three low voltage wood poles, the replacement of two wood poles and the installation of three steel street light standards. It is common ground that Condition 32 was complied with so far as its requirements with regard to Church Avenue were concerned but has not been fully complied with respect to O'Riordan Street in that there are three wooden poles adjoining to the site in O'Riordan Street still to be removed together with the undergrounding of the low voltage overhead wires currently carried by those poles. It is that work which the Council seeks to have the respondents perform at their expense. 51There was a deal of evidence in relation to the difference between the two quotations and the circumstances under which the 2004 quotation came into existence. The change in the Scope of Works between the two quotations was the subject of evidence which the primary judge recited at [97]-[140] of his reasons. According to his Honour, Joseph and Anthony were aware of Condition 34 of the Stage One Consent and Condition 32 of the Stage Two Consent and both had reviewed the design referred to in the 2002 quotation. They were, of course, fully aware of the aboveground powerlines adjoining the site in both Church Avenue and O'Riordan Street. In essence, they formed the opinion that if they did what the 2004 quotation detailed, it would satisfy Conditions 32 of the Stage Two Consent and Condition 34 of the Stage One Consent. 52In or about March 2004 Joseph requested Energy Australia to issue an updated quotation to carry out the works described in Energy Australia's 2002 quotation. That resulted in the 2004 quotation. It was common ground that at law only Energy Australia could carry out the works referred to therein. 53According to his Honour (at [123]), on 18 October 2004 Energy Australia sent a letter to the Council which, outlined that certain work was to be performed by Energy Australia, namely, two wooden light poles in O'Riordan Street and one wooden light pole in Church Avenue were to be removed and replaced by steel columns. The Council was invited to accept the terms of the 2004 quotation which also had the identification number CCZ 011063. The Council accepted those terms on 22 October 2004. 54It would appear that the work was carried out in the latter part of 2005. In November 2005 it was discovered that Enerserve had not erected two light standards in the Church Avenue road reserve but agreed to remedy this omission prior to Christmas. Anthony deposed that when installation of the outstanding two light standards in Church Avenue had been completed, Enerserve certified that the cabling works were completed and issued a certificate of practical completion on or about 20 February 2006. That certificate stated as follows: "This work was carried out in accordance with certified design drawing reference CCZ 011063 and Energy Australia's Network Standards." 55In May 2006 Anthony wrote to Mr Dowsett of the Council (who his Honour found was the relevant Council officer dealing with the matter) asking him to "Please note that underground of overhead low voltage mains, relocation of high voltage underground mains and installation of street lights at the above named property have been completed." He asked for the return of the builder's security deposit, which was subsequently released. It was not until July 2007 that Mr Dowsett complained about non-compliance with Condition 32 with respect to the O'Riordan Street cables. 56Joseph and Anthony asserted that they had always believed that, once the cabling work was certified as completed by Enerserve, they had satisfied Condition 32. His Honour appears to have accepted this evidence when dealing with the issue of discretion. In so doing he rejected the Council's submission that in obtaining the 2004 quotation it should be inferred that Joseph and/or Anthony caused a "'lesser' scope of undergrounding works to be undertaken and/or that the Saabs colluded with Energy Australia to subvert the requirements of Condition 32." The rejection of that submission is challenged by the Council, it being submitted that the evidence established the following: "(a) In early 2004 Saab Corp, or its associated company Saab Constructions, began work on the road widening in Church Avenue which was required under the development consent. It was then that Energy Australia was contacted. (b) As part of the road widening in Church Avenue it was necessary to place underground the overhead cables and move the wooden poles in Church Avenue. The 27 May 2004 quote from Energy Australia which was accepted by Saab Corp was only for the works associated with the Church Avenue road widening. It therefore only involved the replacement of the poles in Church Avenue to the corner of O'Riordan Street and the placing underground of the associated cables. (c) Energy Australia/Enerserve was never contracted to undertake work to place underground the overhead cables in O'Riordan Street other than those on the corner of Church Avenue. (d) Neither in 2004 nor in 2004 was Energy Australia/Enerserve provided with a copy of Condition 32 of the development consent or asked what was needed to be done to comply with it. (e) Saab Corp and the respondents at no time on or after 2004 sought to remove and place underground the wooden poles and cables adjacent to the site in O'Riordan Street." 57As will appear, I do not find it necessary to determine the Council's challenge to his Honour's factual findings as they are only relevant to the question of discretion. If his Honour's findings are accepted, it could not be inferred that Joseph or Anthony caused a "lesser" scope of undergrounding works to be undertaken when the 2004 quotation was sought, accepted and implemented. However, even if his Honour's findings are accepted, I am nevertheless of the view that the Court's discretion should be exercised in favour of granting the relief sought by the Council if otherwise a breach of Condition 32 is established.

The amended grounds of appeal 58The Council's amended grounds of appeal pursued on the appeal were as follows: "1. His Honour erred: (a) in his construction of condition 32 of the stage 2 development consent granted by the appellant on 21 May 2003 and subsequently modified; (b) in finding that condition 32 was invalid and unenforceable 2. His Honour erred in holding that the third respondent, fourth respondent, fifth respondent and sixth respondent did not carry out the development the subject of the development consent. 3A. His Honour erred to the extent that he found that: (a) the works proposed in the quotes from Energy Australia of August, 2002 and of 27 May, 2004 were works designed by Energy Australia to comply with Condition 32 of the development consent. (b) Energy Australia and/or Enerserve represented to the respondents or Ralansaab Pty Limited that if the works proposed in the quotes were complete there would be compliance with Condition 32 of the development consent. (c) the respondent or Ralansaab Pty Limited relied upon any such representation from Energy Australia or Enerserve. (e) there was no evidence that Joseph Saab or Anthony Mark Saab caused a lesser scope of undergrounding works to be undertaken 4. To the extent that [195]-[202] of his Honour's reason for judgement [sic] constitutes an exercise of discretion not to grant the relief sought by the appellant, that exercise of discretion miscarried." 59As will be appreciated, Grounds 3A and 4 relate only to the question of discretion with which I shall deal in due course. 60The respondents filed a Notice of Contention in the following terms: "1. Condition 32 has been complied with, or alternatively has been substantially complied with, according to its terms. 2. On its proper construction and in the circumstances of the hearing in the Court below:- (a) condition 32 was a condition that specified an aspect of the development to be carried out to the satisfaction of a person specified in the consent, (b) the person specified in the consent was satisfied that the aspect with which condition 32 was concerned was carried out, and accordingly, (c) condition 32 has been complied with."

(a) The primary judge's findings 61The respondents submitted that Condition 32 was invalid on the ground that its meaning was uncertain or that it failed what was referred to as the Newbury test. The latter was a reference to the three-part test stated in Newbury District Council v Secretary of State for the Environment [1981] AC 578 which, the primary judge observed at [171], was restated by McHugh J in Western Australian Planning Commission (WA) v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 at [57] in the following terms: "A condition attached to a grant of planning permission will not be valid therefore unless: 1 . The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning. 2 . The condition reasonably and fairly relates to the development permitted. 3 . The condition is not so unreasonable that no reasonable planning authority could have imposed it." 62The primary judge held (at [170]) that the condition was uncertain because it contemplated the undergrounding of services on the opposite side of O'Riordan Street from the site. He also held (at [183]) that it failed the second of the Newbury test as it had the effect of requiring work beyond the site. I shall expand on these findings below. 63With regard to the Newbury issue, at [167] his Honour referred to the decision of Biscoe J in Andrews v Botany Bay City Council [2008] NSWLEC 96; (2008) 158 LGERA 451. That case concerned the validity of a condition giving effect to Item C98 relating to underground cabling, being the same provision of the DCP as is involved in the present case. Condition 38 of the consent granted by the Council was in the following terms: "Existing above-ground power cables in the street adjoining the site shall be replaced at the applicant's expense by underground cables to the standards of Energy Australia. The applicant shall be responsible for the replacement of existing street lights with new light standards in accordance with Council's Guidelines and the cost of power and additional maintenance to such lights." 64Andrews was a Class 1 case in the Land and Environment Court's jurisdiction. The applicant appealed to the court pursuant to s 96(6) of the Act against the Council's deemed refusal of the applicant's modification application which relevantly sought the deletion of Condition 38. As his Honour noted at [7], at the hearing the Council acknowledged that there were difficulties reconciling Condition 38 with Item C98 of the DCP and proposed an alternative Condition 38 which provided, amongst other things, as follows: "(b) The existing overhead service cables in the street adjacent to and within the bounds of the public places that adjoin the development site shall be placed underground at the cost of the applicant in the following manner:" 65There was then a reference to the works required specifically with respect to, in one case, "along the O'Riordan Street frontage" and in the other "along John Street frontage" of the relevant development site. The appeal was heard by a Commissioner who determined that the Council's proposed Condition 38 failed to satisfy the second Newbury test. The appeal to Biscoe J was pursuant to s 56A of the Land and Environment Court Act 1979. His Honour upheld the appeal, holding (at [45]) that the Council's proposed Condition 38 for the undergrounding of overhead cables in O'Riordan Street at the particular location referred to "were not so unrelated to the development, because of remoteness from it or some other circumstance, that there was no real connection between such undergrounding and the development." His Honour further held that the development was benefited by such undergrounding at least because the site itself would obtain a significant aesthetic benefit as found by the Commissioner. That was sufficient to establish that the requirement of Condition 38 as proposed by the Council reasonably and fairly related to the development. Biscoe J also considered that the development was benefited in a wider reciprocal sense by the consistent application of Item C98 of the DCP throughout the Mascot Station Precinct. 66The primary judge then referred to a number of first instance decisions in the Land and Environment Court in which the second Newbury test had been referred to. In particular, the primary judge referred to statements that the court's approach to the test should be broad rather than narrow and that the test: "is whether the permitted development is benefited by the condition imposed" See McGregor v Bathurst City Council [1995] NSWLEC 71 at p 5. 67I would interpolate at this point that as far as my researches go, the Newbury tests have been neither adopted nor rejected in this Court or by a majority in the High Court. 68The Full Court of the Supreme Court of Western Australia applied Newbury in Temwood Holdings Pty Ltd v Western Australian Planning Commission [2002] WASCA 10; 25 WAR 484. On appeal to the High Court, only McHugh J applied Newbury. However, it was also referred to by Callinan J at [155]. The other justices applied the legitimate planning purpose test adumbrated by Walsh J in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 499-500, a test also applied by McHugh J at [56] of Temwood . 69However, no submission was made to this Court that the primary judge was wrong to apply the second Newbury test. The Council challenged his finding that it was not satisfied in the present case. As that is how the case was conducted below, it is appropriate that I should deal with the issue on the same legal basis. 70The primary judge accepted (at [181]) that there are generally seen to be amenity benefits in the undergrounding of cables and services. His Honour further accepted and that although such benefits are enjoyed by portions of the wider community other than those in the immediate area, it could not be said that Condition 32 was so " remote" that it did not reasonably and fairly relate to the development. 71However, at [182] his Honour noted the submission of the respondents that Condition 32 did not specify, for example, that it was only to be the poles in the road reserve actually adjoining the site that were to be removed. Therefore the condition had the effect of requiring the respondents to carry out work that did not " fairly relate to the development" . Reference was made to the proposed condition in Andrews that did not require works beyond the "frontages of the site". 72At [183] his Honour noted that Item 98 of the DCP required all service cables in the street " adjacent to and within the confines of any development site" to be underground whereas Condition 32 was not so confined. Rather, it required the existing aboveground electricity and telecommunication cables " within the road reserves" to be replaced and undergrounded. Accordingly, the condition had the effect of requiring work beyond the frontages of the site. It therefore failed the second Newbury test.

