Hunter’s Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Counil v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2017] NSWCA 188

Hunter’s Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Counil v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2017] NSWCA 188

Proposals for the amalgamation of certain local government areas were invalid where they failed to comply with the statutory requirement for a 'single area of contiguous land'. Additionally, reports by delegates failed to fulfill mandatory statutory functions where delegates did not independently examine financial advantages and disadvantages and where critical financial analysis documents were not available either to them or to participants, resulting in constructive failure to exercise statutory functions; such failures also denied procedural fairness. Orders were made setting aside non-compliant reports and, in some instances, prohibiting the same delegate from re-examining the proposal.

Parties
Appellant: Hunter's Hill Council; First Respondent: Minister for Local Government; Second Respondent: Dr Robert Lang; Third Respondent: Chief Executive of the Office of Local Government; Fourth Respondent: Local Government Boundaries Commission; Fifth Respondent (in 2016/287916); Appellant (in 2016/304484): Lane Cove Council; Sixth Respondent: City of Ryde Council; Appellant: Mosman Municipal Council; Third Respondent (in 2016/289039): Michael Bullen; Second Respondent (in 2016/305665), Fourth Respondent (in 2016/289039): Ian Reynolds; Appellant: North Sydney Council; Sixth Respondent; Fifth Respondent (in 2016/305665): Willoughby City Council; Appellant: Strathfield Municipal Council; Second Respondent (in 2016/289328): Richard Colley; Fifth Respondent (in 2016/289328): Burwood Council; Sixth Respondent (in 2016/289328): City of Canada Bay Council
Jurisdiction
Australia
Judgment Date
31 July 2017
Procedural Posture
Appeal / Decision on Appeals From the Land and Environment Court
Outcome
Varied—some appeals (Hunter's Hill, Lane Cove, Strathfield) allowed and relevant examinations/reports/Boundaries Commission comments set aside; Mosman and North Sydney appeals dismissed; costs orders and further directions made.
Legal Topics
Procedural Fairness, Mandatory Considerations, Local Government Amalgamation, Quashing Orders, Constructive Failure to Exercise Function
Administrative Law Local Government Law Procedural Fairness Mandatory Considerations Local Government Amalgamation Quashing Orders Constructive Failure to Exercise Function

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Parties

Hunter's Hill Council

Appellant

Minister for Local Government

First Respondent

Dr Robert Lang

Second Respondent

Chief Executive of the Office of Local Government

Third Respondent

Local Government Boundaries Commission

Fourth Respondent

Lane Cove Council

Fifth Respondent (in 2016/287916); Appellant (in 2016/304484)

City of Ryde Council

Sixth Respondent

Mosman Municipal Council

Appellant

Michael Bullen

Third Respondent (in 2016/289039)

Ian Reynolds

Second Respondent (in 2016/305665), Fourth Respondent (in 2016/289039)

North Sydney Council

Appellant

Willoughby City Council

Sixth Respondent; Fifth Respondent (in 2016/305665)

Strathfield Municipal Council

Appellant

Richard Colley

Second Respondent (in 2016/289328)

Burwood Council

Fifth Respondent (in 2016/289328)

City of Canada Bay Council

Sixth Respondent (in 2016/289328)

Procedural Posture

Appeal / Decision on Appeals From the Land and Environment Court

Legal Issues

  1. 1 Whether amalgamation proposals complied with statutory requirement that the new area must be 'a single area of contiguous land' under s 204(3) of the Local Government Act 1993 (NSW)
  2. 2 Whether there was a failure to consider mandatory considerations, particularly financial advantages and disadvantages, as required by s 263(3)(a)
  3. 3 Whether denial of procedural fairness occurred due to non-disclosure of key documents (KPMG analysis)

Ratio Decidendi

Proposals for the amalgamation of certain local government areas were invalid where they failed to comply with the statutory requirement for a 'single area of contiguous land'. Additionally, reports by delegates failed to fulfill mandatory statutory functions where delegates did not independently examine financial advantages and disadvantages and where critical financial analysis documents were not available either to them or to participants, resulting in constructive failure to exercise statutory functions; such failures also denied procedural fairness. Orders were made setting aside non-compliant reports and, in some instances, prohibiting the same delegate from re-examining the proposal.

Court Disposition

Varied—some appeals (Hunter's Hill, Lane Cove, Strathfield) allowed and relevant examinations/reports/Boundaries Commission comments set aside; Mosman and North Sydney appeals dismissed; costs orders and further directions made.

Orders

  • Grant leave to file and rely upon amended notices of appeal as specified.
  • Allow appeals of Hunter's Hill Council, Lane Cove Council, and Strathfield Municipal Council; set aside Land and Environment Court orders and in their stead declare the respective merger proposals/reports invalid for not satisfying statutory requirements or procedural fairness; set aside related Boundaries...