Land and Environment Court New South Wales Medium Neutral Citation: 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 Hearing dates: 30, 31 May, 1, 3, 6, 8, 10, 15, 16, 17 June and 4 July 2016; written submissions 10 August 2016 Date of orders: 20 September 2016 Decision date: 20 September 2016 Jurisdiction: Class 4 Before: Moore J Decision: Orders in Matter No 158774 of 2016 at [524] Orders in Matter No 161918 of 2016 at [525] Orders in Matter No 155301 of 2016 at [528] Orders in Matter No 158919 of 2016 at [527] Orders in Matter No 158221 of 2016 at [526] 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 identification of locations of public inquiry sessions adequate – whether inquiry sessions needed to be held in each area proposed to be amalgamated – whether inquiry held in accordance with Act – whether examinations and reports on proposals in accordance with Act – whether affected councils denied procedural fairness by Delegate – 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 WORDS AND PHRASES – requirement for local government areas proposed to be amalgamated to be contiguous – term not defined in legislation – meaning of contiguous – requirement of contiguous areas to be touching – statutory provision deeming extension of local government areas below low-water mark in certain circumstances – areas deemed to be extended – areas therefore contiguous Legislation Cited: Acts Interpretation Act 1931 (Tasmania), s 46 Civil Procedure Act 2005, s 98 Environmental Planning and Assessment Act 1979 Local Government Act 1906, ss 3 and 15(1)(a) Local Government Act 1919, ss 4, 16(e) and 18 Local Government Act 1993 ss 46, 47, 204, 205(3), 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, 702, 705, 706, 713 Pts 1, 2 and 3 of Ch 6, 9, Pt 2 of Ch 17, Sch 2 Local Government (Bayside) Proclamation 2016 Local Government (Council Amalgamations) Proclamation 2016 Interpretation Act 1987, s 34(2) Prices Regulation Act 1948 Uniform Civil Procedure Rules 2005 Pt 42 r 42.1 Cases Cited: Ainsworth v Criminal Justice Commission (1991-1992) 175 CLR 564 Albion Insurance Company Limited v Government Insurance Office (NSW) (1969) 121 CLR 342 Anderson v Minister for Infrastructure, Planning and Natural Resources (2006) 151 LGERA 229; [2006] NSWLEC 725 Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 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 and Minister for Local Government [2016] NSWSC 583 Castle Constructions Pty Limited v North Sydney Council & Anor [2008] NSWLEC 137 Casuarina Beach Holdings Pty Limited v Tweed Shire Council [2013] NSWLEC 1214 Cave v Horsell [1912] 3 KB 533 Commonwealth of Virginia v Comptroller of the Currency, 333F. Supp. 847 (1971) Coverdale v West Coast Council (2016) 90 ALJR 562; [2016] HCA 15 First Federal Savings and Loan Association v the State of New Hampshire Board 245 A.2d 835 (1969) Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 Geneff v Shire of Perth (1966) 14 LGRA 145 Haynes v King [1893] 3 Ch 439 Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 House of Peace Pty Ltd & Anor v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440; [2000] NSWCA 44 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349; Kioa v West [1985] 159 CLR 550 Ku-ring-gai Council v Mr Garry West in his capacity as delegate of the Acting Director-General of the Office of Local Government & Ors [2016] NSWLEC 62 Ku-ring-gai Council v Mr Garry West in his capacity as Delegate of the Acting Director-General of the Office of Local Government (No 2) [2016] NSWLEC 118 Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 Michael Realty Pty Ltd v Carr (1975) 2 NSWLR 812 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 75 ALJR 1105; [2001] HCA 30 Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381; [2002] NSWCA 288 Pancho Properties Pty Ltd v Wingecarribbee Shire Council (1999) 110 LGERA 352; [1999] NSWLEC 245 Permanent Trustee Company of New South Wales Limited v Council of the Municipality of Campbelltown and Another [1960] 105 CLR 401 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490; 72 ALJR 841; [1998] HCA 28 Risk v The Northern Territory of Australia (2002) 210 CLR 392; [2002] HCA 23 Rivers SOS Inc v Minister for Planning (2009) 178 LGERA 347; [2009] NSWLEC 213 Robson v Tweed Council [2000] NSWLEC 170 Ryan v Edna May Junction Gold Mining (1916) 21 CLR 487 Scurr v Brisbane City Council (1973) 133 CLR 242 SZSSJ v Minister for Immigration and Border Protection (No 2) (2015) 234 FCR 1; [2015] FCAFC 125 Sharples v Minister for Local Government (2008) 166 LGERA 302; [2008] NSWLEC 328 Shellharbour City Council v Minister for Local Government (No 2) [2016] NSWLEC 119 TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68 Spillers Limited v Cardiff (Borough) Assessment Committee [1931] 2 KB 21 Truth about Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591; [2000] HCA 11 Waihi Grand Junction Gold-Mining Co Ltd v Dudson (1909) 29 NZLR 499 Walcha Council and Ors v Minister for Local Government and Ors [2016] NSWLEC 57 Walsh v Visionstream Pty Limited [2004] NSWCA 104 Waterford v The Commonwealth (1987) 163 CLR 54; [1987] HCA 25 Waterways Authority of New South Wales v Coal and Allied Operations Pty Limited [2005] NSWSC 1285 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: Matter No 158774 of 2016 Hunter's Hill Council (Applicant) Minister for Local Government (First Respondent) Dr Robert Lang (Second Respondent) Chief Executive, Office of Local Government (Third Respondent) Local Government Boundaries Commission (Fourth Respondent) Lane Cove Council (Fifth Respondent) City of Ryde Council (Sixth Respondent) Matter No 161918 of 2016 Lane Cove Council (Applicant) Minister for Local Government (First Respondent) Dr Robert Lang (Second Respondent) Chief Executive, Office of Local Government (Third Respondent) Local Government Boundaries Commission (Fourth Respondent) Hunter's Hill Council (Fifth Respondent) City of Ryde Council (Sixth Respondent) Matter No 155301 of 2016 Mosman Municipal Council (Applicant) Minister for Local Government (First Respondent) Chief Executive of the Office of Local Government (Second Respondent) Michael Bullen (Third Respondent) Ian Reynolds (Fourth Respondent) North Sydney Council (Fifth Respondent) Willoughby City Council (Sixth Respondent) Local Government Boundaries Commission (Seventh Respondent) Matter No 158919 of 2016 North Sydney Council (Applicant) Minister for Local Government (First Respondent) Ian Reynolds (Second Respondent) Chief Executive, Office of Local Government (Third Respondent) Local Government Boundaries Commission (Fourth Respondent) Willoughby City Council (Fifth Respondent) Mosman Municipal Council (Sixth Respondent) Matter No 158221 of 2016 Strathfield Municipal Council (Applicant) Minister for Local Government (First Respondent) Richard Colley (Second Respondent) Chief Executive, Office of Local Government (Third Respondent) Local Government Boundaries Commission (Fourth Respondent) Burwood Council (Fifth Respondent) City of Canada Bay Council (Sixth Respondent) Representation: Advocates' appearances for the Applicants across the hearing dates: Mr T F Robertson SC and Mr J E Lazarus and Ms J Walker, barristers (Hunter's Hill, Lane Cove, Mosman and Strathfield Councils) Mr A Galasso SC and Mr J E Lazarus, barrister (North Sydney Council) Advocates' appearances for the Crown Respondents across the hearing dates: Mr N Hutley SC/Mr N J Williams SC Ms A Mitchelmore, Mr J Hutton, Ms B Anniwell, Mr T E O'Brien, Ms F Gordon, Ms M Ellicott and Mr D Birch, barristers Solicitors: HWL Ebsworth Lawyers (Hunter's Hill Council) HWL Ebsworth Lawyers (Lane Cove Council) Pikes & Verekers Lawyers (Mosman Municipal Council) Matthews Folbigg Pty Ltd (North Sydney Council) HWL Ebsworth Lawyers (Strathfield Council) Crown Solicitor's Office (Respondents) File Number(s): 158774 of 2016161918 of 2016155301 of 2016158919 of 2016158221 of 2016 Publication restriction: No TABLE OF CONTENTS Summary of findings and outcomes Introduction Common complaints The proposed Hunter's Hill, Lane Cove and Ryde amalgamation The proposed Mosman, North Sydney and Willoughby amalgamation The proposed Burwood, Canada Bay and Strathfield amalgamation Costs Local government in New South Wales The broad government amalgamation policy The government announcements The Minister's amalgamation proposal documents The amalgamation proposals challenged Submissions to the Minister on the Delegates' reports Other challenges The Woollahra decision The Botany Bay City Council decision Ku-ring-gai and Shellharbour challenges The country amalgamation challenges The Minister's 2016 merger documents The merger proposals The remainder of the documents The various versions of the Minister's documents The KPMG material The Crown immunity determinations The other KPMG material The structure of this decision The Local Government Act framework The common bases for challenge Adequacy of public notice Conduct of the inquiry The Delegates' reports The role of the Boundaries Commission The KPMG issues Independence Access to the full KPMG reports to government The specific bases for challenge Introduction Hunter's Hill and Lane Cove Councils The financial analysis issue The Lane Cove River issue The Delegate's taking into account undisclosed information Mosman Municipal and North Sydney Councils Splitting of a single delegation concerning two proposals Failure to consider submissions for other proposals The adequacy of the Delegate's report Mosman Municipal Council Failure to conduct a poll North Sydney Council Failure to hold public sessions in the North Sydney local government area Strathfield Municipal Council The common bases for challenge Adequacy of public notice of the inquiries Scope of the public notification Conduct of the inquiry The Delegates' reports The KPMG issues The independence complaint The failure to provide all the KPMG material General Minister for Immigration and Border Protection v SZSSJ The specific defect in the KPMG argument for the Mosman, North Sydney and Willoughby merger process The specific bases for challenge Introduction Hunter's Hill, Lane Cove and Strathfield Municipal Councils Adequacy of the notice – identification of the inquiry's location Hunter's Hill and Lane Cove Councils Financial advantages and disadvantages – Ground 4 The Lane Cove River – Ground 7 The opposing positions Other relevant statutory provisions Introduction The potentially relevant legislative history Submissions on the legislative context Conclusion on the present legislative context Extrinsic material "Contiguous" – an undefined term Dictionary definitions The Respondents' written submissions on contiguity Potential relevant judicial determinations Hornsby Shire Council v Malcolm Conclusion on "contiguous" The s 205(3) expansionary possibility Conclusion on s 205(3)(b) Reliance on undisclosed information – Ground 8 Lane Cove Council Mosman and North Sydney Councils The dual delegation and its asserted invalidity Failure to consider submissions for other proposals The adequacy of the Delegate's report Introduction Failure to have regard to s 263(3)(a) as required Provision of adequate, equitable and appropriate services and facilities Section 263(3)(e5) and what are "each of the diverse communities"? Mosman Municipal Council The refusal to hold a poll North Sydney Council Failure to hold a meeting in the North Sydney local government area Strathfield Municipal Council The adequacy of the Delegate's report Introduction The Boundaries Commission's general position Financial matters Community interest and geographic cohesion Representation of diverse communities Conclusion on the adequacy of the Delegate's report The appropriate form of relief Costs Conclusions Hunter's Hill and Lane Cove Councils Mosman and North Sydney Councils Strathfield Municipal Council Orders Hunter's Hill Council matter Lane Cove Council matter Mosman Municipal Council matter North Sydney Council matter Strathfield Municipal Council matter Judgment Summary of findings and outcomes Introduction 1. Given the length and complexity of the issues requiring to be considered in these five proceedings, it is appropriate to commence this judgment with a short summary of the findings and outcomes for each of the five challenges that have been made by Councils to their proposed amalgamation. Although some of the complaints about the process that have been made from individual Councils relating only to the process that concerned them, my findings, and the outcomes that flow from them, can conveniently be dealt with in four groups. What follows is but a very abbreviated summary set out in this fashion. Common complaints 1. All five Councils raised a number of common complaints about the process. Each of those complaints has been considered and determined on an "all in" basis. I am satisfied that all the common complaints are without foundation and that the various grounds pleaded by each of the Councils concerning them fail. The proposed Hunter's Hill, Lane Cove and Ryde amalgamation 1. There were several specific complaints raised about the process involved in the consideration of this proposed amalgamation. I am satisfied that each of those complaints is without foundation. The necessary outcome of this is that the challenges by Hunter's Hill and Lane Cove Councils are rejected and these two proceedings dismissed. The proposed Mosman, North Sydney and Willoughby amalgamation 1. I have concluded that only one of the specific complaints raised by the Councils which challenged this amalgamation is valid. This means that the Delegate who had been assigned the task of inquiring into, and reporting on, this proposed amalgamation had failed, adequately, to have regard to one aspect of the elements mandated by s 263(3) of the Local Government Act 1993 (the Local Government Act) as part of his inquiring into and reporting upon this proposed amalgamation. 2. The consequence of this failure is that the report prepared by the Delegate, and provided by him to the Local Government Boundaries Commission (Boundaries Commission) and the Minister, does not constitute a report, in this regard, in satisfaction of the statutory requirements of the Local Government Act. 3. The outcome is that the Delegate has not completed the task for which he was appointed and thus, at the present time, there is no proper statutory foundation for this proposed amalgamation. This means that this proposed amalgamation remains in the hands of the Delegate. The proposed Burwood, Canada Bay and Strathfield amalgamation 1. With respect to this challenge, the Minister and the other Respondents have conceded that, for one of the mandatory matters in s 263(3) of the Local Government Act, the Delegate failed, adequately, to have regard to that matter as part of his inquiring into and reporting upon this proposed amalgamation. I am satisfied that that concession was appropriately made. 2. I have also concluded that, with respect to a second of the mandatory matters in s 263(3), the Delegate also failed, adequately, to have regard to that matter as part of his inquiring into and reporting upon this proposed amalgamation. 3. The consequence of these failures is that the report prepared by the Delegate, and provided by him to the Boundaries Commission and the Minister, does not constitute a report, in this regard, in satisfaction of the statutory requirements of the Local Government Act. 4. The outcome is that the Delegate has not completed the task for which he was appointed and thus, at the present time, there is no proper statutory foundation for this proposed amalgamation. This means that this proposed amalgamation remains in the hands of the Delegate. Costs 1. As the presumption is that, in proceedings such as these, costs follow the event (Pt 42 r 42.1 of the Uniform Civil Procedure Rules 2005), I propose to order that the relevant unsuccessful parties (Hunter's Hill and Lane Cove Councils, in their challenges, and the Minister and the other Crown Respondents in the remaining challenges) pay the costs of the successful parties. 2. However, I do not propose to make these costs orders immediately but to defer their making for two weeks to enable all parties to consider whether they wish to make any application for a different costs order in any of the proceedings. Local government in New South Wales The broad government amalgamation policy 1. In 2015, the New South Wales Government took a policy decision to explore options for amalgamations of local government councils throughout the state. As part of that process, the government commissioned external advice from KPMG, a major consulting firm. After consideration of that advice, the government determined to develop a number of amalgamation proposals (including some in the alternative) and commence processes under the Local Government Act that would permit preferred (and proposed for implementation) amalgamation options, were they to eventuate, to be given effect. 2. As the culmination of that process, a process requiring detailed consideration in the instances raised in these proceedings, the government determined to go ahead with a number of amalgamations, but also determined that some other amalgamation proposals that had been investigated were not to go ahead. 3. These abandoned amalgamation proposals included a number of alternatives to amalgamation proposals that the government wishes to proceed and which are being challenged in these proceedings. Details of the proposals that were considered, but not proceeded with, were available on a government website. The government announcements 1. On 18 December 2015, the Hon Mike Baird MP, the Premier, and the Hon Paul Toole, Minister for Local Government (the Minister), issued a joint press release entitled "Stronger Councils for Sydney and Regional New South Wales". Relevantly, the press release contained eight paragraphs (non-consecutive ones) that are potentially relevant to these proceedings. Those paragraphs said: STRONGER COUNCILS FOR SYDNEY AND REGIONAL NEW SOUTH WALES … "The community expects a stronger local government system that can deliver the infrastructure and services they deserve, while keeping rates stable", Mr Baird said. In Greater Sydney, the NSW Government is proposing 15 new, stronger councils to help the city grow, which would bring the total number of metropolitan councils down from 43 to 25. … "Importantly, fewer councils will mean a big reduction in red tape for the NSW community and the businesses that work with councils", Mr Baird said. Independent analysis by KPMG of the New South Wales Government's proposed mergers show significant financial benefits for NSW of up to $2 billion that can be invested in new infrastructure, improved services or keeping rates stable. … The NSW government is using the existing process set out in the Local Government Act to consider council mergers. … Detailed merger proposals are now being finalised and will be referred to the Chief Executive of the Office of Local Government (OLG) for examination and report under the existing process set out in the Local Government Act. The Chief Executive will appoint qualified Delegates, who will commence a public consultation process for all 35 proposals, including public hearings. Following this stage, final proposals will be referred to the Boundaries Commission for comment. … 1. At about the same time (and dated December 2015), the government released a document entitled "Local Government Reform Merger Impacts and Analysis". The document set out seven findings said to arise from this analysis. The findings were in the following terms: * the proposed mergers have the potential to generate a net financial benefit to local councils of around $2.0 billion across NSW over the next 20 years; * an estimated $1.3 billion in net financial savings will be generated over a 20 year period; * the estimated costs of the mergers are expected to be absorbed by efficiencies generated by the mergers within three years of implementation; * the proposed mergers are expected to generate, on average, $100 million in benefits to local councils every year; * savings generated by the proposed mergers will be used to improve frontline services, and fund new community amenities and infrastructure – from better local roads and cycleways, to upgraded parks and recreational facilities; * savings can also be used to repair and replace council-owned assets, many of which are in poor condition; and * the proposed mergers will result in simplified council regulations through the removal of inconsistencies that currently exist between councils. This will benefit local residents and businesses and streamline the way the community interacts with councils. Reduced layers of regulations will make it easier for people to do business, build homes and access services they need. 1. The report noted: This report has been prepared by KPMG on behalf of the NSW government. Its preparation has relied upon information sourced from annual data returns and long-term financial plans of individual councils, and a variety of other publicly available sources. Neither KPMG nor the NSW government has independently verified such information. 1. This document dealt with matters at a considerable level of generality without dealing with individual councils or groups of councils. The Minister's amalgamation proposal documents 1. The Minister effected, publicly at least, commencement of the suite of amalgamation processes (of which these challenges form part) by releasing documents advancing each such proposed amalgamation. 2. Relevantly, on 6 January 2016, the Minister released a document entitled "Merger Proposal: Hunter's Hill Council, Lane Cove Council, City of Ryde Council", a document which commenced with a foreword signed by the Minister and which, in its Executive Summary, commenced with the following: This is a proposal by the Minister for Local Government under section 218E(1) of the Local Government Act (1993) for the merger of Hunter's Hill, Lane Cove and Ryde local government areas. This merger proposal sets out the impacts, benefits and opportunities of creating a new council. 1. The first sentence of that paragraph from the Introduction was footnoted with the footnote reading: The end result if the proposal is implemented is that a new local government area will be created. For simplicity throughout this document, we have referred to a new council rather than a new local government area. 1. Second, the document initiating the process for the Mosman Municipal, North Sydney and Willoughby City Councils merger proposal is entitled "Supporting Information for Merger Proposal: Mosman Municipal Council, North Sydney Council, Willoughby City Council" and is dated March 2016, with Exhibit 3 showing it as being dated on or about 9 March 2016. 2. However, it would seem that the proposal referred by the Minister to the Chief Executive, and then delegated to a Delegate, was formulated a little earlier than this (see letter from the Delegate to the General Manager of Willoughby City Council dated 26 February 2016 - a letter that says, inter alia, "a full copy of the proposal is attached" – Exhibit 3, Tab 12, folio 539). Nothing appears to turn on this difference in dates. 3. This proposal follows the same general form of that set out above for Hunter's Hill, Lane Cove and Ryde Councils, although the first paragraph in the Executive Summary is in different terms: A merger proposal for the local government areas of Mosman Municipal, North Sydney, and Willoughby City has been referred for examination and report under the Local Government Act (1993), as a consequence of a council initiated proposal to merge the local government areas of Manly, Pittwater and Warringah. 1. An identical footnote reference to that earlier set out was included. There are two differences requiring later consideration between the Hunter's Hill, Lane Cove and Ryde Councils document, on one hand, and the Mosman Municipal, North Sydney and Willoughby City Council document on the other. 2. First, it is to be observed that, in the Executive Summary for the first document, a paragraph appears in the following terms: The proposal has been informed by four years of extensive Council and community consultation and is supported by independent analysis and modelling by KPMG. 1. No paragraph in or to the effect of those terms appears in the Mosman Municipal, North Sydney and Willoughby City Councils merger proposal document. 2. Second, although the Mosman Municipal, North Sydney and Willoughby City Councils proposal had arisen as a consequence of a proposal to amalgamate Manly, Pittwater and Warringah local government areas (a proposal subsequently implemented by the Local Government (Council Amalgamations) Proclamation 2016 (the May Proclamation)), this document clearly notes that: The government's original proposal to merge the local government areas of Manly, Mosman Municipal and part of Warringah remains under consideration. 1. Both these differing aspects of the Mosman Municipal, North Sydney and Willoughby City Councils merger proposal document require further subsequent consideration. 2. The merger proposal for Burwood, City of Canada Bay and Strathfield local government areas is, with respect to the matters set out from the Hunter's Hill, Lane Cove and Ryde Councils' proposal, in identical terms, with merely the relevant council names changed. The paragraph set out above concerning independent analysis and modelling by KPMG is in the Burwood, City of Canada Bay and Strathfield Municipal Councils document in identical terms to that set out for the Hunter's Hill, Lane Cove and Ryde Councils' document. 3. The characterisation of the remainder of the material in these various documents is discussed later. The amalgamation proposals challenged 1. This judgment deals with five challenges to proposed amalgamations of local government areas covering suburbs in closer-in northern/western portions of Sydney's metropolitan area. The Councils that have commenced these proceeding are: * Hunter's Hill Council; * Lane Cove Council; * Mosman Municipal Council; * North Sydney Council; and * Strathfield Municipal Council 1. Because of the structure of the relevant amalgamation proposals formulated by the Minister for Local Government, there are only three amalgamation proposals under consideration in these five proceedings. Those proposals are: * Amalgamation of the Hunter's Hill, Lane Cove and Ryde local government areas; * Amalgamation of the Mosman, North Sydney and Willoughby local government areas; and * Amalgamation of the Burwood, Canada Bay and Strathfield local government areas. 1. All of the Councils carry the burden of proof on matters advanced in their case. 2. All five proceedings were heard together, as there are significant common legal issues involved. However, each Council also raised a limited range of individual issues pressed in that Council's case as supporting, separately, that Council's challenge to its proposed amalgamation. 3. In each of these proceedings, the Minister gave an undertaking that he would not provide any recommendation to the Governor proposing amalgamations for any of these Councils until two business days after the handing down of this judgment. This arises as, if the Governor-in-Council were to receive such a recommendation and give effect to it by proclamation involving one or more of these five Councils, the amalgamated councils would, effectively, cease to exist and these proceedings rendered futile (an explanation of the reasons how this would come to pass can be seen in my judgment concerning Gundagai Council, a Council which was amalgamated by the May Proclamation during the course of the proceedings it initiated as part of a group of challenges to amalgamation by rural councils – see Walcha Council v Minister for Local Government [2016] NSWLEC 57). 4. Because of the large volume of documentary material that was tendered as evidence in these five proceedings, with the agreement of the parties I made the formal ruling that evidence and submissions in each set of proceedings would be evidence and submissions in all other sets of the proceedings to the extent relevant. 5. Taking this procedural step had the effect of simplifying, considerably, the management of the materials and reduced the necessity to write individual judgment elements concerning the issues in common to all of these proceedings. This procedurally common approach, undertaken with considerable goodwill by the legal representatives of the Councils and of the Crown Respondents, enabled an efficient running of the hearings and has assisted in shortening the time taken to produce this judgment. 6. For convenience, I refer to the various Crown Respondents collectively as the Respondents unless the context requires some specific identification. Submissions to the Minister on the Delegates' reports 1. The Councils have all complained that they had not been given an opportunity to make submissions to the Minister on the matters canvassed by the relevant Delegate in that Delegate's report that had been provided to the Boundaries Commission and to the Minister. 2. During the course of the proceedings, I was advised that the Minister had now agreed to receive and consider submissions from the Councils about the relevant Delegate's report. Indeed, during the course the proceedings, the time permitted by the Minister for the making of such submissions was subsequently sufficiently extended to allow reasonable time for such submissions. 3. Whether or not this was a valid basis for complaint in the original circumstances of these challenges is a matter that I do not need to explore in light of the Minister having responded to these complaints in the fashion here noted. 4. I am satisfied, overall, in the context of these proceedings, that the opportunity that had been afforded to the Councils by the Minister's agreement to receive and consider submissions was not unreasonable and there is, now, no maintainable basis for complaint founded on this premise. Other challenges The Woollahra decision 1. Woollahra Council had challenged its proposed amalgamation with Waverley and Randwick Councils in proceedings that were heard and determined by Preston CJ. 2. On 20 July 2016, his Honour handed down a comprehensive decision in Woollahra Municipal Council v Minister for Local Government [2016] NSWLEC 86, rejecting all grounds upon which this proposed amalgamation had been challenged. Whilst there is not complete coincidence between the bases of challenge advanced in those proceedings and those which are engaged in the five matters here being considered, there is a significant degree of similarity in approach taken by the challenging councils. 3. After the Chief Judge had given his decision in Woollahra, the representatives of the Councils sought leave to make further submissions concerning his Honour's decision (and also concerning a decision of 27 July 2016 of the High Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 - a decision dealt with in more detail in my consideration of the grounds relating to the KPMG material). 4. I granted leave for such further submissions and adopted the proposed short timetable for the Councils and the Respondents (in reply) to furnish those submissions. When received, the submissions for the Councils noted that, with respect to the Chief Judge's decision: These submissions respond to that decision to the extent that there are issues in common with these proceedings. 1. With respect to the Chief Judge's decision, the Councils also submitted: The fact that a decision has been made by another judge at first instance addressing some of the same legal principles does not create a precedent, and does not relieve the Court of the duty to bring its own judgment to bear on the legal questions in issue. However, a judge at first instance usually will follow the decision of another judge at first instance unless convinced that it is wrong. 1. In support of this proposition, three decisions were cited: Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812, a decision of Holland J in the Supreme Court, and those of the Chief Judge of this Court in Rivers SOS Inc v Minister for Planning (2009) 178 LGERA 347; [2009] NSWLEC 213 and Talbot J in Pancho Properties Pty Ltd v Wingecarribbee Shire Council (1999) 110 LGERA 352; [1999] NSWLEC 245. In Michael Realty, Holland J cited the decision of the High Court in Albion Insurance Company Limited v Government Insurance Office (NSW) (1969) 121 CLR 342, where a first instance judge had adopted the conclusions of another first instance judge as a matter of comity without giving the matter fresh consideration (Kitto J at 349). 2. The Respondents noted, in response, on the issue of the extent to which the Chief Judge's decision was properly engaged in my consideration in these five proceedings: 12. The Councils' further submissions dated 5 August 2016 amount to no more than a hopeless attempt to denigrate the Chief Judge's reasoning as "plainly wrong" or to conjure up distinctions of fact or law which are in truth non-existent. 13. The Woollahra Judgment should be followed in these proceedings unless it is plainly wrong: Green v The Queen (2011) 244 CLR 462 at [84] (Heydon J); Infomax International Pty Ltd v Clarius Group Pty Ltd (2011) 192 FCR 210 at [53] (Perram J); Infomax International Pty Ltd v Clarius Group Ltd (2012) 207 FCR 298 at [26] (Full Court). To be satisfied that the Woollahra Judgment is plainly wrong, this Court must hold "strong convictions" as to its incorrectness; it is not enough that reasonable judicial minds may differ: Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 100 (Gleeson CJ); Queensland v Commonwealth (1977) 139 CLR 585 at 603 (Stephen J). 14. For the detailed reasons provided in the Woollahra Judgment, it is correct, and should be followed. Nothing that is said in the Councils' latest set of written submissions demonstrates that it is plainly wrong or that it ought not be applied. 1. I have carefully considered how I should proceed, in these five matters (given the decision of the Chief Judge in Woollahra on the general issues that are in common with these proceedings), to deal with each such issue in a fashion addressing his relevant determination which was based on the material submitted to him in those proceedings. 2. Although, in these five proceedings, the common issues are essentially the same as those dealt with by the Chief Judge, a close reading of his Honour's judgment discloses that the approach taken in these proceedings has differed, at least to some extent, when compared to the approach taken by the applicant Council in the Woollahra proceedings (the Respondents' responses in Woollahra, necessarily, addressing the matters raised by the applicant Council in those proceedings). 3. As a consequence, although the framework for analysis in Woollahra is largely replicated in these five proceedings, the supplementary submissions made to me by the Councils in response to his Honour's decision set out why the Councils in these proceedings say that there are sufficient material differences between the approach by them in these proceedings and that before his Honour in the Woollahra proceedings that I ought not consider myself obliged to follow his Honour on relevant matters. 4. I note, although it plays no part in the approach I set out below, that the decision of the Chief Judge in Woollahra is now subject to appeal (with that appeal having been heard and the decision reserved). 5. I have concluded that the appropriate approach for me to adopt is, under the heading of each relevant general issue, to set out the conclusions that his Honour reached on that point in the Woollahra proceedings (it does not seem to me to be necessary to set out the submissions that led him to reach the conclusion set out in his analysis on each point) and then to set out (and respond to) the further submissions by the Councils and the response to those submissions provided by the Respondents in these proceedings on that general point. 6. In doing so, the course followed by me was for me to consider whether, in light of those submissions and the reply submissions, there was any proper basis, on each relevant general point, for me to depart from the conclusion reached by the Chief Judge in Woollahra on that same point. 7. However, I observe that, although my analysis may differ somewhat, I reached the same conclusions as the Chief Judge on the common points. The Botany Bay City Council decision 1. Botany Bay City Council had challenged its proposed amalgamation with Rockdale Council. This challenge was mounted in the Supreme Court of New South Wales and was heard, in the first instance, by Garling J (see Botany Bay City Council v The State of New South Wales and Minister for Local Government [2016] NSWSC 583). The bases upon which that challenge was mounted were somewhat different to those which have been pursued in the challenges litigated in this Court. However, in one aspect, that of the role of the Boundaries Commission in the statutory process requiring consideration, the decision of Garling J is relevant and is discussed later. 2. Garling J's decision, rejecting the challenge to the proposed amalgamation, has been upheld by the New South Wales Court of Appeal (Botany Bay City Council v The State of New South Wales [2016] NSWCA 243). Botany Bay and Rockdale Councils were amalgamated on 9 September 2016 (Local Government (Bayside) Proclamation 2016). Ku-ring-gai and Shellharbour challenges 1. Ku-ring-gai Council and Shellharbour City Council have each, separately, commenced challenges to their proposed amalgamations. In the case of Ku‑ring-gai Council, the proposed amalgamation is with virtually (but not entirely) all of the Hornsby Shire Council local government area. Shellharbour City Council is proposed to be amalgamated with Wollongong City Council. These two proceedings, although with common legal representation (legal representation differing from that engaged in these five proceedings), have been heard separately by me. 2. Although many of the issues in each of those proceedings also have a deal of commonality with those determined in Woollahra and these proceedings, the bases upon which those common issues were addressed in each of those proceedings also differed, but only in inconsequential aspects, from the approaches taken in these proceedings. 3. In addition, in each of the Ku-ring-gai and Shellharbour proceedings, individual matters arising from the provisions of s 263 of the Local Government Act have been pleaded – with it being said in each proceedings that the matters so pleaded should lead to the conclusion that the process undertaken by the relevant Delegate had failed. 4. My decisions in each of those proceedings were delivered on the same day as this decision (see Ku-ring-Gai Council v Mr Garry West (in his capacity as Delegate of the Acting Director-General, Office of Local Government) (No 2) [2016] NSWLEC 118 and Shellharbour City Council v Minister for Local Government (No 2) [2016] NSWLEC 119) The country amalgamation challenges 1. Finally, challenges concerning the proposed amalgamation of three country councils (Cabonne, Oberon and Walcha Councils) with what the government considers to be their relevant neighbouring council, have been commenced. A challenge to the amalgamation of Gundagai and Cootamundra Councils (this amalgamation having been effected by the Local Government (Council Amalgamations) Proclamation 2016 on 12 May 2016) has been continued but is so continued by the former Mayor and former Deputy Mayor of the former Gundagai Council (as individual plaintiffs) as a consequence of my decision in Walcha. 2. The Walcha challenge was discontinued but the others remain to be determined. 3. These challenges have been heard together by Preston CJ whose decision remains reserved as at the date of this decision. The Minister's 2016 merger documents The merger proposals 1. I have earlier outlined the broad nature of the documents released by the Minister in early January (for the proposed Hunter's Hill, Lane Cove and Ryde merger and the proposed Burwood, City of Canada Bay and Strathfield merger) and late February (for the Mosman, North Sydney and Willoughby proposed merger). As also earlier noted, these documents set out the proposal that was referred to each Delegate. The remainder of the documents 1. Each of the relevant Ministerial documents commenced with a foreword signed by the Minister and which, in its Executive Summary, commenced with the following: This is a proposal by the Minister for Local Government under section 218E(1) of the Local Government Act (1993) for the merger of …………………… local government areas. This merger proposal sets out the impacts, benefits and opportunities of creating a new council. 1. As earlier noted, the first sentence of that paragraph from the Introduction was footnoted, in each instance, with the footnote reading: The end result if the proposal is implemented is that a new local government area will be created. For simplicity throughout this document, we have referred to a new council rather than a new local government area. 1. The documents, beyond the terms of the introductory sentence (and its footnote set out above), contain what can only be regarded as material of an advocacy nature that seeks to explain and justify that which is set out, with sufficient precision, in the first sentence earlier described. 2. The terms of the explanatory material, in addition to canvassing a wide range of matters, also set out, with mapped information, a visual explanation of that which is set out at the commencement of the document. There is nothing contained in the document that could be regarded as enlarging the scope of the proposal as set out in that first sentence and as confirmed to be the Minister's proposal by the footnote to it. 3. Finally, it is clear from the recent decision of the Court of Appeal in Botany Bay City Council v Minister for Local Government [2016] NSWCA 74 that this must be the case. The judgment of the Court (Bathurst CJ, Beazley P and Ward JA) said, at [38]: Section 263(1) requires the Boundaries Commission or the Departmental Chief Executive, as the case may be, "to examine and report on any matter with respect to the boundaries of [councils] which may be referred to it by the Minister". The phrase "any matter" is not defined and of itself may be taken to be of wide import. Likewise, the phrase "with respect to" is of wide import. However, there are two indications in subs (1) itself that its meaning is more confined. First, and most importantly, on the express words of the subsection, "any matter" is controlled by the phrase "which may be referred to it by the Minister". Secondly, any such matter must be "with respect to the boundaries of [councils]". Accordingly, what falls within s 263 for examination and report is any matter with respect to boundaries that is referred by the Minister. In this case, that was the Minister's proposal. 1. This, also, makes it expressly clear that a Ministerial (or any other) proposal for the amalgamation of local government areas, or the alteration of boundaries of local government areas, must be in a form that is of the precision contained in the first sentence of the Minister's documents described above for it to be referred for consideration by either the Boundaries Commission or the Chief Executive of the Office of Local Government. 2. However, the remainder of the document in each instance, comprising as it did an introductory statement by the Minister and then a range of material that was advanced as providing an outline of what was said to be the advantages of each proposed merger, should be regarded as the Minister's submission to the inquiry process that each Delegate was appointed to undertake pursuant to s 263 of the Local Government Act. Viewed correctly in this fashion, these submissions were required to be considered by each Delegate as part of that Delegate's process. 3. The Respondents submitted, on the status of the Ministerial documents and his Honour's analysis in Woollahra: 8. Third, contrary to the submissions of the Councils in these proceedings, Preston CJ held that the Proposal Document concerning the amalgamation was not the "proposal" for the purposes of section 263 of the Act, so the Delegate was not obliged to examine the claims of the Minister or KPMG contained in the Proposal Document ([160]). 1. Viewed properly, there is no vice in the various Delegates having had regard to the relevant Ministerial submission in each instance. The various versions of the Minister's documents 1. Although there were three copies of the Minister's Mosman Municipal, North Sydney and Willoughby City Councils' document tendered as part of Exhibit 1, an examination of the documents did not disclose any difference between them. However, for the Burwood, City of Canada Bay and Strathfield Municipal Councils Merger Proposal, there are also three iterations of the Minister's document in evidence. They are contained in Exhibit 2 behind Tabs 9, 10 and 11. 2. The version which is behind Tab 9 is described in the index to this exhibit as being dated 6 January 2016. On page 8 of this document, under the heading "Benefits, Opportunities and Impacts", there is a textual analysis based on material prepared by KPMG. In the middle of the page, there appears a graph, figure 4, entitled "Projected Operating Results for the Burwood, City of Canada Bay and Strathfield Municipal Councils - With and Without Merger." The graph is on a scale from -$10 million to +$60 million and covers the financial years 2017 to 2035. 3. The second and third versions of the document, behind Tabs 10 and 11, are described, in the index to the exhibit, as being dated on or about 20 January 2016 and on or about 19 February 2016, respectively. On page 8 of each of these documents, there is reproduced material that is also under the heading "Benefits, Opportunities and Impacts". The textual material on the page is in identical terms to that which appeared in the 6 January 2016 document. 4. However, for the latter two documents, the graph that is figure 4 is in different terms. First, the scale of the graph is confined to being from -$10 million to +$25 million, a matter that does not appear to import any material difference to the graph itself. However, for financial years 2017 and 2018, the line in the January graph bears no resemblance to the line at the relevant point in the graph in the latter two publications. 5. An examination of the Delegate's report inquiring into this proposed merger, dated March 2016, notes that: In January 2016, the Minister for Local Government, the Hon Paul Toole MP (the Minister) put forward a proposal to merge Burwood, City of Canada Bay and Strathfield Municipal Councils under section 218E of the Local Government Act (1993) (the Act) (see Appendix A). 1. Appendix A to the Delegate's report is the version of the merger proposal document that is in the latter two versions rather than in the earliest one. 2. Although the second (20 January 2016) version makes no commentary about this alteration, the third (19 February 2016) version does make a distinction by footnoting that figure 4 was corrected on 20 January 2016. 3. Although there is no evidence as to whether or not the correction to the graph was drawn to the attention of the three Councils or disclosed in any public fashion, the correction took place prior to the public inquiry sessions held on 4 February 2016. 4. Whatever the position concerning disclosure, it seems to me that, as is clear from the terms of the Delegate's discussion in his report, in "6.1 Financial Factors", where he dealt with the requirement to have regard to the financial advantages or disadvantages (including economies or diseconomies of scale) of any relevant proposals to the residents and ratepayers of the areas concerned (s 263(3)(a) of the Local Government Act), he has paid regard to the corrected version of the document. His considerations of the general KPMG independence issue (pleaded in the same general terms in all proceedings) and the specific question of the adequacy of the s 263(3)(a) analysis for these three Councils are dealt with separately later. 5. Each of the documents referred to work which had been commissioned by the government from KPMG as supporting the relevant merger proposal. In the document for each of the first two clusters of mergers (but not the Mosman, North Sydney and Willoughby proposal), the Minister's submission included, as earlier noted, a paragraph that indicated that the analysis provided by KPMG was independent of the government. 6. Each Delegate's report requiring consideration in these proceedings relied on the material provided by KPMG as set out in each of the Ministerial submissions to their inquiry as appropriate and acceptable information for their consideration of the economic issues to which they were obliged to have regard as a consequence of s 263(3)(a) of the Local Government Act. 7. The Councils' complaint concerning the role of KPMG was that it did not engage in the government's amalgamation process as an independent, arm's-length adviser but that it was an inextricably entwined active partner in the development of, and advocacy for, the overall local government amalgamation agenda. In particular, the Councils submit that this lack of independence poisoned the relevant element of the process that each Delegate was obliged to undertake. 8. To the extent that any Delegate had regard to the relevant Ministerial submission, there is no vice in that Delegate doing so in a general sense (matters of specific complaint about content – eg the KPMG material – are dealt with separately). The KPMG material The Crown immunity determinations 1. The role of KPMG as consultants to the New South Wales Government concerning the broad amalgamation process has been, both in broad and in specific aspects, the subject of considerable attention during the course of these proceedings. A significant volume of KPMG documentary material has been tendered, by both the Councils and the Respondents, in these proceedings. That material had emerged at differing stages throughout the hearing and has, as a consequence, required the Councils to seek leave to amend their pleadings. For the most part, the amendments were not opposed but it was necessary for me to rule on (and reject) one proposed further ground sought to be relied upon. 2. It is also to be observed that the effect of what has amounted to ongoing disclosure of this KPMG material may have contributed, if only marginally, to the length of the hearing of these proceedings. 