(b) The parties' submissions on the issue of validity 73The Council submitted that the primary judge had construed the words " within the road reserves" in Condition 32 as going beyond the road reserves adjacent to the site. Rather, his Honour had construed the condition as requiring the developer to replace the aboveground cables not only in the road reserve adjacent to the site but on the other side of the road and, implicitly, within the road reserves of O'Riordan Street and Church Avenue throughout their respective lengths which was considerable. 74Such an approach, the Council submitted, was in error for the following reasons: (a) His Honour's approach to construction departed from the well-settled approach in construing development consents to the effect that: (i) the search must be what, objectively determined, the Council intended; (ii) the condition must be of consent and the conditions it contains must be construed having regard to the scope of the power available to the Council at the time of the grant and the environmental impacts inherent in the particular application: House of Peace v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [47]; and (iii) there was a failure to apply the following statement by Cripps J in Hecar Investments No 6 Pty Limited v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323 which was adopted with approval in Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [36], [40] and [62], namely: "When interpreting delegated legislation, the Court ought to be concerned with practical considerations rather than construing it by meticulous comparison of the language of the various provisions such as might be appropriate in construing sections of an act of Parliament and if the language is capable of more than one interpretation, a Court ought discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practical result." (b) Condition 32 was clearly intended to require only the placing of underground cables in the streets adjacent to the site. Although it did not use the word "adjacent" after the word "reserves" in the phrase "within the road reserves and within the site adjacent to", such a limitation was clearly intended. The condition could not, when objectively construed, have required the undergrounding of electricity and telecommunication cables within the entire length of the road reserves of Church Avenue and O'Riordan Street. Such an interpretation would lead to an unreasonable result rather than a "reasonably practical result"; (c) his Honour's construction offended the well-established principle expressed by Griffith CJ in Widgee Shire Council v Percy Bonney (1907) 4 CLR 977 at 983: "I have said before today, and I now repeat, that, in my opinion, when a by-law is open to two constructions, on one way of which it would be within the powers of the local authority, and on the other outside of these powers, the former construction should be adopted..." (d) his Honour's construction was at odds with his finding at [15] that the SEE was incorporated into the Consent and that as the SEE had tailored the development to the DCP and its compliance table asserted that all cabling "required in conjunction with the proposal" will be located underground, then Condition 32 must be read in the context of that objective; and (e) finally, his Honour erred in concluding that Condition 32 was invalid due to its uncertainty in that certainty was not a requirement for validity although it could be an element of unreasonableness: Kindimindi Investments Pty Limited v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [55], Westfield Management Limited v Perpetual Trustee Company Limited at [36] and [38]. 75With respect to the last mentioned submission, what Basten JA held in Kindimindi at [55] was that mere uncertainty may not give rise to invalidity and that whether or not it does is likely to depend upon a different question, namely, whether the condition complies with the statutory limits imposed upon the power of the decision-maker. 76In response to the Council's submission that Condition 32 only required the undergrounding of cables in the road reserves adjacent to the site, the respondents contended that the Council's submissions had no textual support in the Stage Two Consent. Further, the Council's submission was not reasonably open on the language of the condition itself. Its "interpretation" would involve a wholesale rewriting of the condition to produce a result favourable to the Council. Such a rewriting self-evidently established the uncertainty of the condition. 77Furthermore, although it was accepted that the construction of a consent requires a "search for what, objectively determined, might be said the Council meant by" the condition, the consent "must speak according to its written terms" and any lack of clarity or certainty in the terms or conditions of a consent is the responsibility of the council who imposed it. Accordingly, the Council must bear the consequences of its failure to specify accurately the terms of Condition 32: Ryde Municipal Council v Royal Ryde Homes (1970) 1 NSWR 277 at 279. 78In addition, the respondents submitted that: (a) the statement in the SEE that "all cabling required in conjunction with the proposal will be located underground" (his Honour's emphasis) did not support the construction of Condition 32 that the undergrounding of cables was only required in the road reserves adjacent to the site; (b) the reference in Condition 1 of the Stage Two Consent to the development being in accordance with the SEE was not a legitimate method of incorporating the DCP into that Consent. Although a consent can incorporate the terms of another document, the incorporation of a DCP by the method advanced by the Council would be liable to give rise to "serious inconvenience, ambiguity and confusion" : Ryde Royal Homes at 278-279; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited [2009] NSWCA 160; (2009) 167 LGRA 395 at [112]-[113]; (c) although it was accepted that "mere uncertainty may not give rise to invalidity" , nevertheless uncertainty will give rise to invalidity where the condition does not comply with the statutory limits imposed upon the power of the consent authority: Kindimindi [55]; Hurstville City Council v Renaldo Plus 3 Pty Limited [2006] NSWCA 248 at [89]. In the present case Condition 32 was imposed pursuant to the Council's power set out in s 80AC of the Act. A condition imposed pursuant to that provision must provide that a specified aspect of the development is ancillary to the core purpose of the development as to be carried out. The uncertainty identified by the primary judge at [170], namely, that the condition contemplated the undergrounding of services on the opposite side of O'Riordan Street from the development site with the consequence that the condition was not "ancillary to the core purpose of the development" and, therefore, fell outside the class of conditions permitted by the Act: Renaldo at [90]. (d) finally, his Honour was correct to find that the second limb of the Newbury test was not satisfied as the condition required the aboveground cables and poles to be removed beyond that part of O'Riordan Street and Church Avenue adjacent to the site so that work was required well beyond its frontages to those streets in order to satisfy the condition. Accordingly, the condition could not have the necessary nexus to the development the subject of the Stage Two Consent: Fairfield City Council v N & S Olivieri Pty Limited [2003] NSWCA 41 at [72].

