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

Adequacy of public notice

1. The Council pleaded a number of alleged defects in the notice of the inquiry given by the Delegate. Those alleged defects where the complaints were on general grounds that the notice that was given did not satisfy the requirement of s 263(2B) for the giving of "reasonable notice" were dealt with in Hunter's Hill and other councils at [152] to [175] as the alleged defects (although the wording in the pleadings may have varied) were to the same effect as in those other proceedings. The discussion and conclusions there set out are equally applicable in these proceedings.
2. These complaints are without foundation.
3. This Council also raised specific, individual matters concerning the notice. Those matters are dealt with in the later section of this judgment dealing with the range of complaints specific to this Council.

Conduct of the inquiry

1. The Council pleads a number of alleged defects in the conduct of the inquiry by the Delegate. Those alleged defects where the complaints were on general grounds were dealt with in Hunter's Hill and other councils at [176] to [188] as the alleged defects (although the wording in the pleadings may have varied) were to the same effect as in those other proceedings. The discussion and conclusions there set out are equally applicable in these proceedings.
2. These complaints are without foundation.

The KPMG issues

1. As in Hunter's Hill and other councils, the Council pleads that KPMG was not independent, that the Delegate relied on the assertion that it was; and that the basis for the KPMG economic assertions was not disclosed. These defects are said to have denied the Council procedural fairness and to have caused the Delegate's discharging of his functions to have miscarried in a material respect - thus vitiating his reporting process.
2. These alleged defects were dealt with in Hunter's Hill and other councils at [196] to [258] as the alleged defects (although the wording in the pleadings may have varied) were to the same effect as in those other proceedings. The discussion and conclusions there set out are equally applicable in these proceedings.
3. These complaints are without foundation.

Introduction

1. Fulfilling the requirements set by the statute for the 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(2A) of the Local Government Act - 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. Although this provision speaks of the role of the Boundaries Commission, it applies to the Delegate by virtue of s 218F(2).
2. In order to fulfil this role, the 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)).

The Delegate's reporting role

1. During the course of the Delegate's inquiry, there are 11 matters specifically set out in the Local Government Act to which the Delegate is to have regard for his examination and report in the context of the proposal that has been referred to him. These 11 matters are set out in s 263(3) and were set out in the earlier extract from Woollahra.
2. Having conducted his inquiry, the Delegate is then required to furnish a report that addresses these mandatory matters. 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.

Consideration of the Delegate's report

1. In Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226, Macfarlan JA (with whom Ipp JA and Hoeben J agreed) said, at [32]: I appreciate that it is not appropriate to approach reasons of a Commissioner with a "fine-tooth comb", but the Court must nonetheless attempt to ascertain as best it can what were the essential reasons for a decision.
2. I consider it is appropriate to apply that comment in the context of considering a report, pursuant to s 263(1), of a delegate to whom an amalgamation proposal has been referred. Such reports should not be subject to the same degree of forensic dissection as would be the case of a decision made by a judge.

The Council's complaints concerning the Delegate's report

1. In these proceedings, the Council points to what it says are a number of significant inadequacies in the discharge by the Delegate of his statutory responsibilities - deficiencies that the Council says are so fundamental that it is appropriate to conclude that the failures by the Delegate, either individually or in combination, caused the inquiry process to have miscarried and it should be set aside.

Introduction

1. In addition to the issues common to the various council proceedings that have been determined, to date, in this Court, the Council has raised separate, more detailed issues requiring consideration in these proceedings. That which follows deals with those separate issues.

