In Bayside Council v V Corp Constructions Pty Ltd , development consent had been approved by the Council on condition that existing above ground cables be replaced with underground cables. By statute, this could only be done with the permission of Energy Australia. The contract was entered into on these terms. Energy Australia then refused permission to put in underground cables, and Council accepted $10,000 benefit in lieu of the terms of the deed requiring replacement of the cables.
The issue before the NSW Court of Appeal was whether the failure to put in underground cables constituted breach of the development consent. The Court found that there was no breach. It was not possible to put in underground cables without permission from Energy Australia, and the Council had accepted payment in lieu of this condition. The developer was there under no obligation to replace aerial cables with underground cables.