(c) Was Condition 32 valid? 79It would appear that on the respondents' understanding of the primary judge's reasons he had held Condition 32 to be invalid for two reasons: first, because it was uncertain in that it went beyond the statutory limit of the power being exercised; and, second, that it failed the second Newbury test. The first of those reasons was based upon acceptance of the respondents' submission that the condition contemplated undergrounding of services on the opposite side of O'Riordan Street from the site. The second was based on a construction of the condition to the effect that "the road reserves" referred to were the road reserves of Church Avenue and O'Riordan Street throughout their entire length (and, presumably, breadth). 80In Westfield Management Limited Hodgson JA at [40] accepted that the question of interpretation should be approached on the principles referred to by senior counsel for the appellant and recorded at [36] where it was submitted, relevantly, that: "as part of upholding the effectiveness of instruments, the Court would try to give them practical effect by avoiding uncertainty. Instruments such as consents and conditions of consent are to be construed, not as documents drafted with legal expertise, but to achieve practical results." 81Furthermore, as Basten JA observed in Westfield Management at [92], to describe a condition as void for uncertainty not only invites attention to its proper construction but also to the range of factors which may be encompassed by such a complaint. In particular, it would require consideration of the lack of any general requirement of "certainty" as a condition of validity as explained by Dixon J in King Gee Clothing Co. Pty Limited v The Commonwealth (1945) 71 CLR 184 at 194-196. 82In Renaldo at [89], I said, with the agreement of Mason P and Hodgson JA: "It must also be remembered that, as Basten JA observed in Kindimindi at 292[55], and as noted by Mason P in Transport Action Group Against Motorways Inc at 628[112], mere uncertainty may not give rise to invalidity. Whether or not uncertainty does give rise to invalidity depends upon a different question, namely, whether the condition alleged to be uncertain complies with the statutory limits imposed upon the power of the consent authority. To the extent that the cases accept that a degree of 'practical flexibility' (per Samuels AP in Scott v Wollongong City Council of 118) or imprecision may not result in invalidity, this is because the degree of flexibility or imprecision adopted does not contravene any statutory limit on the power being exercised." 83At [90], I also referred to the observation of Basten JA in Kindimindi at [56] and [57] that a condition will not necessarily be beyond power because it relevantly lacks specificity or particularity: it will only be invalid if it falls outside the class of conditions permitted by s 80A of the Act. 84These principles are applicable to the present case. For the reasons which follow, in my view, Condition 32 is not invalid because it lacks a degree of particularity or precision. This is because it does not, when properly construed, contravene the statutory limit of the power being exercised. 85At the outset I find difficulty in accepting his Honour's finding at [170] that Condition 32 is uncertain because it contemplates the undergrounding of services on the opposite side of O'Riordan Street from the development site. Such a finding seems to assume acceptance of the proposition that the reference in the condition to "the road reserves" is a reference to only so much of the road reserves as abuts the boundaries of the site. Whether or not this be so, even if the condition can be construed as requiring the replacement of all aboveground electricity and telecommunication cables within the road reserves as a whole (including on both sides of the street), I do not understand the basis upon which that construction can be asserted as rendering the condition uncertain in the sense of one that contravenes the statutory limit of the power which the Council had exercised under the Act in imposing the condition. Furthermore, once the condition is so construed, no question of uncertainty can exist. 86The statutory authority for the imposition of Condition 32 is, in my view to be found in s 80A(1)(a) and (f) of the Act which provides as follows: "A condition of development consent may be imposed if: (a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or ... (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent" 87A relevant matter referred to s 79C(1)(a)(iii) is the DCP. It relevantly requires in Item C98 that: "all service cables in the street adjacent to ... any development site ... to be placed underground." 88In my opinion, the outer boundaries of the statutory power exercised by the Council in the present case to impose Condition 32 is to be found in that provision of the DCP. The question of construction which then arises is whether the expression "within the road reserves" should not only be construed as confined to only so much of the length of the road reserves of the two relevant streets as are adjacent to the site but also to only part of the breadth of the road reserves rather its total breadth. 89Item C98 simply refers to all service cables in the street adjacent to the site. Literally, that includes the total breadth of the street which has a common frontage to the site. It is not necessarily confined to one-half of the street or one-third of the street or only to those cables which are on the same side of the street as the site as distinct from the opposite side. Nor is it confined to those cables which are intended to service the development. If there are cables which happen to be on the opposite of the street to the development site, then so be it. Their undergrounding is contemplated by the DCP and a condition requiring them to be so undergrounded would, in my opinion, be within power. This being so, in my opinion it was not open to the primary judge to find that Condition 32 was uncertain because it contemplated the undergrounding of services on the opposite side of O'Riordan Street from the development site. 90In my opinion, the approach to the construction of Condition 32 should incorporate a modicum of common sense. To suggest, as do the respondents, that the condition is so framed that it includes the whole length of the road reserves of Church Avenue and O'Riordan Street leads, in my respectful opinion, to an absurdity. In this respect it should be noted that there is no issue but that there was compliance with the condition in so far as it related to Church Avenue. That only involved the undergrounding of cables in the road reserve adjacent to the frontage of the site to that street. If a practical construction is to be adopted, as in my view it should, I can see no proper basis upon which it can be suggested that the condition should be read so literally that it requires the undergrounding of services which extend the total length of the two streets in question. It would be an unreasonable construction and one which should be rejected. Once it is rejected, it must follow that the reference in Condition 32 to the replacement of aboveground electricity and telecommunication cables "within the road reserves " refers to so much of the road reserves of Church Avenue and O'Riordan Street as adjoins the frontages to those streets of the site. 91Accordingly, in my view Condition 32 properly construed does not fall outside the power in the Act pursuant to which it was imposed. Accordingly, it does not fail the second Newbury test and is not relevantly uncertain and his Honour was in error in finding to the contrary. It follows that the condition was valid.

Ground of appeal 2 - The liability of the non-corporate respondents

(a) The pleading 92In its Further Amended Points of Claim the Council pleaded the issue with respect to the liability of the relevant non-corporate respondents in the following terms: "6. [Saab Corp] was at all relevant times a Licensed Builder and was the person who undertook or caused to be undertaken the work pursuant to the Development Consent. 7. (a) Joseph Saab, the [Fourth] Respondent, was a secretary of [Ralansaab] from 30 March 2006 to 4 December 2007; (b) Anthony Saab, the [Sixth] Respondent, was a director and secretary of [Ralansaab] from 2 July 2003 to 4 December 2007; (d) William O'Dwyer, the [Third] Respondent, was a director of [Ralansaab] from 28 October 2003 to 9 February 2009 and in that capacity each gave instructions for the carrying out of the development, the subject of the Development Consent and thereby carried out the development. 8. (a) Joseph Saab, the [Fourth] Respondent, has been a secretary and director of [Saab Corp] from 24 March 2000 to date and continuing; (b) Anthony Mark Saab, the [Fifth] Respondent, was a director of [Saab Corp] from 24 March 2000 to 17 July 2007, and in that capacity each gave instructions for the carrying out of the development, the subject of the Development Consent and thereby carried out the development." 93What is clear from the pleading is that it is asserted that each of the relevant respondents was in breach of the Act in that they carried out the development by giving instructions in their capacities as a director and/or secretary of Ralansaab and/or Saab Corp. This is of some significance for in oral submissions the Council contended that at least Joseph and Anthony acted beyond their directorial capacities.

(b) The primary judge's decision with respect to the liability of the non-corporate respondents 94At [142], his Honour observed that the liability of the non-corporate (or individual) respondents arose as an issue only if it could be shown that the company of which any of them was a director was " carrying out the development" and that a breach of the Act had occurred. There was no issue but that Ralansaab and/or Saab Corp were companies which were carrying out the development. The Council submitted to his Honour that as such, neither company could carry out the development without the direction and instruction of its individual directors. Therefore, those directors were carrying out the development inasmuch as they gave all necessary instructions on behalf the two companies to achieve that outcome. 95Reliance was placed by the Council on a number of authorities referred to by his Honour at [143]-[145] of his reasons to which it is presently unnecessary to refer. As noted below, they were all cases concerning the liability of a director of a company for tortious acts or omissions. 96At [146] the primary judge observed that the implications of the Council's submissions was that some influence was brought to bear by or on behalf of the Saab family or companies (in particular by Joseph or Anthony) on Energy Australia to reduce the scope of the undergrounding works to be performed from the removal of eight poles and the erection of five to the removal of three and the erection of three. It is not entirely clear what that assertion has to do with the issue under discussion. It could only be relevant to the issue of direction. So much was conceded by the Council on the appeal. 97The respondents sought to distinguish the cases relied upon by the Council. They argued that those cases dealt with the tortious acts of a company in which it had been held that if the directors themselves directed or procured the commission of such acts by a company, they could be liable for those acts together with the company. However, the present case is not concerned with tortious acts of Ralansaab or Saab Corp but with a breach of the Act which was not, so it was submitted, in its nature or its characterisation, a tort. Reliance was placed upon a decision of this Court in Wilkie v Blacktown City Council [2002] NSWCA 284; (2002) 121 LGERA 444 at [36] where Davies AJA, with the agreement of Heydon JA and Young CJ in Eq, observed that ss 122-124 of the Act are concerned with breaches of the Act and authorise the court to make remedial or restraining orders against persons who have breached the Act. His Honour continued: "The Court's jurisdiction is enlivened by a breach of the EPA Act and it is empowered to make orders 'to restrain the breach' and 'to remedy the breach'. The provisions do not suggest to me that orders may be made against persons who have not breached and are not in breach of the EPA Act. This is particularly so as any person may bring proceedings under the Act. A more expansive interpretation might be justified were the provisions to be seen as part of the armoury of an enforcement body." 98At [60], Davies AJA referred to terms used by the trial judge in that case such as "permitted or suffered" and "permitting or allowing". His Honour noted that these terms described no category of activity which, absent the use of the expression in the statute, was known to the law as giving rise to an obligation to remedy a breach. He then observed: "The terms are not wide enough to describe a situation of 'aiding or abetting' or of 'involvement in the contravention' even if these terms applied to s124, which they do not. The terms may well have relevance to the exercise of discretion once a breach by the person was established. But they do not authorise the making of an order of rectification against Ms Wilkie who did not breach the EPA Act and did not benefit from the breach." 99His Honour then referred to a number of other authorities such as Rochford Rural District Council v Port of London Authority [1914] 2 KB 916 which concerned a statutory provision which contained the words " caused or suffered" . As to this he said: "[65] Such cases do not assist the resolution of the ambit of s124 of the EPA Act, which contains no such words. The many cases... which have considered covenants containing the terms 'permit' or 'suffer', are similarly of no assistance. Indeed, they point to the need for the expression of such a term if liability based on permitting or suffering is to be established. [66] In my opinion, as s124 contains no such terms, the basis on which her Honour proceeded was unsound." 100In a short judgment agreeing with Davies AJA, Young CJ in Eq referred to a number of first instance decisions of the Land and Environment Court (also referred to by Davies AJA) in which an individual landowner had been held to be in breach of the Act where he knew or was made aware of a situation of breach and took no steps to prevent its recurrence. His Honour referred (at [9]-[10]) to different sets of words which crop up in this connection such as "acquiesces in" or "aids and abets" or "caused or suffered" . At [12], he referred to s 75B of the Trade Practices Act 1974 (Cth) which employed the term "involved in a contravention" . At [13]-[14] he concluded in these terms: " [13] It is idle to multiply further examples. [14] In view of these varieties of slightly different tests it is to my mind extremely difficult to attribute to the legislature an intention that one of them should apply." 101Appropriately, at [149] of his reasons, the primary judge referred to ss 168 and 169 of the Protection of Environment Operations Act 1979 which specifically provided for it to be an offence for a person to, amongst other things, aid, abet, counsel or procure another person to commit an offence and, more relevantly, that if a corporation contravenes any provision of that Act, each person who is a director of the corporation and who is concerned in its management is taken to have contravened the same provision. The existence of such provisions was to be contrasted with their absence from ss 122-124 of the Act. 102Wilkie was followed and applied by Preston CJ in North Sydney Council v Moline (No. 2) [2008] NSWLEC 169 at [21] and [24]. The Chief Judge held that a person who does not "carry the development out" cannot be in breach of s 76A(1) and hence cannot commit an offence against s 125(1) of the Act. Citing Wilkie and Hillpalm Pty Limited v Heaven's Door Pty Limited [2004] HCA 59; (2004) 220 CLR 472 at [48]-[49], his Honour observed that in the same way, civil enforcement orders can only be made against a person who is actually carrying out development on land in breach of the Act. Furthermore, to "carry out" development positive acts are required. 103The authorities to which reference has been made did not involve the issue which is currently being debated. Nevertheless, the primary judge, having accepted that both Ralansaab and Saab Corp could both be said to be carrying out the development, nevertheless rejected the Council's submission that the Act extends beyond the normal "corporate veil" where there is a breach of the Act by the company. At [155] his Honour accepted the respondents' submission that the Act does not contemplate the notion of extending liability beyond the corporation itself merely because it acted, as it necessarily must, through its directors in carrying out the development. He concluded in the following terms: "[156] The ' authorised, procured, or directed ' test is concerned with the ' tortious acts ' of directors in cases where a defendant company is in breach of provisions of legislation which specifically extends the liability to directors in areas such as trade practices, copyright, and causing environmental harm, rather than some omission in respect of fulfilment of a condition of consent. [157] In so far as acts in relation to the development were carried out by the non-corporate respondents on behalf of the companies in which they held office, and in circumstances where Ralansaab is now beyond this court's reach, the only party that can be made liable to orders of this court to remedy any breach of the consent would be the second respondent, Saab Corp."