Denial of procedural fairness - undisclosed information

1. The Council complains (Ground 3) of what it says is a specific denial of procedural fairness caused by the nondisclosure to the Council of material which had been provided (whether in writing or orally) to the delegate thus denying the Council the opportunity to respond to it. This ground was pleaded in the following terms: 3. The Delegate further denied the applicant (and any other affected member of the community) 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. Particulars (a) The Delegate received briefings from the Second Respondent and KPMG staff. (b) The applicant was not aware of the substance of the briefings, nor was the fact that the briefings had occurred disclosed to the applicant. (c) The applicant did not have an opportunity to make submissions on any material or information provided to the Delegate during the said briefings.
2. The starting point for dealing with this complaint is what was said by Preston CJ in Woollahra at [111] to [113] ([111] being included for context). These paragraphs read: 111. It follows from this conclusion that s 263 did not mandate that the person holding the inquiry (in this case the Delegate of the Departmental Chief Executive) actively question persons speaking at the inquiry or answer questions asked of the Delegate at the inquiry. Where the section is silent as to the procedure to be followed at the inquiry, that procedure within such limits as are necessarily imposed by its qualifying for the description "inquiry", is left to the discretion of the person holding the inquiry: Bushell v Secretary of State for the Environment at 94-95. The Delegate did not fail to hold an inquiry under the section by stating that he was "here only to listen". 112. Fourth, it also follows from the previous point that s 263 does not require that all key material relied upon by the Boundaries Commission or Departmental Chief Executive in examining and reporting on a proposal referred to it by the Minister under s 218F must be publicly accessible in advance of the holding of the inquiry. This argument of Woollahra Council is predicated on its mistaken contention that the entire process of examination and report must be carried out in public at the inquiry. 113. The citation of Bread Manufacturers of New South Wales v Evans (at 413) is misplaced. The inquiry required to be conducted in the circumstances and under the legislation considered in that case was quite different to the inquiry required to be held under s 263 of the Act. There, the High Court held that, because legislation in that case conferred investigative powers on the Prices Commission for the purposes of a public inquiry, where an inquiry was held, the Prices Commission was precluded either from using information obtained privately for the purposes of the inquiry without disclosing it to the parties (per Gibbs CJ and Aickin J) or from obtaining information for the purposes of the inquiry except in public and on oath (per Wilson and Mason JJ). Here, s 263 does not so require that information obtained by the Boundaries Commission or Departmental Chief Executive must be publicly disclosed and publicly adduced at an inquiry held under the section. So too, the inquiries held under the legislation considered in Bushell v Secretary of State for the Environment and B Johnson & Co (Builders) Ltd v Minister of Health were quite different to the inquiry required to be held under s 263 of the Act.
3. Although, in [112], His Honour was dealing with accessibility of material in advance of the holding of the enquiry, an examination of Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404; [1981] HCA 69 shows that this position is equally applicable at any stage during a Delegate's examination and reporting process. The joint judgement of Mason and Wilson JJ set out, at [11] the relevant provisions applicable at that time in the Prices Regulation Act 1948. Their Honours noted, at [13], the powers of the Prices Commission: The investigative powers of the Commission are contained within a group of sections numbered from 9-17. They include the power to summon witnesses and take evidence on oath (s. 9), require information to be given and questions answered (s. 13), require the production of balance sheets and other accounts (s. 14), enter upon and search any premises and inspect any documents or goods taking copies or samples thereof as the case may be (s. 15), and require a return to be furnished by any person or class of persons containing particulars of the quantity and cost of any goods in possession and of prices charged or proposed to be charged in respect of them (s. 17).
4. It is clear that the functions being undertaken by the Prices Commission were, subject to a power of intervention by the Minister, of a determinative nature but, most relevantly applicable, of deriving a conclusion from an enquiry conducted in a fashion significantly akin to that conducted by a court. The position here, mandated by ss 218F and 263 is quite radically different. The conclusion of His Honour in [113] that "s 263 does not so require that information obtained by the Boundaries Commission or Departmental Chief Executive must be publicly disclosed and publicly adduced at enquiry under the section" is clearly applicable to this complaint in these proceedings.
5. This complaint fails.

