Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government [2017] NSWCA 54

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government [2017] NSWCA 54 Hearing dates: 16 and 17 February 2017 Decision date: 27 March 2017 Before: Basten JA at [1]; Macfarlan JA at [115]; Sackville AJA at [129] Decision: (1) Allow the appeal.

(2) Set aside the orders made in the Land and Environment Court on 30 May 2016 and 20 September 2016, with respect to the proceedings brought by Ku-ring-gai Council.

(3) Set aside the examination and report of the delegate, Mr Garry West, in relation to the proposed amalgamation of part of Hornsby Shire and Ku-ring-gai local government areas, the report being sent to the Minister on 22 March 2016.

(4) Set aside the review of the Boundaries Commission and the comments sent to the Minister on 22 April 2016.

(5) Order that the second and third respondents pay the costs of the appellant, both in this Court and in the Land and Environment Court, including the costs of commencing proceedings in the Common Law Division. Catchwords: JUDICIAL REVIEW – Minister's proposal to merge part of a local government area (LGA) with the whole of another LGA – Merger Proposal referred to a Delegate of the Chief Executive for examination and report – whether the Delegate was required to consider the advantages and disadvantages of the Merger Proposal insofar as it contemplated the excision of part of one LGA – whether the Delegate misapprehended his functions under s 263(1) and (3) of the Local Government Act 1993 (NSW) – whether relief futile – whether Delegate carried out the statutory task of examination and report in relation to the Merger Proposal – whether constructive failure to fulfil the statutory function because the Delegate lacked access to documents over which the Department claimed public interest immunity