(c) The parties' submissions 104The Council submitted that a corporation must act through living persons, some of whom will "represent the directing mind and will of the company, and control what it does": H.L. Bolton (Engineering) Co Limited v T.G. Graham & Sons Limited [1957] 1 QB 159 at 172; Tesco Limited v Nattrass [1972] AC 153 at 170-171. The evidence established, so it was submitted, that Anthony and Joseph represented the directing mind and will of Saab Corp and each made decisions with respect to the implementation of the Stage Two Consent, including Condition 32. It was part of their role to be satisfied that that condition had been complied with. 105It was contended that if Anthony and Joseph and the other individual respondents constituting the directing mind and will of Ralansaab and/or Saab Corp controlled what those companies did in implementing the Stage Two Consent, they, in addition to the companies, carried out the development within the meaning of s 76A(1) of the Act. A number of authorities were then cited in support of that proposition including Wilkie and Moline , but in my view, none of them support the proposition for which the Council contends. 106The Council then referred to the authorities which established that a director or manager may be liable for the tortious acts of his company which he ordered or procured to be performed, referring to the "authorised, directed or procured test". It is unnecessary to refer in detail to those authorities. Clearly, they support the proposition for which they are cited, namely, that a director of a company may be liable for the company's torts. That does not answer the question as to who it is that carries out the development on land for the purpose of s 76AC(1). 107It was nevertheless submitted that a director who is responsible for and gives instructions and directions with respect to the carrying out of development cannot escape liability because he acts in the capacity of a director or agent of the company. The factual inquiry the primary judge was required to undertake was whether the individual respondents had authorised, directed or procured Ralansaab or Saab Corp to carry out the development otherwise than in accordance with Condition 32. His Honour did not undertake that inquiry and thereby erred. His Honour should have found that at least Anthony and Joseph plainly authorised, directed or procured the carrying out of the development in breach of Condition 32 as a consequence whereof they, as well as the companies of which they were directors, were in breach of the Act. 108In support of these submissions the Council provided a four page supplementary summary of the evidence of the individual respondents as to their involvement in carrying out the development. I do not propose to refer to the contents of the document in detail. I content myself with observing that, contrary to an oral submission of the Council during the course of argument, the evidence referred to does not establish that any of the respondents referred to acted otherwise than within the confines of their role as a director of the relevant companies and, in particular, Saab Corp. 109It was also submitted that there was a difference between a small and large company and that Saab Corp was small so that its directors assumed a hands on role in implementing the Stage Two Consent rather than a supervisory role had the company been larger with employees conducting the day to day performance of its business. It was contended that where a particular director of a small company is himself performing what an employee would normally do in a larger company, then the director is liable for it as he as well as the company who is carrying out the development. 110In my view, there is no substance in these submissions and no authority was cited to support them. For the reasons which follow they should be rejected. 111The respondents submitted that the case against each of the individual respondents was limited to actions purportedly undertaken by each in their capacity as an officer of Ralansaab and/or Saab Corp. It was contended that the Council's reliance on the " authorised, procured or directed " test was misconceived as a breach of s 76A(1)(a) did not involve a tort. It is well established that a director may be liable in various recognised areas of tort. Nevertheless, this fact does not lead to the conclusion that the principles which attend the liability of a director in respect of a tort committed by a company extends to the provisions of the Act which provide a civil remedy against the person who carried out the development in breach of the Act. A failure to carry out development in accordance with a development consent results in a breach of s 76A(1) but is not conduct which the law has ever classified as tortious. 112It was further submitted by the respondents there was no provision in the Act which extended liability for a breach to a party who, although they did not "carry the development out" was "involved in the contravention", "aided or abetted" or "permitted or suffered" the contravention: Wilkie . The primary judge was correct in accepting that s 124 does not contemplate the liability of officers of a corporation acting in their capacity as such. So much is recognised by other legislation such as s 169 of the Protection of Environment Operations Act 1979 (NSW) referred to at [101] above. Similarly s 249A of the Aboriginal Land Rights Act 1983 specifically provides that where a corporation contravenes a provision of those Acts, each person who is a director of the corporation and is concerned in its management is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention. 113The Council accepted that a company cannot act other than through a natural person and must of necessity act by its directors, managers or other agents. It did not allege until its oral submissions in reply that the individual respondents were acting otherwise than within the scope of their functions as directors of the companies which carried out the development. Their acts were the companies' acts: O'Brien v Dawson (1942) 66 CLR 18 at 32-33 per Starke J and at 34 per McTiernan J; Keller v LED Technologies Pty Limited [2010] FCAFC 55; 185 FCR 449 at [83]. 114Accordingly, it was submitted by the respondents that the absence of any pleaded act of the individual respondents outside of their authority as officers of Ralansaab and/or Saab Corp and any recognised means in the present context of attributing concurrent liability to directors for the acts of the company in a non-tortious situation, the Council's case against those respondents must fail. The respondents contended that there is no principled basis for the "metaphysical bifurcation or duplication of the one act by one man so that as in law both the act of the company and the separate act of...an individual" : R v Goodall (1975) 11 SASR 94 at 100. Although Goodall was a criminal case to which the concept of aiding and abetting was relevant, nonetheless it was submitted that in a case such as the present which involved neither a tort nor a criminal act, the only question to be asked was, who carried out the development in breach of the Act? The answer to that question could only have been Ralansaab and/or Saab Corp. The fact that each of those companies acted of necessity through their directors did not justify a finding that the directors were also carrying out the development.

(d) The individual respondents are not liable 115The Council's claim for relief under s 124 of the Act is statutory and relates and to a statutory breach. It is well established that a person can only be in breach of s 76A(1) if the person carries out development contrary to the relevant development consent. Resultantly, it is only the person who has actually carried out the development in breach of that consent who is amenable to an order under s 124 of the Act. 116It must also be borne in mind that the present proceedings are brought pursuant to s 124 of the Act which deals with civil remedies and not s 125 which relates to prosecution for an offence. One of the authorities relied upon by the Council involved a company carrying out development where it was sought to bring civil proceedings pursuant to s 124 not only against the company but also its directors where otherwise it was established that those directors, when directing the company to carry out the development, were acting only in that capacity. It is true, as the Chief Judge observed in Moline , that for there to be a breach of the act a positive act is required on the part of the offending party. However, it does not follow that because the individual directors of Ralansaab and/or Saab Corp were performing positive acts in their capacity as directors of those companies in implementing the Stage Two Consent that they, rather than the companies, were carrying out the development the subject of that consent. 117In my view, therefore, the Council's reliance on the Moline line of cases is misconceived. First, those cases involved a prosecution pursuant to s 125 of the Act whereas the present case is concerned with a civil remedy under s 124. Section 125 is directed to a person who offends against a direction or a prohibition. If there is a condition that prohibits the demolition of a wall and a director of the company which owns the land comes along and says to the contractor "demolish that wall", then it could legitimately be said that that person offends against the direction or the prohibition that the wall be retained and not demolished. But, that is a different case to that with which s 124 is concerned. 118The Council ultimately accepted that something more was required than that the individual respondents were merely acting in their capacity as directors of Ralansaab and/or Saab Corp. This concession was necessary given the following passage from the judgment of Starke J in the judgment of O'Brien v Dawson at 32: "The company, if it were guilty of a breach of its contracts in this case, acted through its director the respondent Doyle, but it is neither 'law nor sense'...to say that Doyle in the exercise of his functions as a director of the company combined with it to do any unlawful act or become a joint tortfeasor. Again, it is equally fallacious to assert that Doyle knowingly procured the company to break its contract. The acts of Doyle were the acts of the company and not his personal acts which involved him in any liability to the plaintiff." 119The relevance of the above passage to the present case is that just because a director of a company is the agent by which the company does an act, does not make the director the actor. The actor is the company notwithstanding that it acts through its director. The company always acts through the agency of its directors and the fact that a director is the primary actor on behalf of the company does not mean that the act becomes that of the director as distinct from that of the company. In the case of tort, for the director to be liable he or she must make the tortious conduct his or her own: see King v Milpurrurru (1996) 66 FCR 474 at 500. 120Notwithstanding the submission to the contrary by the Council, in my view there is no relevant distinction between the case of a director carrying out his directorial functions and duties which, the Council accepted, would be insufficient to impose personal liability on the director and the case where the director is performing directorial duties such as in the present case where the relevant individual directors of Saab Corp (a building company) supervise its work, directed how it was to be undertaken and made decisions as to what particular work was to be performed. In my view, given the nature of the company and the task it was performing, its directors were doing no more than performing the directorial duties of a building company. 121If the Council's submissions were to be accepted, it would logically follow that in civil enforcement proceedings pursuant to s 124 of the Act, not only the company as the primary party carrying out the development would be liable to remedy the relevant breach but also every director that had anything to do with the project who was not just a passive onlooker. The Council accepted that there was no authority to support such a proposition. 122There have, no doubt, been hundreds of cases in which Class 4 proceedings have been instituted in the Land and Environment Court pursuant to s 124 of the Act against a company for breach of a condition of a consent. The Council was not able to point to any case of that nature where not only the company but also the directors were joined as respondents and where an order was successfully sought against those directors to remedy the company's breach. 123In my opinion, the primary judge was correct to find that the individual respondents, assuming there was a breach of Condition 32, could not be the subject of an order made under s 124 of the Act that they personally remedy that breach. Such an order lay only against the companies of which they were directors. It follows that Ground of Appeal 2 fails.