Amendments to "the proposal"

1. Ground 10 of the Council's Second Further Amended Summons alleges that the Delegate failed to hold a public inquiry into the merger proposal that had been delegated to him. This complaint arises from the changes to what the Council considers to be the Merger Proposal occurred on 20 January and 19 February with this latter date being after the Delegate held his public hearings but before the provision of the Delegate's report (a report dated March 2016).
2. A document dated 6 January 2016 of 18 pages entitled "Merger Proposal: Hornsby Shire Council (Part) and Ku-ring-gai Council" was published by the New South Wales Government. A copy of this document is in evidence in these proceedings. By letter, dated 7 January 2016, the Delegate wrote to the Council's General Manager introducing himself, and providing a copy of this document.
3. In this ground, the Council complains of changes made to the Merger Proposal (as this term is defined by the Council as comprising the whole of this document) during the course of the period from its reference by the Minister to the Acting Chief Executive of the Office of Local Government (and thence to the Acting Chief Executive's Delegate).
4. This gives rise to consideration of a fairly basic question, namely, "What is the proposal for the purposes of the relevant provisions of the Local Government Act?"
5. It is, despite the position advanced by Mr Kennett SC on behalf the Council, a comparatively easy question to answer on a proper examination of the provisions of the Local Government Act engaged in these proceedings.
6. In this process, it is appropriate to start with the provision that permits the amalgamation of, or alterations to, the boundaries of local government areas. This provision, s 218A(1), is in the following terms: 218A Amalgamation of areas (1) The Governor may, by proclamation, amalgamate two or more areas into one or more new areas.
7. A proposal that suggests such an amalgamation or boundary alteration can be initiated in one of three separate ways. These are contained in s 215 of the Local Government Act. This provision is in the following terms: 215 Who may initiate a proposal? (1) A proposal may be made by the Minister or it may be made to the Minister by a council affected by the proposal or by an appropriate minimum number of electors. (2) An appropriate minimum number of electors is: (a) if a proposal applies to the whole of an area or the proposal is that part of an area be constituted as a new area - 250 of the enrolled electors for the existing area or 10 per cent of them, whichever is the greater, or (b) if a proposal applies only to part of an area - 250 of the enrolled electors for that part or 10 per cent of them, whichever is the lesser.
8. Once such a proposal has been developed by the Minister, or advanced to the Minister by one of the two community-based processes envisaged in the above section, the Minister is obliged to have the proposal examined in a fashion at arm's-length from the Minister. The Minister has two options available for the carrying out of this process. The first is a direct reference to the Local Government Boundaries Commission (s 218(1)), whilst the second is to refer the matter to the Chief Executive of the Office of Local Government, with this being the course adopted in this proposal (s 218F(1) and (2)). The Chief Executive Officer (in this case the Acting Chief Executive) can, in turn, appoint a delegate (s 745(1)) to enquire into the proposal.
9. In this instance, the Acting Chief Executive appointed, amongst a range of appointments of delegates for the various local government amalgamations proposed as part of the local government reform policy of the government, Mr Garry West to be the Delegate for the purposes of examining the proposal involving the Council and Hornsby Council. A copy of the Instrument of Delegation that included the delegation to Mr West is in evidence in these proceedings.
10. At that time, the document entitled "Merger Proposal: Hornsby Shire Council (Part) and Ku-ring-gai Council" was published on a government website and provided to the both councils. The first version of this document (as the Council complains, there are subsequent versions of it where amendments were made to portions of the text or tables of the document or additional footnoted information was provided), was dated 6 January 2016.
11. On p 3 of the document (a map of the proposed merged area, being on p 1, and the Minister's foreword being on p 2), in the Executive Summary, under the heading "Introduction", the opening sentence describes the proposal in the following terms: This is a proposal by the Minister for Local Government under section 218E(1) of the Local Government Act (1993) for the merger of Hornsby Shire and Ku-ring-gai local government areas north of the M2.
12. It is accepted by those representing the Council that, in all subsequent versions, this sentence remains unchanged. Further, the sentence is footnoted and it is also accepted that, in all subsequent versions of the document, this footnote remained unchanged. The footnote is in the following terms: The end result if the proposal is implemented is that the 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.
13. Finally, before returning to further consideration of relevant provisions of the Local Government Act, it is appropriate to note that the Delegate's report includes an express statement as to his understanding of what constituted the proposal into which he had conducted his inquiry. The Delegate's report is also in evidence in these proceedings. The relevant extract appears in his report at p 6 and is in the following terms: The proposal is for the amalgamation of the existing Ku-ring-gai Council and part of Hornsby Shire Council north of the M2 Motorway.
14. The obligations that were placed on the Delegate were those resulting from deeming provisions contained in s 218F(2) that deemed the provisions of ss 263, 264 and 265 to apply to an inquiry conducted by a delegate through this process. The process to which those provisions would ordinarily apply is that undertaken if such a proposal were to be examined by the Local Government Boundaries Commission.
15. At this point, it is convenient to note that the position advanced on behalf of the Council is that the totality of the document dated 6 January 2016 (and its subsequently revised versions - at least to the time of the public inquiry conducted by the Delegate at the Pymble Golf Club on 3 February 2016) constituted "the proposal" for the purposes of the Local Government Act.
16. The position of the Respondents is that the proposal is only that set out in the first sentence of the Executive Summary in the 6 January 2016 document and that all that follows after that sentence is merely explanatory material to enable a proper understanding of the proposal.
17. The fallacy in the Council's position can clearly be demonstrated by having regard to three factors:

• First, the formal Instrument of Delegation is one in narrow terms;
• Second, one arises from the terms of the Local Government Act itself; and
• Whilst the third comes from guidance given by the Court of Appeal.

1. First, Attachment 1 to the Delegate's report is a copy of the Instrument of Delegation signed by the Acting Chief Executive of the Office of Local Government. The instrument is in the following terms: Pursuant to s. 745(1) of the Local Government Act 1993 (the "LG Act"), I, Tim Hurst, Acting Chief Executive, Office of Local Government, delegate to the persons listed in Part A in respect of the proposal is listed opposite in Part B the following functions conferred on me by the LG Act: 1. Examination of and report on one or more proposals referred by the Minister under s. 218F of the LG Act; and 2. Any function that is incidental to the function of examining of and reporting on proposals under s. 218F of the LG Act.
2. Relevantly, where Mr West's name is written in Part A of the table setting out the delegations, there appears, in Part B, Hornsby Shire (part) and Ku‑ring‑gai. This, clearly, defines the proposal in a statutory sense. The detail of what "Hornsby Shire (part)" means is not to be derived from the Minister's document but solely from the elements earlier set out from p 4 of the Executive Summary of that document.
3. Second, the Local Government Act specifies a range of matters that fall within the remit of a delegate appointed to carry out the functions for which Mr West has been appointed. As earlier set out in the extract from Woollahra, there are 10 specific aspects and one "catch-all" set out and they are contained in s 263(3) of the Local Government Act.
4. One of the matters required to be examined and reported upon by the delegate is the attitude of the residents and ratepayers of the areas concerned to the proposal (s 263(3)(d)).
5. In combination, s 263(3)(d) and s 265 permit the Delegate (but does not compel the Delegate) to conduct (in such manner as the Delegate thinks appropriate) an opinion survey or poll to assist the Delegate in determining the attitude of the residents and ratepayers of an area or areas for the purposes of section 263(3)(d).
6. It is clearly absurd to suggest that the totality of the 6 January 2016 document could be submitted to such a process.
7. The document, beyond the terms of the introductory sentence (and its footnote earlier set out), contains 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. It is clear that this document, in its various forms, constitutes the Minister's submission and public advocacy document for this merger.
8. Although the terms of the explanatory material, in addition to canvassing a wide range of matters, also sets 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.
9. 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.

Refusal to make the full KPMG documents available

1. The Council's complaint (Ground 1) that the full KPMG documents were not made available was dealt with by me when I upheld a claim for public interest immunity - see Ku-ring-gai Council v Mr Garry West in his capacity as delegate of the Acting Director-General of the Office of Local Government & Ors [2016] NSWLEC 62.
2. As a consequence of this determination and what was dealt with earlier in the section of this judgment dealing with KPMG (and its involvement and its documents), this complaint is without foundation.
3. However, the Council also complains (Grounds 2, 3, 4 and 5) that the refusal to provide the full KPMG documents was a denial of procedural fairness by the Department of Premier and Cabinet and that these documents should have been taken into account by the Delegate. To the extent that these grounds merely constitute a re-pleading of Ground 1, it was answered as noted above.
4. To the extent that there is embodied in these grounds, a complaint concerning the availability of the full KPMG documents to the Delegate, this is dealt with in Hunter's Hill and other councils at [218] to [254]. The reasoning there set out is equally applicable in these proceedings.