3. Two decisions have been given concerning claims for Crown immunity said to attach to a small number of KPMG documents. The first decision, by Preston CJ in Woollahra Municipal Council v Minister for Local Government [2016] NSWLEC 44, upheld the claim of Crown immunity for three documents for which the immunity was sought. The second decision, given by me, (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), upheld the claim for Crown immunity being attached to two KPMG documents. In light of these decisions, although access to these documents had originally been sought on behalf of the Councils for the purposes of these proceedings, that point was not pressed during the course of the hearing. The other KPMG material 1. In order to understand the basis of the complaint by the Councils as to the role of KPMG in the development of and giving support to the government's amalgamation processes, a significant volume of documentary material was tendered. This included, late in the proceedings, the tendering by the Respondents of three lever-arch folders of material relating to KPMG's activities in (and involvement with) various aspects of the amalgamation policy development and implementation processes. 2. It was necessary to some devote additional hearing time, after this material was made available to the legal representatives of the Councils, for submissions to be made as to whether or not I should conclude, based on this material (and on a wide range of earlier tendered material concerning KPMG which I had been taken to in an earlier phase of the hearings), that the ground complaining of KPMG's lack of independence had infected the process was made out. The structure of this decision 1. Because of the commonality of submissions by the Councils and the Respondents in all five of these proceedings (where identical fundamental issues were pleaded), this decision deals with each of them under a common, relevant, broad heading in all five proceedings. 2. However, as a range of discrete issues were also pleaded, and thus require more specific consideration, each of those discrete issues is separately considered under the heading of the Council (or Councils) that raised it in the context of that Council's proceedings. Where a more specific matter has arisen in more than one proceedings (but not all), an aggregated decision on it has been given with respect to the topic – with that decision applying to the Council or Councils who pressed it. The Local Government Act framework 1. As indicated in the press release of the Premier and the Minister of 18 December 2015, the government determined that the process for consideration of these merger proposals would use existing processes set out in the Local Government Act for this purpose. There are two options for the carrying out of the process which can potentially lead to a recommendation from the Minister to the Governor-in-Council for a local government amalgamation. 2. The Chief Judge set out the available statutory processes for amalgamation and how the Minister has utilised them (by selection of the path for referral to the Chief Executive of the Office of Local Government and, hence, a Delegate) in Woollahra from [9] to [32]. The Chief Judge's analysis is in the following terms: 9. Division 1 of Pt 1 of Ch 9 of the Act provides for the constitution of land as a local government area and Div 1 of Pt 2 of Ch 9 provides for the constitution of a council to manage that area. The Governor may, by proclamation, constitute any part of New South Wales as an area: s 204(1) of the Act. The area is to have the boundaries determined by the Governor in the proclamation constituting the area: s 204(2) of the Act. 10. Division 2A of Pt 1 of Ch 9 of the Act prescribes how areas are amalgamated. The Governor may, by proclamation, amalgamate two or more areas into one or more new areas: s 218A(1) of the Act. On the date specified in the new proclamation as the date on which the areas are to be amalgamated, the areas are dissolved and the new area or areas are constituted: s 218A(2)(a) and (b) of the Act. 11. The proclamation of the Governor may include provisions of the kind referred to in s 213, as are necessary or convenient to give effect to the proclamation. The provisions include those for or with respect to the transfer or apportionment of assets, rights and liabilities; the transfer of staff; the alteration of ward boundaries; the holding of elections; the termination, cessation, dissolution or abolition of anything existing before the proclamation takes effect; the preservation or continuance of anything existing before the proclamation takes effect, amongst other matters: s 213(1) of the Act. 12. Division 2B of Pt 1 of Ch 9 of the Act prescribes the process that must be followed before the Governor can amalgamate areas. A function under s 218A to amalgamate areas may be exercised only after a proposal for the exercise of the function is dealt with under Div 2B: s 218D of the Act. 13. The first step in the process prescribed in Div 2B is the making of a proposal under s 218E of the Act to amalgamate areas. Three classes of persons may make a proposal under s 218E to amalgamate areas: the Minister, a council affected by the proposal, or an appropriate minimum number of electors: s 218E(1). Any one of these three classes of persons may initiate a proposal for amalgamation. The third class of persons is defined in s 218E(2). The appropriate minimum number of electors varies depending upon whether the proposal applies to the whole of one or more areas or only part of an area. In the first case, the minimum number of electors is 250 of the enrolled electors for each area or 10% of them, whichever is the greater, and in the second case, the minimum number of electors is 250 of the enrolled electors for the part of the area or 10% of them, whichever is the lesser: s 218E(2). 14. The second step in the process prescribed by Div 2B is the referral of the proposal for examination and report. On the Minister making a proposal or receiving a proposal from a council affected by the proposal or by an appropriate minimum number of electors, the Minister must refer the proposal for examination and report to either the Boundaries Commission or the Departmental Chief Executive: s 218F(1). 15. The "Boundaries Commission" means the Local Government Boundaries Commission constituted under the Act: see the Dictionary and Pt 3 of Ch 9 of the Act. The Boundaries Commission is a body corporate: s 260. It consists of four commissioners appointed by the Governor, of which one is to be a person nominated by the Minister, one is to be a person employed by the Department (Office of Local Government) nominated by the Departmental Chief Executive and two are to be persons appointed from a panel constituted under s 262(1) of the Act: s 261. This panel consists of eight persons who are councillors nominated by the Local Government and Shires Association of NSW: s 262(1). Schedule 2 of the Act contains further provisions on the membership of the Boundaries Commission and the procedure at meetings of the Boundaries Commission: s 261(5). 16. There are some similarities and some differences in the process of examination of and reporting on a proposal by the Boundaries Commission or the Departmental Chief Executive. The similarities concern the process of examination of a proposal (s 218F(2)) and the principal difference concerns the need for review and comment on a report of the examination of a proposal: s 218F(6). 17. The third step in the process prescribed by Div 2B is the examination of and report on the proposal by the person to whom the proposal has been referred. In this case, the Minister elected to refer the proposal he had made to the Departmental Chief Executive. Section 218F(2) of the Act provides that ss 263, 264 and 265 of the Act apply to the examination of a proposal by the Departmental Chief Executive in the same way as they apply to the examination of a proposal by the Boundaries Commission. 18. Section 263 specifies the functions of examining and reporting in relation to a proposal for the amalgamation of areas that has been referred under s 218F(1) and how these functions are to be exercised. 19. Subsection (1) imposes the functions of examining and reporting: the Boundaries Commission or Departmental Chief Executive "is required to examine and report on any matter with respect to the boundaries of areas … which may be referred to it by the Minister": s 263(1). 20. Subsections (2) and (2A) specify when an inquiry may, may not, or must be held for the purpose of exercising the functions under s 263 of the Act. Of relevance in this case is subsection (2A): the Boundaries Commission or Departmental Chief Executive "must hold an inquiry for the purpose of exercising its functions in relation to a proposal for the amalgamation of two or more areas that has been referred to it in accordance with section 218F". 21. Subsection (2B) requires that "[r]easonable public notice must be given of the holding of an inquiry under this section". Neither s 263 of the Act nor the regulations made under the Act prescribe the form or the content of the public notice required to be given or where or how the public notice is to be given. 22. The concept of "public notice" is referred to in s 705 of the Act, which provides: a) If the council or another person is required to give public notice under this Act, the notice must state the place at which, the dates on which, and the times during which the matter publicly notified may be inspected by the public. b) The notice is to be in the approved form. c) The notice is to be given in a manner determined by the council with the object of bringing the matter notified to the attention of as many people in its area as possible. 23. No form has been approved by the regulations made under the Act for the purposes of s 705(2). 24. However, this public notice referred to in s 705 may not be applicable to the public notice that is required to be given by the Boundaries Commission or the Departmental Chief Executive under s 263(2B) of the Act. The public notice referred to in s 705 is a public notice required to be given under the Act by a council. This is clear from the precondition in the opening words of s 705(1) "[i]f the council or another person is required to give public notice under this Act", the fact that the manner in which the notice is to be given is to be determined by the council (s 705(3)), the fact that the immediately following statutory provision (s 706) prescribes what must happen if and after public notice is given by a council, and the heading of Div 3 of Pt 2 of Ch 17 in which ss 705 and 706 occur, namely "notices by the council" (which forms part of the statute: see s 35(1) of the Interpretation Act 1987). 25. There is no express guidance given in the Act or the regulations made under the Act of what constitutes "[r]easonable public notice … of the holding of an inquiry". 26. The inquiry required to be held by s 263(2A) is an inquiry that is open to the public. Subsection (5) requires the Boundaries Commission or Departmental Chief Executive to "allow members of the public to attend any inquiry held by" it. 27. Section 264 concerns representation in "proceedings before the Boundaries Commission". Section 264 restricts how a person may be represented in proceedings before the Boundaries Commission. A person is not entitled to be represented by an Australian lawyer or by any person acting for a fee or reward: s 264(1) of the Act. However, there are some exceptions, including certain employees or the mayor of a council: s 264(2). As noted earlier, s 218F(2) states that ss 263, 264 and 265 apply to the examination of a proposal for the amalgamation of areas by the Departmental Chief Executive in the same way as they apply to the examination of a proposal by the Boundaries Commission. The only activity involved in the examination of a proposal for the amalgamation of areas referred to in ss 263-265 that could possibly fall within the description of "proceedings" referred to in s 264 is an inquiry held for the purpose of exercising the functions of examining and reporting on a proposal for the amalgamation of areas. Section 264, therefore, may apply to such an inquiry and prevent a person from being represented at the inquiry by an Australian lawyer or any person acting for a fee or reward. 28. As I have noted, the inquiry is to be held for the purpose of exercising the functions of the Boundaries Commission or the Departmental Chief Executive to examine and report in relation to a proposal for the amalgamation of two or more areas that has been referred to it in accordance with s 218F. Section 263(3) prescribes factors to which the Boundaries Commission or Departmental Chief Executive is required to have regard when considering a proposal for the amalgamation of areas. Subsection (3) provides: 3) When considering any matter referred to it that relates to the boundaries of areas or the areas of operations of county councils, the Boundaries Commission is required to have regard to the following factors: (a) the financial advantages or disadvantages (including the economies or diseconomies of scale) of any relevant proposal to the residents and ratepayers of the areas concerned, (b) the community of interest and geographic cohesion in the existing areas and in any proposed new area, (c) the existing historical and traditional values in the existing areas and the impact of change on them, (d) the attitude of the residents and ratepayers of the areas concerned, (e) the requirements of the area concerned in relation to elected representation for residents and ratepayers at the local level, the desirable and appropriate relationship between elected representatives and ratepayers and residents and such other matters as it considers relevant in relation to the past and future patterns of elected representation for that area, (e1) the impact of any relevant proposal on the ability of the councils of the areas concerned to provide adequate, equitable and appropriate services and facilities, (e2) the impact of any relevant proposal on the employment of the staff by the councils of the areas concerned, (e3) the impact of any relevant proposal on rural communities in the areas concerned, (e4) in the case of a proposal for the amalgamation of two or more areas, the desirability (or otherwise) of dividing the resulting area or areas into wards, (e5) in the case of a proposal for the amalgamation of two or more areas, the need to ensure that the opinions of each of the diverse communities of the resulting area or areas are effectively represented, (f) such other factors as it considers relevant to the provision of efficient and effective local government in the existing and proposed new areas. 29. To assist the Boundaries Commission or the Departmental Chief Executive in determining the attitude of the residents and ratepayers of an area or areas for the purposes of s 263(3)(d) of the Act, it may conduct (in such manner as it thinks appropriate) an opinion survey or poll of the residents and ratepayers: s 265(1). 30. The fourth step in the process prescribed by Div 2B is that the Departmental Chief Executive (to whom the Minister has referred a proposal under s 218F) must furnish the Departmental Chief Executive's report of its examination of the proposal to the Boundaries Commission for review and comment: s 218F(6)(a). 31. The fifth step in the process prescribed by Div 2B is that the Boundaries Commission must review the report of the Departmental Chief Executive and send its comments to the Minister: s 218F(6)(b). 32. The process culminates with the Minister considering the Departmental Chief Executive's report and, if applicable, the Boundaries Commission's comments on that report. The Minister may recommend to the Governor that the proposal be implemented with such modifications that arise out of the Departmental Chief Executive's report and, if applicable, the Boundaries Commission's comments on that report and with such other modifications as the Minister determines, but may not do so if the Minister is of the opinion that the modifications constitute a new proposal: s 218F(7). Alternatively, the Minister may decline to recommend that the proposal be implemented: s 218F(8). 1. The Chief Judge's analysis is both concise and comprehensive and I therefore adopt it. The common bases for challenge Adequacy of public notice 1. The Councils make a number of complaints about the notice of the inquiry given by the Delegates. These complaints are that the notice that was given did not satisfy the requirement of s 263(2B), a provision which requires that reasonable public notice must be given of the holding of an inquiry under this section. The Councils say that the notice actually given by the Delegate could not be regarded as reasonable as it was inadequate in a number of material respects. The deficiencies that the Councils identify and propose should lead to this conclusion are: 1. The heading of the notices did not adequately describe the proposal that was the subject of the inquiry and thus the nature of that which was to be examined by the inquiry; 2. For the Hunter's Hill, Lane Cove and Strathfield inquiries, the description of the venues at which the two sessions of the inquiry by the Delegate were to be held did not contain sufficient information to permit a person interested in attending the inquiry to identify with sufficient precision where the inquiry was to be held. The information that was provided concerning the venue at which the sessions of the inquiry were to be held, by not providing a street address, meant that there was a risk that those interested in attending the inquiry might be confused about where the inquiry was to be held; 3. The deficiencies in the terms of the notices given by the Delegates were not amenable to being cured by any supplementary information circulated, in the varying fashions actually utilised, by any of the Councils; 4. The reliance on the ability of a person reading the advertisement to access additional information by being referred to a website or to a local-call-cost telephone number does not provide any assistance in curing of such defects as the Councils submit are contained in the notices; and 5. Although not expressly so stated, the implication of the registration process set out in the two versions of the advertisements had the effect of implying that it was necessary to register as a precondition to attending, or speaking at, a session of the Delegate's inquiry. Conduct of the inquiry 1. Each public inquiry was conducted by the Delegate but was assisted by a Facilitator whose role appears to be, in part, a timekeeper and, in part, a marshal ensuring that there was an orderly process for those who wished to make oral submissions to the Delegate. The transcripts of the various public inquiries show that, from time to time, each Facilitator intervened to ensure that these identified roles were carried out smoothly. 2. Unsurprisingly, the conduct of each inquiry has, in very broad general terms, been consistent with the other inquiries, of which there is evidence in this suite of proceedings. The reason for this is comparatively easy to ascertain. 3. Prior to conducting his public inquiry, each Delegate was provided with a manual (a copy of the manual that was provided to each Delegate and, it is reasonable to infer, to each Facilitator is in evidence). As part of the preparation process, Delegates were briefed about the conduct of an inquiry. 4. The complaint is made that that which was, in fact, undertaken by the Delegate did not constitute the holding of a proper inquiry in a fashion that satisfied the mandate in s 263(2). The fundamental deficiency is said to be the failure of the Delegate to answer questions concerning anything other than process issues. 5. As part of the Delegate examining and reporting on the proposal that has been referred to him, the Delegate is required to have regard to the 10 specified matters set out in s 263(3) and may, additionally, have regard to other matters that the Delegate considers are warranted under the circumstances (s 263(3)(e5) contains this catch-all provision). In this context, it is appropriate to note two aspects of what is required of the Delegate by this section. 6. The first is that each of the matters that are set out in it is coequal. That is, the provision itself provides no ranking to which the Delegate is obliged to have regard. The consequence of this is that, as part of the reporting function to be undertaken by the Delegate after his examination of these matters (and after holding the mandated public inquiry), the Delegate is required to have examined and reported upon each of these mandated topics (if relevant). In doing so, the Delegate is required to engage with and consider, in a sufficient and relevant fashion, each relevant topic. 7. Failure by the Delegate to do so with respect to any of the relevant topics will mean that the Delegate has not discharged his statutory obligations and, as a consequence, the Delegate's function will have miscarried. However, what consequences might flow from such an outcome requires consideration of such factors (if any) requiring consideration in the circumstances. 8. Second, the Delegate is required to have regard to each of those relevant mandatory factors as part of the examination and reporting process. There is no requirement in the statute for the Delegate to be satisfied in some fashion with respect to any of these matters. What is required of the Delegate, after engaging with and examining each of these factors, is to report upon them, individually and collectively. It is clear from the terms of s 263(7)(b) that it is envisaged that the Delegate will contemplate whether or not to make recommendations of a detailed nature in addition to expressing conclusions with respect to the overall proposal. The Delegates' reports 1. Fulfilment of the requirements set by the statute for each Delegate is a central matter for consideration in these proceedings. The role of the Delegate is clear and confined. The role is set, by the mandate given by s 263(1) and (2A) of the Local Government Act, namely: 263 Functions of the Boundaries Commission (1) [The Delegate] is required to examine and report on any matter with respect to the boundaries of areas. … (2A) [The Delegate] must hold an inquiry for the purpose of exercising its [his] functions in relation to a proposal for the amalgamation of two or more areas that has been referred to it [him] in accordance with section 218F. 1. In order to fulfil this role, each Delegate must ensure that reasonable public notice is to be given of the Delegate's holding of his inquiry (s 263(2B)). The inquiry must be one at which members of the public are able to attend (s 263(5)). 2. Having conducted his inquiry, each Delegate is then required to furnish a report addressing the relevant mandatory matters in s 263(3). As can be seen from the final point in the list set by the section, there is also a general sweep-up provision that enables the Delegate to report on such other matters as the Delegate considers may be appropriate under the circumstances. 3. In preparing his report, each Delegate may make such recommendations as he considers are appropriate arising out of his inquiry but is not to make recommendations, if adopted, which would result in the proposal that had been referred to him becoming what would amount to a fresh proposal. 4. In these proceedings, the Councils point to what they say are a number of significant inadequacies in the discharge by each Delegate of his statutory responsibilities - deficiencies which each Council says the failures by each Delegate are so fundamental that, either individually or in combination, the relevant inquiry process has miscarried and should be set aside. To the extent that these complaints are generic, they are dealt with in common but, to the extent that they are specific to a particular Delegate's reporting process, they are dealt with as a specific issue under the name of the Council(s) raising the issue. 5. On the general role of the Delegates with respect to their obligation to have regard to the mandatory matters in s 263(3), the Councils submitted: 39. The terms of s.263(3) of the LG Act obliged the Delegate to have regard to certain listed factors as part of his consideration of the Proposal referred by the Minister. Compliance with that obligation requires an "active intellectual engagement" by the Delegate: see Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [57], [63]; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99 at [46]; Manning v Bathurst Regional Council No 2 [2013] NSWLEC 186 at [66]. The relevant matter must be more than adverted to or given mere lip service: Anderson v Director-General Department of Environment and Climate Change (2008) 163 LGERA 400 at [58]. A failure to take matters into consideration may be demonstrated where it can be shown that the decision-maker had inadequate personal acquaintance with the facts and issues, and generally speaking, understanding the scope of a problem is a prerequisite to a lawful decision with respect to it: Centro Properties ltd v Hurstville City Council (2004) 135 LGERA 257 at [37]. To put it another way, there must be consideration of "the salient facts which give shape and substance of a matter, the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered" (Peko at 61 per Brennan J). 40. A statutory obligation to address the substance of an applicant's case will readily be implied, as will an obligation to consider material relied on by an applicant which is, on its face, relevant and significant, and is credible and uncontested, and a failure to do so may involve a constructive failure to exercise the function conferred by the statute: Ali v AAI Ltd [2016] NSWCA 110 at [66]. In addition, an administrative decision-maker is required to make his or her decision on the most current material available to the decision-maker: Peko at [45]; Gales Holdings Pty Ltd v Minister for Infrastructure and Planning (2006) 69 NSWLR 156 at [161]-[176]; Ali at [65]. 41. In ascertaining whether the Delegate has failed to comply with his statutory obligation in s.263(3), is to be determined by the Court undertaking a close analysis of the decision-maker's reasons: Khadgi at [71]. When a statement of reasons has been provided, a failure to refer to particular matters or give other reasons will justify the inference that such matters or reasons were not relied upon or considered: East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605 at [308]-[312]; Khadgi at [65]. A fortiori where, as here, the ultimate product of the Delegate's examination of the Proposal mandated by the statute is a (written) report, rather than a decision or recommendation. 1. Although the Councils have made these general submissions, I record what I consider to be the appropriate position for me to adopt in my reading of, and giving consideration to, the challenged reports of the various Delegates that require consideration in these proceedings. In Botany Bay City Council v Premier Customs Services Pty Ltd 172 LGERA 338; [2009] NSWCA 226, Macfarlan JA (with whom Ipp JA and Hoeben J agreed) said, at [32]: I appreciate that it is not appropriate to approach reasons of a Commissioner with a "fine-tooth comb", but the Court must nonetheless attempt to ascertain as best it can what were the essential reasons for a decision. 1. I consider it is appropriate to apply that comment in the context of considering a report of a Delegate to whom an amalgamation proposal has been referred. Such reports should not be subject to the same degree of forensic dissection as would be the case of a decision made by a judge. The role of the Boundaries Commission 1. When the Minister elects to adopt the option of referring a proposal to the Chief Executive of the Office of Local Government and, thence, by delegation by the Chief Executive to a person specifically tasked to consider the proposal as described above, the role of the Boundaries Commission is a much more constrained one than that which would have arisen had the Minister elected to refer the matter directly to the Boundaries Commission. This constrained role set by the Boundaries Commission in these circumstances is set out in s 218F(6)(b) of the Local Government Act. 2. As a consequence, the role of the Boundaries Commission is confined to reviewing and commenting upon the report of the Delegate (see Botany Bay City Council v The State of New South Wales [2016] NSWCA 243 per Sackville AJA at [91] to [101] (Bathurst CJ and Ward JA agreeing)). 3. In these proceedings, these five Councils, unlike councils in other proceedings challenging proposed amalgamations, make no complaint about the way the Boundaries Commission has fulfilled its role by confining itself to an assessment of, and commenting on, whether each Delegate met the statutory inquiring and reporting responsibilities mandated for him by the Local Government Act. 4. Each Delegate provided, as required by s 218F(6)(a), his report to the Boundaries Commission. Following the provision of his report to the Boundaries Commission, the Boundaries Commission undertook a review of each report and provided its own report to the Minister, commenting on that which had been provided to it by the relevant Delegate. A copy of each of the relevant Boundaries Commission's report is in evidence. 5. At the commencement of each of its reports, the Boundaries Commission then sets out what it regards its statutory role to be in this process. 6. At the end of each of the analysis sections in each report, the Boundaries Commission sets out, in a text box, its comment on that section of the relevant Delegate's report. Where the Boundaries Commission considered the Delegate had discharged his responsibility on a point, it commented to this effect. 7. However, with respect to matters where this comment was not considered appropriate, the Boundaries Commission's comment included a further brief, evaluative comment on the extent to which the relevant Delegate's analysis was considered deficient. 8. Following the Boundaries Commission's analysis and its making the comments it considered appropriate on the matters mandated by s 263(3), the Boundaries Commission then made a concluding comment on the overall adequacy of each Delegate's report. 9. The Respondents dealt with the role of the Boundaries Commission in their written submissions concerning Strathfield Municipal Council. The comments are applicable in all these matters. The element of the submissions was in the following terms: 47. In the case of Strathfield, the alleged failure flows from comments made by the Boundaries Commission as to its view of the Delegate's consideration of certain factors in s 263(3). However, the Commission's views cannot be probative of the question of whether a Delegate has failed to consider one of the matters in s 263(3) of the LGA. That has to be determined by reference to the Delegate's report. Examination of the report in this case demonstrates that the Delegate considered each of the s 263 factors, in a manner which evidences active intellectual engagement with the subject matter. 1. It is clear from the Boundaries Commission's own description of how it envisaged its role, that, if the Delegate's report had been found by the Boundaries Commission to be inadequate in any respect, the Boundaries Commission would have set out the basis for its reaching that conclusion. However, the Boundaries Commission does not explain why it had done so. That the Boundaries Commission has not reached such a conclusion with respect to any of the specific items mandated to be dealt with by a Delegate, or with respect to the overall conclusion about a Delegate's report, is clearly a position open to it on its consideration of the report. 2. That the Boundaries Commission was not uncritical of any of the Delegate's reports shows that it has understood its role not to be merely that of a rubber stamp. Although the Boundaries Commission may have had the power to comment more broadly, the Local Government Act did not mandate it to do so. 3. Whilst it is clear that such a critical comment from the Boundaries Commission does not constitute evidence that the Delegate failed to address, in an appropriate fashion, a relevant mandatory requirement of his examination and reporting responsibilities, such a comment can be regarded as an appropriate indicator that a closer examination of this aspect of the Delegate's report may be warranted. However, the Boundaries Commission's comments can serve no higher purpose than that in these proceedings. The KPMG issues Independence 1. A further general complaint that is made by the Councils concerns the role of KPMG in this process. I have earlier set out the specific instances where, in the Minister's proposal documents of early January 2016, the document described the role of KPMG in the Council amalgamation process as being "independent". 2. It is said, by all the Councils in these proceedings, that that assertion, whether specifically in a Minister's submission document or generally to be understood, publicly, by any person or entity interested in the amalgamation process (particularly the five Council applicants in these proceedings), that KPMG was held out to be independent of the government, was untrue. The Councils submit that KPMG was not independent, and should be regarded as an intimately involved "partner" with, and supporter of, the government in the development and implementation of the amalgamation process. 3. As a consequence, the Councils say that this amounted to a misrepresentation of the role of KPMG and that this misrepresentation infected the process undertaken by each Delegate in a fashion that caused that Delegate's reporting and inquiring function to miscarry. Access to the full KPMG reports to government 1. Public interest immunity claims concerning the withheld KPMG documents are discussed above at [92]. Although these Councils did not take part in either of those preliminary proceedings, the outcomes are applicable to these Councils' claims in these proceedings that the full KPMG documents should have been made available to them. 2. Further, in Woollahra, the Chief Judge dealt with the complaint by that Council that it had not been given access to the full KPMG documents. His Honour said, at [248] and [249], the following: 248. In this case, there was no denial of procedural fairness by the Delegate not disclosing to Woollahra Council and giving it an opportunity to make submissions on the various non-public documents that Woollahra Council described as KPMG modelling and analysis. First, those documents had not been provided to the Delegate; the Delegate cannot disclose documents that he did not have. Second, it has not been established that the documents contained information that "was so damaging and so unforeseeable" that Woollahra Council "should not have been 'left in the dark' about it" until publication of the Delegate's report: Minister for Local Government v South Sydney City Council at [272]. 249. Third, the information that the non-public documents were said to contain was the modelling and other material underpinning the KPMG analysis and justifying the assumptions used by KPMG that were disclosed publicly and to Woollahra Council. The information that was "adverse" to Woollahra Council was contained in the Minister's proposal document and the KPMG analysis and other documents that were made publicly available. This information included the asserted financial benefits of the amalgamation. This adverse information was disclosed. What was not disclosed were KPMG's internal workings and calculations underpinning the conclusions it expressed in the publicly available documents. The duty to disclose "adverse" material was discharged by disclosure of the publicly available documents containing KPMG's analysis and conclusions; it did not extend to require disclosure of the workings and calculations underpinning those conclusions. 1. As I agree with and adopt his Honour's reasoning on this point, this complaint is without foundation. The specific bases for challenge Introduction 1. In the proceedings relating to each of the three separate amalgamation proposals for groupings of councils being considered in these proceedings, a number of distinct issues arose out of specific statutory provisions required to be satisfied before there would be a valid basis for the Governor to give, by proclamation, effect to a proposed scheme of amalgamation. 2. I have earlier outlined the nature of the defects claimed to be in common across all three of the amalgamation proposals in these proceedings. It is to be observed, however, that, for each of the three groupings, there is at least one individual issue pressed with respect to the relevant amalgamation proposal as being said to be a basis to conclude that that proposal was fatally flawed. This section of my decision gives a short outline of those individual matters of complaint. In some instances, there is commonality of position with another challenging council in the same proposed amalgamation group whilst, in one instance, concerning matters raised by Mr Galasso SC on behalf of North Sydney Council, the complaint made is a precise and confined one. Hunter's Hill and Lane Cove Councils The financial analysis issue 1. The Councils have pleaded that, in the Delegate's discussion of financial matters (to which he was required to have regard as a consequence of s 263(3)(a)), the Delegate did not have regard to the most up-to-date financial analysis prepared by the Councils' consultants which should have been provided to the Delegate before he prepared his report. The Councils say that this has caused the Delegate's function to have miscarried as a consequence. The Lane Cove River issue 1. Hunter's Hill Council has pleaded that the Lane Cove River acts as not only a geographic boundary between the present Hunter's Hill and Lane Cove Council areas but also acts as a legal barrier to their amalgamation. 2. This arises, the Council says, from the terms of s 204 of the Local Government Act. This section is the one that permits the creation of new local government areas by proclamation made by the Governor. The section is in the following terms: 204 Constitution of areas (1) The Governor may, by proclamation, constitute any part of New South Wales as an area. (2) The area is to have the boundaries determined by the Governor by proclamation. (3) An area must be a single area of contiguous land. 1. Mr Lazarus, counsel for Hunter's Hill Council on this point, submitted that s 204(3) acted as an absolute impediment to the proposed amalgamation of Hunter's Hill Council with Lane Cove Council. The point was also adopted on behalf of Lane Cove Council. 2. The basis upon which this asserted prohibition is founded are the terms of s 204(3) requiring any new area proposed to be proclaimed as a council area is required to be "a single area of contiguous land". 3. The terms of portion of s 205, s 205(3)(b), are also potentially relevant. This section is in the following terms: 205 Land taken to be included in an area 1. The land and water between high-water mark and low-water mark on the foreshores of an area is taken to be in the area. 2. The land and water enclosed by: a) a straight line drawn between the low-water marks of consecutive headlands to any body of water on the foreshores of an area, and b) those foreshores, is taken to be in the area. 3. Land on the boundary of an area is taken to be in the area if: a) it is reclaimed from tidal waters, or b) it is on the foreshores of the area and beyond low-water mark, and it is privately owned or has a structure erected on it. 4. This section is subject to any proclamation made under this Division. 1. As these two local government areas are linked by the Fig Tree Bridge, if they are not found to be contiguous, as required by s 204, on a primary consideration of the meaning of that word, it will be necessary to consider whether the Fig Tree Bridge, examined through the lens of s 205(3)(b), has the effect of rendering them so by statutory inclusion. The Delegate's taking into account undisclosed information 1. At two places in the Delegate's report, he refers to having had regard to "other relevant material" (5 Summary of Submissions) and "other material" (7 Recommendations). The Councils pleaded that the failure to disclose such material and permit them to comment on it caused the Delegate's examination and reporting to miscarry as the failure amounted to a denial of procedural fairness. Mosman Municipal and North Sydney Councils Splitting of a single delegation concerning two proposals 1. The two Councils complain that the Instrument of Delegation from the Minister to the Acting Chief Executive of the Office of Local Government was a dual, combined delegation unable to be delegated to two Delegates but both should have been delegated to a single Delegate. The Councils submit the splitting of the single delegation leads to invalidity of the process undertaken by the Delegate who inquired into and reported upon the amalgamation proposal the subject of their challenges. Failure to consider submissions for other proposals 1. The two Councils also complain that the Delegate failed to have regard to submissions made to other possible amalgamations that had been referred to this Delegate (North Sydney and Willoughby only) or another Delegate (Manly, Mosman and Warringah (part)). The adequacy of the Delegate's report 1. The two Councils also complain that the Delegate's report was inadequate in his consideration of three mandatory elements prescribed by s 263(3), they being: * Consideration of the financial advantages and disadvantages of the proposal – s 263(3)(a); * Provision of adequate, equitable and appropriate services and facilities – s 263(3)(e1); and * Representation of diverse communities – s 263(3)(e5). Mosman Municipal Council Failure to conduct a poll 1. Mosman Council complains that the Delegate failed to discharge his responsibility to have proper regard to the attitude of the residents and ratepayers of the areas concerned (s 263(3)(d)) by declining to exercise the discretion given to him by s 265(1) to order a poll of the residents and ratepayers of the three local government areas. The legal bases said to support this complaint are discussed in detail later. North Sydney Council Failure to hold public sessions in the North Sydney local government area 1. North Sydney Council complains that, although public inquiry sessions were held in Chatswood (this being in the Willoughby City Council local government area) and Mosman, no public inquiry session was held in the North Sydney local government area. North Sydney Council says that as such a session had been held in its area for an alternative amalgamation proposal (one not the subject of these proceedings), the failure to do so for this proposed amalgamation unacceptably infected this Delegate's statutory process. Strathfield Municipal Council 1. Strathfield Municipal Council complains that the Delegate's report was inadequate in his consideration of three mandatory elements prescribed by s 263(3), they being: * Consideration of the financial advantages and disadvantages of the proposal – s 263(3)(a); * Community of interest and geographic cohesion – s 263(3)(b); and * Representation of diverse communities – s 263(3)(e5). The common bases for challenge Adequacy of public notice of the inquiries 1. The Respondents' submissions concerning the giving of notice address, in part, the specific requirements contained in s 263(2B). To understand the nature of these submissions, it is appropriate to repeat the terms of the provision: 263 Functions of the Boundaries Commission … (2B) Reasonable public notice must be given of the holding of an inquiry under this section. 1. The competing positions can be stated shortly. The Councils say that the responsibility to give the notice lies with the Delegate and that the Delegate was required to cause notice to be given and that that notice had to be adequate and not misleading. They say, in this initial sense, that each of the notices (being to the same relevant general effect and form) exhibited both defects – they were, the Councils say, both inadequate and misleading. 2. Preston CJ faced similar complaints in Woollahra. He rejected the complaints by that Council concerning that amalgamation proposal. He said: The statutory requirement to give public notice 46. Neither the Act nor the regulations made under the Act prescribe the public notice that is required to be given under s 263(2B) of the Act. Nevertheless, a proper construction of s 263 reveals the following requirements. 47. First, s 263(2B) imposes a duty to give reasonable public notice of the holding of an inquiry under s 263. The subsection does not expressly identify the person on whom this duty to give public notice is imposed. But the implication is that the person who is to hold the inquiry, the Boundaries Commission or the Departmental Chief Executive, must give the public notice of the holding of that inquiry. The person need not give the public notice personally but nevertheless needs to arrange for the public notice to be given of the inquiry that the person is to hold. A common way that the person may give public notice is to arrange for a notice to be published in newspapers circulating in the areas concerned. 48. Second, the public notice that is to be given under s 263(2B) has three content requirements. The first content requirement is to state when and where the inquiry is to be held. The notice must specify the date and time of day at which the hearing of the inquiry will commence. The notice must specify the place at which the inquiry will be held. The degree of specificity of description of the place that will be required will depend on the facts and circumstances regarding the proposal, the local government area in which the inquiry is to be held and public knowledge of and familiarity with the place concerned. 49. The second content requirement is to state what is the particular inquiry that is to be held. Subsection (2B) refers to the holding of "an inquiry under this section". An inquiry under s 263 may be held in certain circumstances (under s 263(2)(a)) and must be held in other circumstances (under s 263(2)(b) and s 263(2A)). However, irrespective of whether an inquiry may or must be held, it is to be held in relation to "any matter with respect to the boundaries of areas and the areas of operation of county councils which may be referred" to the Boundaries Commission or Departmental Chief Executive by the Minister for examination and report (see s 263(1) of the Act). The matters with respect to the boundaries of areas that the Minister may refer for examination and report are a proposal for the amalgamation of two or more areas (see ss 218A and 218D-218F) and a proposal for the alteration of the boundaries of areas (see 218B and ss 218D-218F). The public notice that must be given under s 263(2B) needs to specify the matter that the Minister has referred for examination and report and in relation to which the inquiry is to be held. In this case, the matter in respect to the boundaries of areas which the Minister had referred to the Departmental Chief Executive for examination and report was the proposal for the amalgamation of the local government areas of Randwick, Waverley and Woollahra that had been referred in accordance with s 218F. The public notice required to be given under s 263(2B) needed to specify that the inquiry was to be held in relation to that proposal for the amalgamation of those areas. 50. The third content requirement is to state what is the purpose of holding the inquiry. Both subsections (2) and (2A) of s 263, which permit or mandate the holding of an inquiry, specify that the purpose of holding the inquiry is "for the purpose of" the Boundaries Commission or Departmental Chief Executive "exercising its functions". In the case of the proposal for the amalgamation of areas, the functions in relation to that proposal are the functions under s 218F(1) and s 263(1) of examining and reporting on the proposal. 51. In this case, the public notice that must be given under s 263(2B) needed to state that the inquiry that was to be held was for the purpose of exercising the functions of the Departmental Chief Executive of examining and reporting in relation to the proposal of the amalgamation of the local government areas of Randwick, Waverley and Woollahra, that had been referred by the Minister to the Departmental Chief Executive in accordance with s 218F. 52. Third, the public notice that must be given under s 263(2B) is to be "reasonable". The adjective "reasonable" qualifies both the content and timing of the public notice. The content and timing of the public notice that is required to be given might vary considerably depending on the nature and complexity of the matter (or proposal) in relation to which the inquiry is to be held: see Attorney-General for the State of Victoria v City of Geelong [1989] VR 641 at 649, Dunghutti at [85]-[87] and Ogawa at [36] and [37]. 53. A minor adjustment of a boundary of a local government area might only require that brief notice be given shortly before any inquiry is held (an inquiry in relation to the alteration of boundaries may be held if the Minister so approves and must be held if the Minister directs: s 263(2) of the Act). On the other hand, a more complex proposal for the amalgamation of two or more areas might require that more detailed notice be given at a time significantly before the inquiry is held (an inquiry in relation to a proposal for amalgamation of areas must be held: s 263(2A) of the Act). 54. A person should know from reading the public notice what is the subject matter and purpose of the inquiry to be held and the person should be given sufficient time to prepare and make a submission to the inquiry. 55. The reasonableness of the length of time between the giving of the notice and the holding of the inquiry is to be assessed not only by reference to the nature and complexity of the proposal but also to the time of year at which the notice is given. For example, if the period of time between giving the notice and holding the inquiry corresponds with the Christmas/New Year holiday break, reasonable public notice might not be able to be given. The notice might not come to the attention of people interested in making submissions to the inquiry but, even if it did, they may be unable to do so due to the difficulty of researching and preparing a submission in the holiday period, when resources and services are likely to be less available. 