(a) The terms of the Notice 124The respondents contend that the decision of the primary judge should be confirmed upon the following grounds: "1. Condition 32 has been complied with, or alternatively has been substantially complied with, according to its terms. 2. On its proper construction and in the circumstances of the hearing in the Court below:- (a) condition 32 was a condition was specified an aspect of the development to be carried out to the satisfaction of a person specified in the consent, (b) the person specified in the consent was satisfied that the aspect with which condition 32 was concerned was carried out, and accordingly, (c) condition 32 has been complied with."

(b) The terms of the respondents' defence 125The respondents Notice of Contention is reflected in the following paragraphs of its Third Further Amended Points of Defence which provided, relevantly, as follows: "13. ...[The respondents] say that: (a) In imposing condition 32 of the Stage 2 consent, the applicant imposed a condition of consent pursuant to section 80A(2) of the Environmental Planning and Assessment Act 1979 specifying an aspect of the development to be carried out to the satisfaction of a person specified by the applicant, namely the 'energy provider', and that aspect of the development has been carried out to the satisfaction of that person. (b) Further or in the alternative, [the respondents] complied with condition 32 of the Stage 2 consent according to its terms in that above ground electricity and telecommunications cables within the O'Riordan Street road reserve adjacent to the property were replaced by underground cables and appropriate street light standards in accordance with the relevant energy provider's guidelines and therefore in accordance with the development consent."

(c) The primary judge's decision on the defence 126The primary judge dealt with these defences at [187]-[193] of his reasons. The first was based upon the provisions of s 80A(2) of the Act which provided as follows: "A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority." 127At [188], his Honour recorded the respondents' submissions with respect to this defence, relevantly in the following terms: "In the factual circumstances of the present case, [Saab Corp] contracted with the relevant energy provider (Energy Australia) to prepare a scope of works in satisfaction of Condition 32. That scope of works was as identified in a project proposal dated 27 May 2004 by Enerserve (a business of Energy Australia)... That scope of works, as determined, to use the words of Condition 32, in accordance with the Energy Provider's guidelines, provided for a scope of works relevant to a plan for the undergrounding of cabling prepared by Energy Australia itself.... [Saab Corp] contracted for those works to be done, and Energy Australia completed those works. A Certificate of Practical Completion was issued.... By reason of the terms of Condition 32 (deferring to a third party the extent of satisfaction of its terms), and the circumstances in which that third party had determined the extent of those works, those works having been completed, Condition 32 is satisfied. The fact that Council complains that some elements of undergrounding have not been completed is beside the fact. The terms of Condition 32 dictate the manner in which its compliance is to be effected and, having deferred the matter to a third party, it is beyond power for the Council to complain as to the extent of the works undertaken." 128His Honour also recorded a submission by the respondents that Condition 32 should be construed in a manner which required the developer to perform the relevant works to the satisfaction of "the energy provider" as distinct from performing the works "in accordance with...guidelines" stipulated by "the energy provider". 129The primary judge resolved the issue raised by this defence in the following paragraphs of his reasons: " [190] However, it is uncertain as to whether either Enerserve or Energy Australia was provided with the conditions of consent when the undergrounding works were negotiated with the respondents. It is also uncertain as to whether the ' certificate of completion ' was merely an indication that the works were actually completed, as outlined in the second quote. [191] I believe that the words ' in accordance with the Energy Provider's guidelines ' connote compliance with technical specifications stipulated and required by Energy Australia, rather than its preferred definition of what undergrounding would be appropriate, for its purposes, rather than Council's, in the relevant area. [192] In the circumstances where power poles remain on land adjoining the subject site, despite the ' certificate of completion ', the court would find reliance on that certificate analogous to relying on an Occupation Certificate which was obviously issued on erroneous facts. [193] Accordingly, the respondents must fail on this ground of defence." It is the finding at [191] which is the subject of challenge in the respondents' Notice of Contention.

(d) The respondents' submissions on their Notice of Contention 130The respondents' submissions with respect to the first ground of their Notice of Contention may be summarised, as best as I understand them, as follows: (a) it is evident from the 2004 quote which was based on Energy Australia's plan of 6 April 2004 that the respondents did procure the work to which that quotation related and for which it paid and that that work was performed in accordance with Condition 32; (b) that work involved the undergrounding of cables substantially beyond the road reserves adjacent to the site insofar as, contrary to the Council's contention as to the proper construction of Condition 32, it included work on the opposite side of the intersection of Church Avenue and O'Riordan Street; (c) nevertheless the ambiguity in the language of the condition permitted a finding that such work was in satisfaction of it; (d) once it is acknowledged that substantial works had been undertaken pursuant to the condition, and given that the condition is ambiguously drafted, it follows that the primary judge was in error in finding that the condition had not been satisfied. 131The respondents' submissions with respect to the second ground of its Notice of Contention may also, to the extent that I follow them, be summarised in the following manner: (a) the primary judge rejected the respondents' submissions that Condition 32 deferred to Energy Australia the determination of whether the condition had been satisfied in accordance with s 80A(2) of the Act and that Energy Australia had determined the extent of the works to be completed so that Condition 32 was satisfied once a Certificate of Practical Completion was issued, as it was; (b) his Honour construed the words "in accordance with the energy provider's guidelines" in Condition 32 as relating to compliance with "technical specifications stipulated and required by Energy Australia" rather than as words which allow Energy Australia to determine the scope of the undergrounding to be undertaken. His Honour should therefore have held that notwithstanding that power poles remained in O'Riordan Street adjoining the site, a Certificate of Practical Completion had been issued by Enerserve, upon which the respondents have relied; this was analogous to their reliance on an occupation certificate which had been issued on erroneous facts; but whose validity had not been challenged; (c) the primary judge erred in failing to have sufficient regard to the terms of the letter from Energy Australia to Egis dated 26 March 2002 in which, notwithstanding the request that Energy Australia underground the overhead mains surrounding the proposed development in O'Riordan Street and Church Avenue, Egis was advised that the relocation of overhead mains to underground should be carried out only in whole street blocks so as to minimise visual anomalies although other requests might be considered depending on site conditions; (d) correspondence from Energy Australia supported the construction of Condition 32 contended for by the respondents. Despite the Council's stated intention with respect to the undergrounding of services, the actual scope of the undergrounding to be undertaken remained within the discretion of Energy Australia. It would therefore be unreasonable for a developer to be strictly held to a condition, the satisfaction of which lay within the discretion of a third party, and Condition 3 recognised that fact; (e) accordingly, Condition 32 must be taken to be satisfied in circumstances where "(a) the Council made Condition 32 subject to the satisfaction of a third party, being Energy Australia; (b) at all relevant times, Energy Australia was aware of the substance of what the respondents (and their predecessor in title) required in order to achieve compliance with Condition 32, whether or not the precise terms of Condition 32 were provided to Energy Australia; and (c) throughout all correspondence between the respondents and Energy Australia, the words that were proposed and indeed completed by Energy Australia were described as 'underground mains work in Church Avenue and O'Riordan St, Mascot', concluding with the certificate of practical completion issued on 20 February 2006"