Introduction

1. The Council makes a number of complaints about the notice of the inquiry given by the Delegate. 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 Council says 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 Council identifies and proposes should lead to this conclusion are: 1. The heading of the notice did not adequately describe the nature of the proposal that was the subject of the inquiry; 2. The heading of the notice did not accurately set out the nature of that which was to be examined by the inquiry; 3. The description of the venue 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; 4. 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; 5. The deficiencies in the terms of the notice given by the Delegate were not amenable to being cured by any supplementary information circulated, in the varying fashions actually utilised, by the Council; 6. The differences between the versions of the advertisement placed by the Delegate in the Sydney Morning Herald and the Daily Telegraph, with the terms of the advertisements placed in The North Shore Times and the Hornsby Advocate (being a difference that the Council says is material) meant that, to the extent that these advertisements are relied upon as satisfying the statutory provision, they did not do so; 7. 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 Council submits are contained in the notices; and 8. Although not expressly 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.

Alleged deficiencies 1, 2, 5, 7 and 8

1. These complaints are in common with those pleaded in Hunter's Hill and other councils and are dealt with at [26] to [27] above.

Alleged deficiencies 3 and 4 - location of the inquiry

1. The Council complains that identification in the notice of the location of the Delegate's inquiry to which interested people or organisations were invited was insufficient and, in this instance, also geographically misleading. These complaints can be dealt with comparatively briefly.
2. As earlier observed, the notice given by the Delegate of the holding of his inquiry was published in both metropolitan and local newspapers. The location was described in those notices in the following terms: Venue: Pymble Golf Club
3. The Council makes two complaints about this description. The first is that it does not provide sufficient specificity - in that the street address (Cowan Road, St Ives) is not provided and, second, that, although the golf club has, as its proper name, the Pymble Golf Club, it is not, in fact, in Pymble and is outside the boundaries of that suburb, being a little to the north-east of the suburb of Pymble.
4. As a subsidiary element of the second issue, the Council points to the fact that there is, in fact, a golf club in Pymble, known as the Avondale Golf Club, and this second golf club is some distance away from the Pymble Golf Club (approximately three kilometres as the crow flies) and on the other side of the northern railway line/Pacific Highway spine that runs through the Ku-ring-gai municipality.
5. I am satisfied that these complaints are 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 golf club in Pymble" or "Pymble golf club". It is clearly the title of a specific place rather than some generic descriptor. For those who might, of their own knowledge, know where the Pymble Golf Club was located, such a descriptor would be sufficient, in itself. For those who did not know where that 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 notice had said: Pymble Golf Club, Cowan Road, St Ives it is also reasonable to assume that, for a very significant element (if not the vast majority) of those resident in these two 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 Cowan Road, St Ives and would need to make some subsequent enquiry of how to get the venue.
7. The notice, itself, provides two sources for further information: they being a website, and a local-call-cost telephone number. There is no suggestion that visiting the website would not have provided sufficient information on how to access the venue, nor that any person making a telephone enquiry seeking such information would not so have been given information in sufficient detail to permit them find the venue.
8. In any event, it is likely that anybody with other than an immediate and sufficient knowledge of how to get to Cowan Road, St Ives and, thus, limited by the name of the road only, would need to resort to some other way of obtaining directions for this purpose.
9. Whether that information would be, in this ubiquitous electronic information age, by consulting Google maps or some form of GPS system or by old-fashioned paper street directory or, even more primitively, by taking handwritten notes during a telephone enquiry (whether to the advertised number or to the Pymble Golf Club itself), I am satisfied that the identification given in the notice was of sufficient particularity so as to provide an adequate description of the venue in a fashion that would enable anybody wishing to attend the inquiry to be able to inform themselves sufficiently to get to the venue.
10. I am also satisfied that the pool of potential participants whose knowledge would have been such that further enquiry would have been unnecessary (had the street address been given) would not have been so significantly large as to obviate any reasonable likelihood of further information needing to be sought to enable a potential participant to get to the venue.
11. The suggestion that a capitalised identifier used in the fashion included in this notification could only be regarded as sufficient if that which was identified was iconic (for example the Opera House) cannot succeed for the reasons earlier described.
12. The complaint that the Avondale Golf Club is in Pymble but Pymble Golf Club is not, is similarly misconceived in my view. If a potential participant did not know of the existence and/or location of the Pymble Golf Club, any enquiry seeking an answer to the question "where is the Pymble Golf Club?", whether the enquiry is done physically in a street directory, electronically via some search engine or by telephone, will not be directed to the Avondale Golf Club.
13. The capitalisation of the name was of sufficient specificity under the circumstances to permit a person desiring to attend the inquiry to be held by the Delegate to be able to find the venue without there being any realistic risk of not being able to do so or going to the wrong place.
14. This ground fails.