56. Fourth, the form of public notice that is given should be appropriate to achieve the purpose for which notice is to be given of notifying the public of the holding of the inquiry. The form of public notice should reach the audience for which it is intended. Public notice by newspaper advertisement in newspapers circulating in the local government areas affected by the proposal is fair and reasonable notice to the public: Waitemata County v Local Government Commission [1964] NZLR 689 at 699. Reasonable public notice was given 57. In this case, the Delegate of the Departmental Chief Executive who was obliged under s 263(2A) to hold the inquiry in relation to the proposal to amalgamate the local government areas of Randwick, Waverley and Woollahra was under the duty to give reasonable public notice of the holding of the inquiry. The public notice of the holding of the inquiry that was actually given or caused to be given by the Delegate comprised: first, the notice of the inquiry that was published as an advertisement in various newspapers; second, the notice of the holding of the inquiry that was published on the Council Boundary Review website (which was the website referred to in the notice published in the newspapers but which has now changed to www.strongercouncils.nsw.gov.au); third, the Delegate's letters of 14 January 2016 to the General Managers of Randwick, Waverley and Woollahra Councils notifying them of the holding of the public inquiry and attaching the same public notice as was published in the newspapers and requesting that the Councils bring the attached public notice "to the attention of as many people in the Council's area as possible; for example, by placing a copy of the public notice on the Council's website"; and fourth, the notice of the holding of the inquiry that was given by the Councils in response to the Delegate's request, including the public notice placed on Woollahra Council's website. These are the forms of notice that collectively make up the public notice that can be said to have been given of the holding of the public inquiry and which need to be assessed in order to determine whether "reasonable public notice" was given of the holding of the inquiry. 58. The content of the public notice given satisfies the three requirements arising from s 263(1), (2A) and (2B). First, the notice specified when and where the inquiry was to be held. The notice specified that the date and time of the inquiry was "Thursday 4 February 2016" at "1.00pm - 5.00pm and 7.00pm - 10.00pm" and that the venue was to be "Club Rose Bay". A street address for the venue "Club Rose Bay" was not given. Woollahra Council took no issue with the absence of a street address. Presumably, the venue of "Club Rose Bay" is sufficiently well known in the Woollahra area that the specification of the name of the venue was adequate to identify the place at which the inquiry was to be held. 59. Second, the notice sufficiently specified the proposal in relation to which the inquiry was to be held. The proposal that the Minister had referred under s 218F to the Departmental Chief Executive for examination and report was the proposal made by the Minister for the amalgamation of the local government areas of Randwick, Waverley and Woollahra. The notice published in the newspapers and attached to the Delegate's letters to the Councils, and published on various websites was entitled: Notification of public inquiry into the proposal to amalgamate or alter the boundaries of local government areas 60. The first paragraph of the notice referred to the proposal in the following terms: Pursuant to section 218F of the Local Government Act 1993 the Minister for Local Government has referred a proposal in relation to the following local government areas: Randwick, Waverley and Woollahra to the Acting Chief Executive of the Office of Local Government for examination and report. 61. Together, these statements in the notice gave sufficient information or warning to readers of what was proposed. Persons reading the notice were alerted that: (a) the subject matter of the inquiry was a proposal, which had been referred by the Minister pursuant to s 218F of the Act to the Acting Chief Executive of the Office of Local Government for examination and report; (b) the proposal was to amalgamate or alter the boundaries of local government areas; and (c) the local government areas affected were Randwick, Waverley and Woollahra. 62. The only mistake in this description of the proposal was the addition of the words "or alter the boundaries of" in the heading of the notice. The proposal that the Minister had in fact referred under s 218F was only for the amalgamation of the local government areas of Randwick, Waverley and Woollahra (the function under s 218A); there was no proposal to alter the boundaries of those areas (the function under s 218B). The notice described the proposal as being either the amalgamation of the three areas identified (which was the proposal that the Minister had referred for examination and report) or the alteration of boundaries (which was not part of the Minister's proposal). 63. I do not consider that this reference to a matter that was not part of the Minister's proposal meant that the notice did not alert the reader to the proposal in relation to which the inquiry was to be held and in respect of which submissions to the inquiry were to be made. Notwithstanding the additional reference to alteration of boundaries, the notice still identified that the Minister may have referred a proposal to amalgamate the local government areas of Randwick, Waverley and Woollahra, which was to be the subject of the inquiry that was to be held. 64. Persons who were concerned about the amalgamation of these areas would be alerted to this fact and the opportunity for them to make a submission to the inquiry about this proposal to amalgamate those areas. The persons would not be dissuaded from doing so because the notice also referred to a proposal to alter the boundaries of those areas. 65. Third, the notice specified the purpose of holding the inquiry. The notice stated that, pursuant to s 218F of the Act, the Minister had referred the proposal in relation to the local government areas of Randwick, Waverley and Woollahra to the Acting Departmental Chief Executive for examination and report and that the Departmental Chief Executive had delegated to the Delegate the examination and reporting functions under s 218F. The notice stated that a public inquiry in relation to the proposal would be held under s 263 of the Act at the times and venues specified in the notice. Together, these statements alerted the reader that the Delegate was holding the inquiry for the purpose of exercising the functions of examining and reporting on the proposal that had been referred by the Minister in accordance with s 218F. 66. The public notice that was given was "reasonable" both as to content and timing. As to the content, the notice provided sufficient information to alert the reader about the subject matter and purpose of the inquiry and when and where the inquiry would be held. I do not agree with Woollahra Council's submission that "the provision of reasonable public notice necessarily requires that the public be sufficiently notified of the basis of the relevant proposal so as to be in a position to formulate such arguments". The statutory requirement to give public notice of the holding of the inquiry does not extend to requiring that the public notice specify the basis on which the Minister (or any other initiator of a proposal) made the proposal that was referred for examination and report in accordance with s 218F. The statutory requirement for giving public notice also does not require that any documentation on which the proposal was based, in this case said to include various KPMG analyses, be placed on public exhibition so as to enable submissions to be made thereon. 67. As to the timing, public notice was given progressively. Public notice was first given on the Office of Local Government's Council Boundary Review website from 12 January 2016 onwards. The notice was first published in the State-wide newspapers of the Sydney Morning Herald and The Daily Telegraph on 13 January 2016. The Delegate wrote to the Councils on 14 January 2016 notifying them of the holding of the inquiry and attaching the public notice. The public notice that had been sent to the Councils was published on at least Woollahra Council's website at some time after 14 January 2016. Public notice was published in the local newspaper of the Wentworth Courier on 20 and 27 January 2016. The inquiry was held on 4 February 2016. The period of time between the giving of the public notice and the holding of the inquiry was, therefore, up to 23 days (12 January to 4 February 2016), of which 16 days were working days. There were lesser periods of time for the other forms of public notice (22 days for the notice published in the State-wide newspapers; about 20 days for the notice given on Woollahra Council's website; and 15 days from the first notice published in the local newspaper). 68. I do not find that the timing of these forms of public notice was unreasonable. First, the periods of time between the giving of the notice and the holding of the inquiry have not been established to be inherently insufficient (having regard to the nature of the proposal and the issues and factors to be considered) for persons who wished to make a submission to the inquiry to be able to do so. Indeed, the detailed submissions that were made by the affected councils and the public indicated that there was sufficient time. 69. Second, the timing of the public notice needs to be considered in the context that the Minister had announced on 18 December 2015 in general terms that he was going to make proposals for the amalgamation of local government areas and then announced on 6 January 2016 in particular terms that he had made the proposals, including to amalgamate the areas of Randwick, Waverley and Woollahra. Persons who were opposed to or supported the proposal to amalgamate the areas of Randwick, Waverley and Woollahra were thereby already on notice and had an opportunity to commence preparing any submissions that they might wish to make to an inquiry once public notice was given of the holding of the inquiry. 70. Third, the timing of the public notice also needs to be considered in the context that there was a longer period of time to make written submissions to the Delegate. Although the inquiry was held on 4 February 2016, written submissions were able to be made up to 28 February 2016, another three weeks. 71. Fourth, some documents concerning the proposal, including the document entitled "Merger Proposal: Randwick City Council, Waverley Council, Woollahra Municipal Council" ('the proposal document') dated January 2016, were made publicly available. These documents provided information on the proposal to enable persons to know what was proposed, to take an informed position on it, and make a submission with respect to it. The non-disclosure of other documents, including various KPMG analyses supporting the proposal, did not make the period of notice necessarily insufficient or unreasonable. 72. Fifth, the fact the public notice was given progressively throughout January, when people might be on vacation, did not cause the public notice that was given to be unreasonable. The earliest that public notice was given was on 12 January 2016. This was after the Christmas/New Year period and the first week of January, being the periods when the greatest number of people are on vacation. The last two weeks of January and the first week of February do not fall into the same category. The evidence of a few people that they did not become aware of and did not attend the inquiry does not establish that the public notice that was given was ineffective in alerting people to the holding of the inquiry. Indeed, the sizeable number of people who did make submissions (449) and attended the two sessions of the inquiry that was held on 4 February 2016 points to the contrary. 73. Finally, the forms of public notice of the holding of the inquiry that were given included newspaper advertisements in both State-wide and local newspapers. Public notice by newspaper advertisements of the holding of the inquiry was fair and reasonable notice to the public, which was the audience to whom notice was intended to be given. I do not accept Woollahra Council's argument that there was "limited circulation" of the public notice. 74. For these reasons, Woollahra Council has not established that reasonable public notice was not given of the holding of the inquiry, as was required by s 263(2B) of the Act. I reject this ground of challenge. 1. In their submissions to me following the Woollahra decision, the Councils in these proceedings said: 4. … The notices in both proceedings were in substantially the same form. 5. Preston CJ found that the notices in Woollahra gave sufficient information about what was proposed and that, while there was a "mistake" in the description of the proposal, in that it referred to both the alteration of boundaries and the amalgamation of council areas, this mistake would not have dissuaded interested persons from making submissions (at [59] – [65]). 6. This aspect of the decision should not be followed, because Preston CJ did not address the fundamental statutory difference between the consequences of a boundary adjustment and of an amalgamation of areas, which must lead to a conclusion that the mistake identified by him was capable of misleading the public. It does not appear that his honour was taken to passages in the authorities which stress the importance of clarity in notifications and the pitfalls of providing additional misleading information, such as Ryan v Edna May Junction Gold Mining (1916) 21 CLR 487, and Scurr v Brisbane City Council (1973) 133 CLR 242. 1. The Respondents' reply submissions, post-Woollahra, dealt with these further submissions by the Councils in the following terms: 4. First, in relation to reasonable public notice, his Honour relevantly held that: a. reasonable public notice was given, despite the notice describing the proposal as being "to amalgamate or alter the boundaries" of local government areas, including by notice given by the council in response to a request from the delegate ([57]-[64]); b. the statutory requirements for giving public notice did not require documents, such as KPMG analyses, to be made available ([66]); and c. the timing of the various public notices (the shortest of which was 15 days before the inquiry) was reasonable ([67]-[68]). Thus, the Woollahra Judgment is a complete answer to the Councils' complaints in these proceedings about public notice based upon: (i) the description of the proposal in the public notices; and (ii) the timing of the notices. 1. In order to address these competing submissions, in particular those of the Councils proposing that I should not adopt the reasoning process of Preston CJ in Woollahra, I have considered the broad propositions put, as well as the authorities cited in support thereof. I turn first to Ryan v Edna May Junction Gold Mining (1916) 21 CLR 487. This case required the High Court to consider the effect of omission from the notice of a company's shareholders' meeting of a matter of import necessary to understand the proposed outcome of the resolution set to be considered. The matter omitted from the notification was material to the rights of a class of shareholder. That position provides no relevant assistance as the complaint of the Councils here is of what they say is a misleading surplus of information, not any material omission. 2. I turn next to Scurr v Brisbane City Council (1973) 133 CLR 242. First, I note that, in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349, Basten JA, at [27], observed: Scurr remains authority for the proper approach to planning legislation requiring public notification. Such requirements will generally be a precondition to the exercise of power. 1. It is clear from remarks of Stephen J (author of the leading judgment in Scurr), at [14], that the identified deficiency arose from the inadequacy of information in the advertisement published by Brisbane City Council. Again, here the complaint is of an allegedly misleading surplus of information. 2. This then leads me to consider Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91, a case also relied upon by the Councils in their primary submissions (also noted by Preston CJ at [279] and [298] in a different context). 3. Again, it is clear that the identified deficiency in Litevale was the inadequacy of information in the advertisement published by Lismore City Council. This is clear from remarks of Rolfe AJA (with whom Sheppard AJA concurred) at page 102. As his Honour observed of the potential reasons for an advertisement being misleading, this might occur: … by making a limited statement lulling them into a false sense of security. 1. Unlike Litevale and the two cases discussed above where there was a paucity of information, here the complaint is confined to an allegedly misleading surplus of information. 2. In this context, it seems to me that the approach taken by Preston CJ, if analysed at an appropriate level of generality for my purposes, reflects responding to the question that was posed in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490; 72 ALJR 841; [1998] HCA 28 where the plurality said, at [93] – footnotes omitted: A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute". 1. In this context, even if there were to have been a breach by the inclusion of the surplus words (a proposition I reject as I am satisfied that the reasoning by Preston CJ in Woollahra at [62] to [64] is equally applicable in these five proceedings), I do not consider it should be regarded as impacting on the validity of the notices as there is no evidence anyone was misled by the notice. 2. This ground must be rejected. Scope of the public notification 1. The Councils advanced a range of criticisms, dealt with earlier in this decision, concerning the form of the notice. They also complain about the extent of exposure of the notice in the public domain. 2. However, the Respondents also say that, as a consequence of the use of the passive voice in the statutory provision set out above, the notice that is encompassed for examination as to its reasonableness also requires consideration of the extent to which the Councils, themselves, gave notice of the proposal and the public inquiry being held into it by the Delegate. 3. There is no doubt that the Councils were requested to publicise the proposal and the public inquiry to be held into it. There is also evidence concerning the various Councils as to the extent to which this took place. The Respondents rely on such additional publicity as assisting in showing that reasonable notice was given. 4. However, the Respondents' position is fundamentally misconceived. Indeed, it might well be regarded as suggesting that there was some implied obligation on the "turkeys to advertise Thanksgiving". That the Councils elected to do so was a strategic policy decision taken concerning a matter of fundamental importance to them but could not be prayed in aid in the discharge of a statutory duty when it is clear that, within the statutory framework from whence the duty arises, there are no duties imposed on the Councils and all the duties arising from the path that the Minister chose to take with these proposals fell on the Acting Chief Executive and, consequentially, on the Acting Chief Executive's Delegates. 5. Whether the obligation might have remained with the Acting Chief Executive, or was transferred to the Delegate by the act of delegation, is a matter immaterial in the present context. The responsibility lay, entirely, with either the Acting Chief Executive or the Delegate, and if the notice given on behalf of either or both of them does not satisfy the test of reasonable notice, those deficiencies are unable to be cured by reliance on such activities as may have been undertaken by any of the Councils to publicise the relevant proposal or public inquiry. 6. The Chief Judge dealt with the general questions of content (other than the heading) of the notice in Woollahra and the timing and method of the giving of that notice. He did so at [58] to [73], a section of his judgment which read: 58. The content of the public notice given satisfies the three requirements arising from s 263(1), (2A) and (2B). First, the notice specified when and where the inquiry was to be held. The notice specified that the date and time of the inquiry was "Thursday 4 February 2016" at "1.00pm - 5.00pm and 7.00pm - 10.00pm" and that the venue was to be "Club Rose Bay". A street address for the venue "Club Rose Bay" was not given. Woollahra Council took no issue with the absence of a street address. Presumably, the venue of "Club Rose Bay" is sufficiently well known in the Woollahra area that the specification of the name of the venue was adequate to identify the place at which the inquiry was to be held. 59. Second, the notice sufficiently specified the proposal in relation to which the inquiry was to be held. The proposal that the Minister had referred under s 218F to the Departmental Chief Executive for examination and report was the proposal made by the Minister for the amalgamation of the local government areas of Randwick, Waverley and Woollahra. The notice published in the newspapers and attached to the Delegate's letters to the Councils, and published on various websites was entitled: Notification of public inquiry into the proposal to amalgamate or alter the boundaries of local government areas 60. The first paragraph of the notice referred to the proposal in the following terms: Pursuant to section 218F of the Local Government Act 1993 the Minister for Local Government has referred a proposal in relation to the following local government areas: Randwick, Waverley and Woollahra to the Acting Chief Executive of the Office of Local Government for examination and report. 61. Together, these statements in the notice gave sufficient information or warning to readers of what was proposed. Persons reading the notice were alerted that: (a) the subject matter of the inquiry was a proposal, which had been referred by the Minister pursuant to s 218F of the Act to the Acting Chief Executive of the Office of Local Government for examination and report; (b) the proposal was to amalgamate or alter the boundaries of local government areas; and (c) the local government areas affected were Randwick, Waverley and Woollahra. 62. The only mistake in this description of the proposal was the addition of the words "or alter the boundaries of" in the heading of the notice. The proposal that the Minister had in fact referred under s 218F was only for the amalgamation of the local government areas of Randwick, Waverley and Woollahra (the function under s 218A); there was no proposal to alter the boundaries of those areas (the function under s 218B). The notice described the proposal as being either the amalgamation of the three areas identified (which was the proposal that the Minister had referred for examination and report) or the alteration of boundaries (which was not part of the Minister's proposal). 63. I do not consider that this reference to a matter that was not part of the Minister's proposal meant that the notice did not alert the reader to the proposal in relation to which the inquiry was to be held and in respect of which submissions to the inquiry were to be made. Notwithstanding the additional reference to alteration of boundaries, the notice still identified that the Minister may have referred a proposal to amalgamate the local government areas of Randwick, Waverley and Woollahra, which was to be the subject of the inquiry that was to be held. 64. Persons who were concerned about the amalgamation of these areas would be alerted to this fact and the opportunity for them to make a submission to the inquiry about this proposal to amalgamate those areas. The persons would not be dissuaded from doing so because the notice also referred to a proposal to alter the boundaries of those areas. 65. Third, the notice specified the purpose of holding the inquiry. The notice stated that, pursuant to s 218F of the Act, the Minister had referred the proposal in relation to the local government areas of Randwick, Waverley and Woollahra to the Acting Departmental Chief Executive for examination and report and that the Departmental Chief Executive had delegated to the Delegate the examination and reporting functions under s 218F. The notice stated that a public inquiry in relation to the proposal would be held under s 263 of the Act at the times and venues specified in the notice. Together, these statements alerted the reader that the Delegate was holding the inquiry for the purpose of exercising the functions of examining and reporting on the proposal that had been referred by the Minister in accordance with s 218F. 66. The public notice that was given was "reasonable" both as to content and timing. As to the content, the notice provided sufficient information to alert the reader about the subject matter and purpose of the inquiry and when and where the inquiry would be held. I do not agree with Woollahra Council's submission that "the provision of reasonable public notice necessarily requires that the public be sufficiently notified of the basis of the relevant proposal so as to be in a position to formulate such arguments". The statutory requirement to give public notice of the holding of the inquiry does not extend to requiring that the public notice specify the basis on which the Minister (or any other initiator of a proposal) made the proposal that was referred for examination and report in accordance with s 218F. The statutory requirement for giving public notice also does not require that any documentation on which the proposal was based, in this case said to include various KPMG analyses, be placed on public exhibition so as to enable submissions to be made thereon. 67. As to the timing, public notice was given progressively. Public notice was first given on the Office of Local Government's Council Boundary Review website from 12 January 2016 onwards. The notice was first published in the State-wide newspapers of the Sydney Morning Herald and The Daily Telegraph on 13 January 2016. The Delegate wrote to the Councils on 14 January 2016 notifying them of the holding of the inquiry and attaching the public notice. The public notice that had been sent to the Councils was published on at least Woollahra Council's website at some time after 14 January 2016. Public notice was published in the local newspaper of the Wentworth Courier on 20 and 27 January 2016. The inquiry was held on 4 February 2016. The period of time between the giving of the public notice and the holding of the inquiry was, therefore, up to 23 days (12 January to 4 February 2016), of which 16 days were working days. There were lesser periods of time for the other forms of public notice (22 days for the notice published in the State-wide newspapers; about 20 days for the notice given on Woollahra Council's website; and 15 days from the first notice published in the local newspaper). 70. I do not find that the timing of these forms of public notice was unreasonable. First, the periods of time between the giving of the notice and the holding of the inquiry have not been established to be inherently insufficient (having regard to the nature of the proposal and the issues and factors to be considered) for persons who wished to make a submission to the inquiry to be able to do so. Indeed, the detailed submissions that were made by the affected councils and the public indicated that there was sufficient time. 71. Second, the timing of the public notice needs to be considered in the context that the Minister had announced on 18 December 2015 in general terms that he was going to make proposals for the amalgamation of local government areas and then announced on 6 January 2016 in particular terms that he had made the proposals, including to amalgamate the areas of Randwick, Waverley and Woollahra. Persons who were opposed to or supported the proposal to amalgamate the areas of Randwick, Waverley and Woollahra were thereby already on notice and had an opportunity to commence preparing any submissions that they might wish to make to an inquiry once public notice was given of the holding of the inquiry. 72. Third, the timing of the public notice also needs to be considered in the context that there was a longer period of time to make written submissions to the Delegate. Although the inquiry was held on 4 February 2016, written submissions were able to be made up to 28 February 2016, another three weeks. 73. Fourth, some documents concerning the proposal, including the document entitled "Merger Proposal: Randwick City Council, Waverley Council, Woollahra Municipal Council" ('the proposal document') dated January 2016, were made publicly available. These documents provided information on the proposal to enable persons to know what was proposed, to take an informed position on it, and make a submission with respect to it. The non-disclosure of other documents, including various KPMG analyses supporting the proposal, did not make the period of notice necessarily insufficient or unreasonable. 74. Fifth, the fact the public notice was given progressively throughout January, when people might be on vacation, did not cause the public notice that was given to be unreasonable. The earliest that public notice was given was on 12 January 2016. This was after the Christmas/New Year period and the first week of January, being the periods when the greatest number of people are on vacation. The last two weeks of January and the first week of February do not fall into the same category. The evidence of a few people that they did not become aware of and did not attend the inquiry does not establish that the public notice that was given was ineffective in alerting people to the holding of the inquiry. Indeed, the sizeable number of people who did make submissions (449) and attended the two sessions of the inquiry that was held on 4 February 2016 points to the contrary. 75. Finally, the forms of public notice of the holding of the inquiry that were given included newspaper advertisements in both State-wide and local newspapers. Public notice by newspaper advertisements of the holding of the inquiry was fair and reasonable notice to the public, which was the audience to whom notice was intended to be given. I do not accept Woollahra Council's argument that there was "limited circulation" of the public notice. 1. Although information contained in this section of his Honour's judgment was set out incorporating the details of dates involved and numbers of submissions made applicable to the Woollahra amalgamation proposal, the analysis undertaken by his Honour is equally applicable in these proceedings and I adopt it. 2. For completeness, it is appropriate to provide two tables that make it clear why such a course is appropriate. The first table deals with the publicising timetable in the context of the New South Wales school holiday dates and the holding of each of the relevant public inquiry sessions. The second table sets out the number of written submissions to each Delegate and the number of oral presentations at each session of the public inquiry process undertaken by each Delegate. Merger Proposal: Publication: Date of Public Inquiry: Sydney Morning Herald Daily Telegraph Local Newspaper(s) 2016 2016 2016 2016 Hunter's Hill/Lane Cove/ 13 January 13 January North Shore Times 2 February Ryde 20 and 27 January Strathfield/Burwood/ 13 January 13 January Inner West Courier 4 February Canada Bay 19 and 26 January North Sydney/Willoughby/ North Shore Times Mosman 8 March 8 March 9 March 22 and 23 March (Second Proposal) Mosman Daily 10 March Merger Proposal: Number of Written Submissions made Number of speakers at Inquiry Hunter's Hill/Lane Cove/ Ryde 457 70 Strathfield/Burwood/Canada Bay 205 31 Chatswood Club 22 March 2016 Inquiry North Sydney/Willoughby/Mosman 779 51 attendees and 22 speakers (Second Proposal) Mosman Club 23 March 2016 Inquiry 200 attendees and 45 speakers 1. The two tables clearly demonstrate that the conclusions concerning the aspects of the Woollahra amalgamation notice dealt with by the Chief Judge in the above extract are sufficiently broadly replicated in the notice, and resultant processes undertaken by the Delegates in these proceedings to enable me to conclude that the Councils in these proceedings have not established that reasonable public notice was not given of the holding, by any Delegate, of his inquiry. 2. The grounds relating to appropriateness and adequacy of the notice required by s 263(2B) are rejected in each proceedings. Conduct of the inquiry 1. The basis for this Councils' complaint about the conduct of the inquiry – a complaint of denial of procedural fairness – can be seen from the relevant elements of Ground 3, particulars (a) to (e), of Lane Cove Council's Amended Summons. One aspect in these particulars is dealt with elsewhere and, therefore for the purpose of this consideration, is shown below for completeness but has been struck through. The pleading said, relevantly: 3. The Council and the ratepayers and residents of Lane Cove have been denied procedural fairness by the Delegate and the Minister. Particulars (a) In the exercise of the statutory functions of examination, report and holding an inquiry in relation to the Proposal referred to him, the Delegate was required to afford procedural fairness to the Council and members of the public. (b) The Proposal stated that "[e]ach merger Proposal will be subject of a public inquiry where the community can hear about and discuss the Proposal", thus leading to the public having a legitimate expectation that the inquiry would afford them the opportunity to engage in a genuine dialogue with the Delegate concerning the merits of the Proposal. (c) In the period from publication of public notice of the inquiry to the holding of that inquiry on 2 February 2016, a member of the public or resident of the local government area of Hunter's Hill, City of Ryde and Lane Cove was expected: (i) to have read the notice, (ii) to have understood that the proposal subject of the notice was the forced amalgamation of the Council with the councils of Hunter's Hill and City of Ryde despite the defects in the notice in respect of the failure to identify the Proposal identified above, (iii) to have read and understood documents issued by the government (including the Local Government Acts Task Force LGAT Report, Independent Government Review Panel Report, Fit for the future report, IPART final report), (iv) to have analysed these documents to determine a position in respect of whether the Proposal was in his or her best interests, (v) to have registered to speak at the inquiry, (vi) to have marshalled their comments so as to speak for the three minutes allowed at the inquiry, and (vii) for a resident of a local government areas of Lane Cove and/or City of Ryde, to have travelled to a venue outside the local government area. (d) On 2 February 2016 the Delegate held inquiry at the Hunter's Hill Sailing Club where: (i) the Delegate stated that he did not have the power to answer questions from the public and so declined to answer any questions from the public in relation to the Proposal: lines 7-10 page 3, transcript of 7.00 pm session of the public inquiry on 2 February 2016, and (ii) the Delegate stated that questions from the public were for others to consider: lines 7-10 page 3, transcript of 7.00 pm session of the public inquiry on 2 February 2016 (e) That the inquiry proceeded on 2 February 2016 in such circumstances resulted in a denial of procedural fairness to the Council (and to members of the public). 1. Although not pleaded in identical terms, the same complaint (in sufficiently similar terms to be dealt with as a common issue) was Ground 5 in both the North Sydney and Mosman pleadings, Ground 3 in the Hunter's Hill pleadings and Ground 3 in the Strathfield pleadings. 2. In Woollahra, Preston CJ dealt with complaints about the process of that Delegate's inquiry in the following terms: 106. Woollahra Council has not established that the inquiry held by the Delegate did not meet the statutory description or the requirements of an inquiry under s 263 of the Act. First, I do not agree with Woollahra Council's interpretation that an inquiry under the section requires "a structure and forensic process similar to that of an administrative tribunal". Nothing in s 263 supports that construction. The restrictions on representation in s 264 also do not support that contention. Section 264 merely provides what cannot be done, not what must be done, in proceedings before the Boundaries Commission (or Departmental Chief Executive). 107. Second, whilst it is correct to note that the statutory scheme with respect to boundaries of areas distinguishes between "advertised public meetings" (s 218F(3)(a)(i)) and an "inquiry" (s 263(2) and (2A)), this difference in language does not illuminate how an inquiry under s 263 must be conducted. Advertised public meetings are prescribed as one of the ways in which the Boundaries Commission or Departmental Chief Executive must seek the views of electors of each of the areas that are the subject of a joint proposal of two or more councils for amalgamation. An inquiry under s 263 is held for the different purpose of exercising the functions of examining and reporting on a matter with respect to the boundaries of areas, including a proposal for the amalgamation of areas. It is apt to use the language of an advertised public meeting as a means to seek the views of electors and to use the language of holding an inquiry for the purpose of exercising the functions of examining and reporting on a matter, including a proposal. 108. But it does not necessarily follow from this use of different language that an advertised public meeting and an inquiry must be held according to different procedures, or more particularly that an inquiry under s 263 cannot be held in the same manner as an advertised public meeting might be held. 109. Third, I do not agree with Woollahra Council's submission that the inquiry "entails the entire process at which materials are advanced and arguments are made in relation to an amalgamation proposal" and that the inquiry "was required to cover 'whatever was material to an informed decision' as to the merits or demerits of the proposal", and that this entire process must be held in public and be capable of attendance by the public. This "entire process" referred to by Woollahra Council is part of the functions of the Boundaries Commission or Departmental Chief Executive in examining and reporting on the matter, including a proposal, referred to it by the Minister under s 218F. An inquiry under s 263 is held for the purpose of exercising those functions but it is not itself the exercise of the functions. Section 263 does not require that the Boundaries Commission or Departmental Chief Executive carry out its function of examination of the proposal in public at an inquiry. 110. Once this is understood, the "entire process" referred to by Woollahra Council did not need to be carried out in public at an inquiry. 111. It follows from this conclusion that s 263 did not mandate that the person holding the inquiry (in this case the Delegate of the Departmental Chief Executive) actively question persons speaking at the inquiry or answer questions asked of the Delegate at the inquiry. Where the section is silent as to the procedure to be followed at the inquiry, that procedure within such limits as are necessarily imposed by its qualifying for the description "inquiry", is left to the discretion of the person holding the inquiry: Bushell v Secretary of State for the Environment at 94-95. The Delegate did not fail to hold an inquiry under the section by stating that he was "here only to listen". 112. Fourth, it also follows from the previous point that s 263 does not require that all key material relied upon by the Boundaries Commission or Departmental Chief Executive in examining and reporting on a proposal referred to it by the Minister under s 218F must be publicly accessible in advance of the holding of the inquiry. This argument of Woollahra Council is predicated on its mistaken contention that the entire process of examination and report must be carried out in public at the inquiry. 113. The citation of Bread Manufacturers of New South Wales v Evans (at 413) is misplaced. The inquiry required to be conducted in the circumstances and under the legislation considered in that case was quite different to the inquiry required to be held under s 263 of the Act. There, the High Court held that, because legislation in that case conferred investigative powers on the Prices Commission for the purposes of a public inquiry, where an inquiry was held, the Prices Commission was precluded either from using information obtained privately for the purposes of the inquiry without disclosing it to the parties (per Gibbs CJ and Aickin J) or from obtaining information for the purposes of the inquiry except in public and on oath (per Wilson and Mason JJ). Here, s 263 does not so require that information obtained by the Boundaries Commission or Departmental Chief Executive must be publicly disclosed and publicly adduced at an inquiry held under the section. So too, the inquiries held under the legislation considered in Bushell v Secretary of State for the Environment and B Johnson & Co (Builders) Ltd v Minister of Health were quite different to the inquiry required to be held under s 263 of the Act. 1. The Councils' submissions on this portion of the decision in Woollahra were in the following terms: 6. The second question which appears to be common, but which does not truly involve the same legal issue, is the question of how the public hearings were conducted. The applicant in Woollahra complained about the same characteristics of the public meetings as the applicants in these proceedings (at [88]). However, in Woollahra, the applicants argued that an inquiry conducted in this way did not answer the description of an "inquiry" within the meaning of s 263 of the LG Act, whereas, in the present case the applicants have pleaded that there was lack of procedural fairness. Therefore, the finding of the Preston CJ that the inquiry in Woollahra was an inquiry within the meaning of s 263 (at [106]) does not address the question of whether or not the conduct of the hearings was procedurally fair. In particular, it does not address the consequences of representations about the process made in the proposal documents. 1. The Respondents' submissions in reply on this point were brief: 17. It is accepted that the Woollahra Judgment does not address the question which arises in these proceedings as to whether procedural fairness was afforded in light of alleged reasonable expectations about the process. However, his Honour's findings in relation to the statutory requirements for the public inquiry, including that the delegate did not have to ask questions, clearly inform the question whether procedural fairness was afforded. 1. The broad thrust of the complaints can be seen from [28] to [30] of Mosman Municipal Council's amended Summary of Argument (as illustrative of the position of all these Councils). The relevant submission extract is in the following terms: 28. An inquiry held under s.263 attracts the rules of procedural fairness which cannot be ignored, even if the Minister may later afford the Council and residents and ratepayers procedural fairness: South Sydney at [43]. The circumstances of the holding of the public inquiries on 22 and 23 March 2016 represented a denial of procedural fairness by the Second Delegate. 29. There are numerous features of the holding of the public inquiry which were procedurally unfair, including the short notice, the need to register to speak at the inquiry and the failure of the published notices to specify the Proposal. Even more egregious, however, was the conduct of the Delegate at the public inquiries. 29a In his introductory remarks at both meetings relating to the Second proposal, the Delegate said words to the effect that his role was "simply ... to listen and record". A review of the transcripts reveals that each meeting was structured as a series of monologues, deliberately avoiding any dialogue, other than questions about the meeting and inquiry process. When an attendee at the Mosman Club meeting did interject to ask questions, the facilitator warned him to ask only "process question(s)". When another attendee (or it may have been the same person) attempted to ask the Second Delegate whether he was going to seek expert advice, the facilitator said: "This is not a question and answer session for the Delegate. I'm allowing questions in relation to the process. But, that is not an appropriate question." 29b Similarly, at the Chatswood Club, there was some dialogue with the Delegate, but this was all about the process. 29c The Delegate did not engage in any discussion, or answer any question about the merits of the proposal at either the Mosman Club or the Chatswood Club meetings. The Delegate was not on a frolic of his own in avoiding any questions - all delegates were clearly instructed by DPC not to answer questions. 30. In conducting himself in that way, the Delegate not only misconceived his function, but he also denied the attendees of the inquiry procedural fairness. A central feature of the Proposal document was that each merger proposal would be "the subject of a public inquiry where the community can hear about and discuss the proposal" (emphasis added). Members of the public therefore had a legitimate expectation that the inquiry would afford them the opportunity to engage in a genuine dialogue with the Delegate concerning the merits of the Proposal. The Delegate's conduct was a critical departure from the promised procedure involving "discussion". 1. Although the matters dealt with in Woollahra were dealt with in response to a differently pleaded complaint, [111] of Woollahra (which I adopt as correct to apply in these proceedings) is a complete answer to the complaint about the relevant Delegate failing to permit and answer merit questions or engage in a dialogue with those at the relevant public inquiry sessions. 2. As dealt with earlier, the document here described as the "Proposal" in the pleadings was not the proposal in any legal sense reflecting that which had been referred to the Acting Chief Executive Officer and then delegated to the relevant Delegate. The "Proposal", as used in these pleadings, was to be regarded correctly as the Minister's submission or advocacy document – no more and no less. 3. The statement in each of the Minister's documents that "[e]ach merger Proposal will be subject of a public inquiry where the community can hear about and discuss the Proposal" does not hold out a representation that there would be some explanation or justification of the proposed merger being given by the relevant Delegate on behalf of the Minister. That which had been delegated to the relevant Delegate was the statutory function "for examination and report … to the Departmental Chief Executive" (s 218F(1)). As the Chief Judge observed in [111], how each Delegate did so was a matter for that Delegate. The facts that there may have been acceptance by each Delegate of third party guidance on how that might take place and that each Delegate accepted the assistance of a facilitator/moderator in the conduct of that Delegate's public inquiry sessions does not impact on the permissibility of the manner of conduct of those public inquiry sessions followed by each Delegate. 4. Indeed, it is clear from the transcripts of the various public inquiry sessions held by all the Delegates that those attending had the opportunity to "hear about" the proposal from all the other contributors to the discussion at the session attended. This included, at sessions where this occurred, from one or more representatives of the Councils that were the subject of the particular proposal. That the Councils have chosen to interpret the Minister's advocacy document as holding out that there would be some presentation on behalf of the Minister about the proposal at any of the public sessions (whether by the relevant Delegate or some other person being immaterial) is misplaced. The public inquiry sessions did permit the community to hear about and discuss the relevant merger proposal – indeed, the Councils themselves contributed (at the sessions in which they participated) to the informed discussion of the relevant proposed merger. 5. The complaint in (c)(ii) has been dealt with earlier and need not be addressed further. 6. The complaints in (c)(iii) and (iv) are misplaced. There was no such expectation – documents had been made available so that any person contemplating making a submission (whether written or oral) could be informed if they wished to go beyond a simple position of support or opposition to the relevant proposed merger. It is also clear from the transcripts of the various public inquiry sessions held by all the Delegates whose processes are here challenged that the extent of background information that submitters had acquired prior to attending varied across a wide spectrum. Some were, apparently, well researched whilst others were simply recording a strong personal or organisational position (usually, but not always) in opposition to the proposed merger. 7. There was no denial of procedural fairness by any Delegate in the holding and conduct of any of the public inquiry sessions. The Delegates' reports 1. Where a Council has complained about a specific aspect of a Delegate's report (particularly individual matters to which a Delegate was required to have regard as a consequence of s 263(3), those complaints are dealt with in the various specific complaints sections later in this judgment. 2. However, there was a common, general complaint concerning the reporting process undertaken by all of these Delegates. The complaint was pleaded, in each proceedings, as a particularised element of the "denial of procedural fairness by the Delegate" ground pressed by each of the Councils. Although there were minor and inconsequential drafting differences, the nature of the complaint can be seen from the following particular taken from Ground 3 in Hunter's Hill Council's Further Amended Summons. The particular was in the following terms: (k) As part of the exercise of the statutory functions of examination, report and holding an inquiry in relation to the Proposal referred to him, the Delegate was required to make his report on the Proposal available to councils, including the Council, in order to provide them with the reasonable opportunity to make a fully informed submission. 