(e) The respondents' contentions should be rejected 132With respect to the first ground of contention, its essence is that Condition 32 should be construed with a degree of flexibility so that in circumstances where works were carried out in purported compliance with its provisions, once those works were completed then the condition was fully complied with. This contention must be rejected once it is accepted that, on its proper construction, Condition 32 required the removal of all electricity and telecommunication cables carried on wooden poles in O'Riordan Street adjoining the site and their replacement underground together with appropriate street lighting to replace that on the poles to be removed. 133There is no doubt that in 2002 in a letter from Mr Palermo of Egis to Mr Henniker of Energy Australia, the latter was advised that Egis was involved with the electrical service design and documentation of the development. Under the heading "Relocation of Existing Aerial Lines" the following statement appeared: "In addition to the above, Botany Council has requested as part of our development that the existing aerial lines adjacent to our site along Church Avenue and O'Riordan Street be relocated underground. To assist us could you please advise what procedures are required for these existing cables to be relocated underground." 134Energy Australia's response to that request was the provision of the plan dated 13 August 2002 and the 2002 quotation. There is no doubt that if the work described in that plan and quotation had been performed, it would have fully satisfied Condition 32 as now construed. 135The Consents were granted by the Council on 30 May 2003. The construction certificate for the works the subject of the Stage Two Consent was issued on 27 January 2004. In February 2004 Energy Australia was contacted by Joseph with respect to undergrounding the low voltage overhead mains and the diversion of high voltage cables in O'Riordan Street and Church Avenue. On 19 March 2004 Mr Henniker wrote an internal memorandum referring to the Scope of Works in the 2002 quotation, noting that the project was now back up and running but that: "[t]he number of services required to be UG has changed and it is now only two services. Is it possible to get an updated price on the UG of the services? The services are 128 O'Riordan Street... and Caltex Service Station cnr O'Riordan and Church Avenue." 136The updated price was forthcoming on 27 May 2004 and accepted by Joseph on 18 June 2004. There is no doubt that the Scope of Works the subject of the 2004 quotation was less than that the subject of the 2002 quotation. However, once Condition 32 is construed to include the existing aboveground cables and poles in O'Riordan Street adjoining the frontage to the site, then it follows that, absent any suggestion that the Council accepted the work the subject of Enerserve's Certificate of Practical Completion dated 20 February 2006 in full satisfaction of the developer's obligation under Condition 32, the condition has only been partially complied with. Even accepting that substantial works were undertaken pursuant to Condition 32 in accordance with the 2004 quotation, that of itself does not justify a finding that there had been either full or substantial compliance with the condition as properly construed. 137With respect to the second ground of contention, I would reject the submission that Condition 32 is one to which s 80A(2) applies. I would agree with the primary judge's finding at [191] of his reasons that the words "in accordance with the Energy Provider's [sic] guidelines" connote a requirement to comply with the technical specifications of the relevant energy provider. This must follow from the fact that the work in question could only be carried out by or on behalf of Energy Australia as the relevant energy provider. 138I would therefore accept the submission of the Council that Condition 32 assumes that there are guidelines for the undergrounding of cables and the provision of street lights and that those guidelines set out the appropriate standards and practices for the carrying out of such work. Compliance with those guidelines is not equivalent to compliance with the obligations contemplated by the condition. Certainly, the condition could not be construed as leaving it to the energy provider, here Energy Australia, to determine what "undergrounding would be appropriate, for its purpose, rather than the Council's, in the relevant area": see primary judgment [191]. The extent of the undergrounding was defined by the Council in the condition and no justification exists for reducing the extent of that undergrounding simply upon the basis that a lesser amount of work was in fact performed, albeit to the satisfaction of Energy Australia. 139I would also accept the Council's submission that the condition does not specify an aspect of the development "to be carried out to the satisfaction...of a person specified by the consent authority" within the meaning of s 80A(2). All that is required by the condition is that there be compliance with the guidelines of the energy provider. The condition, in my opinion, did not contemplate that it was the energy provider who was to determine whether the condition had been complied with. Rather, if satisfaction of the energy provider was relevant at all, its satisfaction only related to the sufficiency of the work which had been performed. It did not, and could not, express a view as to whether that work was sufficient for the purpose of fully complying with Condition 32. 140During the course of oral argument the respondents sought to further justify its contention in the following manner. Energy Australia as the relevant energy provider was requested to provide a quotation for the carrying out of the work contemplated by Condition 32 being the removal of the aboveground cables carried by the wooded telegraph poles in both Church Avenue and O'Riordan Street adjacent to the site. In response it only carried out part of the work which had been requested thus excluding the work in O'Riordan Street, being the removal of three telegraph poles and the cables carried by them. It follows, so it was contended, that that response constituted satisfaction of Condition 32. 141That argument only needs to be stated to be rejected. The factual material does not support the major premise, namely, that in April 2004 Energy Australia was requested to carry out the total work contemplated by Condition 32, including the removal of the three telegraph poles remaining in O'Riordan Street adjoining the site. True it is that that work was excluded from the work the subject of the 2004 quotation. Although it was suggested by the Council that that was at the request of the Saabs, even if it was not, that would make no difference once it is accepted that the condition required the removal of those three poles. There was no evidence to suggest that had Energy Australia been requested in 2004 to remove the three poles in O'Riordan Street that remain and to underground their cables, that it would not have provided a quotation for that additional work. In any event, as I have indicated, compliance or non-compliance with the requirements of Condition 32 was never a matter for Energy Australia to determine. 142There was a deal of argument on appeal as to whether the evidence was sufficient to establish that Joseph had requested a reduction in the Scope of Works in 2004 given that in his affidavit evidence he had stated that in March 2004 he had requested Energy Australia to issue an updated quotation to carry out the works described in its 2002 quotation. Council submitted that such a request for a reduction in scope must have been made whereas the respondents contended that Energy Australia made a unilateral decision to reduce the Scope of Works. 143I have already referred to an internal memorandum of Mr Henniker's at [111] above. Mr Henniker was not called although he had prepared an affidavit at the behest of the Council's legal representatives which was served so that the contents were known to all parties. However, it was not read. Accordingly, there is no evidence as to how Mr Henniker came to the conclusion that the number of services required to be underground had changed compared to those required in the original Scope of Works the subject of the 2002 quotation. In this state of the evidence no finding can be made as to how the reduced Scope of Works stood. 144But, even if the Scope of Works was the unilateral decision of Energy Australia rather than due to a request by or on behalf of the respondents, that does not justify a finding that the reduced Scope of Works was sufficient to constitute full compliance with Condition 32. Further, there was no evidence that there was some technical or other reason why the Scope of Works contemplated by the 2002 quotation, and which did comply with Condition 32 was reduced. 145In a supplementary note provided at the Court's request, we were referred to some evidence of Joseph relating to whether he realised that the Scope of Works the subject of the 2004 quotation was different to that the subject of the 2002 quotation. His evidence was that he was only concerned about the price and, in effect, he assumed that the Scope of Works was the same. Whether or not this evidence should be accepted was not determined by his Honour. But even if it was, then the fact remains that once the work was completed the relevant respondents would have realised that it did not include the work in O'Riordan Street which was the subject of the 2002 quotation. It is apparent that the respondents understood, no doubt through Egis, their electrical engineers, that the work the subject of the 2002 quotation would result in compliance with Condition 32. It would be obvious that once the work the subject of the 2004 quotation was completed, there was still work to be performed in O'Riordan Street to comply with Condition 32. These factors become more relevant when dealing with the issue of discretion. However, they do not assist the respondents in terms of establishing the grounds of its Notice of Contention. 146For the foregoing reasons, in my opinion each of the grounds in the respondents' Notice of Contention should be rejected.

(a) The primary judge's decision 147His Honour dealt with the respondents' case on discretion upon the assumption that his finding that Condition 32 was invalid was incorrect. The case on discretion was particularised in para 15 of their Further Amended Points of Defence as follows: "(a) In procuring the carrying out of works pursuant to condition 32 of the consent works beyond the scope of the condition were effected to the benefit of the Council and/or the public generally. (b) In carrying out the development the subject of the consent the respondents or some of them agreed to the payment of contributions pursuant to s 94 of the EP&A Act in an amount significantly greater than they were required to pay pursuant to condition 59 of the consent. (c) The Council elected to not include the works the subject of condition 32 of the consent into Deeds entered into between it and the first respondent concerning undergrounding works in Church Ave being the subject matter condition 34 of the Stage 1 consent and also the subject matter of condition 32 of the consent. (d) In procuring the carrying out of works pursuant to condition 32 of the consent officers of the council raised no issue with the respondents or any of them concerning compliance with condition 32. (e) In procuring the carrying out of works pursuant to condition 32 of the consent the council delayed in raising with the respondents or any of them the issue of non compliance with condition 32. (f) In procuring the carrying out of works pursuant to condition 32 of consent the respondents relied upon the satisfaction of the Energy Provider concerning compliance with condition 32." 148At [195] his Honour observed that the following factors, which tended to overlap with the particulars already referred to, were relied upon in support of the respondents' case on discretion: The benefit afforded by the works done pursuant to the condition. The ' significantly greater' s 94 contributions than were required, which were paid voluntarily, and represent what was described in argument as a significant windfall to Council. The non-inclusion of the condition 32 works in the Deeds entered into between the parties. The reliance of the respondents on plans produced by Energy Australia (the only entity authorised to do such works). The failure of Council and its officers to raise any issue of non-compliance with condition 32 during the procuring of the works. The delay in Council's raising any issue of non-compliance with condition 32, and its delay in then bringing these proceedings. The entitlement of the respondents to rely upon "the satisfaction of the energy Provider concerning compliance with condition 32. The significant cost of the condition 32 works undertaken ($238,000) - evidence that no benefit accrued to the respondents from any non-compliance with the condition. 149At [196], his Honour referred to the well-settled principles applicable to the exercise of the court's discretion in a matter such as the present and the articulated decisions of this Court in Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 and ACR Trading Pty Limited v Fat-Sel Pty Limited (1987) 11 NSWLR 67. Applying those principles his Honour did not believe that all of the factors relied upon by the respondents militated against the granting of relief to the Council if it succeeded in its substantive case. 150Having found condition 32 invalid, the primary judge's views on discretion were unnecessary for his decision. However, as I have found the condition valid, it follows that I must consider afresh the respondents' case that the Court's discretion should be exercised in their favour without reference to his Honour's tentative views on that issue. Nevertheless it is convenient to consider the findings of fact made by his Honour with respect to the submissions made by the parties to him on the issue of discretion as the same arguments were rehearsed on the appeal. 151At [197], his Honour noted that the failure to underground all cables and remove all poles near the boundaries of the site should have been blatantly obvious to anyone paying any visual attention to the development. The Council, in October 2004, had accepted the terms of the 2004 quotation and was thus aware of the extent of the work proposed by Energy Australia and was then on notice that only three telegraph poles were to be replaced. Of course, this knowledge of the Council should also have been known to the respondents and was certainly known to them after the work was completed when the Certificate of Practical Completion of the works was issued in February 2006. 152At [199], the primary judge found that possible non-compliance with Condition 32 came to the notice of the Council on 29 September 2006 but no investigation was undertaken with the relevant private certifier and no demand was made on the respondents to fully comply with Condition 32 until July 2007. His Honour considered that the respondents were entitled to rely, as they said they did, upon the occupation certificate issued by the certifier until it was challenged. The present proceedings were not commenced until January 2009 but the certifier was not joined so that the validity of his certificate was not under challenge. 153At [200], his Honour noted the Council's repeated contention that the Saabs had in some way colluded with Energy Australia to subvert the requirements of Condition 32, a contention which he rejected. Although, as I have already indicated the Council challenged that rejection, in my view it matters not for present purposes whether that challenge is or is not successful. 154The primary judge accepted that some unsightly poles and cabling remained although he noted that this was not environmental harm caused by the respondents. At [202] he set out the key factors which would have led him to accept the respondents' case on discretion. They included the following: The reliance placed on Energy Australia to plan and undertake the work; The failure of Council and its officers to promptly raise the issue of non-compliance; The delay in bringing the proceedings; The substantial costs incurred by the respondents in procuring works to satisfy the condition and improve the amenity of the local area; and The burden that would be imposed on the lay respondents (in the absence of the development company) if the additional works were required of them at this late stage, given the history of the matter. 155The factual assertion in the first of the above dot points was challenged by the Council. Otherwise, the parties contended themselves with addressing each of these points on the appeal.