Alleged deficiency 6 - the two versions of the notice

1. To enable an understanding of the discussions that follow, it is appropriate to reproduce a copy of each of the two versions of the notice. First, I reproduce a copy of the notice that was published in the Sydney Morning Herald and in the Daily Telegraph. The notices in these two metropolitan-wide circulating newspapers appeared on 13 January. These two advertisements were in identical terms. That from the Sydney Morning Herald is reproduced below:
2. The form of the notices that were published in The North Shore Times and the Hornsby Advocate differed from those reproduced above in only one respect. That is, as can be seen from the form of the advertisement reproduced below, the word "(part)" appears after "Hornsby" in the upper portion of the advertisement, whereas that notation was absent in the metropolitan circulation newspaper advertisement. The advertisements in the suburban papers were published on 20 and 27 January 2016 (for The North Shore Times) and 21 and 28 January 2016 for the Hornsby Advocate. The suburban paper-circulated advertisement was in the following form (North Shore Times version reproduced):
3. In Woollahra, Preston CJ discussed at [49] the necessity for a public notice given pursuant to s 263(2B) to state what is the particular inquiry that is to be held. He also said, at [54]: A person should know from reading the public notice what is the subject matter and purpose of the inquiry to be held …
4. The notice that was given in Woollahra, as was the position with respect to these notices, included the words "or alter the boundaries of" in the heading of the notice. His Honour dismissed Woollahra Council's complaint about those words at [63] and [64], where His Honour said: 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.
5. In this instance, paraphrasing what His Honour said in the second sentence of [63], it is clear that notwithstanding the omission of the word "part" in the Sydney Morning Herald and Daily Telegraph advertisements, those notices still identified that the Minister had referred a proposal to amalgamate the local government areas of Hornsby and Ku-ring-gai which was to be the subject of the inquiry that was to be held. In addition, the inclusion of "part" would not have assisted a reader to understand the extent of the scope of the proposal.
6. His Honour's observation in [64] in Woollahra is also equally applicable in these proceedings.
7. Finally, on this point, there is no evidence that anybody was, in fact, misled by the omission of the word "part" from the advertisements that appeared in the state-wide circulating newspapers.
8. In any event, the advertisements that appeared in the two local circulation newspapers, being advertisements after the date of the state-wide circulating ones and in newspapers that the Council has not challenged as constituting appropriate and sufficient local circulation would have acted as a cure for the defect in the earlier advertisements.
9. In addition, as his Honour noted at [56]: 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. This observation is equally applicable here.
10. This basis of complaint fails.

Conclusion on the notice of the inquiry

1. For the reasons set out above, there is no validity in these complaints.

Introduction

1. The Council makes two specific and substantive complaints concerning the Delegate's report. First, the Delegate's failure to give what the Council says is the impact on rates (and thus on Ku-ring-gai residents) - vide s 263(3)(a) - of the proposed amalgamation caused his reporting to miscarry in this respect (Ground 9).
2. Second, the Council says that the Delegate declined to give consideration to the proposed excision of the area south of the M2 and that this failure caused his reporting to miscarry in this respect (Ground 8).