1. In dealing with the complaint of denial of procedural fairness by the Delegate in Woollahra, Preston CJ said: 242. The duty to accord procedural fairness (where it applies) attaches to the exercise of statutory power: Minister for Local Government v South Sydney City Council at [15]. Here, the statutory power is the function under s 263 requiring the Boundaries Commission or Departmental Chief Executive (or his or her delegate) to examine and report on the proposal for the amalgamation of local government areas that has been referred to it by the Minister (s 263(1)). For the purpose of exercising that function, the Boundaries Commission or Departmental Chief Executive is to hold an inquiry (s 263(2A)). When considering the proposal, the Boundaries Commission or Departmental Chief Executive is to have regard to the factors in s 263(3). 243. The duty to accord procedural fairness that attaches to the statutory power under s 263 rests on the Boundaries Commission or Departmental Chief Executive who exercises the statutory power. The content of the duty also is defined by the statutory power under s 263 and the statutory scheme in which that power is found. 1. The matter to be addressed in the context of the complaint against the Delegates in these proceedings is whether there is any requirement flowing from the Local Government Act or general principle that would mandate these Councils being given the opportunity by a Delegate to comment on that Delegate's report (the issue of the Minister providing an opportunity to comment is dealt with elsewhere). 2. The answer is to be found in the functions mandated for a Delegate by s 218F(1) and (6)(a). First, the Minister has referred the relevant proposal for examination and report (by the relevant Delegate as delegated by the Acting Chief Executive) – s 218F(1). After having carried out this function, the mandated requirement is to furnish the Delegate's (Departmental Chief Executive's) report to the Boundaries Commission for review and comment – s 218F(6)(a). 3. Although, as his Honour discussed in [243], dealing with procedural fairness at the inquiry process stage, such a duty clearly attaches at that stage. However, a Delegate's duty imposed by s 218F(6)(a) is limited and specific. The duty to provide the report is to provide it to the Boundaries Commission so that that Boundaries Commission can review the report and send its comments to the Minister as required by s 218F(6)(b). There is no obligation to interpose any reference of a Delegate's report to the relevant Council in these mandated steps. 4. This complaint is without foundation. The KPMG issues The independence complaint 1. In Woollahra, the Chief Judge set out his conclusions concerning that Council's complaint that misleading statements were made concerning the independence of KPMG and that this caused the statutory process to miscarry. His Honour dealt with this complaint at [303] to [310] of his judgment. In doing so, he had adopted the submissions of the Respondents – submissions he had described and analysed at [287] to [302]. 2. For the purpose of my consideration, I do not consider it necessary to reproduce that element dealing with the Respondents' submissions but it is appropriate to quote the relevant portion setting out his Honour's conclusions and reasons therefor. His Honour said: Statements were not misleading and did not invalidate amalgamation process 303. Woollahra Council has not established that statements concerning the independence of KPMG's analysis and modelling were false or misleading or, even if they were to be, that this invalidated the statutory amalgamation process in respect of the proposal. My reasons are those advanced by the respondents and summarised above. 304. In summary, I do not accept that the statements in the publicly available documents concerning "independent analysis and modelling by KPMG" conveyed the representations claimed by Woollahra Council but instead I find that they conveyed the representations submitted by the respondents. I find that the latter representations were not false or misleading. KPMG exercised its professional judgment in undertaking the analysis and modelling of financial impacts of the proposal made by the Minister and was not dictated to or overborne by the government. None of the matters relied on by Woollahra Council falsified the representations, for the reasons given by the respondents. 305. Nevertheless, even if the statements concerning KPMG's independent analysis and modelling were to be false or misleading, this would not have the legal consequence of invalidating any step in the amalgamation process, for the reasons given by the respondent. The allegedly misleading statements were not in any notice required to be given under the Act or in any document required to be produced or publicly exhibited by the Act. 306. The statements were not in the public notice that was required (under s 263(2B)) to be given of the holding of the inquiry. It is true that the public notice that was given referred to the Council Boundary Review website and that at least two of the documents relied on by Woollahra Council as containing misleading statements were able to be publicly accessed via that website. However, the statements said nothing misleading about the proposal that was the subject of the inquiry (the amalgamation of the local government areas of Randwick, Waverley and Woollahra) or about the statutory process for considering that proposal. There was, therefore, nothing misleading that was said that could cause the public notice that was given not to be a "public notice" within the meaning of s 263(2B) of the Act. 307. There was no statutory requirement to publicly exhibit any document as part of the process of holding the inquiry or examining and reporting on the proposal. Hence, any allegedly misleading statement in documents accessible on the Council Boundary Review website could not cause the documents not to be documents required by the Act. 308. Woollahra Council also has not established that the allegedly misleading statements caused the Delegate to fail to consider any mandatory relevant matter (under s 263(3)) or fail to exercise its duty to examine and report on the proposal (under s 263(1)). The mere fact that a repository of administrative power (the Delegate in this case) might consider a factually false or misleading statement (that is not fraudulent) does not, by that fact alone, cause any exercise of the power to miscarry in law. It will only do so if, as a consequence of the false or misleading statement, a recognised ground of judicial review is established or a mandatory statutory requirement is not complied with. 309. In this case, the allegedly false or misleading statements have not caused the Delegate to fail to give the public notice required, to hold the inquiry required or to examine and report on the proposal as required by the Act. The allegedly false or misleading statements, therefore, have not had the legal consequence of invalidating any step in the statutory amalgamation process concerning the proposal. 310. I reject this ground of challenge. 1. In their submissions to me following the Woollahra decision, the Councils in these proceedings said: 9. The fourth common question was the effect of misleading statements made about the independence of KPMG. 10. Preston CJ in Woollahra found that the applicant had not established that statements concerning the independence of KPMG's modelling and analysis were misleading (at [303]). This was based on acceptance of the respondents' argument that the only thing conveyed by the statements was that KPMG exercised its professional judgment, and had not been overborne, or dictated to by the government (at [289]). This finding was incorrect, because it treated the question as one of statutory construction, applying authorities which related to the technical term "independent contractor", rather than considering how the expression would be understood by an ordinary member of the public, which was the audience of the representation. In this context, the dictionary definition was a better guide to construction, and the true range of meanings conveyed by the representations were those set out in paragraph [15] of the Councils' Submissions in Reply on the KPMG Independence Point. 11. Preston CJ's narrow construction of the concept of independence coloured the way in which he viewed all of the KPMG independence documents. His Honour looked in those documents for evidence that KPMG had not exercised its independent judgment, and failed to find any. However, if his Honour had asked a different question, whether KPMG was "uninfluenced" by government, then his Honour would have found that the documents provided overwhelming evidence that KPMG acted as a project manager, collaborator and advocate for the government in relation to local government mergers, which was the very antithesis of independence. 12. Preston CJ also found that even if the statements had been misleading, this would not have had the legal consequence of invalidating any step in the amalgamation process (at [305]). However, that only addressed the specific way in which the case was put by the applicant in Woollahra, which was that the misleading statements per se did not cause the process of inquiry and reporting to miscarry, but rather that they caused a serious departure from the statutory process, so that it no longer satisfied the requirements of the Act (at [281]). 13. The applicants in the present proceedings say that the misleading statements produced invalidity in a different way. They say that the misleading statements vitiated the decision because the decision-maker operated under a misapprehension of material matters of fact. They also say that the misleading statements formed part of the documentation which was publicly exhibited, and that this caused the public exhibition process to miscarry. They rely in this regard on Castle Constructions Pty Limited v North Sydney Council [2008] NSWLEC 137 at [81]-[93]3. The decision in Woollahra does not address these points. 14. The applicant in Woollahra ran its case on the basis that an "innocent" misrepresentation was insufficient to vitiate an administrative decision (at [280]). This was not conceded by the applicants in the present proceedings. As the applicants pointed out in oral address, Biscoe J in Anderson v Minister for Infrastructure, Planning and Natural Resources (2006) 151 LGERA 229 at [79] only decided that an innocent misrepresentation was "generally" insufficient to vitiate an administrative decision. In Sharples v Minister for Local Government (2008) 166 LGERA 302 he qualified this, saying that "a decision which proceeds on a misleading view of the facts because of what a department has communicated to its Minister may be vitiated" because it could lead the Minister to fail to take account of mandatory relevant considerations (at [116] – [117]). 15. In the present case, the representations have infected the process, because they had the potential to affect the way that the public considered the merits of the proposals, and the delegates approached their reporting task, encouraging them to have more confidence in KPMG's figures than they ought. It does not matter that there was no legal requirement to publicly exhibit the documents which contained the misleading information. The Court of Appeal in Litevale held that notification can be misleading if it goes beyond what is required and gives some additional explanation which is not required by the statute (at 102 per Rolfe AJA; see also Homeworld Ballina Pty Ltd v Ballina Shire Council (2010) 172 LGERA 211 at [26]-[37]). 1. The Respondents' reply submissions, post-Woollahra, dealt with these further submissions by the Councils in the following terms: Independence of KPMG 20. The Councils advance a number of submissions as to why the Woollahra Judgment is wrongly decided in this respect. None of them provides justification for distinguishing the decision, or being satisfied that it is plainly wrong. 21. First, it is said that Preston CJ failed to consider how "independent" would be understood by an ordinary member of the public (at [10]). This is not so: his Honour accepted the submissions of the respondents that the "ordinary speech" meaning of "independent" should be applied ([289] and [303]). 22. Second, it is said that his Honour ought to have used the dictionary as a guide to its meaning (at [10]). However, this course is contrary to what was said by Leeming JA in TAL Life Ltd v Shuetrim [2016] NSWCA 68 at [80] that dictionaries will not assist in ascertaining the precise meaning a word bears in its context. 23. Third, the Councils submit that Preston CJ only determined whether the evidence demonstrated that KPMG had not exercised its independent judgment. That is incorrect; his Honour found that (at [304]): "KPMG exercised its professional judgment in undertaking the analysis and modelling of financial impacts of the proposal made by the Minister and was not dictated to or overborne by the government." (emphasis added) 24. Fourth, it is said that the judgment does not apply because the Councils contend in these proceedings that the allegedly misleading statements: (i) caused the delegate to operate under a misapprehension; or (ii) formed part of the documentation that was publicly exhibited. However, Preston CJ dealt with both such potential consequences in the Woollahra Judgment, holding that: (i) there was no evidence that the statements caused the Delegate to operate differently ([308]); and (ii) the documents were not required to be publicly exhibited (at [307]). 25. Fifth, the Woollahra Judgment cannot be distinguished because a sensible legal concession was made in that case that "the relevant error would have to be more than an innocent, immaterial mistake or a mistake of a kind appropriate to be corrected through the statutory process for an amalgamation proposal" (at [280]). Woollahra made exactly the arguments that the Councils reprise in their submissions at [14]-[15] (in essence, attempting to present the error as leading to a failure to have regard to a mandatory relevant consideration or making the case analogous to the misleading statutory notice cases such as Litevale and Homeworld Ballina). Preston CJ considered and rejected both of those arguments (at [279], [281]-[286] and [306]-[309]). 26. None of the reasons advanced by the Councils demonstrates that Preston CJ's decision is plainly wrong or that it should not be applied in these proceedings. 1. I have carefully considered the combination of what his Honour wrote; the submissions for the Councils proposing that I should depart from his Honour's conclusions and the submissions of the Respondents in reply to them. I am satisfied that the submissions of the Respondents are an appropriate and sufficient answer to that which is contained in [10] to [12] of the Councils' submissions set out above. However, the Councils have also proposed additional matters in [13] to [15] of their post-Woollahra submissions set out above. As the Respondents have not expressly addressed those paragraphs, it is necessary for me to do so. 2. First, I turn my attention to the complaint in [13], one based on the decision of Lloyd J in Castle Constructions Pty Limited v North Sydney Council [2008] NSWLEC 137. His Honour's determination in that case as to whether a property management company was independent of North Sydney Council is set out at [93] and, based on his Honour's analysis of the submissions put to him, an analysis set out between [81] and [92]. It is, therefore, appropriate to set out what his Honour determined and then to consider the extent to which it might be applicable in these proceedings. His Honour wrote: 81. The applicant submits that the reference to the independent feasibility study in the letter dated 26 October 2007 written by the Department of Planning is misleading because the author of the study, Preston Rowe Paterson Pty , was not independent of the council. 82. The applicant claims that the reference to the independent feasibility study signals that PRP was an independent third party from the council, when in fact it was not. It claims that PRP was at all material times acting for the council as its property manager and agent for substantial reward. The applicant relies on the report of a council officer regarding the PRP contract. The report was subsequently adopted by the council on 27 November 2006, when it resolved that: Preston Rowe Paterson (NSW) Pty Limited be appointed under formal contract as the successful tenderer to provide consultant property management services to Council for a period of two years commencing 1 December 2006 at a projected cost of $359 056.60 including GST per annum. 83. The evidence of Mr Joseph Hill, Manager of Strategic Planning for the council on 16 January 2008 (in the Land and Environment Court proceedings No. 11010 of 2005, before Commissioner Bly), further explains the nature of the relationship. The relevant evidence of Mr Hill, is as follows (transcript, at p 65, lines 20 to 30): Q: It's quite clear, is it not, that PRP are not independent of council in the sense that they are retained in a commercial profit-driven capacity to act for council as their agents? A: Yes. Q: So the department has never been provided with an independent commercial feasibility study, has it? A: In that sense, no. 84. The applicant also contends that the council sought to influence the outcome of the study. It has tendered correspondence between council officer, Mr Brad Stafford and PRP dated 7 August 2007, wherein the officer requested that PRP amend the sentence: "It appears therefore that North Sydney Council can meet its target of an additional 250,000 square metres of gross floor space" to read: "Therefore North Sydney Council can meet its target of an additional 250,000 square metres of gross floor space". 85. A request was also made that the summary and conclusions be placed at the beginning of the document which, the applicant contends, attempts to lull the reader into a false sense of security so that they read only the beginning of the document. PRP subsequently made the changes. The applicant submits that this demonstrates the direct influence that the council exercised over PRP, since it had PRP alter the report. 86. The applicant also relies on the High Court decision of Pilmer v Duke Group Limited (2001) 207 CLR 165 at [82]-[83] which supports the proposition that the existence of an ongoing or existing relationship results in a breach of the necessary independence. That case involved an application of the stock exchange rules to the relationship between an auditor and auditee. The applicant contends that these rules and corporations law can have a general utility in deciding what is an independent report. The applicant relies upon the Australian Securities and Investments Commission (ASIC), Regulatory Guide 112: Independence of experts, October 2007 ("RG 112"). The guide refers to the decision of Brooking J in Phosphate Co-operative Company of Australia Pty Limited v Shears (No 3) 14 ACLR 323 (Pivot) at 339 which states: "[T]he expert's integrity and freedom from baneful influences is essential": RG 112.6. The applicant also relies on the decision of Templeman J in Conocophillips WA – 248 Pty Limited v Batoka Pty Limited (2005) 54 ACSR 646 at [63] referring to s 667B(1) of the Corporations Act 2001 (Cth). Section 667B(1) states that for an expert to be independent: (i) The expert who provides the report must not be an associate of: (a) the person giving the notice, or (b) the company that issued the securities. 87. The applicant also points out RG 112.52 that states, inter alia: ...any alteration of the report made at the suggestion of the commissioning party or its advisers which affects an expert's analysis of the transaction or the expert's conclusions, should be clearly and prominently disclosed in the report. The applicant emphasises that no such disclosure took place here. It also submits that it need not establish that PRP did anything to compromise its independence because it is enough to show that its status as rental manager and general property adviser amounts to what would be a disqualification under the regulatory principles regarding independence which have been accepted by the courts. 88. The applicant submits that the reference to the report as an 'independent economic feasibility study' would therefore mislead the hypothetical reasonable person into thinking that PRP was a third party expert, unconnected and independent of the council. This is materially misleading and invalidates the public exhibition process. 89. The council concedes that PRP was retained for a fee, but claims that this on its own does not establish a lack of independence. It relies on an email from council officer Mr Stafford to Mr Greg Rowe of PRP dated 25 May 2007, which instructs PRP: "please base your fee proposal on 14 sites". The council submits that this evidences a separate agreement, outside the original contract for service that the applicant alleges compromises independence. The council likens the relationship here to the professional relationship between solicitor and client. The fact that a solicitor acts for a particular client on numerous occasions cannot lead one to assume that a request for advice by the client will lead to biased advice from the solicitor merely because there is a retainer. The subject matter of the exhibited letter was not the independence of PRP and the term "independent" intended to convey that PRP was not a part of the council or that the study was not authored by the council itself or that the study was not the product of the council's work. Mr Hill's evidence should be viewed as evidence that there is a report from a body or entity retained for a fee to provide property management services, but this does not amount to an admission that the report was not independent in the context in which it was used. The council argues that the fact that PRP is not a subordinate body or part of the council, amounts to its independence in this regard. 90. The council submits that the applicant's reliance on the principles of ASIC is misplaced, because the principles are applicable only to experts pertaining to matters the subject of the statutory or regulatory regime under corporations law. The report was not made in response to some statutory obligation for an independent report to be prepared, as is the case with ASIC, and the principles therefore have nothing to do with that which is considered in this case. Similarly, the rules that apply to an expert witness of the court do not apply, as PRP did not provide its opinion for the purpose of evidence in court proceedings. The council submits that in the absence of such rules, it cannot be assumed that because one is retained to provide advice on certain matters, advice given on other matters is tainted. 91. The council relies on the decision in Gales Holdings Pty Limited v Minister for Infrastructure and Planning [2006] NSWCA 388 which states at [110] that "[t]he reasonable person the subject of the relevant test is a person with no knowledge of planning law and the relevant provisions of the LEP". The reasonable person would therefore have no knowledge of the ASIC's requirements, would have no planning expertise generally and the term "independent" would therefore convey that the study was not carried out by either the Department or the council. The council also rejects the assertion by the applicant that the letter contained a limited statement that would lull a member of the public into a false sense of security. It relies on the penultimate paragraph of the said letter wherein the regional director of the department of planning states that progress toward the attainment of the desired capacity will be monitored. The fact that monitoring will occur, the council says, negates the possibility that the statement could mislead members of the public by lulling them into a false sense of security. 92. The council submits that the council did not cause PRP to alter its report in a material way. It points out that the fact that PRP conducted the study using 14 key sites and only identified five as feasible. The council argues that this illustrates that PRP was not the mouthpiece of the council as it could well have identified a greater number of sites. The council also relies on the email communication between Mr Stafford and PRP, as relied upon by the applicant. The council submits that the removal of the words "it appears" did not change the meaning of the statement. The word "can" denotes a question and the council simply asked PRP whether they could make the change, as opposed to telling them to do it. The report should be viewed as a whole and attention should also be paid to an amendment made earlier where the officer asked PRP to place the word "current" before "development potential" which qualifies the report on the present state of affairs. Similarly, the request that the summary and conclusion be placed at the beginning was made so that the first page could instantly inform reader who did not have time to read the whole document. This is a common format for reports. Omission of the words "it appears" was to enable the report to conform to the council's preferred format and eliminate any possibility for confusion. The fact that the council is alleged to have sought to influence the outcome cannot be a basis of challenge, unless the council's actions resulted in a material alteration of the outcome, which the council submits was not the case here. 93. On the evidence put before me by both parties, it is clear that PRP was not independent of the council. Although the company was not subordinate to, or part of, the council, it had a vested interest in the will of the council. It is more than a case of being retained to give advice. PRP was appointed as the council's property manager, for which it was receiving a regular income. It presumably hoped to renew its appointment upon expiry of its present engagement on 1 December 2008. Moreover, I find the ASIC's Regulatory Guide 112: Independence of experts (referred to in par [86] above) to be a useful reference on the independence of experts, and its principles are of general application. It is also clear from the correspondence between the council and PRP, that the council influenced the content of the report so that it conveyed a meaning more favourable to its interests. In this sense, although the council did not author the report, the council edited it, to the extent that the meaning of the report was changed. I therefore find that the reference to the study as 'independent' was materially misleading. 1. As can be seen by his Honour's reference in [86] to the "ASIC Regulatory Guide 112: Independence of Experts" in an earlier paragraph setting out portion of the applicant's submissions to him, his Honour found that guide to be a useful reference on the independence of experts, and that its principles were of general application. 2. Referring to [86], this paragraph only provides a specific quotation from the guide in the following terms: "[T]he expert's integrity and freedom from baneful influences is essential" 1. However, accepting that his Honour's reference may be more expansive, it is also appropriate to incorporate the first portion of [87], portion which also contains an extract from the guide. The relevant extract is: ...any alteration of the report made at the suggestion of the commissioning party or its advisers which affects an expert's analysis of the transaction or the expert's conclusions, should be clearly and prominently disclosed in the report. 1. The second portion of [87], although formatted consistently with being an extract from the guide is, in fact, commentary on the applicant's submissions and cannot play any role in my consideration of his Honour's conclusion. 2. It seems to me that there are two essential elements that underpinned his Honour's conclusion in [93]. 3. The first is that the advising company, in that case, was one which had a vested (and likely, contingent) pecuniary interest in the outcome of the submission that it had been retained to prepare. Whatever might be regarded as the extent of involvement of KPMG in these amalgamation processes (the Council submitting that it was more akin to a "partnership"), there is no suggestion that KPMG had any vested pecuniary interest in the outcome of any of the council amalgamations. 4. The second element founding his Honour's conclusion is that which is contained in the final sentences of the paragraph concerning the extent to which the Council had intervened with the content of the report. In these proceedings, in the three volumes of additional material tendered by the Respondents relating to KPMG's involvement prior to the Premier's announcement in December 2015 and the release of the proposal documents, in their earliest forms, on 6 January 2016, there is only limited evidence that KPMG was requested to alter any document being prepared by its employees as part of this process. That evidence is contained in Exhibit 9, Tab 42, folios 147 and 148. The e-mail chain at those folios discloses that nine draft proposals (as at 1 December) had come "Back from DPC with Revisions". There is no evidence of the nature of those revisions 5. There is no evidence that the editing here was such as to lead to a conclusion that there had been any attempt to influence the contents of the report so that it conveyed a meaning more favourable to the Minister's or the government's interests. 6. Absent such evidence (the burden of proof being on the Councils), Castle Constructions does not require me to conclude that KPMG was not independent. The position here cannot be equated with the extent of the actually disclosed editing that his Honour found to be infecting of the process in Castle Constructions. 7. In [14], the Councils refer to comments by Biscoe J in Anderson v Minister for Infrastructure, Planning and Natural Resources (2006) 151 LGERA 229; [2006] NSWLEC 725, where his Honour said: I uphold the respondent's submission that misleading conduct which is not characterised by fraud, bad faith or the like is, at least generally, insufficient to vitiate an administrative decision. 1. The Councils point out that his Honour resiled, a little, from that in Sharples v Minister for Local Government (2008) 166 LGERA 302; [2008] NSWLEC 328, where his Honour said: 116. The authorities which the applicant cites establish that a decision which proceeds on a misleading view of the facts because of what a department has communicated to its Minister may be vitiated. I address those authorities below. They do not establish that the same result follows where the misleading communication is made not by the Minister's advisers but by a person whose interests are affected by the decision. 117. The reason that a Ministerial decision based on a misleading department communication may be vitiated is because the communication may lead the Minister to fail to take into account a relevant consideration. Material in the possession of the Department is legally presumed to be in the possession of the Minister, and a failure by the Department to bring relevant material to the Minister's attention is a matter for which the Minister bears responsibility. 1. In these circumstances, the KPMG documents about which complaint is made were not only not in the Delegates' possession but were not in the possession of anyone reporting to or responsible to any Delegate in the sense giving rise to the possessory presumption in [117] above. There is no evidence that any Delegate had requested the full KPMG documents, let alone that they were refused. The above line of authority provides the Councils no assistance in these proceedings. 2. In this context, assertions to a Delegate and to the general public that KPMG was independent could not infect the process undertaken here. 3. In particular, any such adverse impact would need to have been on the relevant Delegate, as they are the persons involved in the process of inquiry and reporting. 4. Whether or not, if KPMG was not independent, the assertion that it was independent had some potential to affect the way the public considered the merits of the proposal is, it seems to me, to play no part in these proceedings. An examination of the transcript of each of the public sessions conducted by the various Delegates in each of these proceedings shows that there was a wide range of views put to each Delegate, including views not only by the applicant Councils in these proceedings opposing the proposed amalgamations but also by members of the general public. There can be no suggestion that, even if, in some unknown fashion, the assertion of KPMG's independence deterred participation in the public sessions or in written submissions, there is no doubt that the range and vigour of the views presented to the Delegates would have more than compensated for that aspect of the Councils' complaint. 5. I deal, separately, with the question of the reliance of the various Delegates on the Minister's submission material on economic benefits that had been prepared by KPMG in my consideration of whether or not each Delegate had adequately considered the mandatory matter contained in s 263(3)(a). As there dealt with, I have concluded that each Delegate paid adequate heed to the wide variety of material put to him concerning matters relevant to that provision and that any of the Delegate's preference for adopting the KPMG material as an appropriate basis upon which to support the amalgamation proposal was an avenue open to that Delegate as a conclusion following on the weighing in consideration of such material that had been put to him, across the board, in all inquiries. 6. I am therefore satisfied that there is no infecting of any of the Delegates' processes in these proceedings arising out of any statement that KPMG was independent. The failure to provide all the KPMG material General 1. The only KPMG documents to which the Councils had access prior to the Delegates' inquiries were those which had been publicly released. In particular, in each of the Minister's proposal documents, there is discussion of the economic benefits analysis prepared by KPMG and adopted by the Minister for inclusion in the relevant Minister's proposal document, a document to be regarded (for reasons elsewhere set out) as the Minister's submission to the Delegate in support of each relevant amalgamation proposal. 2. The fact that, in some (but not all) of the Minister's submissions to the Delegates in these proceedings, the assertion is made that KPMG is independent was dealt with above. 3. In this section, I am simply dealing with the question of nondisclosure of the KPMG material for which protection has been sought and granted on a public interest immunity basis. 4. In their submissions to me following the Woollahra decision, the Councils in these proceedings said: 7. The third common question is non-disclosure of the full KPMG report. Preston CJ, adopting the respondents' submissions, held that the respondents' obligations in relation to disclosure of documents were "attenuated" such that the decision-maker was not required to disclose even information which was "credible, relevant and significant" (at [227] and [241]). 8. The applicants submit that this question was wrongly decided. Preston CJ does not explain the factual circumstances giving rise to the finding that the obligation was attenuated. In the present proceedings the applicants have pointed out that the category of persons affected was not so large as to attenuate the obligation1. The applicants have also explained that the KPMG figures were so fundamental to the justification for the proposals that failure to provide the applicants with access to the underlying calculations effectively deprived them of a hearing2. In these proceedings, the unchallenged evidence of Professor Brian Dollery has explained why it was impossible to respond to the KPMG figures without access to the full report. There was no similar expert evidence admitted in Woollahra. 1. The Respondents' reply submissions, post-Woollahra, dealt with these further submissions by the Councils in the following terms: 18. The Councils submit that this question was wrongly decided on a number of bases. They complain that the Chief Judge did not explain why the delegate's obligation to disclose information was "attenuated" (at [8]). This is incorrect: the judgment makes plain it was attenuated because, applying South Sydney, it does not have the "usual" content of requiring disclosure of all adverse information that is credible, relevant and significant ([227], [241] and [243]). 19. Further, the Councils also state that "unchallenged" evidence from Professor Brian Dollery was led in these proceedings explaining the importance of the KPMG modelling material, and that no such evidence was led by Woollahra Council (at [8]). This is incorrect: although there is no reference to it in the judgment, Woollahra Council led evidence to similar effect from a Mr Hall. Preston CJ plainly regarded it as being of no value. 1. The Councils' first complaint, set out in [7], concerns what the Chief Judge said at [227] of his decision. In this paragraph, his Honour set out an element of the submissions of the Respondents in the Woollahra proceedings. That summary of submissions was in the following terms: 227. The respondents also submitted that any obligation on the Delegate to disclose adverse material to an affected council is severely qualified or attenuated. The content of the obligation to afford procedural fairness is not as wide as Woollahra Council submitted it was, namely, to give an opportunity to deal with "adverse information that is credible, relevant and significant to the decision to be made". An obligation with that content was also not accepted in Minister for Local Government v South Sydney City Council at [260] per Mason P, Spigelman CJ agreeing at [1] and [44] and Ipp AJA agreeing at [297]. 1. In [241] of Woollahra, his Honour said: 241. Woollahra Council has not established that the Delegate denied it procedural fairness by not disclosing and giving it an opportunity to make submissions on the various submissions and documents it identified. My reasons are those advanced by the respondents in their submissions summarised above. 1. As his Honour makes clear, in the second sentence of [241], he has adopted the submissions of the Woollahra Respondents, including the submissions in [227]. 2. In response, in addition to citing the two paragraphs relied upon by the Councils, the Respondents also rely upon his Honour's comments in [243], a paragraph which reads: 243. The duty to accord procedural fairness that attaches to the statutory power under s 263 rests on the Boundaries Commission or Departmental Chief Executive who exercises the statutory power. The content of the duty also is defined by the statutory power under s 263 and the statutory scheme in which that power is found. 1. In the context of my consideration of this proposition, I have had regard to two matters. The first is the analysis of the Chief Judge that is precisely on this point. His Honour set out his conclusions in [248] and [249]. Those paragraphs were in the following terms: 248. In this case, there was no denial of procedural fairness by the Delegate not disclosing to Woollahra Council and giving it an opportunity to make submissions on the various non-public documents that Woollahra Council described as KPMG modelling and analysis. First, those documents had not been provided to the Delegate; the Delegate cannot disclose documents that he did not have. Second, it has not been established that the documents contained information that "was so damaging and so unforeseeable" that Woollahra Council "should not have been 'left in the dark' about it" until publication of the Delegate's report: Minister for Local Government v South Sydney City Council at [272]. 249. Third, the information that the non-public documents were said to contain was the modelling and other material underpinning the KPMG analysis and justifying the assumptions used by KPMG that were disclosed publicly and to Woollahra Council. The information that was "adverse" to Woollahra Council was contained in the Minister's proposal document and the KPMG analysis and other documents that were made publicly available. This information included the asserted financial benefits of the amalgamation. This adverse information was disclosed. What was not disclosed were KPMG's internal workings and calculations underpinning the conclusions it expressed in the publicly available documents. The duty to disclose "adverse" material was discharged by disclosure of the publicly available documents containing KPMG's analysis and conclusions; it did not extend to require disclosure of the workings and calculations underpinning those conclusions. 1. However, in amplification of my consideration of this aspect of his Honour's judgment, I have, myself, considered the decision of Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381; [2002] NSWCA 288 in the context to which it is referred in [227] of his Honour's judgment. The cited comments by Mason P in [260] of South Sydney incorporate a reference to the remarks of Brennan J in Kioa v West (1985)159 CLR 550; [1985] HCA 81 at [38]. In Kioa, his Honour said: 38. Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. 1. In this context, as discussed in more detail in the following section dealing with the recent decision of the High Court in a migration case (SZSSJ), the sentiments expressed in Kioa by Brennan J are now reflected, in similar terms, in a unanimous decision of the High Court in July of this year. 2. It is clear to me that the analysis of the Chief Judge is entirely consistent with the approach in Kioa and in the more recent analysis of the High Court discussed later. 3. In any event, the fact that each Delegate did not know the content of the additional KPMG material (even assuming it was significantly adverse to the interests of these Councils) makes it self-evident therefore that he could not have taken it into account in reaching his conclusion. 4. The second element of the Councils' complaint on this point concerns the evidence of Professor Dollery. The Respondents' reply suggests that similar evidence was put to his Honour in Woollahra but that no reference was made to it in the judgment. The Respondents propose that I should conclude that the Chief Judge "plainly regarded it as being of no value". 5. I have no knowledge of the evidence that was given in the Woollahra proceedings, save to the extent that his Honour's decision provides me with a window to understand those evidentiary matters about which his Honour considered it appropriate to comment. 6. However, in this context, I do not consider that, setting aside the question of the influence (or lack of it) from the Woollahra judgment in my consideration of this precise point on this evidence led on behalf of the Councils, I can see no basis why, in circumstances where each Delegate did not have access to (and, thus, did not take into account) the withheld KPMG material, Professor Dollery's inability to challenge the KPMG figures interfered with the process that a Delegate was required to undertake. 7. The submissions to the Delegate, in each instance, included the submission from the Minister and all other submissions made to the inquiry process (including the submissions made by the Councils in each instance). Each Delegate considered each of the submissions, including the Minister's submission in each instance, and weighed such matters as were relevant in his consideration of each of the matters mandated pursuant to s 263(3). Subject to specific objections later discussed, that process was undertaken, relevantly, by each Delegate. 8. As each Delegate did not have access to and therefore could not have regard to the additional KPMG material, the lack of access by the Councils or each Delegate to that material did not infect, in each instance, the carrying out of the mandated statutory process. Minister for Immigration and Border Protection v SZSSJ 1. On 17 June, Mr Robertson SC advanced submissions based on a decision of the Full Federal Court in SZSSJ v Minister for Immigration and Border Protection (No 2) (2015) 234 FCR 1; [2015] FCAFC 125 as supporting the proposition that there was an obligation for the disclosure to the Councils of the full content of the KPMG documents available to the government. 2. During the course of those submissions, Mr Robertson advised me that there had been special leave to appeal granted by the High Court but that he did not anticipate, upon an examination of the special leave transcript, that the propositions he sought to draw from the decision of the Full Federal Court would be disturbed upon appeal. 3. The decision of the High Court (Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29) was handed down on 27 July 2016 after I had initially reserved my decision, and after the Chief Judge had given his decision in Woollahra. 4. As part of the leave I granted to the Councils to make supplementary submissions (and to the Respondents to reply to them), the Councils addressed the question of whether or not the High Court's decision impacted on the submissions made based on the decision of the Full Federal Court. To enable an understanding of my conclusions on the matters dealt with by the Full Federal Court (and reviewing their context or relevance in light of the decision of the High Court), it is appropriate to commence by reproducing the relevant submissions from Mr Robertson from the transcript of 17 June 2016 (page 402 line 36 to page 405 line 17): There has very recently - and I need to tell your Honour this because we actually weren't aware of this case, or at least in this context. There has very recently been a Full Federal Court decision on questions such as this in a case called - it's an alphabet soup case, unfortunately - SZSSJ v The Minister for Immigration and Border Protection. It now reported at [2015] 234 FCR 1. Can I hand up a copy of it, your Honour. I'm going to tell your Honour that there is an application for special leave to appeal from the Federal Court's decision, and I have the transcript of the special leave application. The purpose of me handing it up is to show your Honour that the particular passage I'm going to take your Honour to is not the subject of the application for appeal. The High Court granted special leave to appeal, but there's a passage where it explains the circumstances. In this case, your Honour, there were a myriad of applicants for refugee protection. One of the concerns of the Refugee Convention is what is called refoulement, which is the potential for persecution if the refugee is returned to his home country or the place where he or she fears persecution. The Department of Immigration inadvertently disclosed the names and the personal details of a large number of claimants for refugee status on its website, and there were a number of hits on the website. Would your Honour believe KPMG was retained to investigate the circumstances of this breach, and it was a breach of the Act, and the government asked it to assume that some of the hits may have been from the home government of the refugee claimants. Then Mr SZSSJ made a claim on the basis that the likelihood was that his home government knew that he was making an application and that in itself would invoke the anti‑refoulement obligations of the Australian government and hence found a basis for a legitimate fear of persecution if he was returned. The decision-maker said that wasn't the case because there was no real evidence that the security agencies of the home country would have had access to that information. In any event, that was the approach at least of the department, and the decision of the department was challenged on three or four grounds, one of which was jurisdiction, but the question that was latterly asked of the Court was whether the KPMG report should have been disclosed to the refugee claimant so that the claimant could make submissions as to the persons who might have, or the government agencies that might have, hit on the website and obtained that person's identification material. Apparently there was disclosure within the KPMG report of these matters and at 113, p 31 of the judgment, you will see there's a discussion of what SZSSJ presently knows. Then it says, "It is apparent that the unabridged version of the report" - that's the KPMG report - "deals with, inter alia, the 'technical examination of the data associated with the disclosure" - 113 - "and the potential...natural justice responses." The Court then said at 117 that they weren't certain whether the information wasn't adverse, then at 118 says, "What we will...of the ordinary." Then there's a discussion at 119 and 120 of the data breach, and then at 121 the Court said, "Rare is the... see Coutts v Close." Another basis for disclosure is that it assist your case, is not adverse to your case. "It is because...such as confidentiality." Then there's a reference to the Minister's second argument and there's nothing that turns on that. Your Honour, I'll just make an observation about that in a moment, but can I take you to the special leave to appeal transcript, just to explain that although special need to appeal was granted it was not on this point. Sorry, it's not numbered but at p 8 which commences at the top, "Tension between M61 and S10," does your Honour have that page? Just at the very top of the page the words tension between‑‑ HIS HONOUR: Yes, I have it. ROBERTSON: Yep. At the bottom of that page Mr Lloyd last occurring said, "That than brings…might've helped them," but it was then Bell J says, "Their Honours had…into this area." Mr Lloyd said, "That is so…the data breach," and then he continues, and then at point 5 on the page, Bell J says, "Is not the point of the Court…said in 123?" That was para 123 of the judgment, "and if it is, is there anything wrong with that?" Mr Lloyd says, "If that is..and so forth," and Gordon J then says, "I think the…saying, isn't it?" Lloyd says, "Well, that aside…note the time," and then just..