(b) The parties' submissions and their resolution 156The Council accepted that the power conferred on the Land and Environment Court by s 124 of the Act is wide but not unconfined and must be exercised having regard to the scope and purpose of the Act. In Sedevic, at 339, Kirby P noted the following relevant consideration in the exercise of the Court's discretion in a case such as the present: "4. In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment.... Because s 123 of the Act permits any person (and not just the Attorney-General or a person with a sufficient interest), to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid..." 157In ACR Trading v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82, his Honour further observed that the discretion: "is a mollifying one. It permits, in appropriate cases, the refusal of injunctive relief where to grant such relief would work such an injustice as to be disproportionate to the end secured by enforcement of the legislation including by injunction." 158The Council submitted that the public interest required the upholding of Condition 32 to its full extent. It was imposed in purported compliance with the DCP for the purpose of removing unsightly poles and cables. The SEE which accompanied the development application asserted that there would be compliance with the DCP in this regard and the Consents were granted on that basis. The compliance table to the SEE which I have recorded at [36] above, accurately sets out the relevant control. It then proposes compliance with that requirement in that: "all cabling required in conjunction with the proposal will be located underground" 159Although the wording of the proposal to achieve compliance was not in the same terms as the requirement, the Council contended, and I agree, that it is tolerably clear that it was intended that the requirement of the DCP would be, in terms, complied with. It has not been and it could not be said, as the Council submits, that the extent of the non-compliance is merely technical or minimal. 160The Council further submitted that both Ralansaab and/or Saab Corp, through Joseph and Anthony, were well aware of the companies' obligations under Condition 32. They each knew that to comply with the condition the wooden poles and overhead cables adjacent to the site in both Church Avenue and O'Riordan Street had to be removed and placed underground. 161With respect to the first of the five factors referred to by the primary judge at [202] of his reasons, the Council submitted that to the extent which that factor involved a finding of fact by the primary judge, it was in error. I have already expressed my views as to the issue concerning the reduction of the Scope of Works and the evidence of Joseph that he, in effect, assumed that the Scope of Works the subject of the 2004 quotation was the same as that the subject of the 2002 quote. That assumption was wrong and he must have become aware of it at the latest when the work was completed, if not before. At some point he must have been aware that Ralansaab was only paying for part of the works required by the condition and the evidence is not, in my view, sufficient to justify a finding that Joseph or anyone else relied upon Energy Australia to effect compliance with the condition. If there was any such reliance, it was simply misplaced. 162In my opinion, even there was any such reliance, it is not a factor relevant to the exercise of discretion. As I have indicated, any such reliance on a third party contractor to comply with a condition of consent would be misplaced. The obligation at all times lay upon Saab Corp through its directors to ensure that the Scope of Works which it required to be carried out by Energy Australia was sufficient to fully comply with Condition 32. 163As to the second and third factors, being the failure of Council and its officers to promptly raise the issue of non-compliance and the delay in instituting the proceedings, the Council submitted that neither matter constituted a sufficient basis for refusing relief. For either matter to justify the refusal of relief, it would need to be established that the delays referred to caused substantial detriment to the respondents which rendered it unjust to grant relief notwithstanding the public interest that the condition be complied with. In this respect, no evidence was tendered and no submission was made to suggest that the respondents had suffered any detriment by reason of the delay relied upon by the respondents and adopted by the primary judge. Importantly, no attempt was made by the respondents to provide evidence as to the costs, either in 2010 or in 2004, of complying with Condition 32 to the extent now required. 164The fourth matter, namely the substantial costs incurred by the respondents in procuring work to satisfy the condition and improve the amenity of the local area, is an apparent reference to the amount of $238,000 paid to Enerserve in respect of the works that it in fact performed pursuant to the 2004 quotation. The fact that those works resulted in an improvement to the amenity of the local area, being one of the objectives of Condition 32, was not a reason for not requiring the condition to be satisfied with respect to the works required in O'Riordan Street. Not only is the amenity of the local area improved by the undergrounding of the cables in question but so also is the amenity of the development in respect of which the condition was imposed. Accordingly, the expenditure of the amount concerned significantly benefited the respondents. 165The fifth matter relied upon by his Honour, namely the burden that would be imposed on the individual respondents if the additional works were required of them at this late stage of the matter, assumes that Saab Corp fails to comply with an order requiring it to fully comply with Condition 32 thereby leaving the burden of compliance upon those respondents. As I am of the opinion that there is no such liability on the individual respondents in any event, then the relevance of this factor disappears. 166Further, the Council submitted that not only was there was no evidence as to the cost of now complying with the balance of Condition 32 but also there was no evidence of the extent of any hardship that might fall upon any of the individual respondents should they be required to pick up the cost of compliance. The Council also submitted that the private financial interests of the individual respondents should not be permitted to outweigh the public interest of compliance with Condition 32. In this respect, one can observe that the respondents, both corporate and non-corporate, may well have benefited from the completion of the development and the sale of the residential units. 167The respondents submitted in respect of the first dot point relied upon by the primary judge that his Honour's finding that the respondents had placed substantial reliance on Energy Australia and had not deliberately limited the scope of the works to avoid their obligation under Condition 32 was relevant to the exercise of the discretion. One can accept in this respect a factor relevant to the exercise of the court's discretion is whether the person found to be in breach was "deliberately flouting the law" or acting "contumaciously without regard to the law". However, for the reasons I have indicated, I would place little weight upon the asserted reliance given that Joseph, if not the other individual respondents, and therefore Saab Corp, was aware that Condition 32 required the removal of the aboveground telegraph poles in O'Riordan Street for the full extent of the frontage of the site to that street. The onus therefore lay upon them to ensure that the Scope of Works the subject of the 2004 quotation achieved that result. By assuming that they were the same without checking, does not, in my view, assist the respondents' case on this issue. 168With respect to the issue of delay in the bringing of the proceedings and the failure to properly raise non-compliance with the respondents, the respondents submitted that the delay commenced in October 2004 when the Council was, or should have been, aware that the Scope of Works proposed by Energy Australia did not include all of the aboveground cables and poles adjacent to the O'Riordan Street frontage of the site. This date refers to the date upon which the Council accepted the quotation from Energy Australia and to which I have referred at [53] above. However, it is not contested that the works the subject of that quotation were works required to be performed for the purpose of complying with Condition 32. There was therefore no reason for the Council to refuse to accept the quotation. It is not suggested that it thereby represented to the respondents that the Scope of Works then proposed was sufficient to comply with Condition 32. Accordingly, I would place little weight upon the suggestion that the Council should have been aware of the reduced Scope of Works as from October 2004. 169As to the delay from September 2006 to July 2007 when Mr Dowsett finally took action in relation to the matter by writing to the certifier and from July 2007 to January 2009 when the Council finally commenced proceedings against the respondents, the latter submitted that such delay was relevant where it is both gross and unexplained as in the present case. I accept that that is a relevant matter and should be given some weight but in all the circumstances, I do not regard it as a critical factor in refusing the Council relief as a matter of discretion. 170As to the fourth matter relied upon by the primary judge, being the substantial costs incurred by the respondents, it was common ground that the Saab undertook works and made commitments to the Council which they were not strictly obliged to undertake or make, being the construction of the footpath in Church Avenue beyond the boundaries of the site and an agreement reached in respect of an under-assessed s 94 contribution. Furthermore, so it was contended, it was plain from the plan the subject of the 2004 quotation that part of the work actually completed by Enerserve and paid for by the respondents was outside the scope of Condition 32. This was because it involved the undergrounding of cables substantially beyond the road reserves adjacent to the site. Accordingly, it was submitted that the respondents expenditure of large sums of money which they were not legally required to expend solely for the benefit of the Council and its constituents "to improve the amenity of the local area", was relevant to the exercise of the Court's discretion. 171I do not suggest that the matters upon which reliance has been placed were irrelevant to the exercise of the Court's discretion but I do not consider they justify being accorded particular or determinative weight. In any event, there was no satisfactory evidence that the undergrounding of cables substantially beyond the road reserves adjacent to the site was not work contemplated by the condition in that it was work required in order for the relevant services to be provided to the development. 172With respect to the issue of reliance, I reiterate that had Joseph and/or Anthony looked at the Scope of Works the subject of the 2004 quotation and compared it with the April 2002 quotation, it would have been obvious that the proposed Scope of Works had been significantly reduced. It was for the respondents to comply with Condition 32 and to satisfy themselves that the Scope of Works proposed in 2004 would achieve that result. They clearly did not as the Scope of Works required by the condition was accepted by the respondents when they sought and obtained the 2002 quotation. 173As to the question of delay upon which the respondents rely, as the Council submitted it was not the certifying authority. It therefore had no part to play in determining whether the conditions of the Consents were or were not complied with. This was the responsibility of the private certifier. Up until 2007 the Council therefore had no compliance role, a point made by Mr Dowsett in his oral evidence. It was suggested to him that he could have checked whether Condition 32 had been complied with on the completion of the 2004 works in 2006 by simply driving past the site. 174Similarly, when an Occupation Certificate was issued it was suggested to him that he should have checked the accuracy of the certificate by driving past the site so as to ensure Condition 32 had been fully complied with. His response was that the Occupation Certificate was issued by a private certifier whose responsibility it was to ensure compliance with Condition 32 and that there was no responsibility on the Council "to do a secondary inspection or further inspection to see he's done his job correctly". In this respect it was not until July 2007 that Mr Dowsett realised that Condition 32 had not been complied with and that the private certifier's Occupation Certificate was erroneous. 175The Council further submitted that the delay between September 2006 and the commencement of proceedings in January 2009 was explained in Mr Dowsett's affidavit and oral evidence as well as in the correspondence between the Council's solicitors and the certifier. That correspondence is summarised by the primary judge at [75]-[84] of his reasons under the heading " The pre-litigation correspondence ". It was during this correspondence that the respondents' solicitor asserted the invalidity of Condition 32. Given the responsibility of the certifier and the lack of responsibility of the Council under the legislative scheme in relation to ensuring compliance with conditions of consent, in my view the delay between September 2006 and January 2009 has been explained, at least to a degree sufficient to deny that delay significant weight. 176With respect to the last dot point, namely the burden imposed on the non-corporate respondents, the latter submitted that the primary actor in the development of the site, namely Ralansaab, is no longer in existence. It was further submitted that if the Council's argument in imposing liability on the individual respondents is successful, then the granting of relief to the Council against those respondents would involve them bearing a disproportionate burden of the work and expenses required. However, this factor is now irrelevant given my finding that the individual respondents cannot be liable for the breach of s 76A(1) of the Act committed by the corporate respondents. 177So far as the submission that the delay in commencing proceedings resulted in Ralansaab being no longer in existence, the Council in reply noted that the proceedings were commenced in January 2009 and it was not until 18 February 2009 that the creditors of Ralansaab resolved that it be wound up voluntarily. The evidence apparently established that there were only three creditors, each of which appears to be associated with the Saab family, with combined debts of only $8000. This evidence appears to have be uncontested. 178In oral submissions the respondent relied in particular upon the fact that in granting the Consent, the Council had imposed a condition requiring the payment of a s 94 monetary contribution which was much less than the amount which should have been imposed. This notwithstanding, the respondents or one of them, presumably Ralansaab, voluntarily paid to the Council a further sum of $165,000. However, the Court was not referred to any evidence as to why that amount was paid voluntarily or the respondents' motive in doing so. It would be a reasonable inference that as the further contribution was paid voluntarily, the respondents saw such payment as achieving an advantage or benefit to them, no doubt with respect to their current and future relations with the Council. 179In light of the foregoing discussion, I would summarise my findings with respect to the issue of discretion as follows: (a) the further work required to fully comply with Condition 32 is significant: it is neither technical nor minimal; (b) Condition 32 was imposed for the purpose of improving the amenity of the area including the amenity of the residents who were to acquire units in Saab's development. I see no reason to deprive those residents whose units face O'Riordan Street from the benefit which they were intended to enjoy as a consequence of full compliance with Condition 32. It may be that residents acquired their units on the assumption that the condition would be complied with and that all aboveground cables and wooden telegraph poles would be removed and the services undergrounded; (c) I place no or little weight upon the assertion that the respondents relied upon Energy Australia to ensure compliance with Condition 32. At its highest, the evidence of Joseph is that he, in effect, assumed that the Scope of Works the subject of the 2004 quotation was the same as that the subject of the 2002 quotation. The latter, to the knowledge of the respondents, was known to be necessary to comply with Condition 32. As the onus lay upon the respondents to ensure compliance with the condition, I do not believe that they should benefit from the assumption made when a comparison of the Scope of Works as depicted in the plan the subject of the 2004 quotation obviously involved a reduction from the Scope of Works the subject of the plan attached to the 2002 quotation; (d) I find it unnecessary to resolve the Council's submission that Joseph requested Energy Australia to reduce the Scope of Works. Whether or not this is so makes no difference to the fact that the respondents should have been aware that the 2004 Scope of Works was reduced from that the subject of the 2002 quotation; (e) as to the delay in the commencement of proceedings, in my view there has been a sufficient explanation of that delay and, in any event, there is no evidence that Saab Corp, being the only respondent against whom the Council is entitled to relief, will suffer any detriment as a consequence thereof; (f) I do not regard the costs, such as they might have been, involved in the carrying out of work said by the respondents to be outside the limits of Condition 32, being work on the opposite side of O'Riordan Street to the development site as being of any weight given that there is no evidence that that work was unnecessary for the purpose of complying with Condition 32. Nor do I give any great credence to the fact that the respondents made an ex gratia payment of $165,000 by way of a s 94 contribution that it was not obliged to pay. As I have indicated, it no doubt had its own motives for doing so (which were not revealed in the evidence to which the Court was referred) but that it would be reasonable to infer that the respondents perceived the making of such a voluntary payment as being to their advantage and benefit no doubt with respect to their current and future relations with the Council; (g) in the foregoing circumstances, the public interest in ensuring that conditions of consent are complied with, particularly a condition such as that the subject of the present litigation which is intended to achieve a significant environmental planning outcome, is outweighed by the factors upon which the respondents rely. Accordingly, in my opinion, the Council is entitled to the relief it seeks against Saab Corp.