The requirements of s 263(3)

1. 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.
2. The first is that each of the matters that are set out in it are 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. In doing so, the Delegate is required to engage with and consider, in a sufficient and relevant fashion, each of these mandated topics.
3. Failure by the Delegate to do so with respect to any of the topics will mean that the Delegate has not discharged his statutory obligations and, as a consequence, the Delegate's function will have miscarried. However, what consequences might flow from such an outcome requires consideration of such factors (if any) requiring consideration in the circumstances.
4. Second, the Delegate is required to have regard to each of those mandatory factors as part of the examination and reporting process. There is no requirement in the statute for the Delegate to be satisfied in some fashion with respect to any of these matters. What is required of the Delegate, after engaging with and examining each of these factors, is to report upon them individually and collectively. It is clear from the terms of s 263(7)(b) that it is envisaged that the Delegate will contemplate whether or not to make recommendations of a detailed nature in addition to expressing conclusions with respect to the overall proposal.
5. It is also apposite to observe, further, one aspect concerning the structure of the language used in s 263(3). This concerns the use of the word "areas". A proper reading of this provision makes it clear, in my view, that this requires consideration, in each relevant context, of each of the existing local government areas that are the subject of the Minister's proposal.
6. In this context, this required the Delegate for this proposal to engage, for each relevant matter, with the whole of the pre-existing Hornsby and Ku-ring-gai local government areas as relevantly engaged by the particular element of s 263(3). This broad statement of approach requires specific attention in my analysis of the adequacy of the Delegate's consideration of matters involving the portion of the then existing Hornsby local government area proposed to be excised and transferred to another new local government area to be constituted under the Local Government Act and, as a consequence, not included in the proposed amalgamation of the Hornsby and Ku-ring-gai local government areas.

Equity in rating - s 263(3)(a)