(not transcribable).. Your Honour, it's quite clear that although the High Court did grant special leave, there was no ground of appeal challenging the passages that I've read, your Honour, and the High Court seemed to be singularly unimpressed with the criticism that was being directed at those passages when Mr Lloyd appeared. Now, obviously, when one looks at special leave to appeal transcripts only for very, very limited purposes and the only purposes I'd look at this is to demonstrate, your Honour, that, I have to tell your Honour special leave has been granted, which contains within it a prospect that there might be a different result but nonetheless it's not special leave on this point and from the discussion before two judges of the High Court, they seem to think there was nothing wrong with the way the full Federal Court approached the question. So Mr Hutley's proposition that there must be something … (not transcribable) … dangerous about the information before there's any obligation to disclose it is simply wrong. That reflects the circumstances of the facts of the South Sydney case. It is not a rule or principle that applies generally. The principle that applies generally was, in our respectful submission, correctly stated by the full Federal Court in that passage and there are other circumstances as the Court made clear where the Government had a full report which it might be necessary for the person whose interests are affected by the ultimate decision to access in order to properly address submissions on the very point which was the purpose for conferring the right to make submissions in the first place. The rules of natural justice, so far as the content rule are concerned, are flexible and they adjust according to the circumstance of this case. They are relevant here because in this case there is a parallel process, if you like, of public inquiry which will be frustrated if information of the kind that's been identified by KPMG, the full financial report, et cetera, was withheld from those making submission. It's not because it's information that would be in the hands of the decision maker, in this case the delegate, but not those who are making submissions to the delegate. It's not of that nature. The submission is this is a public participation obligation in the statue and that is frustrated. If you are holding a public inquiry into specific stated subject matters as we have in 263, the Government has available information, or we know the Government's got information which it's not disclosing which are relevant to those matters, but is disclosing a part, it is like the KPMG report in the full Federal Court case the applicant's refugee status got a portion of it. They got a summary but didn't get the full report. It's very similar factually to this case and the full Federal Court said they should get the full report because how would we know that there wasn't something in the full report that would assist them in making submissions as to why the non-fulfilment obligation should be exercised for their benefit. And as well, of course, there's the other point the full Federal Court made and the principle developed in the unreported decision that they referred to which was the decision of Griffiths J, Cootes and Close. If I could just hand up a copy and your Honour, I don't wish to read it to your Honour but the passage that is referred to in the refugee case is 116 and of course the presiding judge is well known for his experience in the area and extrajudicially he's a leading author on the topic, so the full Federal Court have endorsed that view. Now, so it's not correct to see this through the flust of the common law principles of natural justice without adjusting them for the statutory content and purpose of the inquiry provisions which makes so potent the councils' submission that the non‑disclosure of information had that potential to frustrate the capacity to make submissions. 1. In their submissions to me following the Woollahra decision, the Councils said: 16. The applicants in oral address relied on the decision of the Full Federal Court in SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1 at [113] to [123]. That decision has since been overturned on appeal by the High Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29. 17. The Full Federal Court held that that the applicant had been denied procedural fairness because he had not been provided with a full report relating to data breaches by the Department of Immigration. The Court observed that "the requirements of natural justice fluctuate with the circumstances of each case" (at [118]). It held that the fact that the Department suffered from a conflict of interest had modified the obligation, so that the decision-maker in that case was obliged to "show its full hand" (at [121]). 18. The High Court overturned this aspect of the decision. It held that the circumstances did not warrant a departure from the "ordinary requirements" of procedural fairness (at [83]-[84]). It also held that there had been no practical injustice because the Department had adopted assumptions about the data breach which were favourable to the applicant (at [90]-[92]). It did not disapprove of the Full Court's observation that the obligation of disclosure could vary depending on the circumstances of the case. To the contrary, by using the expression "ordinary requirements" the High Court (at [84]) implied that there may be additional requirements in cases such as this one which are not "ordinary". 19. The High Court's decision is distinguishable because the circumstances of the present case were such that practical injustice would be caused if the decision-maker did not show its full hand. The information contained in the full KPMG report was fundamental because it formed the primary basis for the economic justification for the proposals. Refusing access to this information deprived the applicants of the ability to make informed submissions challenging the claimed economic benefits. Therefore, this is a case where procedural fairness required disclosure of the full report. 1. The Respondents' reply submissions, post-Woollahra, dealt with these further submissions by the Councils in the following terms: 27. During the hearing, the Councils relied upon the Full Federal Court decision of SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1. It has now been overturned by the High Court: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29. The High Court held that the decision-maker was not obliged to disclose an "unabridged" KPMG report, as the abridged version was sufficient. As such, it cannot be said that the decision of the Full Federal Court, that the decision-maker was required to "show its full hand", remains good law. 1. In the transcript of the submissions made on 17 June 2016 in these proceedings, it can be seen that Mr Robertson took me to, amongst other things, a passage of the decision of the Full Federal Court at [121]. It is appropriate to set out the relevant portion of it in full (as is done in the decision of the High Court at [37]). The Full Federal Court said: 121. Rare is the case where a decision-maker asks a claimant to make submissions about what should happen in consequences of a failure to adhere to statutory safeguards of confidentiality committed by the decision-maker affecting the claimant. In such a case, it is inevitable that the decision-maker must show its full hand subject to any proper (and curially supervisable) consideration of confidentiality. 1. There are two aspects of the propositions in that extract which play a significant role in these proceedings. The first is, in the context of the process under the Local Government Act being here considered, the decision-maker whose conduct and determination is being scrutinised is, in each proceedings, the Delegate appointed by the Acting Chief Executive to inquire into and report upon the relevant amalgamation proposal. To the extent that any obligation to "show his full hand" fell upon the relevant Delegate, such an obligation could not have required the Delegate in each instance to disclose the totality of the KPMG material about which the Councils now complain because that material was not in the Delegates' possession. That, in itself, it seems to me, provides a complete answer to this proposition. 2. There is, however, a second and separate reason for rejecting any proposal that the full KPMG material should be made available (even assuming that it might have been in the position of a Delegate in any instance, a proposition not asserted by any of the Councils). The Full Federal Court made it clear that any disclosure was "subject to any proper (and curially supervisable) consideration of confidentiality". 3. Although not requiring to be determined in these proceedings, there have been two separate determinations (one by the Chief Judge and one by me – as earlier noted) where applications for access to the full KPMG material were rejected on the basis of public interest immunity. Such rejections, it seems to me, fall squarely within what is envisaged by the Full Federal Court in the caveat concerning curial supervision that it attached to the requirement for disclosure. 4. Both of these bases, separately, warrant rejection of any reliance on this decision of the Full Federal Court to support the proposition that the full KPMG material should have been disclosed to the Councils. 5. The Councils rely on [83] and [84] of the High Court's decision as the basis for continued reliance on the decision below. For my consideration of the extent to which the decision of the High Court warrants consideration, the relevant passage is contained in [83], a paragraph which reads: 83. Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry. 1. This passage contains four propositions. The first two are uncontroversial in this context. 2. The third, read here contextually, would require the disclosure of information that might be taken into account as a basis for reaching a conclusion adverse to the Councils. However, in this context, the repository of power is the Delegate and, in each instance, there is no suggestion that the KPMG material not disclosed to the Councils had been disclosed to the Delegate and that the Delegate had used that material as a basis for his decision-making process. 3. The contrary is clearly the position in each instance. The KPMG material, to the extent that any Delegate considered or relied upon it, was confined to the KPMG material that had been publicly available. There is, therefore, as arose from the decision of the Full Federal Court, no suggestion that any Delegate relied, impermissibly, on potentially adverse material that was in his possession and which was not disclosed to the relevant Council. The fourth proposition in [83] is not relevant because there is no suggestion that any relevant Delegate had access to the full KPMG material. 4. In this context, it is both unnecessary and inappropriate to conclude, as the Respondents have submitted, that the full terms of the conclusion contained in [121] of the decision of the Full Federal Court had been overturned by the High Court. Indeed, the introductory use of the word "ordinarily" at the commencement of [83], it seems to me, adequately provides a basis for continuing to embrace the caveat concerning "curially supervised confidentiality" as discussed in [121] of the Full Federal Court's decision. 5. As a consequence, there is nothing arising from the decision of the Full Federal Court and its subsequent setting aside by the High Court that can provide any comfort to the Councils in these proceedings. The specific defect in the KPMG argument for the Mosman, North Sydney and Willoughby merger process 1. Although I have rejected the general ground of complaint that the basis of involvement of KPMG in the merger process was one which vitiated the process in the broad sense discussed above, there is also a particular basis upon which this complaint should be rejected for the proposal to merge Mosman Municipal, North Sydney and Willoughby City Councils. I earlier set out material concerning the documents released by the Minister and provided to each of the Delegates as the Minister's submission. Although the documents for the Hunter's Hill, Lane Cove and Ryde merger proposal and the Burwood, City of Canada Bay and Strathfield proposal each claimed, in a portion of each document, in its Introduction, a paragraph which asserted that the analysis undertaken by KPMG, as adverted to in each of those Ministerial submissions, was independent analysis, as earlier noted, no such claim was made in the Minister's submission to the Delegate considering the Mosman, North Sydney and Willoughby merger proposal. 2. As a consequence, there is nothing concerning that merger proposal where there has been any specific holding out to that Delegate that KPMG acted to provide independent analysis. Although the general ground is rejected for the reasons earlier discussed, if I am wrong in this general conclusion, the absence of such a representation having been made by the Minister in the Minister's submission to the Delegate in this inquiry expressly precludes the possibility of inappropriate reliance on KPMG derived material for this merger proposal. 3. Seen in that fashion, the Delegate was entitled to consider and weigh the KPMG material against such economic analysis as was provided by Mosman Municipal or North Sydney Councils in counterpoint to the KPMG material. 4. In this instance, as later discussed in my specific consideration of complaints made about the adequacy of the Delegate's consideration of s 263(3)(a) matters for this merger proposal, the fact that, as part of the Delegate's assessment process, he preferred the KPMG material and adopted it in his report does not disclose any error that could be regarded as infecting his process. The specific bases for challenge Introduction Hunter's Hill, Lane Cove and Strathfield Municipal Councils Adequacy of the notice – identification of the inquiry's location 1. In the Hunter's Hill, Lane Cove and Strathfield proceedings, the Councils complain that information concerning the location of the relevant Delegate's public inquiry sessions to which interested people or organisations were invited was insufficient. This ground of complaint can be dealt with comparatively briefly. 2. As earlier observed, the notice given by each Delegate of the holding of his inquiry was published in both metropolitan and local newspapers. The locations were described in those notices in the following terms: (a) Hunter's Hill and Lane Cove proceedings Venue: Hunter's Hill Sailing Club (b) Strathfield proceedings Venue: Canada Bay Club 1. The Councils make the same complaint about these descriptions. That is that each does not provide sufficient specificity – in that the street address in each instance is not provided. 2. I am satisfied that this complaint is without foundation. I have so concluded for the following reasons. First, the identifier contained in the Delegate's notice is capitalised and is not set out as being "a sailing club in Hunter's Hill" or "a club in the Canada Bay local government area". It is clearly the title of a specific place rather than some generic descriptor. 3. For those who might, of their own knowledge, know where the Hunter's Hill Sailing Club or the Canada Bay Club was located, such a descriptor would be sufficient, in itself. For those who did not know where the relevant institution was located, it would be necessary to make some further enquiry as to where it was and, if the person seeking the information proposed to attend the Delegate's inquiry, obtain information on how to reach the venue. 4. Even if the notices had said: (a) Venue: Hunter's Hill Sailing Club, Clarke Road, Woolwich and (b) Venue: Canada Bay Club, William Street, Five Dock it is also reasonable to assume that, for a very significant element (if not the vast majority) of those resident in any of the relevant local government areas (or anybody else who might be interested in attending this inquiry who was resident outside those areas), those persons would not have precise knowledge of how to reach Clarke Road, Woolwich or William Street, Five Dock (as applicable) and would need to make some subsequent enquiry of how to get the venue. 1. Each notice, itself, provided two sources for further information: they being a website, and a local-call-cost telephone number. There is no suggestion that visiting the website would not have provided sufficient information on how to access either venue, nor that any person making a telephone enquiry seeking such information would not so have been given information in sufficient detail to permit them find the venue. 2. In any event, it is likely that anybody with other than an immediate and sufficient knowledge of how to get to Clarke Road, Woolwich or William Street, Five Dock and, thus, limited by the road or street name only, would need to resort to some other way of obtaining directions for this purpose. 3. Whether that information would be obtained, in this ubiquitous electronic information age, by consulting Google maps or some form of GPS system or by old-fashioned paper street directory or, even more primitively, by taking handwritten notes during a telephone enquiry (whether to the advertised number or to the relevant Club itself), I am satisfied that the identification given in the notice was of sufficient particularity so as to provide an adequate description of the venue in a fashion that would enable anybody wishing to attend the inquiry to be able to inform themselves sufficiently to get to the venue. 4. I am also satisfied that the pool of potential participants whose knowledge would have been such that further enquiry would have been unnecessary (had the relevant street address been given) would not have been so significantly large as to obviate any reasonable likelihood of further information needing to be sought to enable a potential participant to get the venue. 5. Any suggestion that a capitalised identifier used in the fashion included in this notification could only be regarded as sufficient if that which was identified was iconic (for example the Opera House) also could not succeed for the reasons earlier described. 6. The capitalisation of the name is of sufficient specificity under the circumstances to permit a person desiring to attend the inquiry to be held by either Delegate to be able to ascertain the venue without there being any realistic risk of not being able to do so or going to the wrong place. 7. In each case, this ground fails. Hunter's Hill and Lane Cove Councils Financial advantages and disadvantages – Ground 4 1. The Councils complain that the Delegate relied on incorrect (earlier) modelling from Morrison Low rather than on the correct (more recent) figures. 2. The complaint is based on one aspect of the analysis of the Delegate's consideration of s 263(3)(a). To understand the context of the complaint, I reproduce the material included by the Delegate in his report under the heading "6.1.2 Expected Financial results for Merged Council". The Delegate wrote: Analysis by KPMG in 2015 estimated the proposed merger has the potential to generate a net financial saving around $61 million to the new council over 20 years (not including the $25 million contribution from Government). In KPMG's analysis the proposed merger is also expected to generate an operating surplus of over $20 million every year from 2020 onwards (which can be utilised to improve services, deliver infrastructure or minimise rate increases). The KPMG report is based on a set of assumptions that have been questioned by some Councils. Alternative analysis done by Morrison Low in 2016, (commissioned by Hunter's Hill, Ryde and Lane Cove Councils), with some different assumptions, estimated the net financial savings of the proposed merger to be $19.4 million over 8 years (not including the $25 million from Government). Morrison low also estimates that the post-merger operating performance improves significantly (operating performance ratio increases from near zero to around 13% in 2023, which is somewhat higher than the KPMG estimate). There is a large difference in time period between these two estimates, as well is in their assumptions, but clear financial benefits arise in each case. However there are differing opinions of the cost of the proposed merger, varying particularly in the area of Information System costs (varying from $4.3m to $38m depending on the scope of the upgraded systems required and an assumption on whether an upgrade to Information Systems would be required over the next decade with or without a merger). The Government has announced it would provide $25 million toward such costs should the proposed merger proceed. Under either set of assumptions was a net financial benefit of the merger in net present value (NPV) terms if efficiencies are realised. [emphasis added] 1. Hunter's Hill Council's complaint has its foundation in the sentence emphasised above. This complaint pleaded by the Councils in this ground is in the following terms: 4. The Delegate failed to take into consideration a mandatory relevant factor in his examination and report on the proposal. Particulars (a) In the exercise of the statutory functions of examination and reporting on the proposal the Delegate was required to have regard to the factors set out in s263(3) of the LGA. (b) The Delegate's report states that alternative financial analysis done by Morrison Low in 2016 commissioned by Hunters Hill, Ryde and Lane Cove Councils estimated the net financial savings of the proposed merger to be $19.4 million over 8 years. (c) The financial analysis done by Morrison Low in 2016 and provided to the Delegate contained modelling that in fact estimated the financial impact of the proposal to vary between a net benefit of $12.7m and net loss of $33.9m over 8 years. (d) The Delegate did not consider the most up to date financial analysis provided by Morrison Low and in doing so failed to consider the proposal's financial advantages and disadvantages (including the economies or diseconomies of scale) to the residents and ratepayers of the areas of Hunter's Hill, Lane Cove and City of Ryde: s263(3)(a) of the LGA. 1. The Councils' written submissions on this point were: 39. The terms of s.263(3) of the LG Act obliged the Delegate to have regard to certain listed factors as part of his consideration of the Proposal referred by the Minister. Compliance with that obligation requires an "active intellectual engagement" by the Delegate: see Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [57], [63]; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99 at [46]; Manning v Bathurst Regional Council No 2 [2013] NSWLEC 186 at [66]. The relevant matter must be more than adverted to or given mere lip service: Anderson v Director-General Department of Environment and Climate Change (2008) 163 LGERA 400 at [58]. A failure to take matters into consideration may be demonstrated where it can be shown that the decision-maker had inadequate personal acquaintance with the facts and issues, and generally speaking, understanding the scope of a problem is a prerequisite to a lawful decision with respect to it: Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 at [37]. To put it another way, there must be consideration of "the salient facts which give shape and substance of a matter, the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered" (Peko at 61 per Brennan J). 40. A statutory obligation to address the substance of an applicant's case will readily be implied, as will an obligation to consider material relied on by an applicant which is, on its face, relevant and significant, and is credible and uncontested, and a failure to do so may involve a constructive failure to exercise the function conferred by the statute: Ali v AAI Ltd [2016] NSWCA 110 at [66]. In addition, an administrative decision-maker is required to make his or her decision on the most current material available to the decision-maker: Peko at [45]; Gales Holdings Pty Ltd v Minister for Infrastructure and Planning (2006) 69 NSWLR 156 at [161]-[176]; Ali at [65]. 41. In ascertaining whether the Delegate has failed to comply with his statutory obligation in s.263(3), is to be determined by the Court undertaking a close analysis of the decision-maker's reasons: Khadgi at [71]. When a statement of reasons has been provided, a failure to refer to particular matters or give other reasons will justify the inference that such matters or reasons were not relied upon or considered: East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605 at [308]-[312]; Khadgi at [65]. A fortiori where, as here, the ultimate product of the Delegate's examination of the Proposal mandated by the statute is a (written) report, rather than a decision or recommendation. 42. In this case, the Delegate dealt with the financial factors in s.263(3)(a) at section 6.1 of his report. Fundamental to the Delegate's conclusion on that issue were his findings concerning the respective conclusions reached by KPMG and by Morrison Low, consultants engaged jointly by the three councils. At section 6.1.2 of the report, the Delegate concluded that, on either analysis, there was a net financial benefit of the merger in NPVP terms. The Delegate referred to the analysis done by Morrison Low in 2016 which estimated the net financial savings of the proposed merger to be $19.4 million over 8 years. 43. However, the Delegate has failed to consider the most up-to-date analysis prepared by Morrison Low, provided to the Delegate as part of the Council's submission to his inquiry. Although the $19.4 million savings figure is referred to, the more up-to-date analysis prepared by Morrison Low dated 25 February 2016 makes clear that, depending upon whether the alleged efficiencies claims are realised, the result may vary between a net financial benefit of $12.7 million and a net financial cost of $33.9 million. 44. The Delegate has simply quoted the old data, without addressing in any way the updated modelling in his possession. In so doing, he has failed to make his decision on the basis of the most current material available to him. Alternatively, he has failed properly to have regard to the s.263(3)(a) factor by failing to consider the substance of the Council's submission. In either case, the Court should conclude that he has failed to comply with his statutory duty. 1. The Respondents wrote, in their General Written Submissions, on the topic of "Mandatory relevant submissions": 44. It is axiomatic that the considerations that a repository of a statutory function or power is required to take into account are those mandated by the statute, either expressly or as a matter of implication from scope, object and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J), 55 (Brennan J). It is not sufficient for a party affected by a decision to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 (Deane J); Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [23] (Gleeson CJ and McHugh J). 1. The Respondents' element of their General Submissions on this Hunter's Hill Council point were: 46. In the case of Hunter's Hill, the alleged failure relates to the most up to date material that was submitted by the Council to which, it contends, the delegate failed to have regard. In order to establish that error, the Council would need to satisfy the Court (as to which see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40): (a) that the case is relevantly analogous to Peko-Wallsend so as to give rise to an obligation, on the part of the delegate, to consider the information that he is alleged to have failed to consider; (b) that the court should infer that the delegate did not consider the information – which was contained within the body of the Council's submission and which the delegate clearly considered; and (c) that the failure to take it into account could have materially affected the decision, in circumstances where the relevant conclusion of the delegate – that there was "a net financial benefit of the merger in net present value (NPV) terms if efficiencies are realised" – was the same whether the Delegate relied on the figure the Council contends was out of date, or on what it contends was an updated figure. 1. The Respondents' specific Hunter's Hill Council's written submissions on this point were: 15. As noted in the General Submissions, it is axiomatic that the considerations that a repository of a statutory function or power is required to take into account are those mandated by the statute, either expressly or as a matter of implication from scope, object and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J). The alleged failure in the present case relates to the difference between a figure as to net savings which appears on page 13 of Hunter's Hill's submission to the Delegate (Ex 1, RTB T23 p 789), and a figure which appears on page 29 of the submission (p 805). The Council contends that it follows from the Delegate's reference, in his report (Ex 1, RTB T 24 p 901) to the figure at page 13 of the Council's submission, that he did not consider the material on page 29 (AS [43]). 16. There are differences between the present case and the circumstances at issue in Peko-Wallsend, on which the Council relies (at [40]). In Peko-Wallsend, the relevant consideration was comments on detriment made by the Commissioner, which the Minister needed to consider under the applicable provision, as a condition on the exercise of his statutory power to decide whether or not he was satisfied that a grant of land should be made. Given the Commissioner's comments on detriment were a relevant consideration, the Court held that the Minister was also bound to take into account any submissions which corrected, updated or elucidated those comments. As Tobias JA stated in Gales Holdings Pty Ltd v Minister for Infrastructure and Planning (2006) 69 NSWLR 156, "[o]nce it was accepted that the subject matter, scope and purpose of the Act indicated that the detriment that might be occasioned by a proposed land grant was a factor vital to the exercise of the Minister's discretion, it was but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister had at hand" (at [166], emphasis added; see 35, 44-45 of Peko). 17. By contrast, in the present case, the factor that the Delegate was required to consider was the financial advantages and disadvantages of the Proposal, being but one of the factors in s 263(3) of the LGA which need to be considered and balanced in examining the proposal and making a report. The specific material that grounds the complaint sits in written submissions which were directed to that factor, and which were in fact before the Delegate. 18. In his report, the Delegate referred to the public inquiry and the 457 written submissions that had been received, and stated that he had carefully considered "all written and oral submissions" in the course of his deliberations (Ex 1, RTB T24 p 899). In the face of that statement, and material in the report which shows that the Delegate clearly considered the Council's submission, the Council needs to satisfy the Court that it should infer that the Delegate did not consider the information on page 29. 19. Specifically in relation to the factor in s 263(3)(a) of the LGA, the Delegate referred expressly to the Council's submission. On the same page as he referred to the figure of $19.4 million, the Delegate referred to the updated material, noting that on Morrison Low's estimate, post-merger operating performance improved to around 13% in 2023 (Ex 1, RTB T24 p 902). That improvement is illustrated in the graph at p 24 of the Council's submissions, which forms part of the Morrison Low material dated 25 February 2016 (Ex 1, RTB T 23 p 800). 20. Further, and in any event, it would not be sufficient for the Council to show that the Delegate failed to take into account the updated figure, in order to make out the ground. The Council would also have to show that any failure by the Delegate to take the "updated" figure into account could have materially affected the decision. As Mason J observed in Peko-Wallsend (at 40), not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. In the present case, the relevant conclusion of the Delegate was that there was "a net financial benefit of the merger in net present value (NPV) terms if efficiencies are realised". That conclusion was the same whether the Delegate relied on the figure the Council contends was out of date, or on what it contends was an updated figure. 21. The Council's submission that the Delegate had an obligation to address "the substance" of its case relies on a decision of the Court of Appeal in Ali v AAI Ltd [2016] NSWCA 110 (HH [40]). As with many cases that arise in an administrative law context, that case concerned a statutory regime (in Ali, for motor accidents compensation) whereby a person makes an application for the exercise of a statutory power (in Ali, a claim for compensation). The references to an "applicant" in paragraph [66] of the reasons of Basten JA have to read in that context. On no view is the Council an "applicant" in the present case. In any event, the Delegate considered the substance of its submissions in relation to the consideration in s 263(3)(a) of the LGA. 1. The Councils' written submissions in reply on this ground were: Mandatory relevant factors 24. Contrary to the respondents' submissions, the Court should not look beyond the Delegate's report in order to determine whether the Delegate has complied with his statutory duty under s.263(3) of the LG Act. That is so for a number of reasons. (a) one of the objectives of the requirement on the part of a Delegate to produce a report is to enable the Boundaries Commission to perform its function of reviewing the report and sending its comments to the Minister. It cannot discharge that function unless all the matters the Delegate had regard to are comprehensively set out in the report; (b) another purpose of the Delegate's report is to inform the Minister and assist him in making his decision whether or not to recommend implementation of a proposal, with or without modification. The statutory process would be frustrated if the Delegate could discharge his function by not giving express consideration to the mandatory relevant factors in his report; (c) there is also an important element of accountability here. The report is in effect a form of disclosure document that shows that the Delegate had proper regard to the matters raised as part of the public inquiry. At the very least, the discipline imposed by the statute of preparing a report that has regard to the s.263(3) factors has the benefit of demonstrating that the inquiry itself was not a "mere formality"; and (d) the above approach is supported by the authorities referred to in AHS [41]. 25. In answer to RHS [18]-[19], it is clear that the Delegate only considered the previous Morrison Low material dated 1 February 2016, and not the updated analysis dated 25 February 2016. He has expressed used the headline number contained in the old Morrison Low analysis (ie a $19.4m benefit), rather than the updated position (a range of between a $12.7m benefit and a $33.9m net cost). Whatever may have been the source of the post-merger operating performance figure, it is the headline numbers that are critical, and the Delegate has not considered taken the Morrison Low conclusions into account. 26. Nor is it an answer to say that, had the Delegate taken the latest Morrison Low material into account, it would not have changed anything. The different scenarios posited in the updated Morrison Low report depend on whether claimed efficiencies are realised or not. It was a mandatory consideration for the Delegate to have regard to economies and diseconomies of scale, pursuant to s.263(3)(a) of the LG Act. Consistently with that statutory duty, the Delegate was not entitled simply to assume that all claimed efficiencies would be realised, without applying his mind to the fundamental issue of whether they would be realised or not. It cannot be suggested that, had he done so, he would have inevitably arrived at the same conclusion, ie that irrespective of whether the KPMG or the Morrison Low analysis was adopted, there would be a net financial benefit. 27. The respondents' attempt to distinguish Peko to its facts is unconvincing. The Council relies on the totality of the following well-known passage from the judgment of Mason J that makes it clear that the principle is of general application: "It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker." 28. The Peko principle is directly applicable here, in circumstances where the clear words of the statute require regard to be had to the "financial advantages or disadvantages" of the Proposal, which consideration must "be based on the most recent and accurate information that the [Delegate] had to hand". 29. In any event, it is clear from the Delegate's report that he failed to have regard to the "economies and diseconomies of scale" component of s.263(3)(a). There is no discussion of the vital issue in section 6.1 of his report or elsewhere. The Boundaries Commission correctly noted the lack of discussion of this issue. [footnotes omitted] 1. I first turn to the issue of the two versions of the Morrison Low material. As earlier noted, the Delegate held two public sessions of his inquiry. During the evening session on 3 February 2016, he was addressed by the Mayor of Hunter's Hill Council, Mr Quinn, as the first of the speakers at that session. During the course of Mr Quinn's remarks, he made no mention of the Morrison Low reports, let alone drawing to the Delegate's attention the fact that the earlier document had been superseded. 2. The second speaker that evening was Ms Hutchens, the Mayor of Lane Cove Council. Although Ms Hutchens mentioned initial analysis by Morrison Low (Transcript of meeting, page 9 – Exhibit 1, folio 739), there was no mention by her of any revised version of the Morrison Low report. 3. The third speaker was the Mayor of Ryde City Council, Mr Jerome Laxale. Mr Laxale also made no mention of any Morrison Low report, let alone referring to the earlier report and any subsequent revision of it. 4. In this context, it is also to be observed that evidence in these proceedings on behalf of Lane Cove Council was given by affidavit of Councillor Bennison. A bundle of documents was exhibited to his affidavit. Amongst those documents was Lane Cove Council's response to the proposed merger. Appendix 2 to that submission is a document entitled "Merger Business Case Updated Modelling Summary Report Hunter's Hill, Lane Cove and Ryde Councils" prepared by Morrison Low and dated 1 February 2016. This document is referred to, by inference, in the first and second paragraphs on page 9 of Lane Cove Council's submission under the heading "Understanding Merger Costs". In the second paragraph, the submission says: The Morrison Low modelling shows only $19.4 million in financial savings by 2024. 1. During the course of the hearing on 8 June 2016, Mr Robertson acknowledged that the Lane Cove Council's submission referred to the earlier modelling. Mr Robertson said (Transcript 8 June 2016, page 193 lines 44–48): At p 9, I was pointing out that on the left-hand column under "Understanding Merger Costs", the Lane Cove submission referred to the earlier modelling, that is, for the $19.4 million and then it says, "Council has been…", in any event, even if they were four years into the future they're usually unreliable, "In any event…the State government". 1. Mr Hutley's submissions with respect to the Delegate's use of the earlier Morrison Low document (rather than the different figures contained in the revised document) were in the following terms (Transcript 16 June 2016, page 327 line 31 to page 328 line 15): As we understand the argument, it's said that because there's been no reference to the lower figure, which I took your Honour to, the council submits that the delegate did not consider the second report figure submitted by council. Firstly, there are four, we say, answers to that. Firstly, given Morrison Low's, and two analyses were prepared 24 days apart, it is far from apparent that the latter is more up to date in the sense of there's no change of information. More likely is that is uses different assumptions in some way. The interesting thing about the so call second report is that is seems to pass by the first report. It doesn't relate the change between, what's called, the first report of 1 February, and the second report of later February, in fact seems to reference solely what happened in 2015. So, it is, firstly, obscure what the relationship is. Secondly, the delegate used Morrison Low's 1 February analyses to compare assumptions adopted to those adopted by KPMG. Given the assumptions, which were adopted in the 25 February analyses, were unstated, and given that the 1 February report was a comparison of the KPMG assumptions, and the Morrison Low assumptions, using that, as it were, a more informative analyses was quite appropriate in the circumstance. Third, even if the delegate had used the lower figure contained in the 25 February 2016 analyses, the conclusion he reached would have remained the same, namely, as he says on p 901, "Under either set…efficiencies are realised." So in other words, the different distinction is not shown to be material. Fourth, the 1 February figures were expressly relied upon by Lane Cove Council, as is highlighted in its submissions at exhibit 5, tab 1, p 9. Another council relied on the earlier figures. The later figures, if one reads through it, their relationship to the earlier set of figures are obscure. The engagement on the part of the Delegate, quite appropriately, is with the different assumptions, which are expressed in the earlier figure, the earlier report rather than the later report. And finally, the real conclusion he comes to would not be altered, even if he had had regard to the second set of figures, which would have been, namely, that there was a net benefit of efficiencies arrived at, but would have been embarrassed by the obscurity of the assumptions which informed a second set of figures. 1. Setting aside Mr Hutley's submissions (unless they were necessary to be addressed – which, for the reasons which follow, they are not), it is appropriate, in my view to consider this complaint concerning the Delegate's report, in the first instance, taking the Council's case on the facts of the Morrison Low material complaint at their highest. That position is that, as a consequence of the Delegate having had regard to the 1 February Morrison 2016 Low report, he made a wrong finding of fact and that infected the conclusions he drew on s 263(3)(a). 2. On this basis, as I understand the Councils' submissions, I should find that this constitutes an error of law causing the Delegate's consideration of s 263(3)(a) to miscarry. 3. There are, in my view, three propositions derived from the authorities that lead to the conclusion that this complaint is misplaced. Those propositions are: * "There is no error of law simply in making a wrong finding of fact." (Waterford v The Commonwealth (1987) 163 CLR 54; [1987] HCA 25 per Brennan J at [14]); * "A finding of fact will then be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts, which amounts to the same thing." (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 per Mason CJ at [87]); and * "…, it is not possible to convert a wrong finding of fact into a question of no evidence upon which the relevant findings could be made." (Walsh v Visionstream Pty Limited [2004] NSWCA 104 per Beazley JA at [23]). 1. In this instance, particularly in circumstances where different Councils relied on different versions of the Morrison Low material, there can be, at its highest, an error by the Delegate in relying on the wrong set of facts but there can be no suggestion that there was no factual basis for the conclusion which he reached. 2. Thus, even taking Hunter's Hill Council's case at its highest on this point, there is no valid basis for complaint that the Delegate relied on the 1 February 2016 Morrison Low findings in support of the conclusions that he has set out in his report. 3. The Morrison Low material based complaint fails. 4. Although not particularised in Hunter's Hill Council's Ground 4 set out at the commencement of this section, I turn to address the complaint in the final paragraph quoted above from the Council's reply submissions that the Delegate "failed to have regard to the 'economies and diseconomies of scale' component of s.263(3)(a)". 5. First, it is to be observed that the Boundaries Commission's comment on the Delegate's s 263(3)(a) analysis was: The Commission's view is that the Delegate adequately considered the issues under this factor while noting the lack of discussion of the economies and diseconomies of scale. 1. In Peko-Wallsend, at [15(d)], Mason J observed: The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". 1. Brennan J observed, at [18]: 18. A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered. 1. Although the Delegate's report, when dealing with financial matters, did not include the express words "economies and diseconomies of scale" as used in s 263(3)(a), his consideration of the financial matters in this proposed merger set out at pages 13 to 15 of his Report commences with an acknowledgement that he has considered the terms of the provision (and he sets it out there). On page 33 of his report (in "7 Recommendations"), the Delegate states that he has had regard to the factors in s 263(3) in determining to recommend "that the proposal should proceed to implementation". 2. A complaint only has validity if no regard has been had by the Delegate to a matter to which he has been obliged to have regard. Although the Delegate has omitted the words which found this complaint, the Delegate's two assertions he has taken them into account together with his discussion of financial factors does not evidence any manifest unreasonableness in his treatment of s 263(3)(a). 3. This complaint fails. The Lane Cove River – Ground 7 1. There is no metes and bounds description of this amalgamation proposal. The only depiction of the proposal, apart from that contained in the reference to the Delegate (a reference which simply nominates the three existing local government areas), is the map at page 2 in the Minister's submission document (Exhibit A, Tab 2, folio 407), a map which makes it clear that the Lane Cove River is not proposed to be included within the new, amalgamated local government area. 2. Hunter's Hill and Lane Cove Councils also provided a summary of the relevant proclamations concerning the boundaries of the two local government areas. There were three relating to Hunter's Hill (in 1861, 1890 and 1906) and two concerning Lane Cove (in 1895 and 1941). None of the proclamations incorporated the river or its bed as being within the boundary of either of these local government areas. 3. Dr Robert Lang, the Delegate of the Acting Chief Executive, was appointed to examine this merger proposal. He provided a report dated March 2016. At pages 6 and 7 of that report, the Delegate reproduced maps of the Hunter's Hill local government area and the Lane Cove local government area. For the Hunter's Hill local government area, he notes that the northern boundary of the municipality was formed by the Lane Cove River whilst, for the Lane Cove local government area, he notes that it was bounded by that river to the south and to the west. There is no discussion in the Delegate's report of the requirement set by s 204(3) of the Local Government Act. 4. During the afternoon session of the public inquiry conducted by the Delegate, there were only two mentions of the Lane Cove River as providing a boundary warranting consideration in assessing the amalgamation proposal (speakers 12 and 31). During the evening session, a further three speakers mentioned the Lane Cove River as constituting a physical boundary between council areas. These were speakers 10, 24 and 29. All these speakers dealt with the Lane Cove River in a physical barrier sense rather than in any statutory sense as here requires discussion. 5. I have earlier set out the terms of ss 204 and 205 of the Local Government Act. These sections require consideration, as earlier noted, because the Hunter's Hill and Lane Cove local government areas are separated by the Lane Cove River and the bed of the river is not included in either the Hunter's Hill local government area or the Lane Cove local government area. As a consequence, two issues arise for determination. They are: 1. Does the word "contiguous" in s 204(3) of the Local Government Act require geographic touching? and 2. If so and the two areas are not "contiguous", do the terms of s 205(3)(b) have the effect of incorporating the Fig Tree Bridge (a bridge over the Lane Cove River joining the two local government areas) into one or both of these existing local government areas in a fashion that makes them legally joined and thus "contiguous" for the purposes of s 204(3)? The opposing positions 1. Unsurprisingly, the position advanced by Mr Lazarus, counsel for these two Councils on this point, is that: 1. First, a strict interpretation of the term "contiguous" in s 204(3) is required and that, adopting that approach, the Lane Cove local government area is not contiguous with the other two local government areas and therefore cannot be amalgamated with them; and 2. Second, s 205(3)(b) does not operate to incorporate the Fig Tree Bridge (that carries Burns Bay Road and links these two local government areas) in either or both of the local government areas and, as a consequence, no deemed contiguous area is created by that bridge linking the two local government areas. 1. Equally unsurprisingly, Mr Williams SC, for the Respondents, takes the opposing view on each issue, namely, that: 1. The word "contiguous" should be construed in a less prescriptive fashion and that it should, in this context, be applied so as to set aside, effectively, the gap between the local government areas occasioned by the Lane Cove River and the river bed; and 2. Whether or not this approach is to be taken to construing "contiguous", nonetheless a proper application of s 205(3)(b) incorporates the Fig Tree Bridge and any supporting elements of it that might comprise pylons supported on the bed of the Lane Cove River so as to constitute a linking element between the two local government areas. On this basis, even if a strict and narrow interpretation of "contiguous" is adopted, these two local government areas are deemed to be contiguous at law. Other relevant statutory provisions Introduction 1. Before embarking on the necessary analysis to determine what I consider to be the correct position on each of these confined aspects of the dispute concerning this proposed amalgamation, it is appropriate to set out one definition contained in the dictionary to the Local Government Act and then a little of the history of local government legislation prior to the enactment of this Local Government Act in 1993. 2. The Dictionary to the Local Government Act contains the definitions of a wide range of terms used in the legislation. Amongst those definitions are those of "adjoining" and "area". The term "contiguous" is not defined in the dictionary. The definition of "adjoining" is in the following terms: adjoining, in relation to an area, means abutting or separated only by a public reserve, road, river, watercourse, or tidal or non-tidal water, or other like division. 