The Council's notice of motion to adduce fresh evidence 180On 28 July 2011 the Council filed a notice of motion seeking the Court's leave to adduce fresh evidence as to the winding-up of Saab Corp after judgment in the appeal had been reserved, to make submissions with respect to that evidence and, to the extent required by s 471B of the Corporations Act 2001 (Cth), to proceed against Saab Corp. 181The notice of motion was supported by an affidavit of Timothy James O'Connor, the solicitor for the Council, sworn 28 July 2011. Mr O'Connor deposed that on 19 July 2011 Saab Corp resolved that it be wound up voluntarily and that Mr Murray Godfrey of RMG Partners Business Solutions be nominated as liquidator of the company. Apparently the liquidator called a meeting of creditors for 4 August 2011. The result of that meeting is not known. Mr O'Connor's affidavit lists those creditors as follows: Australian Taxation Office - $2,000.00, Precise Financial Services - $25,000.00, Anthony Mark Saab - $25,000.00, Joseph Saab - $100,000.00, Total: $152,000.00. 182According to the Summary of Affairs of Saab Corp filed with Australian Securities and Investments Commission, the company had no assets of any value as at 19 July 2011. 183On 8 August 2011, the Registrar of the Court of Appeal by consent made the following directions: (a) that the Council be granted leave to adduce fresh evidence as to the winding-up of Saab Corp; (b) that the Council be granted leave to make submissions in respect of that evidence; (c) to the extent that it is required by s 471B of the Corporations Act 2001, the Council be granted leave to proceed against Saab Corp; and (d) the respondent's submissions in reply be filed by 22 August 2011. 184It would appear that the solicitors previously acting for Saab Corp have filed a notice of ceasing to act. Accordingly, the only respondents to file supplementary submissions were the third to sixth respondents being the non-corporate respondents. 185In its submissions the Council first contended that leave to proceed against Saab Corp should be granted. Notwithstanding that, according to the respondents' submissions, the liquidator's attitude to the application for leave has not been ascertained, the parties consented to such leave being granted. No submissions have been received from the liquidator suggesting that that leave should be refused. 186The Council next submitted that the circumstances of the winding-up emphasised the points made by it in oral submissions as to the difference in the potential personal liability between on the one hand a director of a large company taking decisions at board level and, on the other, directors of a small company such as Saab Corp in which the directors carry on all aspects of the business of the company. I noted this submission at [109] above and rejected it at [110] for the reasons which then followed. The fact that Saab Corp has now been placed in voluntary liquidation does not cause me to change the views that I there expressed. 187The third submission of the Council proceeded on the assumption that the individual respondents were liable. As I have found that they are not, this submission is irrelevant. 188It follows that the fact that Saab Corp has now gone into voluntary liquidation does not relevantly impact upon the outcome of this appeal.

Costs 189The primary judge reserved the costs of the trial. Given that this Court is not fully instructed as to the course of the proceedings at first instance, including the conduct of the litigation before his Honour, it would not in my view be appropriate for this Court to make an order as to the costs of the trial. That matter should be left to the primary judge to determine. 190So far as the costs of the appeal are concerned, I agree with Basten JA at [22] above.

What orders should be made? 191In its Amended Summons the Council sought declarations and orders relating to Condition 32. They are drafted in general terms which I do not find satisfactory. 192The solicitors previously acting for Saab Corp have filed a notice of ceasing to act. The solicitors for the Council should ensure that the liquidator is provided with a copy of the Court's judgment in this matter. 193I agree with course to be taken and the form of orders proposed by Basten JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2011