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

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.

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. …
2. 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.

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.
3. 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.
4. 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.
5. 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.
6. 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.

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.

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.

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.
5. 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.
6. 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).

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 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.
2. 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.
3. 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.
4. 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.
5. 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.

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).
6. 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.

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).

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.

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.
2. 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)).
3. 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.
4. 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.
5. 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.
6. 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.

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.

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.
3. As I agree with and adopt his Honour's reasoning on this point, this complaint is without foundation.

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.

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.
3. 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.
4. 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".
5. 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.
6. 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.

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).

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.

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).

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.
2. 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.
3. 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 ); 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.

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.

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).

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.
3. 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.
4. 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).

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.

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.
5. 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.

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.

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.

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
3. 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.
4. 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.
5. 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.
6. 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.

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]
3. 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.

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.
2. 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.

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.
3. 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."
3. 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.
2. 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.
3. 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".

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.
4. 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.
5. 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.

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.
3. 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.
4. 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.
5. 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.
6. 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).

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".
2. 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.
3. 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.
4. 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".

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.
2. 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.
3. 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.
4. 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.

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.

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.

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.
2. 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.
3. 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)).
4. 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.
5. 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.
6. 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

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.
4. 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).
2. 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.
3. 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.
3. 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.
2. 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.
3. 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.
4. 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".

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
2. 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.
3. 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.
4. 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.
5. 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 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 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.

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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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. 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.
2. 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.

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.

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.
2. 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.
3. 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.

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]
2. Mr Colley concluded that, "This factor neither supports nor opposes the proposal".
3. 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.

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.
2. Mr Colley concluded that, "This factor neither supports nor opposes the proposal".
3. 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."
4. 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.

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.

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.

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