1. The definition of "area" provides no immediate assistance on the question of the meaning of "contiguous" but does require noting in my subsequent discussion of the effect of s 205 of the Local Government Act. The definition of "area" is set out later. The potentially relevant legislative history 1. Mr Williams handed up extracts from two predecessor Local Government Acts. The first is the Local Government Act 1906 (the 1906 Act), whilst the second is the Local Government Act 1919 (the 1919 Act). Whilst the 1919 Act remains in force in limited respects, the elements that remain in force have no bearing in these proceedings. The position is that the provisions of the 1906 Act and the 1919 Act relating to the creation of new local government areas by merger or amalgamation are provisions that are now repealed. 2. The relevant provisions of the 1906 Act were contained in ss 3 and 15(1)(a). They were in the following terms: 3. In this Act, unless inconsistent with the context or subject-matter,— "Adjoining"—Shires and municipalities are "adjoining" if only separated from each other by a public reserve, road, river, or stream, or other like natural divisions. 15. (1) The Governor may at any time – (a) unite two or more adjoining areas; … and may by order reconstitute the new areas so formed as municipalities or shires, and give names to such areas and their councils." 1. The provisions in the 1919 Act, to similar effect, were contained in ss 4, 16(e) and 18. These were in the following terms: 4 In this Act, unless inconsistent with the context or subject-matter,— "Adjoining," in relation to a shire or municipality, means abutting or only separated by a public reserve, road, river, watercourse, or tidal or non-tidal water, or other like division. 16 The Governor may at any time by proclamation— … (e) unite areas, and constitute the united area as a municipality or shire; … 18 Every area, when altered under this Part, shall consist of adjoining territories. Submissions on the legislative context 1. As I understood Mr Williams' submissions concerning these provisions, he was proposing that the current provision in s 204(3) of the Local Government Act should be read as part of an ongoing legislative continuum from the 1906 Act and the 1919 Act. As I further understood him, the consequence of this would be that a proper reading of the word "contiguous" in the Local Government Act would merely have it be the natural replacing continuation of the word "adjoins" used in the now repealed provisions. 2. Again unsurprisingly, Mr Lazarus put the contrary provision. It was his submission that the use of the word "contiguous" should be regarded as a conscious choice in the drafting of the present legislation and its subsequent adoption by the Parliament in the enacting of the provision in its present form also represented a conscious decision made, in this case, by the legislature to adopt that distinct and different form. Conclusion on the present legislative context 1. It is clear from the past statutory definitions of "adjoining" that the definition of that term in the present local government legislation is the natural legislative successor inheriting the meaning from the 1906 Act and the 1919 Act. To the extent that the earlier definitions provide any context for the use of the word "contiguous" in the present legislation, it seems to me that the continuity of definition indicates that, for the Local Government Act, the failure to use the defined expression "adjoining" in s 204(3) indicates that something else might have been intended by using the word "contiguous". That potentiality is that which requires further exploration. Extrinsic material 1. I was provided with a copy of the Minister's Second Reading Speech on the introduction of the Bill that became the Local Government Act. The Second Reading Speech was accompanied, by leave, with further explanatory, discursive material. In addition, the explanatory notes provided as a frontispiece to a Bill upon its introduction to the Parliament were also provided. Had any of these materials provided assistance with the word "contiguous", I would have been able to have regard to them as a consequence of s 34(2) of the Interpretation Act 1987. However, they do not do so. "Contiguous" – an undefined term 1. Whilst there is a plethora of litigation that has dealt with the concept of "contiguity" where that has involved a defined use of the term (for example, litigation concerning matters arising under the International Convention of the Law of the Sea), there is limited judicial comment specifically dealing with how the word "contiguous" is to be construed when it is used in an undefined fashion and without a broad, surrounding and contextual framework within which it is to be considered, as is here the case. 2. It is appropriate to consider whether there is any guidance provided by other provisions of the Local Government Act before turning to matters contained in dictionaries and in such authority as might be available. 3. The use of "contiguous" in s 204 is the sole use of that word in the Local Government Act. The defined word, "adjoining", is used four times in the Local Government Act. These uses are contained in ss 46, 47, 702 and 713. 4. It is clear from these uses that there was an intention held by those drafting the legislation that the defined, expansive interpretation was applicable in each of the circumstances where the word is used. None of these instances provides any assistance on the matter here requiring consideration. 5. This, Mr Lazarus submitted, provides a clear indication that the idiosyncratic use of the word "contiguous" in s 204 was intended to convey a meaning that differed from that of the defined term "adjoining". Dictionary definitions 1. As to dictionary definitions, it is now accepted that the preferable dictionary to be consulted in the context of Australian use of the English language is the Macquarie Dictionary (described by Mason P as "The most authoritative Australian dictionary" – see House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440; [2000] NSWCA 44 at [33]). The Macquarie Dictionary definition of "contiguous" is in the following terms: Contiguous 1. touching; in contact. 2. in close proximity without actually touching; near. 1. Predictably, Mr Lazarus submits that the first meaning should be adopted, whilst Mr Williams submits that the second is equally applicable and available to be utilised. 2. In any event, overreliance on dictionary definitions is cautioned against. As Leeming JA said in TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68, at [80]: Dictionary definitions may assist in identifying the range of possible meanings a word may bear in various contexts, but will not assist in ascertaining the precise meaning the word bears in a particular context. The Respondents' written submissions on contiguity 1. The Respondents' written submissions on this point were in the following terms: 28. Having regard to the context within the LGA, which applies to the whole of NSW, "a single area of contiguous land" applies to an area irrespective of the watercourses, permanent or ephemeral, whether or not tidal, that may occur on the land. Any other construction would give rise to a wide range of absurd consequences. Rural and regional areas would be dissected into multiple divisions, and each island within the State would become a separate local government area. 29. The respondents contend that this construction better serves the statutory purpose of Chapter 9 of the LGA. The Chapter makes provision for the constitution of areas, the potential size of which is unlimited, and the administration of which is to be vested in a statutory authority that is constituted for that purpose. The matters to which the Boundaries Commission is to have regard in s 263 of the Act in considering a proposal, not only to amalgamate areas but also to constitute them (see Div 2 of Part 1 of Chapter 9), emphasise that the focus of the LGA is continuity of community interests, values, heritage and attitudes, along with the capacity of a council efficiently and economically to service community needs. To the extent that the physical aspects of a proposal are mandated in s 263, the relevant consideration is "geographic cohesion" (see s 263(3)(b)). 30. Section 205 supports this construction. The section permits area boundaries on foreshores to be defined by reference to the low water mark, and "the land and water enclosed by", relevantly, "a straight line drawn between the low water marks drawn between consecutive headlands to any body of water on the foreshores of an area, and those foreshores". Relevantly here, that means a line from the low water mark on the south east corner of Clarkes Point Reserve to the low water mark on the small premonitory immediately south east of the Greenwich Ferry Wharf (see the map attached to these submissions). 31. There is no warrant in the context of Chapter 9 of the LGA narrowly to construe "a single area of contiguous land" to mean "touching" and thereby to exclude an area that is divided by a river that is spanned by a bridge. The consequences of that construction are not consistent with a purposive construction of s 204 of the LGA, read in context. 32. Even if land were not to be read as including the beds of watercourses, the second of the two definitions of "contiguous" in the Macquarie Dictionary (the Council cites only the first) is "in close proximity without actually touching; near" would be the more contextually appropriate. 33. As the Delegate noted in his report, all three areas proposed for amalgamation were characterised "by their connections to Sydney Harbour (via the Lane Cove and Parramatta rivers)". They are separated by a common waterway, but are nonetheless connected by bridges. On the meaning of "contiguous" for which the respondents contend, and on the particular terms of s 205(2), the three areas constituted a single area of closely proximate land; and the Governor would be empowered to amalgamate them pursuant to s 218A. Potential relevant judicial determinations 1. I now turn to such authorities as have been cited by the parties as supporting their respective positions. To do so, it is necessary to provide some very brief context in each instance. I set out and describe below those cases relied on by Mr Lazarus, first, and then Mr Williams. I set those out prior to turning to the decision of the Court of Appeal in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429, a decision relied upon, in differing fashions, by both parties but, obviously, with each suggesting that a conclusion favouring their position was to be drawn from it. 2. I set out below a summary (in alphabetical order) of the cases that Mr Lazarus submitted were relevant as supporting the limited and precise approach he advanced to construing the word "contiguous" in this context: 1. Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276 at 286 In considering an application for housing for aged persons, the relevant planning instrument stated that the Council could not grant consent unless it was satisfied that the land the subject of the application was within, or adjoined land zoned for urban uses. Whilst the land subject of the application was separated by a public road from land zoned for urban uses, it was held that the subject land did adjoin the land zoned for urban uses. 2. Geneff v Shire of Perth (1966) 14 LGRA 145 The defendant local authority obtained an easement for the discharge of water onto part of the plaintiff's land which included a condition that the defendant could direct the flow of water from any adjoining land. It was held that the Plaintiff's land was not "adjacent" to the streets in the catchment area twenty-two chains from it, and the Local Government Act did not empower the defendant to discharge the water onto the plaintiff's land. 3. Robson v Tweed Council [2000] NSWLEC 170 In this case, the Court considered the power of the Council to approve a subdivision, excising a small allotment from an existing larger parcel, where "parcel" was defined by the relevant instrument as meaning "all contiguous lots, portions or areas of land held in the same ownership". Whilst the Court found in favour of the Applicant in concluding that the dwelling house could be erected on the allotment, Bignold J stated that if he were wrong on that point he was not satisfied that the site formed part only of the larger existing parcel, given the site's complete physical separation from the other lands by a substantial creek. His Honour was not satisfied that site was relevantly "adjoining" or "contiguous" to the other land and that this assessment is always a question of fact: at [24] 4. Spillers Limited v Cardiff (Borough) Assessment Committee [1931] 2 KB 21 at 43 For the purposes of rating and valuation of property, the Court contemplated the meaning of the word "contiguous" in determining whether several hereditaments should be treated as if they formed part of a single hereditament. It was held that the word "contiguous" must be construed in its ordinary and proper sense meaning "touching", and not in its loose sense as meaning "neighbouring". 1. On the other hand, Mr Williams relied on cases taking a more flexible approach. These were (again in alphabetical order): 1. Casuarina Beach Holdings Pty Limited v Tweed Shire Council [2013] NSWLEC 1214 In assessing the potential impact of a development on surrounding public infrastructure and potentially a range of dwellings adjoining or adjacent to the proposed development in issue, the Court cited Malcolm's Case and the discussion by Kirby P who stated that the word "adjoining" should be given a wider meaning and that the word does not require in a contemporary context, geographic contiguity: at [37] 2. Cave v Horsell [1912] 3 KB 533 The defendant lessor covenanted he would not at any time during the continuance of the lease let "any of the adjoining shops belonging to [him]…for the purpose of the business of upholsterers, cabinet makers". It was held that the word "adjoining" was not confined to the two shops physically in contact with the leased property, but that it extended to the others and that there had therefore been a breach of the lessor's covenant. 3. Commonwealth of Virginia v Comptroller of the Currency 333F. Supp. 847 (1971) In a dispute regarding the establishment of a branch bank, it was held that the word "contiguous" as used in the Virginia statute authorising the establishment of branch banks in cities "contiguous" to county or city in which a parent bank is located, should be construed to mean "adjacent to or nearby". 4. Coverdale v West Coast Council (2016) 90 ALJR 562; [2016] HCA 15 In an appeal concerning whether the seabed and waters of Macquarie Harbour are "lands" or "crown lands" within the meaning of the Valuation of land Act 2001 (Tas), the High Court stated whether land when used in a statute includes submerged land is ultimately a question of the proper construction of the statute in question: at [21] 5. First Federal Savings and Loan Association v the State of New Hampshire Board 245 A.2d 835 (1969) at 836 The city of Manchester had a tongue which extended southward for about two miles along the Merrimack River. For some third of a mile, the river bank of tongue was opposite the river bank of town of Merrimack. It was held that notwithstanding that there was no bridge or other means of access from one side of the river to the other, Merrimack was a contiguous town to Manchester within statute permitting establishment of bank branch in contiguous town. 6. Haynes v King [1893] 3 Ch 439 at 488 This matter dealt with the application of part of a lease to "adjoining or contiguous property". It was held that property separated by a road can be contiguous with something on the other side of the road. 7. Waihi Grand Junction Gold-Mining Co Ltd v Dudson (1909) 29 NZLR 499 at 505 In assessing two special quartz claims under mining legislation, the question arose as to whether the claims were contiguous to one another. In finding that the claims were in fact contiguous, it was held that the term should be construed as meaning "near to" but not actually touching. 1. It is pertinent to note that Coverdale dealt with a term – "land" – defined in the Acts Interpretation Act 1931 (Tasmania), whereas that which is here being considered – "contiguous" – is, as earlier noted, not defined in the Local Government Act. As Callinan J reminded in Risk v The Northern Territory of Australia (2002) 210 CLR 392; [2002] HCA 23, at [123], an expression or word's meaning has to be ascertained by reference to the language and discernible purpose of the legislation itself. 2. As a result, I have concluded that all that is to be drawn from the cases to which my attention has been drawn is that, in differing contexts, the word "contiguous" can be seen to have some breadth of meaning. They do not, however, provide assistance in this contextual consideration. Hornsby Shire Council v Malcolm 1. I now turn to consider the decision of the Court of Appeal in Hornsby Shire v Malcolm. This case was an appeal against the decision of a judge of this Court as to how the word "adjoins" should be interpreted in the context of a State Environmental Planning Policy designed to facilitate the construction of accommodation for older people and people with disabilities. 2. At first instance, in an unreported decision, Bignold J had held that a parcel of land that was separated by a road and its road reserve from a residential area should be regarded as satisfying a requirement in the policy that land proposed to be developed (by taking advantage of the facultative, overriding provisions of the Policy) was required to be land that adjoined a residential area. The Council appealed against his Honour's decision. 3. The leading judgment was written by Glass JA. He dealt with the use of the word "adjoins", at 443, where he said: The trial judge ruled that the word "adjoins" in the statutory phrase "adjoins land zoned for urban purposes" is used in its loose sense of "is near to and is neighbouring on" rather than its exact meaning "is coterminous with". So construed the subject land which is separated from urban lands zoned for urban uses by no more than a public road adjoined such land. Mr Hemmings argued for the construction of "adjoins" as meaning "abuts' or 'is contiguous with". He referred to s 90(1)(h) of the Environmental Planning and Assessment Act 1979 which distinguishes between adjoining land and land in the locality. In my opinion the word "adjoins" is currently used in both senses and must take its colour from the context in which it appears. I do not find in the language of State Environmental Planning Policy No 5 any persuasive indication that land which immediately adjoins should be exempt whereas land which adjoins in the lesser sense is not. 1. As a consequence, he found no error of law in the trial judge's construction of the meaning of "adjoins" in that statutory context. Glass JA's judgment was agreed with by Mahoney JA. I discuss below the role of "context" in this instance. 2. There are also two aspects of the more expansive discussion of the issue, relevant to my consideration in these proceedings, in the decision of Kirby P. His Honour said, at 433 and 434: The word "adjoins": It will be observed that in cl 11(2)(a), it is a requirement that the consent authority should be satisfied that the land, relevantly, adjoins land zoned for an uses. His Honour held, in the present facts, that this requirement was satisfied. That finding is challenged by the appellant. The word "adjoins" normally means to abut on, to be in contact with or to lie or be next to: see Macquarie Dictionary. In the present case there is no doubt that the land upon which the development is proposed is not within a land zoned for urban use. But does it adjoin such land? The appellant argued that it did not, because between the land upon which the development would proceed and land zoned for urban uses, ran not only the Mid Dural Road but the strip zoned open space-roadside reserve which was 15 metres wide. Having regard to these separations, can it be said that the land "adjoins" land zoned for in uses? There was no contest but that the Galston Village area on the other side of the Mid Dural Road was so zoned. Nor was it contested that the word "adjoins", in its various forms could mean either physical contiguity or close physical proximity, depending upon the context. There is a useful discussion of the authorities in the judgment of Hogarth J in Minister of Works v Antonia [1966] SASR 54 at 61. I do not repeat what is there said. The authorities are sufficient to sustain the concession properly made by the appellant. It is therefore necessary to turn to the context in which the word appears in cl 11(2). The appellant contended that the primary meaning of physical contiguity should be insisted upon. It urged this construction on the basis that the purpose of permitting consent, although land was not zoned for urban uses, was to avoid the inconvenience which would otherwise arise, if the proposed development site immediately abutted urban land. Such a construction would, it was urged, avoid the mischief, at the margin, of a zone difference, without undermining the general policy. That policy was said to be that homes for the aged or disabled should be constructed in urban areas both for the interests of the residents and for the saving of costs to the community. Development outside such areas was an exception. So, it was said, the word should be given a narrow meaning in the context. Even accepting this general approach, I am not at all convinced that the separation of the proposed development site from the Galston Village was such a distance as properly to fall outside the description of abutment. Roads and roadside reserves exist as a normal feature of urban development. In the present case there was no separate development between land undoubtedly zoned for urban use and the proposed development. But even if there were no strict abutment, because of the lack of physical contiguity, there is still a sufficient proximity to bring the proposed development within the word adjoins" in the context of cl ll(2)(a). Words in the English language are constantly changing their primary meanings as any dictionary demonstrates. The word "adjoins" is no exception. Whereas originally it might well have connotated immediate physical contiguity, nowadays that idea tends to require the use of the adverb "immediately", such as "immediately adjoins". That adverb would not be necessary if the word itself invariably connotated immediate physical proximity. It is not appropriate in the present facts to speculate upon what would be the case if there were a separation between land zoned for urban uses and the proposed development site other than a road and roadside reserve. The appellant called attention to the terms of s 90(l)(h). By the reference in that paragraph to "in the locality", it may be suggested that "adjoins" in the policy means something considerably more proximate. But that argument can be conceded, and there is still a sufficiently close proximity in the facts of the present case to uphold the conclusion that the proposed development adjoined urban land. Accordingly, the first and second grounds of the appeal fail. 1. Mr Williams relies on this passage generally and on the first two sentences set out above of the fourth paragraph of the extract from Kirby P, proposing that I should conclude that it assists me in adopting the approach that a degree of separation between areas could still have the result that they were contiguous. This latter proposition, as I understood him, arises from the fact that the various authorities earlier described had circumstances which ranged from the mere 33-feet width of a street to the near one mile across the river. In these circumstances, I understood him to be proposing that I would not be troubled by concluding that the Lane Cove River, between Lane Cove and Hunter's Hill, did not act as a barrier to a conclusion of contiguity between these two local government areas. 2. On the other hand, Mr Lazarus relied on the last three sentences of the second-last paragraph of the above passages from the President's reasons for decision. This extract, he submitted, should lead me to the conclusion that the concept of contiguity should be regarded as one requiring actual touching and that the flexibility of approach to "adjoins", confirmed on appeal, was not here available. Conclusion on "contiguous" 1. Whilst the other authorities to which Mr Lazarus and Mr Williams have taken me are informative, I am satisfied that there is sufficient guidance in Hornsby Shire Council v Malcolm, when coupled with the language of the Local Government Act itself (that is where there is a specific definition of "adjoins" – a definition in permissive framing – but no definition of "contiguous" but a term reasonable to assume has a different meaning from the defined term in this context), to conclude that the position advanced by Mr Lazarus on the construction of s 204(3) is to be preferred. 2. There are two specific indicia that compel this outcome, in my opinion. The first is the express legislative decision (although unexplained) to use the word "contiguous" in this confined context in preference to the defined and more expansive concept of "adjoining" used elsewhere (in four places) in the legislation. 3. Second, the use of the words "immediate physical contiguity" and "immediate physical proximity" as clearly mutually substitutable concepts, in the final sentence of the second last paragraph of the extract from Kirby P in Hornsby Shire Council v Malcolm, provides sufficient indication that the concept of "contiguity" involves the narrow and confined contextual understanding for which Mr Lazarus contends. The s 205(3) expansionary possibility 1. Although the Councils have succeeded in demonstrating that the Hunter's Hill and Lane Cove local government areas are not contiguous as required by s 204(3) and, thus, on that basis, cannot be included in the same area for the purposes of a proclamation by the Governor constituting a new local government area, that is not the end of the matter. 2. In the alternative, Mr Williams relies on a purposive application of s 205(3)(b) to support the proposition that, in this context, the Fig Tree Bridge, the bridge carrying the road linking the Hunter's Hill and Lane Cove local government areas, is to be regarded as included in the proposed area that would arise from this merger proposal, thus, by its inclusion, rendering these two local government areas contiguous. It is to be observed that s 205 is in Div 1 of Pt 1 of Ch 9 of the Local Government Act. This is relevant to understand that which follows as the definition of "area" is in the following terms: area means an area as constituted under Division 1 of Part 1 of Chapter 9. 1. For this consideration, s 205(3)(b) can be disaggregated to read: 205 Land taken to be included in an area … (3) Land on the boundary of an area is taken to be in the area if: (a) … (b) it is on the foreshores of the area and beyond low-water mark, and it … has a structure erected on it. 1. The relevant land beyond the low-water mark would, relevantly, be those elements of the bed of the Lane Cove River providing support for the pylons of the bridge, whilst the bridge itself would constitute the structure satisfying the final element of the provision. 2. In this context, it is to be observed that neither of the words "land" or "structure" is defined in the Dictionary to the Local Government Act. 3. Hunter's Hill Council's written submissions on this point were in the following terms: 55. However, although s.205 deems certain land to be within an "area", the relevant "area" for the purposes of ss.218A and 204(3) is the area "as constituted under Division 1 of Part 1 of Chapter 9", that is, the area as constituted under s.204, rather than any expanded area applying the deeming provision in s.204. Consequently, if the Proposal is implemented, the new area proposed to be constituted under s.218A will not be a "single area of contiguous land", but rather will be an area of land severed by the Lane Cove River. That is so even though there is a bridge across the River connecting Hunter's Hill to Lane Cove. Even though such a bridge is a "structure" within the meaning of s.205(3), it does not affect the above conclusion, as s.205 is irrelevant to the issue of whether a new area constituted under s.218F is a "contiguous area of land". 56. In any event, s.205 was clearly intended to extend the reach of a council's jurisdiction, not to join in a notional sense two or more local government areas, separated by a body of water. To construe it in any other way would produce an overlap, which would be inconvenient because any given piece of land could be in more than one area. The absence of any provision addressing how an overlap is to be dealt with suggests that the legislature did not intend that s 205(2) would produce an overlap of council areas. 57. It would be beyond the power of the Minister to take belated action now to add part of the Lane Cove River to the proposed new area, as that would clearly be a new proposal within the meaning of s.218F(7). 1. In his oral submissions on this topic, Mr Lazarus said (Transcript 3 June 2016 in Matter No 158774 of 2016 at page 11 lines 26 to 45): … the second proposition is this, that when one is dealing with s 218A and s 204, one must apply the definition of area that is found in the act. The definition of area is "An area as constituted under div 1 of pt 1 of ch 9." The only area that is constituted is or are the existing local government areas. In other words, the additional areas of land that are deemed to be included within the area under s 205 do not apply, a very important point, because of the definition of the word area. The nub of that is that as I submitted earlier, s 205 and its deeming provisions are irrelevant to the present question because one is simply dealing with the three areas of land. Put them all together: do you have a contiguous area of land - a single area of contiguous land, I should say, within the meaning of s 204, ignoring s 205? If I may also say this; the purpose of s 205 was not and could never be seen to be anything other than an extension of the jurisdiction of the various councils over areas where there might be some issue as to whether the jurisdiction or where the jurisdiction extended to. It could not be said that the purpose of s 205 was to in some way notionally join local government areas to enable or facilitate an amalgamation of areas that are not otherwise contiguous. 1. Mr Williams' made short oral submissions on this point (Transcript 3 June 2016 in Matter No 158774 of 2016 at page 21 lines 29 to 47): WILLIAMS: Your Honour, on the subject of bridges could I go back to the Tarban Creek Bridge and to s 205 of the Act. 204 of course says an area must be a single area of contiguous land but it has to be read together with the deeming provision in s 205 which gives it an extended meaning and in particular in subp (3), "Land on the boundary of an area is taken to be in the area if," relevantly in (b), "it is on the foreshores of the area," this bridge is certainly that, "and beyond low-water mark," it has pylons on either side that are below the water mark, "and it is privately owned or has a structure erected on it." This land, this structure, which my friend accepted was a structure, is deemed to be within the area as land on the boundary, beyond the low-water mark, which has a structure erected on it and that is sufficient to make the amalgamated areas one area even if pre-existing boundaries which appear to have had a division down on either the high or the low-water mark on respective sides of the river were to be maintained in the form in which the governor ultimately proclaimed the matter, but that indeed raises an important point about how wide a question this is or how narrow a question it is for the purposes of the present case. 1. For the reasons discussed below, the position advanced by Mr Williams is to be preferred. 2. The following exchange took place during Mr Lazarus' reply dealing with s 205 (Transcript 3 June 2016 in Matter No 158774 of 2016 at page 27 line 25 to page 28 line 25): LAZARUS: Thank you, your Honour. Now, very briefly, it's quite noticeable from my learned friend's submissions, your Honour, that nothing was put to contradict our construction of the use to which s 205 can be put, having regard to the definition of "area". So the point that I made earlier, and the point remains, that applying the word "area" in the context of s 204 not expressly excludes, but implicitly excludes s 205 because the definition of "area" only deals with areas that are constituted, not areas or additional areas of land under s 205. So in my submission, any reference to bridges or anything of that nature is an irrelevance because they are not included within the definition of "area", and therefore are not included in s 204 to the extent relevant to the present debate. Now, perhaps the final point is‑‑ HIS HONOUR: Are we not dealing in these proceedings with what we might call a prospective proclamation? LAZARUS: Yes. HIS HONOUR: And therefore, we are dealing with a prospective area, are we not? LAZARUS: Well no, not in this sense, because the proposed area is defined. It's defined in the proposal. There's no suggestion by anyone that the ultimate outcome of this process will be anything other than what is set out in the proposal. HIS HONOUR: No, I understand that. But it's a prospective area in the sense that the area is that which is set out in the first sentence of the 6 January document. At the very least, it's the first sentence. It may be on the basis advocated by various challengers to be more expansive than that, but nobody is seeking to derogate from the first sentence. LAZARUS: That's right. HIS HONOUR: And given that it is a prospective area, why can't 205 act, if I'm satisfied it acts in the fashion that Mr Williams says, to prospectively incorporate in the prospective area the element of the Tarban Creek Bridge? LAZARUS: It can't, because‑‑ HIS HONOUR: Well, that's what I mean..(not transcribable)..to tell me why. LAZARUS: The logic is this, your Honour. I took your Honour to the provision at the start of my submissions. Applying s 218(A), one gets back to s 204. And an area (including any new area) must be "a single area of contiguous land". What does "area" mean in that expression, "a single area of contiguous land" is whatever it is constituted to be, not what it is constituted to be plus what it is deemed to be. That's the chain of reasoning. Perhaps if I didn't put that clearly enough in my submissions, that's certainly what I intended to put. Finally, your Honour, my learned friend submitted that there's, in his words, no sensible reason for imposing a construction or adopting a construction of the nature that we advance. 1. The Council also put that an "area" for the purposes of s 218A was to be confined to "an area constituted by a proclamation under section 204" and not otherwise. This ignores the fact that the purpose served by s 205 is an inclusionary deeming provision so that, if appropriate relevant elements of the section are satisfied, the structure is to be taken to be in the relevant local government area. 2. The Council's written submissions also relied upon a decision by Barrett J in Waterways Authority of New South Wales v Coal and Allied Operations Pty Limited [2005] NSWSC 1285 in support for a contention that all that s 205 can do is to extend the powers of a council (at [54] to [58]). However, it is clear from his Honour's reasoning that the only basis for extending "the powers of North Sydney Council" (at [58]) is because the structure (a wharf) was "taken to be in the area" by s 205(3). 3. Whilst many might regard an interpretation of this provision as establishing the necessary connection between these two local government areas as perverse, nonetheless, it seems to me that the express incorporation of such a provision necessarily means that it was intended to have, in the various ways s 205 could operate, a range of potentially expansionary outcomes. The outcome proposed to arise in these proceedings is, on a proper understanding of the provision, one which falls within that expansionary approach and, as a consequence, no matter how offensive to common sense some might regard the outcome, it is clearly an outcome intended by the legislature. Conclusion on s 205(3)(b) 1. As a consequence, I conclude that the operation of s 205(3)(b) does have the effect of incorporating the Fig Tree Bridge within the local government areas of Hunter's Hill and Lane Cove (without the necessity to explore whether or not the boundary is at the centre point of the bridge - noting for interest only, as observed by Windeyer J in Permanent Trustee Company of New South Wales Limited v Council of the Municipality of Campbelltown and Another [1960] 105 CLR 401 at 426, the doctrine of ad medium filum aquae does not apply to tidal waters, as is here the case). 2. The two areas are contiguous for the purposes of s 204(3). 3. This ground fails. Reliance on undisclosed information – Ground 8 1. This complaint pleaded by the Councils in this ground is in the following terms: 8. The Delegate further denied the Council procedural fairness in taking into account material provided to him without disclosing the substance of the information before him, or providing access to the information or an opportunity to comment on the information in preparation of his Report. Particulars (a) As part of the exercise of the statutory functions of examination, report and holding an inquiry in relation to the Proposal referred to him, the Delegate was required to make his Report available to councils, including the Council, in order to provide them with the reasonable opportunity to make a fully informed submission. (b) In the exercise of the statutory function of reporting on the Proposal the Delegate considered "other relevant material": Delegate's report pp 12 and 33. (c) The Council was not aware of such material and the substance of it was not disclosed to the Council. (d) The Council was not given an opportunity to make a fully informed submission on the "other relevant material". 1. I have earlier dealt with the fact that the Minister has, during the course of the proceedings, provided an opportunity to the various Councils involved in these proceedings to make submissions to him concerning the report provided by the relevant Delegate and the Boundaries Commission's comments upon it. As a consequence, it is unnecessary for me to address Particular (a) further. 2. I, therefore, address the remainder of this ground. In the context of the remainder of this ground, it is appropriate to set out precisely what is caught by Particular (b) above. 3. First, I turn to consider page 12 of the Delegate's report. This page is headed "5 Summary of Submissions". It sets out the calling for written submissions and the date up until which such submissions would be received. It notes that the Delegate received a total of 457 submissions from interested persons for consideration as part of the public inquiry into the proposal. The Delegate also noted that, at the public inquiry sessions he conducted into the proposal, 70 persons took the opportunity to speak during those sessions. He noted that, "[i]n addition, other speakers who were not registered were given the opportunity to speak. There were no persons who were refused the chance to speak if they so wished". 4. He then noted: All written and oral submissions made to the Delegate were carefully considered in the course of the Delegate's deliberations. Representatives of the affected councils accepted the Delegate's invitations to make oral presentations at the public inquiry hearing in Hunter's Hill on 2nd February 2016. The preparation of this report has been aided by the analysis of material provided to the Delegate by the affected councils and other relevant material. 1. I now turn to page 33 of the Delegate's report. Page 33 is headed "7 Recommendations". It contains a comparatively brief commentary by the Delegate at the conclusion of his report. The section is in the following terms: The Delegate has examined the proposal announced by the Minister for Local Government in December 2015 to amalgamate the entire local government areas of Hunter's Hill, Lane Cove & Ryde to form a new entity. Having considered the proposal, the submissions presented to the Delegate by the affected councils, the submissions from members of the public and community groups and other material, and having regard to the factors set out in section 263(3) of the Act, the Delegate recommends that the proposal should proceed to implementation. This would assist the council to have the financial and human capacity to continue to maintain its assets and provide adequate, efficient and effective services in the medium to long term. At the same time, it should enable the residents to maintain the lifestyle of their choice, consistent with community needs. 1. Whilst it is not entirely clear in terms, from the material on page 12 of the Delegate's report, that the "other relevant material" went beyond the written and oral submissions made to him, it is clear that from page 33 of his report that there was other material going beyond those submissions then noted. 2. At the very least, the Minister's proposal document (being an advocacy submission for the reasons earlier described) would fall within that category of other material. However the expression is not confined and it is necessary to consider whether or not the reliance on other material not disclosed to the Councils but taken into account by the Delegate would constitute a denial of procedural fairness in a fashion that would cause the Delegate's reporting function to miscarry. 3. This complaint is similar to that made by Woollahra Council and dealt with by the Chief Judge in Woollahra. That Council's submission on the similar point was set out by his Honour in [91] and [92] as follows: 91. While the Delegate was not bound to make public any workings that he produced for the purpose of considering the effect of the evidence given or submissions made in an inquiry under s 263(2A), Woollahra Council submitted that he was not permitted to obtain or rely on evidence that was obtained privately and which was not laid bare for public scrutiny in a public forum, citing Bread Manufacturers of New South Wales v Evans at 413. It could not be supposed that Parliament intended a regime where the Delegate was required to hold a public inquiry yet was free to receive and consider evidence in a private domain, without public disclosing it, in the course of preparing the required report. 92. Woollahra Council submitted that this obligation to rely only on evidence obtained publicly and not privately also flows from the requirement to act fairly. Woollahra Council referred to the dicta of Lord Diplock in Bushell v Secretary of State for the Environment [1981] AC 75 at 101-102 (citing Lord Greene MR in B Johnson & Co (Builders) Ltd v Minister of Health [1947] 2 All ER 395 at 399-400) that: [w]hen [the Minister] is considering the respective representations of the promoting authority and of the objectors made at the local inquiry and the report of the inspector upon them … he must act fairly as between the promoting authority and the objectors; after the inquiry has closed he must not hear one side without letting the other know; he must not accept from third parties fresh evidence which supports one side's case without giving the other side an opportunity to answer it. Woollahra Council submitted that these observations apply with equal force to the functions of the Delegate under ss 218F and 263 of the Act. 1. Whilst this ground in both the Hunter's Hill and Lane Cove Councils' proceedings has not been pleaded with the same specificity concerning undisclosed information as has been pleaded in the Ku-ing-gai and Shellharbour proceedings, the same general principles apply as discussed in those decisions. 2. The starting point for dealing with this complaint is what was said by Preston CJ in Woollahra at [111] to [113] ([111] being included for context). These paragraphs read: 111. It follows from this conclusion that s 263 did not mandate that the person holding the inquiry (in this case the Delegate of the Departmental Chief Executive) actively question persons speaking at the inquiry or answer questions asked of the Delegate at the inquiry. Where the section is silent as to the procedure to be followed at the inquiry, that procedure within such limits as are necessarily imposed by its qualifying for the description "inquiry", is left to the discretion of the person holding the inquiry: Bushell v Secretary of State for the Environment at 94-95. The Delegate did not fail to hold an inquiry under the section by stating that he was "here only to listen". 112. Fourth, it also follows from the previous point that s 263 does not require that all key material relied upon by the Boundaries Commission or Departmental Chief Executive in examining and reporting on a proposal referred to it by the Minister under s 218F must be publicly accessible in advance of the holding of the inquiry. This argument of Woollahra Council is predicated on its mistaken contention that the entire process of examination and report must be carried out in public at the inquiry. 113. The citation of Bread Manufacturers of New South Wales v Evans (at 413) is misplaced. The inquiry required to be conducted in the circumstances and under the legislation considered in that case was quite different to the inquiry required to be held under s 263 of the Act. There, the High Court held that, because legislation in that case conferred investigative powers on the Prices Commission for the purposes of a public inquiry, where an inquiry was held, the Prices Commission was precluded either from using information obtained privately for the purposes of the inquiry without disclosing it to the parties (per Gibbs CJ and Aickin J) or from obtaining information for the purposes of the inquiry except in public and on oath (per Wilson and Mason JJ). Here, s 263 does not so require that information obtained by the Boundaries Commission or Departmental Chief Executive must be publicly disclosed and publicly adduced at an inquiry held under the section. So too, the inquiries held under the legislation considered in Bushell v Secretary of State for the Environment and B Johnson & Co (Builders) Ltd v Minister of Health were quite different to the inquiry required to be held under s 263 of the Act. 1. Although, in [112], his Honour was dealing with accessibility of material in advance of the holding of the inquiry, an examination of Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404; [1981] HCA 69 shows that this position is equally applicable at any stage during a Delegate's examination and reporting process. The joint judgment of Mason and Wilson JJ set out, at [11], the relevant provisions applicable at that time in the Prices Regulation Act 1948. Their Honours noted, at [13], the powers of the Prices Commission: The investigative powers of the Commission are contained within a group of sections numbered from 9-17. They include the power to summon witnesses and take evidence on oath (s. 9), require information to be given and questions answered (s. 13), require the production of balance sheets and other accounts (s. 14), enter upon and search any premises and inspect any documents or goods taking copies or samples thereof as the case may be (s. 15), and require a return to be furnished by any person or class of persons containing particulars of the quantity and cost of any goods in possession and of prices charged or proposed to be charged in respect of them (s. 17). 1. It is clear that the functions being undertaken by the Prices Commission were, subject to a power of intervention by the Minister, of a determinative nature but, most relevantly applicable, of deriving a conclusion from an enquiry conducted in a fashion significantly akin to that conducted by a court. The position here, mandated by ss 218F and 263 is quite radically different. The conclusion of his Honour, in [113], that "s 263 does not so require that information obtained by the Boundaries Commission or Departmental Chief Executive must be publicly disclosed and publicly adduced at inquiry under the section" is clearly applicable to this complaint in these proceedings. 2. This complaint fails. Lane Cove Council 1. In addition to the broader complaint about identification of the location of the public inquiry sessions, Lane Cove Council complains about the location of the venue for the public inquiry sessions and the lack of public transport to it. The Council's written submissions on this point were: 11. In addition, the Council says that the public inquiry was unfair to the residents of Lane Cove, because there was no inquiry held in their own council area, and because the inquiry venue was not readily accessible. At least one complaint was made that there was no public transport to the Hunter's Hill Sailing Club. It appears that the Council did organise a community bus to transport up to 9 people, but this was a drop in the ocean, compared to the number of potentially concerned residents. Lane Cove has a population of 34,807. It is impossible to know how many other Lane Cove residents were discouraged from attending the inquiry because of its location, and the lack of public transport. 1. This complaint lacks substance. There are no statutory requirements, beyond reasonable public notice as required by s 263(2B) and the right of the public to attend the inquiry (s 263(5)), contained in the statutory regime. 2. Given that this Delegate was conducting his inquiry in an urban area, his selection of venue for the sessions of his public inquiry, being at what might be regarded as a reasonably central location within the areas the subject of the proposal, was not unreasonable. Indeed, the approach taken in holding two inquiry sessions (one day and one evening) might well be regarded as generous, given that the statute, itself, does not mandate multiple sessions for the conducting of the inquiry. 3. There is no statutory obligation that goes beyond the two requirements noted above. Whilst, perhaps, in hindsight, access to public transport may have facilitated attendance, the fact that there was only one complaint tends to militate against such a conclusion. In addition, as the Delegate noted in his report, he received 457 written submissions and 70 persons (in addition to the Councils) spoke at the inquiry sessions. These are Class 4 proceedings – the burden lies on the Council and such evidence as there is (one complaint) could not rationally provide a basis for concluding the lack of public transport accessibility caused the public inquiry sessions to miscarry. 