Ku-ring-gai Council v Mr Garry West as delegate of the Acting Director-General, Office of Local Government [2016] NSWLEC 118

Land and Environment Court New South Wales

Medium Neutral Citation: Ku-ring-gai Council v Mr Garry West as delegate of the Acting Director-General, Office of Local Government [2016] NSWLEC 118 Hearing dates: 2 and 7 June 2016; written submissions 24 June 2016 Date of orders: 20 September 2016 Decision date: 20 September 2016 Jurisdiction: Class 4 Before: Moore J Decision: See orders at [185] Catchwords: JUDICIAL REVIEW – proposal for amalgamation of local government areas – Minister's referral of proposal to Departmental Chief Executive for examination and report– inquiry required to be held – Chief Executive appoints Delegate to conduct inquiry – whether reasonable public notice given of the holding of inquiry – whether difference between state-wide published notice and locally published notice was a material defect in the requirement for reasonable public notice – whether identification of location of public inquiry sessions adequate – whether inquiry held in accordance with Act – whether examination and report on proposal in accordance with Act – whether the Delegate misdirected himself on matters of rating equity – whether the Delegate misdirected himself on the need to consider the impact of all residents and ratepayers (including on those of an area proposed to be excised) – whether an affected council denied procedural fairness by Delegate – review and comment on Delegate's report by Boundaries Commission – whether review conducted in accordance with Act – whether affected council denied procedural fairness by Boundaries Commission – publicly accessible material in support of proposal represented that KPMG analysis and modelling was independent – whether representations misleading – whether allegedly misleading representations invalidated statutory process of amalgamation – whether failure to provide all KPMG analysis and modelling material meant the council was denied procedural fairness – exercise of discretion where no utility in taking action based on sole ground made out proceedings dismissed COSTS – reservation of costs in circumstances where applicant is partially successful but no remedy appropriate Legislation Cited: Local Government Act 1993 ss 204, 213, 218, 218A, 218B, 218C, 218D, 218E, 218F, 218F(1), 218F(2), 218F(6), 218F(7), 218F(8), 260, 261, 262, 263, 263(1), 263(2), 263(2A), 263(2B), 263(3), 263(5), 263(7), 264, 265, 495, 498(1)(b), 538(1), 705, 706, Pts 1, 2 and 3 of Ch 9, Pt 2 of Ch 17, Sch 2 Local Government (City of Parramatta and Cumberland) Proclamation 2016 Local Government (Council Amalgamations) Proclamation 2016 Prices Regulation Act 1948 Cases Cited: Ainsworth v Criminal Justice Commission (1991-1992) 175 CLR 564 Barich v Parramatta City Council [2014] NSWLEC 1259 Barrak Corporation Pty Ltd v Parramatta City Council [2014] NSWLEC 1077 Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226; Botany Bay City Council v Minister for Local Government [2016] NSWCA 74 Botany Bay City Council v The State of New South Wales [2016] NSWCA 243 Botany Bay City Council v The State of New South Wales [2016] NSWSC 583 Council of the City of Sydney v South Sydney City Council [2002] NSWLEC 129 Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2016] NSWLEC 124 Ku-ring-gai Council v Mr Garry West in his capacity as delegate of the Acting Director-General of the Office of Local Government [2016] NSWLEC 62 Shellharbour City Council v Minister for Local Government [2016] NSWLEC 119 Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591; [2000] HCA 11 Walcha Council and Ors v Minister for Local Government and Ors [2016] NSWLEC 57 Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25 Woollahra Municipal Council v Minister for Local Government [2016] NSWLEC 44 Woollahra Municipal Council v Minister for Local Government [2016] NSWLEC 86 Category: Principal judgment Parties: Ku-ring-gai Council (Applicant) Mr Garry West (in his capacity as Delegate of the Acting Director-General, Office of Local Government (First Respondent) NSW Department of Premier & Cabinet (Second Respondent) Minister for Local Government (Third Respondent) NSW Local Government Boundaries Commission (Fourth Respondent) Representation: Counsel: Mr G Kennett SC/ Mr C McMeniman and Ms V McWilliam (on 3 June 2016), barristers (Applicant) Mr N J Williams SC/Ms A Mitchelmore, Mr J Hutton, Dr J Lucy, Ms M Ellicott, barristers (Respondents)