(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.