4. This ground fails. Mosman and North Sydney Councils The dual delegation and its asserted invalidity 1. The nature of this complaint can be best understood by a reading of the Councils' reply submissions on this point. They read: 41. On 25 February 2016, the Minister referred to the Chief Executive under s.218F of the LG Act a single indivisible function of examining and reporting on two proposals, namely the Warringah Proposal and the Second Proposal. That the Minister was referring a single function of carrying out a single process of examination and report in relation to both proposals, rather than two separate functions of carrying out an examination and report on each proposal can be seen from the use of the singular "report" in paragraph 4 of the referral letter. 42. If the Court finds that the use of the singular alone is not conclusive, this construction is reinforced by the relationship between the two proposals. The inescapable consequence of proceeding with the Warringah Proposal would be that Mosman, if it were to merge, would have to merge with neighbouring councils other than Warringah and Manly. This was a live issue because the First Proposal, involving Mosman, Manly and Warringah, was still on foot at this time. In these circumstances, there was a compelling reason for the Warringah Proposal and the Second Proposal to be considered together. That is not to say that the Minister could not lawfully have referred them separately, but that the most reasonable construction of the referral letter in the circumstances is that it constituted the referral of a single function in relation to both proposals. 43. In an Act, unless the contrary intention appears, an expression in the singular includes the plural, and the plural includes the singular (Interpretation Act 1987 s.8(b)). This is sufficient to remove any doubt that the Minister was empowered under s 218F to refer multiple proposals for a single examination and report. 44. Since a single function was referred to the Chief Executive, it was not open to him to delegate that function to two separate delegates. The power of delegation under s.745 of the LG Act is a power to delegate any of the Chief Executive's functions. Once it is accepted that the function of examining and reporting on the two proposals was a single function, it was not open to the Chief Executive to make a bifurcated delegation, delegating part of the function (the Warringah, Manly and Pittwater part) to one delegate and another part of the function (the North Sydney, Willoughby and Mosman part) to another delegate (GPT RE Ltd v Wollongong City Council (2006) 151 LGERA 116 at [45]-[52], Belmorgan Property Development Pty Ltd v GPT RE Ltd (2007) 153 LGERA 450 at [54]-[56], [75]) . Although s.49 of the Interpretation Act 1987 permits a delegation to be made in a form which is "general or limited", this does not permit the bifurcation of functions (GP RE Ltd v Wollongong at [5]). 45. In GPT RE Ltd v Wollongong City Council Biscoe J held that the function of determining a development application under s.80(1) of the Environmental Planning and Assessment Act 1979 could not be partially delegated so as to delegate only the power of approval, without the power of refusal. A key reason for this was that the decision-maker was required to take into consideration matters under s.79C. His Honour found that the decision-maker could not meaningfully consider these factors if the function were delegated in such a way as to allow only one outcome. His Honour's decision was upheld on appeal in Belmorgan Property Development Pty Ltd v GPT RE at [54]-[56]. 46. The function being exercised here is analogous because of the presence of mandatory relevant considerations under s.263(3) of the LG Act. When the Minister referred the Warringah Proposal and the Second Proposal to be examined and reported on together, this had the consequence that the s.263(3) considerations were not to be considered in isolation for each proposal, but jointly. For example, under s.263(3)(b) the question would not be how the Second Proposal would affect geographic cohesion in the existing areas of Mosman, North Sydney and Willoughby, but whether, on balance, the two proposals together would have a positive or negative effect on geographic cohesion across all six affected areas. This is a qualitatively different process from considering these factors in relation to each proposal in isolation (although, even in that case, the other proposals were still mandatory relevant considerations). 47. The respondents in their oral submissions argued that there were two different proposals referred in the letter of 25 February 2016, which could not lawfully be treated as a single "composite new proposal". The applicants do not dispute that the referral letter referred two proposals, however the two proposals were referred for a single "examination and report". It is that function of examining and reporting on the two proposals which is indivisible. Botany Bay is distinguishable, because the two proposals in that case were separately referred. 1. However, this issue is not as complex as the Councils make it. The reasons for this and the necessary outcome that follows are set out below. 2. On 25 February, the Minister wrote to the Acting Chief Executive a letter concerning the Warringah Council proposal and the Minister's resulting further proposal, this being the proposal under challenge in these proceedings. The Minister's letter was in the following terms: On 24 February 2016, I received the enclosed proposal from Warringah Council which it states has been made under section 218E of the Local Government Act 1993 (the Act). The proposal, made following Council resolution of 23 February 2016, is to amalgamate the existing areas of Manly, Warringah and Pittwater into one new area. As a consequence of the Warringah proposal, I have decided to also make a proposal, in accordance with section 218E of the Act, to amalgamate the existing areas of North Sydney, Willoughby and Mosman into one new area. By this letter, I am referring both these proposals to you pursuant to section 218F(1) of the Act for examination and report in accordance with section 218F of the Act, and I look forward to receiving your report in due course. [emphasis added] 1. On 25 February, the Acting Chief Executive of the Office of Local Government signed an Instrument of Delegation, a document in the following terms: Pursuant to s. 745(1) of the Local Government Act 1993 (the "LG Act"), I, Tim Hurst, Acting Chief Executive, Office of Local Government, delegate to the persons listed in Part A in respect of the proposal is listed opposite in Part B the following functions conferred on me by the LG Act: 1. Examination of and report on one or more proposals referred by the Minister under s. 218F of the LG Act; and 2. Any function that is incidental to the function of examining of and reporting on proposals under s. 218 F of the LG Act. 1. Below the signature of the Acting Chief Executive, the Instrument of Delegation sets out a table that shows that Mr Richard Pearson was given the delegation with respect to the Warringah Council proposal and the Delegate (Mr Ian Reynolds) was given the delegation with respect to the Minister's proposal that is the subject of the challenges by Mosman Municipal and North Sydney Councils. 2. On 26 February 2016, the Delegate wrote letters to the General Managers of the Mosman, North Sydney and Willoughby Councils. The letters were in identical terms. The heading for each letter was "Proposal for North Sydney Council, Willoughby City Council, and Mosman Municipal Council. 3. Relevant to this complaint, the second paragraph of each letter said: The Minister for Local Government has referred the proposal to the Acting Chief Executive Officer of the Office of Local Government for examination and report. The Acting Chief Executive Officer has delegated the function of examining and reporting on the proposal to me. 1. Self-evidently, the sole amalgamation proposal that had been referred to the Delegate (the Fourth Respondent in these proceedings), in this context, is for the amalgamation of the three nominated councils. 2. Mosman Council pleads its complaint about this act of delegation in its Further Amended Summons in the following terms: 1C On 25 February 2016, the Minister referred both a proposal for the merger of North Sydney, Willoughby and Mosman Municipal councils (the Second Proposal) and a proposal for the merger of Manly, Warringah and Pittwater Councils (the Warringah Proposal) to the Chief Executive of the Office of Local Government for examination and report pursuant to section 218F of the Act. On 25 February 2016 the Chief Executive of the Office of Local Government purported to delegate to the Fourth Respondent the function of examining and reporting on the Second Proposal but not the Warringah proposal, and on the same day purported to delegate to another person the function of examining reporting on the Warringah proposal but not the Second Proposal. The purported delegation from the Chief Executive of the Office of Local Government of the Fourth Respondent was invalid and of no effect, because the function which had been referred to him of examining and reporting on both the Second Proposal and the Warringah Proposal was a single function which could not be bifurcated by delegation of the Warringah Proposal to a different delegate. In April 2016, the Fourth Respondent produced a report in relation to the Second Proposal (the Second Report), but not the Warringah Proposal. 1. This ground was also pleaded by North Sydney Council in slightly differing terms, differences that are not material to my consideration of this complaint. 2. As set out in full above, the Minister's referral to the Acting Chief Executive of 6 January 2016 of 25 merger proposals contained the following paragraph: By this letter, I am referring these proposals to you pursuant to section 218F(1) of the Act for examination and report in accordance with section 218F of the Act, and I look forward to receiving your report in due course. [emphasis added] 1. The only potentially relevant textual difference between the Minister's referral to the Acting Chief Executive of the two amalgamations, about which this complaint is made and that set out immediately above, is the use of the singular "report" in the referral in these proceedings and the plural "reports" in the January 2016 referral. 2. This is irrelevant as the function delegated is referral "for examination and report … to the Departmental Chief Executive" (s 218F(1)). The production of a report follows by virtue of s 218F(6)(a) but is an outcome of that which is delegated, not the function delegated itself. What is referred is "these proposals" only. The concluding words about which comment is made are mere gratuitous politeness, not part of the references. 3. The Acting Chief Executive chose to delegate the mandated functions to two Delegates. The Local Government Act contains no express or implied prohibition on him doing so. The Minister did not, by his referral, require otherwise (even if he had power to do so – a matter not necessary to consider). 4. There is no basis in this complaint. Failure to consider submissions for other proposals 1. Complaint is made that, in two respects, the process undertaken by the Delegate in examining and reporting upon this proposal should have had regard to, or be involved with, two other proposals. Those proposals were the Minister's original proposal concerning an amalgamation between North Sydney and Willoughby, and the proposal advanced by the former Warringah Shire Council that it not be split and divided between the former Pittwater and Manly Councils, but that Pittwater, Warringah and Manly Councils should be amalgamated into a single Northern Beaches Council (as has now occurred as a consequence of the 12 May Proclamation). 2. The consequence of the Minister considering that the proposal of the former Warringah Shire Council had merit and warranted being referred to the Acting Chief Executive of the Office of Local Government for examination and report (a process initiated by the Minister pursuant to s 218F), was that the Minister also developed a separate proposal, that of amalgamating Mosman, North Sydney and Willoughby Councils (the corollary the Minister self-evidently considered necessary to avoid the Mosman local government area being left as an orphan if it was no longer to be amalgamated with the southern portion of the Warringah local government area and with the Manly local government area). 3. As a consequence, on 25 March 2016, the Minister wrote to the Acting Chief Executive in the terms earlier set out. 4. As earlier noted, the Acting Chief Executive appointed two Delegates, one for each of the proposals that had been referred to him by the Minister's letter. The Delegate to whom the Mosman, North Sydney and Willoughby proposal was referred was the same Delegate to whom the North Sydney and Willoughby proposal had earlier been referred. 5. This Delegate's examination and reporting process for the first proposal continued to be on foot whilst he also undertook his examination of, and reporting process for, the second proposal. Indeed, shortly after the Acting Chief Executive delegated the process for the second proposal to the Delegate, the Delegate provided to the Minister and to the Boundaries Commission his report on the first proposal. The first proposal was not officially abandoned by the Minister but was, by implication, in his press release of 12 May 2016. 6. There are, as I understand it, two complaints specifically made about the way that the process undertaken by the Delegate for the second proposal was carried out in light of these other two proposals. Those complaints are: 1. First, submissions that had been made to the Delegate in response to the first proposal did not form part of the material taken into account by him for the purposes of his reporting on the second proposal; 2. There was no consideration by the Delegate in his examination of the second proposal of matters relevant to the second proposal that arose as a consequence of and during the examination of the Warringah-originated proposal. 1. The complaint that is made here arises out of matters raised with the Delegate during the course of the second inquiry as to whether or not he would access and have regard to submissions that had been made to the first inquiry. Mr Galasso, for North Sydney Council, submitted that the Delegate's refusal to do so (despite being requested during the course of at least two of his inquiry sessions) constituted a denial of procedural fairness to those who had chosen to make submission to the first inquiry. 2. As outlined in Mr Galasso's written submissions on this point, there were 423 written submissions made to the first inquiry (being submissions confined to addressing the proposal to merge North Sydney and Willoughby local government areas). With respect to the second inquiry (being the proposal to merge the Mosman, North Sydney and Willoughby local government areas), there were only 176 submissions from residents or ratepayers in the North Sydney and Willoughby local government areas made to this second inquiry. Mr Galasso submitted that this meant, effectively, that at least 249 submitters who had chosen to address the first proposal did not do so for the second proposal. 3. Although the Delegate was requested to have regard to the submissions on the first proposal as part of his examination of the second proposal, he declined to do so. Although the Delegate did advert to the risk of "submission fatigue", nonetheless he indicated, when asked a question on this "process matter" during the course of the public inquiry sessions, that he would receive any submissions made to the first inquiry if lodged also as submissions to the second inquiry, whether or not the submitter chose to make minor alterations to the submission. 4. For completeness, I should observe that the complaint was made that there may also have been submissions made concerning the Warringah-oriented inquiries than might have been relevant to examination of this second proposal. 5. I am satisfied that the position adopted by the Delegate was an entirely proper one. The matters for which he had received the delegation, for the purposes of these proceedings, was confined to the proposal to merge the Mosman, North Sydney and Willoughby local government areas to constitute a single new local government area. The inquiry process mandated to be undertaken concerned this proposal and the matters he was required to examine and report upon, mandated by s 263(3), were similarly confined to that proposal. 6. Although the Acting Chief Executive elected to delegate his statutory responsibilities concerning the second proposal to the same individual to whom he had delegated those responsibilities concerning the first proposal, it was not necessary for this to have occurred. 7. The process undertaken by the Delegate concerning the second proposal was carried out with separate notice, separate public inquiry sessions and, as required, separate examination and reporting on the second proposal. Although individuals may have suffered from "submission fatigue" and chosen not to submit to the second inquiry, there is no suggestion that they were denied such an opportunity. 8. Indeed, diametrically contrary to the proposition advanced by Mr Galasso on this point, it might well have been the position that, taking into account submissions made on a separate proposal for the purposes of this proposal, would have caused the Delegate's process to have miscarried in that there would be no basis upon which the Delegate would have been entitled to assume that matters expressed by a submitter, in writing, concerning the first proposal would necessarily wish to express the same views with respect to the second proposal. 9. Although it was not pressed in these proceedings, had the similar argument been advanced with respect to persons who had made verbal submissions to the inquiry into the first proposal but had not attended the second inquiry to express opinions on the second proposal, having regard to the transcript of the first inquiry sessions would have also been inappropriate. This complaint fails. The adequacy of the Delegate's report Introduction 1. In Mosman Ground 11, a claim that the Delegate failed to have regard to relevant mandatory factors in his examination and report on the Second Proposal (the proposal here under challenge) particulars (b) and (c) were in the following terms: (b) The first proposal, the first North Sydney proposal and Warringah proposal were relevant proposals within the meaning of section 263 (a), (e1), (e2) and (e3) of the LGA. (c) In examining, and preparing his report on the second proposal, (the Delegate) failed to consider the mandatory factors set out in section 263 (a), (e1), (e2) and (e3) of the LGA associated with the first proposal, the first North Sydney proposal and the Warringah proposal, either at all or when compared with the second proposal. 1. I have earlier explained why it was not appropriate for the Delegate to have regard to submissions made on other proposals in his exercise of the functions that had been delegated to him by the Acting Chief Executive with respect to the proposal here under challenge. 2. The same general reasoning applies to the complaints set out above as were analysed in considering the matter of submissions made concerning other proposals. That which had been delegated to this Delegate was the very narrow statutory function "to examine and report on" the proposal referred to him (s 253(1)). 3. The Delegate was not required to go beyond the terms of that delegated function. In his discharge of the function delegated to him, he was required to have regard to the relevant factors in s 263(3) that were relevant to the proposal with respect to which he was exercising his function. The other proposals about which complaint is made were not proposals that fell within the function delegated to this Delegate. In this sense, his task was a confined one, restricted to this proposal, not some wide-ranging comparative one. 4. He did not fall into error by failing to consider the other proposals about which complaint is made in (c) set out above as those proposals were not within the scope of the delegation that had been given to him. 5. As part of Mosman Municipal Council's complaint that the Delegate failed to have regard to relevant mandatory factors in his examination and report on the proposal that is the subject of these proceedings, the Council specifically complained (also Ground 11, and in North Sydney Ground 10) about three aspects of the Delegate's report. Those complaints are contained in (d) of the particulars to Ground 11 in Mosman Municipal Council's Further Amended Summons. That particular is in the following terms: (d) As the Boundaries Commission correctly concluded, the Fourth Respondent [the Delegate] failed to give any adequate consideration to the following relevant matters: (i) The economies or diseconomies of scale associated with the second proposal: s 263(a) of the LGA; (ii) The impact of any relevant proposal on the ability of the councils of the areas concerned to provide adequate, equitable and appropriate services and facilities: s 263(3)(e1) of the LGA; and (iii) The need to ensure that the opinions of each of the diverse communities and the resulting area or areas are effectively represented: s 263(3)(e5) of the LGA 1. On this general point, the submissions of the Respondents were in the following terms: 20. As is demonstrated below, the Delegate adequately considered and addressed each of these factors in his report. As was made clear by the Full Court in Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [58] (a case on which the Council relies): "In the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for him or her to determine the appropriate weight to be given to them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (per Mason J). The failure to give any weight to a factor to which a decision-maker is bound to have regard in circumstances where that factor is of great importance in the particular case may support an inference that the decision-maker did not have regard to that factor at all." 21. Council claims that the Delegate failed to consider three factors. It is important to note that the Delegate's consideration of factors cannot solely be determined from what is said in his Report. The Delegate may have considered matters which were not deemed to be worth mentioning in the Report. As Khadgi makes plain, it is only if a matter is of "great importance" that it can be inferred from the absence of reference to that matter in the Report that the Delegate failed to consider it. It is telling that the Council simply asserts that these matters were essential but does not identify in any way how there were of "great importance". 1. On this point, the Councils said, in their written submissions in reply: 23. Contrary to the respondents' submissions, the Court should not look beyond the Delegate's report in order to determine whether the Delegate has complied with his statutory duty under s.263(3) of the LG Act. That is so for a number of reasons. (a) one of the objectives of the requirement on the part of a Delegate to produce a report is to enable the Boundaries Commission to perform its function of reviewing the report and sending its comments to the Minister. It cannot discharge that function unless all the matters the Delegate had regard to are comprehensively set out in the report; (b) another purpose of the Delegate's report is to inform the Minister and assist him in making his decision whether or not to recommend implementation of a proposal, with or without modification. The statutory process would be frustrated if the Delegate could discharge his function by not giving express consideration to the mandatory relevant factors in his report; and (c) there is also an important element of accountability here. The report is in effect a form of disclosure document that shows that the Delegate had proper regard to the matters raised as part of the public inquiry. At the very least, the discipline imposed by the statute of preparing a report that has regard to the s.263(3) factors has the benefit of demonstrating that the inquiry itself was not a "mere formality"; and (d) the above approach is supported by the authorities referred to in AHS [41]. 1. It is not necessary to resolve this dispute as, in my view, consideration of each of these complaints in detail enables an appropriate conclusion to be drawn concerning each of the three complaints. Failure to have regard to s 263(3)(a) as required 1. The Delegate dealt with a range of matters relating to this element of s 263(3) in "5.1 – Financial factors" and "Appendix D – Review of Commentary on KPMG Modelling". This commentary covered some six pages of his report in total. 2. As earlier set out, the Councils' complaint on this point is a confined one – namely that the Delegate failed to give any adequate consideration to "the economies or diseconomies of scale associated with the second proposal". 3. The Councils' written submissions addressed this point as follows: 73. The first mandatory factor in s.263(3) is "(a) the financial advantages or disadvantages (including economies or diseconomies of scale) of any relevant proposal to the residents and ratepayers of the areas concerned". The "economies or diseconomies of scale" is an essential component of this factor. A report that only considered financial advantages or disadvantages in general terms without properly addressing economies or diseconomies of scale would not comply with the statutory requirements. 74. The Second Delegate's consideration of financial factors is contained in section 5.1 of his report. There is little, if any, discussion of economies or diseconomies of scale as a result of the proposed merger, with the exception of summarising contentions made in the Second Proposal document and making a bland (and unreasoned) conclusion on p.19. The Boundaries Commission correctly noted the lack of discussion of economies and diseconomies of scale. 1. To give a context to the above, I reproduce the relevant extract from the Boundaries Commission's comments on the s 263(3)(a) aspect of the Delegate's report. The Commission said: [5.2.1] – Financial Factors The Delegate noted that the KPMG analysis of the proposal estimated net financial savings of $95 million over 20 years. In his Report, the Delegate considered information from TCorp on each individual Council's sustainability rating as well as the Independent Pricing and Regulatory Tribunal (IPART) 2015 findings as part of its 'Fit for the Future' review. The Delegate also considered current debt levels of all 3 Councils and their potential impact on a merged entity. The Delegate noted that a number of submissions expressed concern regarding the level of debt currently held by Willoughby Council. Willoughby Council stated that its debt was largely associated with The Concourse precinct. The Delegate considered that the debt levels were not unreasonable and that one of the functions of a new merged Council would be to develop strategies to manage debt levels. The Delegate noted that a number of submissions, were critical of the modelling undertaken by KPMG. In examining the approach used to model the potential benefits, the Delegate considered these views and the KPMG Technical Paper. Based on his analysis, the Delegate found that the KPMG modelling approach was based on reasonable assumptions in the circumstances and represented a potentially lower bound estimate of the net present value of benefits to be derived from the proposal. Having had regard to the financial advantages and disadvantages of the proposal to the residents and ratepayers of the Mosman Municipal, North Sydney and Willoughby City LGAs, the Delegate found that that this factor did not pose an impediment to the merger proceeding. The Commission's view is that the Delegate adequately considered the issues under this factor while noting the lack of discussion of economies and diseconomies of scale. 1. The Respondents' written submissions on this point were: 25. The Council claims that the Delegate failed to consider the matter in brackets. However, it is clear from reading the Delegate's Report that he gave detailed consideration to that matter: (a) he refers to Council's contention that it should stand-alone, which naturally engages issues of economies of scale (Ex 3, RTB T23 p 16); (b) he considered the KPMG report and NSW Treasury Corporation's reports, both of which consider issues including cost savings which can be obtained with economies of scale (Ex 3, RTB T23 p 16-17); and (c) he considered and provided detailed analysis of Professor Brian Dollery's attack on KPMG's financial assumptions (see Ex O, Volume 1, T 15, p19ff), including as to savings assumptions, efficiency savings, costs of counsellors and staffing costs regarding savings from economies of scale such as in respect of materials and contracts expenditure (Ex 3, RTB T23 p 18 and 49-52). 1. The Councils' complaint on this point is not to be accepted. First, although the Delegate only uses the expression "economies and diseconomies of scale" once, it is in his conclusion on the s 263(3)(a) factor where he wrote: Conclusion Having had regard to the financial advantages and disadvantages (including the economies and diseconomies of scale) of the merger proposal to the residents and ratepayers of the Mosman Municipal, North Sydney and Willoughby City LGAs, the Delegate found that the financial advantages outweigh disadvantages; and that mechanisms exist to help manage transitional issues, such as differential rates. As such, there is no impediment to the merger proposal proceeding, with respect to this factor. 1. Second, there is nothing in the remainder of his financial analysis that would lead to a conclusion that he had not done so. Indeed, reading the elements of the Delegate's report in "5.1 – Financial factors" and "Appendix D – Review of Commentary on KPMG Modelling", it is clear that he has turned his mind to this point in this analysis (by implication even though not explicitly). That he acknowledged that he had done so in his conclusion and that there was sufficient support in his analysis supporting his conclusion to found that conclusion is sufficient to dispose of this complaint. Provision of adequate, equitable and appropriate services and facilities 1. As earlier set out, the Councils' complaint on this point is that the Delegate failed to give any adequate consideration to "the ability of the councils of the areas concerned to provide adequate, equitable and appropriate services and facilities". 2. The Councils' written submissions addressed this point as follows: 75. The next error committed by the Second Delegate was to fail to consider factor (e1) relating to the impact of any relevant proposal on the ability of the councils of the areas concerned to provide adequate, equitable and appropriate services and facilities. As such, the Delegate was required to consider the impact of the Second Proposal on the provision of adequate, equitable and appropriate services and facilities. 76. The Second Delegate's consideration of this issue is contained in section 5.6 of his report. After summarising submissions made concerning likely levels of service under the proposed new entity, the Delegate concluded (as p.33) that under the merger proposal, and pursuant to Government policy, the service level trajectory was fixed for 4 years, and that beyond that time, service levels would be a matter for any new merged to determine. The Delegate comprehensively failed to consider the fundamental issue, namely whether service levels would be likely to decline or not. That was the conclusion reached by the Boundaries Commission. 1. To give a context to the above, I reproduce the relevant extract from the Boundaries Commission's comments on the s 263(3)(e1) aspect of the Delegate's report. The Commission said: [5.2.6] - Service delivery and facilities Section 263(3)(e1) of the Act requires the Delegate to have regard to: "the impact of any relevant proposal on the ability of the councils of the areas concerned to provide adequate, equitable and appropriate services and facilities". The Delegate stated that service delivery received a large level of interest with around half of written submissions identifying service factors. He noted the themes presented in this factor included differing levels of satisfaction with current service delivery, concerns over loss of services in a merged entity, local community service involvement ("volunteerism") and the different needs of the different council areas. The Delegate stated that under Government policy for merged entities, the service level trajectory would be fixed for four years. Beyond that time, the Delegate considered that service levels would be a matter for any new merged Council to determine in consultation with its community as part of the Integrated Planning and Reporting process including consideration of the maintenance of an administrative presence at North Sydney, Chatswood and Mosman. The Delegate also concluded that volunteering would not be expected to decrease in the event of a merger. The Commission's view is that the Delegate did not adequately consider the issues under this factor. 1. The Respondents' written submissions on this point were: 27. The Delegate gave proper consideration to this factor as follows (Ex 3, RTB T23 p32-33): (d) he outlined the submissions made by the Council, North Sydney Council and Willoughby Council in relation to this factor; (e) he noted that the some submissions expressed concerns that volunteering activity would be affected by the merger, but that the Delegate did not consider this to be apparent nor necessarily the case if the amalgamation proceeded; and (f) he concluded that there would be no impact on the services and facilities provided for 4 years, given the Government's policy, and that after that time it would be a matter for any new merged Council to determine the appropriate service levels. 1. First, although the Boundaries Commission concluded that the Delegate did not adequately address this point, the Commission provided no analysis to support this conclusion. As a consequence, whilst the Commission's position can act as a trigger for further consideration of this aspect of the Delegate's report, nothing can be understood as to why the Commission so concluded. However, the Commission's comments provide a short form summary of "5.6 – Service delivery and facilities" of the Delegate's report. 2. In this context, it is appropriate to set out the Delegate's conclusion on this element of s 263(3). The Delegate wrote: Conclusion The Delegate found that, under the merger proposal, and pursuant to Government policy, the service level trajectory is fixed for four years, from the time of any merger onwards. Beyond that time, service levels would be a matter for any new merged Council to determine in consultation with its community as part of the IP&R process. Concerns over service levels can be addressed in this context, and could include the maintenance of an administrative presence at North Sydney and Chatswood and Mosman if the new entity considered this to be warranted. Volunteering would not be expected to decrease in the event of a merge. Having had regard to the impact of the merger proposal on the ability of the councils of the LGAs concerned to provide adequate, equitable and appropriate services and facilities, the Delegate found that there is no impediment to the Proposal proceeding, with respect to this factor. 1. The Respondents' submissions are to be accepted. It is clear that the Delegate has not accepted the Mosman Municipal and North Sydney Council submissions, noted in his analysis, that the present level of services might be threatened/diminished or increase in cost. He has, on the other hand, not expressly accepted the more optimistic position advanced by Willoughby City Council that the savings anticipated to be achieved by the proposed merger will necessarily "lead to an increased ability to deliver services and infrastructure to the community". 2. The Delegate's conclusion on this point is a pragmatic one in light of the number of submissions ("around half" – first paragraph of the Delegate's discussion on this topic) and concerns expressed. It cannot be said that the Delegate has not had regard to the matter in a sufficient fashion – bearing in mind my earlier comment as to the relevant level of examination/scrutiny to be given to reports such as this. Section 263(3)(e5) and what are "each of the diverse communities"? 1. The third of the matters required to be considered by s 263(3) about which complaint is made is the requirement in s 263(3)(e5) – a requirement to have regard to: In the case of a proposal for the amalgamation of two or more areas, the need to ensure that the opinions of each of the diverse communities of the resulting area or areas are reflectively represented 1. Mosman Municipal Council says that the Delegate, in his report, failed to address this mandatory requirement in an adequate fashion. Mosman Municipal Council's submissions on this aspect of the Delegate's report said: 77. The Second Delegate also erred in failing to consider s.263(3)(e5) (the need to ensure that the opinions of each of the diverse communities of the resulting area are effectively represented). The Delegate's consideration of this issue is contained in section 5.10 of his report. The Delegate cannot be faulted for the research he conducted relating to the respective ancestry profiles of the three council areas. However, there is no consideration whatsoever of how the merger would affect the ability of the opinions of the various communities to be effectively represented. The only discussion relates to service delivery, and recognition of indigenous heritage (p.40). The Boundaries Commission concluded that the Delegate did not adequately consider the issues under this factor. 1. In discharging its requirements in s 218F to review and comment on the Delegate's report, the Boundaries Commission concluded that the Delegate had not adequately addressed this requirement. 2. In light of the pleadings of the two Councils (and their supporting written comments), and as a consequence of the comment by the Boundaries Commission on this aspect of the Delegate's report, I now turn to consider the terms of the Delegate's report. The Delegate deals with this element of s 263(3) in s 5.10 of his report. 3. The Delegate dealt with this requirement on pages 39 and 40 of his report in the following terms: 5.10 Opinions of diverse communities Section 263(3)(e5) of the Act requires that the Delegate has regard to "the need to ensure that the opinions of each of the diverse communities of the resulting area or areas are effectively represented". The Delegate reviewed the website http://profile.id.com.au/ for each of the Council areas to understand the ancestry of the three current local government areas and detail from this website is outlined below. Mosman Analysis of the ancestry responses from the website http://profile.id.com.au/ of the population in Mosman Council area in 2011 shows that the top five ancestries nominated were: * English (10,848 people or 39.5%) * Australian (7,706 people or 28.1%) * Irish (3,692 people or 13.4%) * Scottish (3,105 people or 11.3%) * German (1,092 people or 4.0%) In combination these five ancestries account for 26,443 responses in total, or 96.32% of all responses. The major differences between the ancestries of the population in the Mosman Council area and Greater Sydney were: * A larger percentage of people with English ancestry (39.5% compared to 25.8%) * A larger percentage of people with Irish ancestry (13.4% compared to 8.3%) * A larger percentage of people with Scottish ancestry (11.3% compared to 6.3%) * A smaller percentage of people with Chinese ancestry (3.1% compared to 8.2%) As noted previously, Indigenous people make up 0.1% of the population. North Sydney Analysis of the ancestry responses from the website http://profile.id.com.au/ of the population in North Sydney Council area in 2011 shows that the top five ancestries nominated were: * English (21,045 people or 33.8%) * Australian (14,849 people or 23.8%) * Irish (7,826 people or 12.6%) * Scottish (6,212 people or 10.0%) * Chinese (4,703 people or 7.6%) In combination these five ancestries account for 54,635 responses in total, or 87.71% of all responses. The major differences between the ancestries of the population in North Sydney Council area and Greater Sydney were: * A larger percentage of people with English ancestry (33.8% compared to 25.8%) * A larger percentage of people with Irish ancestry (12.6% compared to 8.3%) * A larger percentage of people with Scottish ancestry (10.0% compared to 6.3%) * A smaller percentage of people with Lebanese ancestry (0.4% compared to 3.2%) As noted previously, Indigenous people make up 0.2% of the population. Willoughby Analysis of the ancestry responses of the population in Willoughby City in 2011 shows that the top five ancestries nominated were: * English (17,613 people or 26.1%) * Australian (15,770 people or 23.4%) * Chinese (12,440 people or 18.5%) * Irish (6,330 people or 9.4%) * Scottish (4,790 people or 7.1%) In combination these five ancestries account for 56,943 responses in total, or 84.54% of all responses. The major differences between the ancestries of the population in Willoughby City and Greater Sydney were: * A larger percentage of people with Chinese ancestry (18.5% compared to 8.2%) * A larger percentage of people with Korean ancestry (3.7% compared to 1.1%) * A smaller percentage of people with Lebanese ancestry (0.8% compared to 3.2%) * A smaller percentage of people with Australian ancestry (23.4% compared to 25.7%) As noted previously, Indigenous people make up 0.2% of the population. Council submissions Mosman Council's submission addressed this issue in relation to overall local representation concerns. Neither North Sydney nor Willoughby Councils addressed this issue in their submissions. Conclusion Comparing the ancestry profiles of the three council areas indicates significant commonality. Service delivery to diverse communities would likely be enhanced by a larger and better-resourced merged Council, by accessing efficiencies and economies of scale; for example, producing one set of literature in community languages, rather than multiple sets. Recognition of Indigenous heritage could also be enhanced in a merged entity arising from a greater access to resources to carry out desired programs. Having had regard to the need to ensure that the opinions of each of the diverse communities of the resulting LGA are effectively represented, the Delegate found that there is no impediment to the Proposal proceeding, with respect to this factor. 1. The terms of the Delegate's comments on this element of s 263(3) make it clear that the sole basis upon which the Delegate considered the concept of diverse communities was through the conceptual lens of the ethno-cultural heritage profile of each of the three existing local government areas. There is no consideration by the Delegate of what the concept, in an abstract sense, of diverse communities might be. 2. Being mindful of the cautionary approach to be taken to considering dictionary definitions (see House of Peace), it is nonetheless a useful starting point for my consideration of the approach taken by the Delegate. I have, therefore, turned to the Macquarie Dictionary definitions of "diverse" and "community" for this purpose. The definition of "diverse" is in the following terms: diverse … adjective 1. of a different kind, form, character, etc.; unlike 2. of various kinds of forms; multiform. … 1. The definition of "communities", the second half of this conjoint term in the statutory provision is in the following terms: noun (plural communities) 1. all the people of a specific locality or country: … 2. the community, the public. 3. a particular locality, considered together with its inhabitants: … 4. a group of people within a society with a shared ethnic or cultural background, especially within a larger society: … 5. a group of people with a shared profession, … 6. a group of people living together and practising common ownership. … 1. A consideration of these two terms as to be seen working together in the statutory provision makes two things abundantly clear. The first is that there can be a wide range of differing types of community with such communities needing to have a degree of cohesion that brings them together, and that the fact that creating that cohesion can take a wide variety of forms (for example: geographic, religious or sexual identification [amongst others] as well as that of ethno-cultural heritage). 2. On this aspect of the Delegate's report, the Respondents' written submissions said: 30. The Council claims that the Delegate gave "no consideration whatsoever of how the merger would affect the ability of the opinions of the various communities to be effectively represented" (NSS [71]). The the Delegate's report reveals a proper consideration of this factor (Ex 3, RTB T23, p39-40): (a) the Delegate considered the different communities within the different local government, by reference to their ancestry; and (b) he concluded that the three council areas had significant commonalities. 1. North Sydney Council's submissions did not address this aspect of the Delegate's report. However, the Council's reply submissions said: 19. In answer to RNS [30], it does not matter that the Council made no submission concerning the s.263(3)(e5) factor. The Council's complaint is not that the Delegate failed to consider the Council's submission; it is that the Delegate failed to consider a mandatory relevant factor prescribed by the statute. 1. There are, from the face of the Delegate's report, two fundamental defects on this aspect of his examination and reporting process that cause me to conclude that he has not had proper regard to this relevant mandatory matter. 2. The first defect is that, although he sets out an analysis of the ethno-cultural heritage derivations of each of the three local government areas on the basis of data derived from Australian Bureau of Statistics census figures, there is no analysis undertaken from any sources that the various ethno-cultural heritage derivations identified from those figures self-identify in any fashion as a community rather than simply being a leavening element, amongst others that might be present, in the demographic mix of each local government area. 3. Second, and more importantly, the Delegate has not set out any analysis of what might be a community and how it might be appropriate to establish some degree of cohesion (whether of a social or geographic or some other nature) in order to establish that there is such a community falling within the concept of "diverse communities" set by the statutory provision. 4. Viewed correctly on this basis, it is not merely the position that the Delegate has failed to address this relevant mandatory requirement in an adequate fashion, it is that the Delegate has failed to undertake any constructive examination of the relevant mandatory matter at all. 5. The consequence of this is that this complaint, as pleaded by Mosman Municipal Council as part of Ground 11, and North Sydney Council as part of Ground 9, must succeed. Mosman Municipal Council The refusal to hold a poll 1. Mosman Municipal Council pleaded the failure of the Delegate to conduct a survey or poll about the proposal. This ground was pleaded in Mosman Municipal Council's Further Amended Summons in the following terms: 12. The Fourth Respondent constructively failed to exercise jurisdiction by declining to consider exercising his discretion to conduct a survey or poll to ascertain the attitude of the residents and ratepayers of the council areas for the purposes of s263(3)(d) of the LGA. 1. That the Delegate had the power to conduct a survey or poll is not in doubt. This power is contained in s 265 of the Local Government Act, a power vested in the Delegate by virtue of s 218F(2) of the Local Government Act. The power to conduct and the method of doing so (if the power is exercised) are discretionary as the terms of s 265 make clear. The provision reads: 265 Boundaries Commission may conduct survey or poll 1) To assist it in determining the attitude of the residents and ratepayers of an area or areas for the purposes of section 263(3)(d), the Boundaries Commission may conduct (in such manner as it thinks appropriate) an opinion survey or poll of the residents and ratepayers. 2) The residents and ratepayers of the area or areas concerned may participate in any such opinion survey or poll but are not required to do so. 3) The Boundaries Commission may request the Electoral Commissioner, a council or any other person or organisation to conduct any such opinion survey or poll. 1. On 14 March 2016, the Delegate held a meeting with Mosman Municipal Council. The notes of that meeting record, relevantly: The Council asked if plebiscites were going to be used. Ian Reynolds advised that information on attitudes would be gained through the process. 1. On 7 March 2016, the Delegate held a meeting with Willoughby City Council. The notes of that meeting record, relevantly: Council asked a question on a possible plebiscite. Ian Reynolds advised the Act doesn't require him to hold one. 1. On 10 March 2016, the Delegate held a meeting with North Sydney Council. The notes of this meeting make no mention of any discussion of a plebiscite or survey of residents and ratepayers. 2. During the course of the evening session at the Mosman Club on 23 March 2016, the transcript records that the Delegate was asked: But, on the process, because it's in the Act is to have a poll. Are you going to exercise that bit of the process? 1. The Delegate said, in response: I understand North Sydney Council is writing to me about that matter and I'll give that consideration. 1. On page 28 of the Delegate's report, he noted that both Mosman and North Sydney Councils had requested that a poll be undertaken as part of his process. In response to this, the Delegate wrote: Given conclusions relating to the various factors set out elsewhere in this report, the delegate considers that community attitudes can be addressed as part of the operations of the merged entity. Although Mosman and North Sydney councils requested a poll and councils voiced their preference to stand alone, the Delegate determined not to conduct a poll given the requirements of the LG Act. 1. The comment of the Boundaries Commission on this aspect of the Delegate's report did not engage with this point, it being confined to matters of generality. The Commission said: The Delegate stated that the "attitudes of residents and ratepayers" factor was the highest factor identified in written submissions and one of the highest factors mentioned at the public hearings. The Delegate noted Mosman Council's submission citing the consistent opinion of Mosman residents supporting an independent Mosman through surveys over many years. The Report stated that North Sydney Council's submission highlighted consistent polling by the Council over many years, showing residents in it and the other two LGAs, rejecting amalgamation. Willoughby Council's submission, the Delegate noted, indicated concern that the timing of the proposal had not allowed consultation with its community on this particular merger proposal. The Delegate stated that, given his conclusions relating to the various factors set out elsewhere in his Report, that community attitudes could be addressed as part of the operations of a merged entity. The Commission's view is that the Delegate adequately considered the issues under this factor. 1. Mosman Municipal Council's written submissions on the point raised concerning a poll said: 78. Pursuant to ss.218F(2) and 263(3)(d), the Second Delegate was obliged to consider as part of the inquiry "the attitude of the residents and ratepayers of the areas concerned". For the purpose of ascertaining the attitude of the residents and ratepayers, he had discretion to conduct "an opinion survey or poll of the residents and ratepayers" in any way that he considered appropriate (s 265(2), applied by analogy by s.218F(2)). 79. … 80. It appears from this paragraph that the Second Delegate misdirected himself by finding that the requirements of the LGA prevented him from taking a poll or survey. Far from militating against the taking of a poll or survey, s.265 conferred a discretion to take such a poll or survey, and therefore imposed on him an obligation to consider whether or not to do so. This is especially so where he deferred addressing community attitudes to the merged entity, whereas it was his duty to address those attitudes himself. The Second Delegate misconceived his duty, amounting to a constructive failure to exercise jurisdiction (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [41]). 81. A failure to make an obvious inquiry is also a constructive failure to exercise jurisdiction (Minister for Citizenship v SZIAI (2009) 259 ALR 429 at [25]). 82. There were a number of indications in the matters disclosed in the Second Delegate's report which pointed to the need to consider holding such a poll. The delegate reported that a majority of oral submissions to the public meetings were opposed to the Proposal. He also pointed out that the 779 written submissions received at the inquiry represented only 0.4% of the population of the area, and that a poll had been requested by Mosman Council and North Sydney Council. Moreover, a poll or survey may have resolved the confusion created by the multitude of proposals. These facts combined also gave rise to an obvious inquiry as to how widespread this opposition was across the general population of the council areas. An obvious way to resolve this outstanding question would have been to conduct a poll or survey as provided for by s.265, rather than deferring it to the merged entity when it will be too late to avoid or assuage community anger if residents and ratepayers are forced into a new polity which they abhor. 1. In reply, the Respondents' written submissions on this point were brief: 41. The Delegate referred to his decision not to conduct a survey or poll in his report. After setting out the submissions he had received in relation to the attitude of residents and ratepayers, and noting that this factor was addressed in around 60% of the 796 written submissions he received, the Delegate stated (Ex 3, RTB T 23, p724) (emphasis added): "Given conclusions relating to the various factors set out elsewhere in this report, the Delegate considers that community attitudes can be addressed as part of the operations of a merged entity. Although Mosman and North Sydney Councils requests a poll and councils voiced their preference to stand alone, the Delegate determined not to conduct a poll given the requirements of the LG Act." 42. It is important to note the emphasised words above. It is not the case, as Council contends, that the Delegate expressed the view that the LGA prevented him from conducting a poll. Read in its context, the Delegate determined not to conduct a poll as it was unnecessary for him to do so to address the mandatory requirements under s 263(3). It cannot be established that the Delegate misconceived his duty. This ground should be dismissed. 1. Mosman Municipal Council's written submissions in reply on this point said: 36. The respondents' attempt in oral argument to distinguish SZIAI (2009) 259 ALR 429 at [25] is unconvincing. The duty in SZIAI was a duty to conduct a review. The duty under s 263(3)(d), in combination with s265(1), is to consider whether or not to hold a poll to assist in determining the attitude of residents and ratepayers. It is clear from the whole of the second last paragraph on p 28 of the Delegate's Report that the fourth respondent has not done this, therefore in this case, as in SZIAI, there was a failure to exercise a power which was vested in the decision-maker under the legislation (ie a constructive failure to exercise jurisdiction). It is clear that the Delegate had decided at the outset not to hold a poll before the public inquiry had been convened or submissions had been lodged (he specifically rejected any reliance on information from previous inquiries). 37. The respondents rely on use of the word "determine" to show that the fourth respondent recognised that he had a discretion and decided to exercise it in a particular way. However, the word "determine" could also mean that the Delegate decided not to take this step because he believed that he did not have the power to take it, or that he was not obliged to consider whether to take it. 38. Reference to what was said by the Delegate to the Councils at the outset resolves any ambiguity. The chronology was that the Delegate wrote to Mosman and other Councils on 26 February notifying the new delegation and inviting them to meet with him to discuss s. 263 factors, met Willoughby Council on 7 March, notified the public inquiry and right to make submissions on 8 March 2016, met Mosman Council on 14 March, held the public inquiry on 22 and 23 March, closed submissions on 8 April and reported on 19 April 2016. When asked by Willoughby about a possible plebiscite, he "advised the Act doesn't require him to hold one" and a week later when asked by Mosman if plebiscites were going to be used, he "advised that information on attitudes would be gained through the process", which was a reference to the public inquiry, as earlier on the same page he refers to "the public hearing process", or to "hearings, submissions and report". That statement is not a ground for exercising his discretion not to hold the poll, but rather the consequence of the decision recorded the previous week that no poll would be held because the Act did not require it, and hence the only evidence of the attitude of residents and ratepayers would be from "the process". 39. It is of course strictly correct that the Act did not require the taking of a poll, but that could not be a lawful reason for not holding a poll, because the Act conferred a discretion to do so and required the Delegate to consider exercising that discretion. He could not have done so, because he could not have known whether "the process" would disclose sufficient or reliable information about the attitudes of residents and ratepayers, unless he was using information gleaned from the previous inquiries, which he told all Councils quite explicitly that he would not, because the current process was independent. He decided before notification, before the public inquiry, and before the receipt of submissions, that no poll would be held. The only reason that he gave, other than that the Act did not require it, was that attitudes would be ascertained from the process, but as the process had not begun, he could have had no idea whether it would have produced sufficient assistance to consider the attitude factor. We think it right for the Court to assume that he acted rationally, in deciding not to hold a poll because of a mistaken view of the law rather than on an irrational ground based on the outcome of a process which had not yet taken place. 1. There can be no doubt that the Delegate was well aware of community attitudes of at least the Mosman and North Sydney communities about the proposal to merge those councils (as submitted by these two Councils) – they were opposed. It is in that context that the Delegate determined not to hold a poll. 2. Mosman Municipal Council's submissions also mention the decision of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39. They did so in chief and in reply. It seems to me that the Council misunderstands what the High Court said on this point. The plurality said, at [25]: 25. Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. [footnote omitted] 1. It is clear that the Delegate considered he did not need to conduct a poll – he already knew there was significant opposition to the proposal. The Delegate dealt with this point on page 28 of his report and it is clear that he accepted the strength of the opposition shown by at least the residents (and presumably, therefore, the ratepayers) of Mosman and North Sydney local government areas that they wished to remain independent. On this basis, there was no necessity for him to conduct a poll to understand the strength of that opposition. It is as a consequence of that knowledge that the Delegate wrote, in his conclusion on this element of s 263(3): Having had regard to the attitude of the residents and ratepayers of the three councils, the Delegate found that, whilst community attitudes may weigh against the proposal as reflected in the submission process, this must be considered along with other factors and as such, there is no impediment to the proposal proceedings with respect to this factor. 1. There would be no additional facts the existence of which is easily ascertained, they were known and taken into account. 2. His conclusion earlier noted that community attitudes can be addressed as part of the operations of the merged entity was an opinion open to him in face of his knowledge of community opposition. 3. The report of the Delegate also contains, on this point, his comment (earlier set out in full) that he did not proposed to conduct a poll given the requirements of the LG Act. 4. The Council also relies on the comments of Gaudron J in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 75 ALJR 1105; [2001] HCA 30 at [41] where Her Honour said, inter alia: On the other hand, there is said to be a "constructive failure to exercise jurisdiction" when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. [footnote omitted] 1. Although the Delegate's phrasing on this point might be regarded as infelicitous, there is no doubt, from the whole of his discussions on this point (whether with the Councils, in his public sessions and in his report) that the Delegate was aware that he could require a poll but that s 265(1) gave him the discretion as to whether he should do so. That he exercised this choice in the fashion outlined was not unreasonable or impermissible in light of the knowledge he already had concerning community attitudes to the proposal. 2. This complaint fails. North Sydney Council Failure to hold a meeting in the North Sydney local government area 1. In discharging his public inquiry functions under s 263(2), the Delegate elected to hold four public inquiry sessions. The venues selected were in Chatswood and Mosman. Mr Galasso submitted, on behalf North Sydney Council, that the Delegate should also have held sessions of his public inquiry into this proposal in the North Sydney local government area. 2. I understood this complaint to be on the basis that, as part of the process undertaken by the Delegate, in his capacity as the Delegate for the first proposal involving the North Sydney local government area, he conducted his public inquiry with sessions held in that local government area as well as in the Willoughby local government area. This, as I understood this submission, created a reasonable expectation that the Delegate would, in his capacity in holding a public inquiry into the second proposal, also hold sessions of that inquiry in the North Sydney local government area. 3. This complaint lacks substance. There are no statutory requirements, beyond reasonable public notice as required by s 263(2E) and the right of the public to attend the inquiry (s 263(5)), contained in the statutory regime. 4. Given that this Delegate was conducting his inquiry in an urban area, his selection of venues for the sessions of his public inquiry, being at what might be regarded as each end of the areas the subject to the proposal, is not unreasonable. The locations of the public inquiry sessions were readily identifiable. Indeed, the approach taken in holding two sets of inquiry sessions might well be regarded as generous, given that the statute, itself, does not mandate multiple locations (or, indeed, multiple sessions) for the conducting of the inquiry. 5. This complaint fails. Strathfield Municipal Council The adequacy of the Delegate's report Introduction 1. By an undated letter, Mr Richard Colley, the Delegate of the Acting Chief Executive for this proposal, forwarded a copy of his report, dated March 2016, entitled "Examination of the Proposal to Merge Burwood Council, City of Canada Bay Council and Strathfield Municipal Council", to the Chairperson of the Boundaries Commission. The letter noted that a copy of the report had also been provided to the Minister. 2. The Council complains that the Delegate failed to give adequate consideration to three of the matters to which he was required, by s 263(3), to have regard. These three matters were particularised in the Council's Further Amended Summons as being: i. the financial advantages and disadvantages (including the economies or diseconomies of scale) of the Proposal to the residents and ratepayers of the areas of Strathfield, Burwood and City of Canada Bay: s263(3)(a) of the LGA; ii. the community of interest and geographic cohesion in the existing areas and in the proposed new area of Strathfield, Burwood and City of Canada Bay: s263(3)(b) of the LGA; and iii. the need to ensure that the opinions of each of the diverse communities of the resulting area are effectively represented: s263(3)(e5) of the LGA. The Boundaries Commission's general position 1. The Boundaries Commission considered the Delegate's report and provided comments in a document dated April 2016. The Boundaries Commission expressed a general view concerning the extent to which the Delegate had had regard to the mandatory factors contained in s 263(3). The Boundaries Commission said: Overall, the Commission's view is that the Delegate has adequately considered all factors, with the exception of finance, communities of interest, and diverse communities. 1. These three identified factors are those about which the Council complains in these proceedings. With respect to these three provisions in s 263(3), the Commission made the following summary comment in each instance: The Commission's view is that the Delegate did not adequately consider the issues under this factor. 1. As earlier observed, such comments can be regarded as appropriate indicators (but no more) that a closer examination of these aspects of the Delegate's report may be warranted. I therefore now turn to deal with each in turn. Financial matters 1. On pages 10 and 11 of Mr Colley's report, he dealt with the first of the matters about which the Council complains. After quoting s 263(3)(a), Mr Colley's report set out his consideration of matters he regarded as arising from this provision in the following terms: In considering the financial advantages or disadvantages of the proposal, the Delegate has considered financial forecasts provided in the proposal document, information provided by councils affected by the proposal, submissions received that addressed this factor and publicly available information. The Delegate has considered and compared this information and concludes that the proposed new entity would provide greater advantage than disadvantage to the residents and ratepayers of the affected areas. KPMG prepared a report for the NSW Government to assess the potential financial and community impacts of the current council merger proposals. The report relied on information from councils' annual data returns to the Office of Local Government, long term financial plans published by councils and other publicly available information. The proposal, which relies on the results of KPMG's modelling, describes a financial advantage of the proposal to the new council as a net financial saving of $60 million over 20 years (including savings of $5 million per year from 2020 onwards). The proposal states that the savings are expected to be generated by the removal of duplicate back office and administrative functions and senior management roles ($60m), efficiencies generated through increased purchasing power of materials and contracts ($7m) and a reduction in the overall number of elected officials and the related councillor fees and expenditure ($3m). Other financial advantages in the new council area include a $25m funding package provided to newly merged councils to assist with the costs of the merger. The proposal suggests that advantages to the council area will arise when savings are reinvested into improved infrastructure, enhanced service delivery from redeployment of staff, and the reduction in pressure to increase rates. The proposal outlines economies of scale that will arise from a larger entity that covers a wide area and generates operating revenue of $198 million per year by 2025, an asset base of $900 million, and greater capacity to address infrastructure backlogs through increased asset renewal spending. The proposal document also lists costs relating to the proposed merger. These include investment in information and communications technology, office relocation costs, workforce training, signage and legal costs. KPMG's modelling forecasts that the accumulated savings arising from the merger will surpass these costs within three years. Table 6.1.1 Comparison of operating results – 2013-14 and 2014-15 ($m) Operating result Operating result Operating result Council (incl. capital grants) (excl. capital grants) (incl. capital grants) (2014-15) (2014-15) – proposal document (2013-14) Burwood Council 3.2 1.7 5.0 Canada Bay Council 26.2 8.1 18.8 Strathfield Municipal Council 10.3 0.7 2.3 Total 39.7 10.5 26.1 Sources: Burwood Council, General Purpose Financial Statements for the financial year ended 30 June 2015, p 4; City of Canada Bay, State of the Bay, Annual Report 2014-15, p 114; Strathfield Municipal Council, General Purpose Financial Statements for the financial year ended 30 June 2015, p 4; NSW Government, Merger Proposal: Burwood Council, City of Canada Bay Council and Strathfield Municipal Council, January 2016, p 7 and calculations. Table 6.1.1 compares the sum of the affected councils' operating results for 2014-15 against the sum of the affected councils' operating results contained in the proposal document for 2013-14. The results show improvement in 2014-15 and that the new council, if approved, can achieve an operating surplus (including capital grants). This supports the conclusion that the financial advantages arising from the proposal are realistic. Given the ongoing operating results of the affected councils and the financial advantages forecast in the proposal document, the Delegate concludes that, on balance, the proposal would have greater advantages than disadvantages for residents and ratepayers. 1. He concluded that, "This factor supports the proposal". 2. On this factor, the Boundaries Commission commented: Section 263(3)(a) of the Act requires the Delegate to have regard to: "the financial advantages or disadvantages (including the economies or diseconomies of scale) of any relevant proposal to the residents and ratepayers of the areas concerned". With regard to this factor, the Report stated that the Delegate considered financial forecasts provided in the proposal document, information provided by councils affected by the proposal, submissions received that addressed this factor and publicly available information. The Report stated that the Delegate has considered and compared this information and has concluded that the proposed new entity would provide greater advantage than disadvantage to the residents and ratepayers of the affected areas. The Delegate stated: "The proposal, which relies on the results of KPMG's modelling, describes a financial advantage of the proposal to the new council as a net financial saving of $60 million over20 years (including savings of $5 million per year from 2020 onwards. Other financial advantages in the new council area include a $25m funding package provided to newly merged councils to assist with the costs of the merger." A table is included in the Report to demonstrate the operating results of the three councils. The Delegate stated: "Table 6.1.1 compares the sum of the affected councils' operating results for 2014-15 against the sum of the affected councils' operating results contained in the proposal document for 2013-14. The results show improvement in 2014-15 and that the new council, if approved, can achieve an operating surplus (including capital grants). This supports the conclusion that the financial advantages arising from the proposal are realistic." Given regard to the ongoing operating results of the affected councils and the financial advantages forecast in the proposal document, the Delegate concluded that, on balance, the proposal would have greater advantages than disadvantages for residents and ratepayers. 1. As earlier noted, it was the Boundaries Commission's view that the Delegate did not adequately consider the issues under this factor. There is no analysis in the above passage to explain why that view was reached. 2. The relevant element of the Council's written submissions on this point were: 17. The Delegate's consideration of financial factors (s.263(3)(a)) is remarkable for its brevity and lack of any form of engagement with the issues the Delegate was required to address. His consideration of that factor is at pp. 10-11 of his report. All that he has done is to paraphrase and summarise conclusions which are referred to in the Proposal document, compared the operating results for the previous two financial years for the three councils and then concluded as follows: "Given the ongoing operating results of the affected councils and the financial advantages forecast in the proposal document, the Delegate concludes that, on balance, the proposal would have greater advantages than disadvantages for residents and ratepayers." 18. There is no consideration whatsoever of any of the many submissions made to him concerning the financial impacts of the proposed merger, and in particular there is no consideration at all of the Council's detailed submission. The Delegate's consideration of this issue cannot be described as anything other than cursory. Merely to summarise claims made in the Proposal document, and then to draw a bland conclusion, hardly represents an active intellectual engagement with the relevant topic. In those circumstances, it is hardly surprising that the Boundaries Commission concluded that "the delegate did not adequately consider the issues under this factor". 1. The relevant element of the Respondents' written submissions on this point were: 19. In his report, the Delegate referred to 205 submissions that he had received through the Office of Local Government's Boundary Review Website (including a petition signed by 194 people), by post and email, and the oral submissions made during the Public Inquiry. The Delegate stated that he considered all of the submissions when reaching his conclusions (Ex 2, RTB T21, p 699). 20. Contrary to the Council/s contention, the Delegate made clear in his report that he had considered the Council's submission addressing the financial advantages and disadvantages of the proposal (s 263(3)(a)) (Ex 2, RTB T21, p 705). The Delegate was not required to recite all aspects of the Council's submission in his report to demonstrate that he had engaged with all aspects of the submissions in an intellectual way. Reasons for decision are not required to canvass each item of evidence relevant to an issue that the decision maker treated as material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 330-331, 338 and 346. 1. On balance, I am unable to sustain the Council's complaint concerning the Delegate's consideration of the financial matters to which he was required to have regard by s 263(3)(a). The Delegate observed, in the first paragraph quoted above from his report, the nature of the information that he had considered and the fact that he had done so and compared that information (by implication by considering the tensions between the various submissions made to him on this point) and then drawn the conclusion that he set out at the end of that paragraph. 2. The table at 6.1.1 is not drawn from the Minister's proposal document but is drawn from the sources set out below it. The paragraph describing that table and the conclusion is that which the Delegate drew from it. As was made clear by Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 64, a complaint only has validity if no regard has been had by the Delegate to such submissions, not the issue of whether the Delegate gave sufficient weight to the material advanced on behalf of the Council and others who objected to the proposed amalgamation on financial grounds. In this instance, the Delegate has made it clear that he has considered all relevant submissions; has by implication preferred, in part, the analysis in the Minister's submission but has also turned to other documents in support. 3. In the context that the Delegate's report could not reasonably be expected to be a lengthy, forensic examination of all of this material, I am satisfied that the Delegate's consideration of this mandatory matter is, on balance, adequate. Community interest and geographic cohesion 1. On page 12 of Mr Colley's report, he dealt with the second of the matters about which the Council complains. After quoting s 263(3)(b), Mr Colley's report set out his consideration of matters he regarded as arising from this provision in the following terms: Fourteen submissions made to the Delegate during the consultation process raised the issue of community identity and local government areas. These submissions discussed the perceived cultural, identity and values differences and similarities between residents in different areas of the proposed new council area. The Delegate has chosen to define 'communities of interest' as formal, organised communities (eg, schools, religious or sporting organisations) whose members have a common interest that is affected by the proposal. A small number of submissions (four) raise concerns relating to this factor. One example is the future availability and amenity of facilities for community organisations, particularly where those organisations have made contributions to, or had a long association with, facilities in the past (for example, the availability of the Drummoyne Community Centre building for the Drummoyne Community Centre Inc). The Delegate acknowledges the concerns raised in the submissions and other examples where communities of interest faced uncertainty arising from the proposal. If the proposal is approved, the Delegate recommends that the newly merged council shows good governance by quickly addressing the concerns of communities of interest in a fair and equitable way. The Delegate has also considered matters of geographic cohesion. The area covered by the proposal is 41 km square kilometres situated in the inner west of Sydney. Compared to council areas state-wide, the area covered by the proposal is relatively small, and contained within reasonable travel distances. [Footnotes omitted] 1. Mr Colley concluded that, "This factor neither supports nor opposes the proposal". 2. On this factor, the Boundaries Commission commented: The Delegate noted that there were 14 submissions discussing the perceived cultural, identity and values differences and similarities between residents in different areas of the proposed new council area. The Report noted: "The Delegate has chosen to define 'communities of interest' as formal, organised communities (eg, schools, religious or sporting organisations) whose members have a common interest that is affected by the proposal. A small number of submissions (four) raised concerns relating to this factor. One example is the future availability and amenity of facilities for community organisations, particularly where those organisations have made contributions to, or had a long association with, the facilities in the past ... lf the proposal is approved, the Delegate recommends that the newly merged council shows good governance by quickly addressing the concerns of communities of interest in a fair and equitable way." The Report also stated that the Delegate considered matters of geographic cohesion. The Report noted that the area covered by the proposal is 41square kilometres situated in the inner west of Sydney. The Delegate stated that the area covered by the proposal is relatively small, and contained within reasonable travel distances. 1. The Council's written submissions on this point were in the following terms: 19. Another significant error made by the Delegate in his report was his misconstruction of the factor listed in s.263(3)(b), which required him to have regard to "the community of interest and geographic cohesion in the existing areas and in any proposed new are". "Community of interest" is a compound expression and should be construed as such. "Community of interest" means a closeness of interests that does not necessarily require a perfect correspondence of interest: Papaconstuntinos v Holmes a Court (2012) 249 CLR 534 at [8]. As such, the issue to be addressed is whether people in the proposed new area will share common interests (and geographic cohesion), when compared with the three individual existing areas. 20. The Delegate has misconstrued this requirement, which is clear from p.12 of his report: "The Delegate has chosen to define 'communities of interest' as formal, organised communities (eg, schools, religious or sporting organisations) whose members have a common interest that is affected by the proposal." 21. The Delegate erred in limiting his consideration of "communities of interests" (an expression not found in the statute) to "formal, organised communities". He seems to have proceeded on the basis that he was dealing with matters such as facilities for community organisations, whereas s.263(3)(b) requires a consideration of what interests the residents and ratepayers of Strathfield have in common with Burwood and Canada Bay. This misconstruction was a jurisdictional error in that it caused the Delegate to ask the wrong question. Not only was the Delegate diverted from his statutory function, but the reasoning process is wholly illogical. 22. In any event, his consideration of this factor is cursory at best, evidencing a failure to engage with the issue in any active intellectual way. The Boundaries Commission correctly concluded that the Delegate had failed to adequately address this factor. 1. The Respondents' written submissions on this point were in the following terms: 21. The Council submits that the Delegate misconstrued s 263(3)(b) of the LGA and should have considered "what interests the residents and ratepayers of Strathfield have in common with Burwood and Canada Bay" (SS [21]). The Delegate did precisely that. The Delegate considered the 14 submissions that discussed the "perceived cultural, identity and values difference and similarities between residents in different areas" and defined 'communities of interest' as "formal, organised communities… whose members are a common interest that is affected by the Proposal" (Ex 2, RTB T21, p 707). There was no misconstruction of s 263(3)(b) of the LGA or jurisdictional error as alleged. 1. However, during the course of his submissions on 16 June, Mr Hutley SC made a concession on behalf of the Respondents concerning the way Mr Colley had approached his consideration of this mandatory relevant matter. In this regard, Mr Hutley said (Transcript of 16 June 2016, page 330, lines 1 to 25): Can I now turn to the next point, which is the s 263(3)(b). If your Honour goes to 707, the Delegate is dealing with community interests and geographic cohesion. It says, "14 submissions made...to the factor," et cetera. Your Honour, we accept that the Delegate here seems to have construed the provision and constrained its meaning, and we accept that that was an error of law. We accept that that results in - relevantly, there has been a failure to take into account, constructively, a mandatory relevant consideration. What flows from that is, we submit, that the report is not a report mandated by the legislation, and the relief is the relief we discussed yesterday, your Honour, either a declaration to that effect or an injunction restraining, if your Honour is minded, the minister from proceeding on the basis that there is such a report, though we say that's unnecessary once your Honour has determined it's not. Our learned friends say that they want relief. The consequence of that is that one in effect has to start again. How far back they say one has to go is unclear, but at least, so far as we understand their submissions, there has to be a new public inquiry and a new opportunity to make submissions. We say that doesn't follow at all. The public inquiry was recorded, the submissions were made in writing. There's no basis to say that what should happen is beyond what we say flows, that the Delegate has not yet concluded his function of examining and reporting because he hasn't brought into existence a report. What would flow is a return to him of that exercise, and how he chooses to go about concluding that - of course, acting in accordance with law under the advice consequence on any judgment of this Court - would be a matter for him. That's how we put it. 1. In light of this concession (one correctly made, in my view, on proper consideration of the element of the Delegate's report set out above), it is clear that the process undertaken by Mr Colley with respect to this confined aspect of the matters mandated for the Delegate's consideration concerning this proposed amalgamation has miscarried. Representation of diverse communities 1. On page 27 of Mr Colley's report, he dealt with the third of the matters about which the Council complains. After quoting s 263(3)(e5), Mr Colley's report set out his consideration of matters he regarded as arising from this provision in the following terms: The area covered by the proposal includes culturally diverse communities. A small number of submissions addressed this factor by affirming this diversity in a positive way. The Delegate acknowledges the proposal area is comprised of diverse communities and the effective leadership shown within the community by Local Government to date. If the proposal is approved, the Delegate recommends that the newly merged council continues to show good governance and leadership by recognising and respecting the opinions of diverse communities in a fair and equitable way. 1. Mr Colley concluded that, "This factor neither supports nor opposes the proposal". 2. On this factor, the Boundaries Commission commented: The Report stated that the area includes culturally diverse communities, and a small number of submissions addressed this factor by "affirming this diversity in a positive way". The Delegate acknowledged that the proposal area is comprised of diverse communities and the effective leadership shown within the community by Local Government to date. He concluded: "if the proposal is approved, the Delegate recommends that the newly merged council continues to show good governance and leadership by recognising and respecting the opinions of diverse communities in a fair and equitable way." 1. The relevant element of the Council's written submissions on this point were: 23. The third defect in the Delegate's consideration of mandatory relevant factors related to his consideration of the need to ensure that the opinions of each of the diverse communities of the resulting area or areas are effectively represented (s.263(3)(e5)). The consideration of this factor occupied a sum total of 3 paragraphs (5 sentences). The first paragraph quotes the sub-section. The second paragraph states the obvious proposition that the area covered by the proposal "includes culturally diverse communities", without even naming them. The third and final paragraph simply contains motherhood statements. In short, there is no consideration whatsoever of the "diverse communities" (let alone each of them), nor is there any attempt to address the issue of effective representation. The Boundaries commission had little difficulty in concluding that the Delegate did not adequately consider the issues under this factor. 1. The Respondents' written submissions did not specifically address this point. 2. The Council's submissions on this point are to be accepted. It is clear, from the cursory nature of this element of the Delegate's report that he has not intellectually engaged with this mandatory matter. Indeed, the Delegate, to the extent that he has addressed the provision at all has confined himself to "culturally" diverse communities, when the provision is not so limited. As I have earlier observed in the context of the consideration of this provision in the Mosman, North Sydney and Willoughby proposed merger report, communities can be regarded as being formed for reasons across a much wider spectrum of possibilities than merely cultural affiliation (as the Delegate has here confined himself). 3. In addition, the Delegate's recommendation is what might be regarded as a downward one to be undertaken by the "newly merged Council" rather than an upward one envisaged by the use of the word "represented" in the provision. 4. I am satisfied that the Delegate's consideration of this mandatory element in s 263(3) has miscarried in a fashion that means he has not effectively considered this requirement at all. Conclusion on the adequacy of the Delegate's report 1. The conclusion to be drawn concerning the Delegate's inadequate consideration of the matters set out in s 263(3)(b) and s 263(e5) is that the report written by Mr Colley does not satisfy the mandatory statutory requirement for him to have had regard to all relevant matters contained in s 263(3) of the Local Government Act in examining and reporting on this proposed amalgamation. 2. The two identified failures have vitiated his report. 3. However, as I have concluded that these are the sole defects with respect to the process undertaken for this merger proposal, the appropriate outcome in the Strathfield proceedings is the making of a declaration of a limited nature confirming that the Delegate has failed to provide a report that complies with the mandated statutory requirements. 4. As Mr Hutley correctly submitted, it is unnecessary for me to restrain the Minister from proceeding further with this proposed amalgamation as, if he were to purport to do so, there would be no proper statutory foundation for that to occur. 5. The declaration that will be made in the formal orders at the conclusion of this judgment in the Strathfield proceedings will have the effect of leaving the Delegate in the position where he has not fulfilled the task delegated to him but he has not been discharged from so doing. The appropriate form of relief 1. A subsidiary issue arises, as I understood the differences between the parties, as to what should be the form of the relief to be granted if I were to conclude that some part of the process had miscarried in a fashion so as to vitiate the process with respect to one or more Councils. The position adopted by the Respondents, as I understood it, was that a bare declaration would be sufficient to act as the necessary inhibition on the Minister taking any further steps with respect to any amalgamation proposal with respect to which such a declaration had been made. The position advanced on behalf of the Councils, as I understood that, was that a bare declaration would not be sufficient and that I should restrain the Minister from proceeding further with any such amalgamation proposal. 2. It is settled that the making of a declaration is inappropriate when such a declaration would have no foreseeable consequences for the parties (Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 per Mason J at 188 and Aickin J at 189). However, the making of a bare declaration in any of these cases would not involve any mere hypothetical question. The making of such a declaration would have functional value of a prophylactic nature without the necessity for the making of restraining orders of the nature proposed by the Councils (Ainsworth v Criminal Justice Commission (1991-1992) 175 CLR 564 per the plurality at 582). 3. As Gaudron J observed, in Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591; [2000] HCA 11 at [52], there may be cases where a bare declaration that that some legal requirement has been contravened will serve to redress some or all of the harm brought about by that contravention. Relevantly in these proceedings, the desired consequence sought by the relevant applicant Council is preventative rather than therapeutic. However, it seems to me that an appropriately framed declaration can operate to have that effect without the necessity for the making of a restraining order against the Minister as the necessary consequence of making such a declaration would be that there would be no foundation for any action by the Minister purporting to be founded on the report of the relevant Delegate as there is, at law, no such report in the relevant instances. 4. I am satisfied in the circumstances of these proceedings, involving significant issues of public policy and the necessary administrative processes underpinning them, that it will be sufficient to make bare declarations in the three sets of proceedings where I have found defects warranting such an outcome. As it is appropriate to assume that the Minister will have proper regard to the consequences of the declarations made, I propose to do so without the necessity to make some further order restraining the Minister. Costs 1. As each of these matters comprises proceedings in Class 4 of the Court's jurisdiction, the costs follow the event presumption applies (Uniform Civil Procedure Rules 2005, Pt 42 r 42.1). However, against the eventuality that, in any of the proceedings, a party may wish to seek some costs order other than that which would ordinarily be expected, I propose to provide in the orders in each proceedings that the relevant ordinary position will apply unless some party files a Notice of Motion seeking some different order for costs within 14 days of the date of this decision. 2. In those proceedings where costs orders are proposed against the Respondents, I propose simply to make a single collective order against the Crown Respondents and, where those interests have succeeded, to make a single collective order in their favour. 3. However, in the event that in any of the proceedings the parties are able to come to agreement on a lump sum costs order, I indicate that I would be prepared to make such an order by consent, in chambers, in substitution for the costs order proposed to be made in those proceedings at the end of this decision. 4. Unless a party notifies my Associate by close of business on Tuesday 4 October 2016 that it wishes to be heard further on the question of costs, I will make the relevant proposed costs order on the day after that date. Conclusions Hunter's Hill and Lane Cove Councils 1. As I have concluded that there were no defects at any stage in the framework for or the process undertaken in dealing with the Minister's proposal for the amalgamation of Hunter's Hill, Lane Cove and Ryde local government areas, the appropriate order to be made that the proceedings brought by Hunter's Hill Council and by Lane Cove Council be dismissed. Mosman and North Sydney Councils 1. I have concluded that none of the general complaints concerning the proposed amalgamation process for these Councils are well founded and those complaints provide no basis to prevent this amalgamation from proceeding. 2. However, for the reasons earlier set out, I have concluded that the Delegate's functions pursuant to s 263(3) have miscarried in that the Delegate constructively failed to address one of the provision's mandatory requirements, that being the requirement to have regard "to the need to ensure that the opinions of each of the diverse communities of the resulting area or areas are effectively represented" (s 263(3)(e5)). 3. On the other hand, I am satisfied that the Delegate's exercise of his functions with respect to any of the other elements of s 263(3) did not miscarry. 4. These findings mean that the Delegate has not yet completed the task delegated to him by the Acting Chief Executive. 5. For the reasons earlier discussed, the appropriate outcome in each of the Mosman Municipal and North Sydney Council proceedings is the making of a bare declaration that the report furnished by the Delegate to the Boundaries Commission is not a valid report in satisfaction of the requirements of s 218F(6)(a) of the Local Government Act. Strathfield Municipal Council 1. For the reasons earlier set out, I have concluded that none of the general complaints concerning the proposed amalgamation process for this Council are well founded and they provide no basis to prevent this amalgamation from proceeding. 2. However, the Delegate's function to inquire and report after having had regard to the relevant mandatory matters in s 263(3) has miscarried in that the Delegate constructively failed to address two of those mandatory requirements, being those required by s 263(3)(b) and (e5). 3. It is conceded by the Respondents that the first complaint concerning these claimed defects had proper foundation. I have concluded that this concession concerning s 263(3)(b) was properly made. I have also separately concluded that the Delegate constructively failed adequately to address the mandatory matter set by s 263(3)(e5). 4. I am satisfied that the Delegate's duty to have regard to these two mandatory elements in s 263(3) has miscarried in a fashion that means he has not yet completed the task delegated to him by the Acting Chief Executive. 5. For the reasons earlier discussed, the appropriate outcome in the Strathfield Municipal Council proceedings is the making of a bare declaration that the report furnished by the Delegate to the Boundaries Commission is not a valid report in satisfaction of the requirements of s 218F(6)(a) of the Local Government Act. Orders Hunter's Hill Council matter 1. In Matter No 158774 of 2016, the Court makes the following orders: 1. The proceedings are dismissed; and Unless a party files a Notice of Motion proposing an alternative order on the question of costs by the close of business on Tuesday 4 October 2016, I will, on the day after that date, order that the Applicant is to pay the First to Fourth Respondents' costs as agreed or assessed. Lane Cove Council matter 1. In Matter No 161918 of 2016, the orders of the Court are: 1. The proceedings are dismissed; and Unless a party files a Notice of Motion proposing an alternative order on the question of costs by the close of business on Tuesday 4 October 2016, I will, on the day after that date, order that the Applicant is to pay the First to Fourth Respondents' costs as agreed or assessed. Mosman Municipal Council matter 1. In Matter No 155301 of 2016, the orders of the Court are: 1. Declares that the report furnished by the Delegate to the Boundaries Commission is not a valid report in satisfaction of the requirements of s 218F(6)(a) of the Act; and Unless a party files a Notice of Motion proposing an alternative order on the question of costs by the close of business on Tuesday 4 October 2016, I will, on the day after that date, order that the First to Fourth and Seventh Respondents are to pay the Applicant's costs as agreed or assessed. North Sydney Council matter 1. In Matter No 158919 of 2016, the orders of the Court are: 1. Declares that the report furnished by the Delegate to the Boundaries Commission is not a valid report in satisfaction of the requirements of s 218F(6)(a) of the Act; and Unless a party files a Notice of Motion proposing an alternative order on the question of costs by the close of business on Tuseday 4 October 2016, I will, on the day after that date, order that the First to Fourth Respondents are to pay the Applicant's costs as agreed or assessed. Strathfield Municipal Council matter 1. In Matter No 158221 of 2016, the orders of the Court are: 1. Declares that the report furnished by the Delegate to the Boundaries Commission is not a valid report in satisfaction of the requirements of s 218F(6)(a) of the Act; and Unless a party files a Notice of Motion proposing an alternative order on the question of costs by the close of business on Tuesday 4 October 2016, I will, on the day after that date, order that the First to Fourth Respondents are to pay the Applicant's costs as agreed or assessed. ********** Amendments 20 September 2016 - The matter numbers were transposed for Mosman Municipal Council v Minister for Local Government AND Strathfield Municipal Council v Minister for Local Government. In all incidences of transposition, the error has been corrected. 21 September 2016 - In the orders pertaining to all five Councils, paragraph (2) of the order is now an unnumbered sentence in the order. 26 April 2019 - Amendment to citation of Gardner v Dairy Industry Authority (NSW) (1978) 52 ALJR 180 to now read Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180. 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: 26 April 2019