1. The Council pleaded a specific complaint concerning the way the Delegate addressed (or in the Council's case, failed to address) questions of rating equity for the ratepayers of Ku-ring-gai if this proposed amalgamation were to take place. The relevant element of the Council's pleading on this point was in the following terms: 9. The First Defendant made a material error of fact with regard to rates in assessing the financial impact to residents under s 263(3)(a) of the LG Act that was so significant as to infect the exercise of the Delegate's jurisdiction under s 263(3)(a) of the LG Act. Particulars (a) The First Defendant referred to rates in the Ku-ring-gai area as being 12.9% higher than in Hornsby: Report p 13. This was incorrect. (b) The First defendant then found that this fact did not accord with an undeniable fear amongst Ku-ring-gai residents that their rates will rise should the proposal succeed: Report p 13. (c) The First Defendant further found that equalisation of rates could occur through the adoption of sub-categories: Report p 13. (d) The First Defendant's finding fundamentally misunderstood the process by which rates are set, in that the First Defendant ought to have accepted that the rates of Ku-ring-gai residents would rise, should the Merger Proposal proceed. (e) The First Defendant further misunderstood that on the proper construction of the LG Act, the necessary sub-categories referred to by the Delegate were impermissible: see s 529(2) of the LG Act.
2. Consideration of this issue formed part of the Delegate's analysis pursuant to s 263(3)(a). On page 12 of his report, the Delegate noted, with respect to the written submissions that he had received, that, amongst them was a concern for: Potential for a rate increase, particularly in the Ku-ring-gai area due to higher land values.
3. On page 13 of his report, the Delegate set out a separate section concerning rating. This was in the following terms: 5.1.5 Rating Many submissions raised the probability of rate rises as noted above. NSW councils have extensive discretionary powers to determine the appropriate rates and charges for their local areas. They are directly accountable to their local communities for the impact these policies have on individual ratepayers. OLG statistics disclose that average Council residential rates in Ku-ring-gai currently 12.9% higher than in Hornsby. This does not accord with an undeniable fear amongst Ku-ring-gai residents that their rates will rise should the proposal succeed. If an amalgamation occurs the proclamation for the new council will preserve the rating structure of the former councils for the first 12 months of a merger. In addition, the NSW government has adopted a policy to freeze existing rate paths for four years which carries this rate structure forward for a further three years. To achieve this the government has commissioned IPART to identify the mechanism which will ultimately require legislative change. Each year, all councils are required to prepare a draft operational plan. This plan outlines the Council's revenue policy for the coming year, including details of the proposed rating structure. The draft plan must be made available for public comment the Council must consider any submissions made by members of the community before adopting it. Therefore, after the first four years, if a merger has occurred, the Council will complete the draft operational plan identifying its rating structure and how they plan to achieve an equalisation of the rating impact. This equalisation can occur through the adoption of subcategories within the categories of residential, business, farmland and mining as determined in section 514 of the Act. Issues relating to Ku-ring-gai Council's environmental levy would be considered by the new Council as part of their consideration of the draft operational plan.
4. In his conclusions arising out of his consideration of the matters mandated by section 263(3)(a), the Delegate did not deal with the general matters concerning rating in any further detail. The Delegate did, however, deal with special rate variations on page 15 of his report but this does not require consideration in the context of Ground 9 as pleaded by the Council (as earlier set out).
5. As earlier noted, the Delegate had forwarded his report to the Chairperson of the Boundaries Commission on for the Boundaries Commission's examination and comment. The Boundaries Commission's comment on this point was: The Commission's view is that the Delegate adequately considered the issues under this factor.
6. In his written submissions on this point, Mr Kennett said: 102. The Delegate made material errors of fact and law with regard to rates in assessing the financial impact to residents under s 263(3)(a) of the Act. 103. The Delegate referred to rates in the Ku-ring-gai area as being 12.9% higher than in Hornsby: Report p 13. This was a finding of fact based on an incorrect principle because it confused the average residential rates with how rates are actually set, by reference to cents in the dollar. 104. The Delegate then found that this fact did not 'accord' with an undeniable fear amongst Ku-ring-gai residents that their rates will rise should the proposal succeed: Report p 13. 105. The Delegate further found that equalisation of rates could occur through the adoption of sub-categories: Report p 13. 106. These findings of the Delegate indicate that he fundamentally misunderstood the process by which rates are set and the applicable statutory provisions. 107. The Delegate ought to have accepted that the rates of Ku-ring-gai residents would rise when properly calculated by reference to the cents in the dollar, should the Merger Proposal proceed. An example given was that a property with a land value of $800,000 presently pays $1,630 in residential rates in Ku-ring-gai, whereas in Hornsby Shire, a property of the same land value pays $1,928. 108. Next, the Delegate found that 'an equalisation of the rating impact' (presumably as between Ku-ring-gai and Hornsby ratepayers) could 'occur through the adoption of sub-categories within the categories of residential, business, farmland and mining': Report p 13. However, for at least three of these categories, sub-categories based on location within one or another of the former areas would be precluded by 529(2) of the Act. 109. Such a misunderstanding meant that the Delegate did not have an appreciation of the salient facts and law such as to understand the scope of the problem in relation to rate equalisation. The error was accordingly one that infected the exercise of the Delegate's jurisdiction under s 263(3)(a) of the Act, in accordance with the authorities cited above.
7. The Respondent's written submissions on this point were: 40 In any event, the respondents contend that the Court would not accept that the Delegate made a material error of fact of a nature which might rise to the level of McLellan J's comments in Centro. At paragraph 5.1.5 of his report, the Delegate considered submissions raising the probability of rate rises. This issue was but one aspect of the Delegate's consideration of a range of matters that he identified as relevant in examining the financial advantages and disadvantages of the proposal under s 263(3)(a) of the LGA. In relation to that aspect, the Delegate: (a) noted at the outset that "many submissions raised the probability of rate rises", from which and it should be inferred that the Delegate read and considered that material, including the Council's submissions in that respect (cf AS [106]); (b) referred to rates in the Ku-ring-gai as drawn from OLG statistics; (c) in respect of those rates, made the evaluative statement that "this does not accord with an undeniable fear amongst Ku-ring-gai residents that their rates will rise should the proposal succeed"; but (d) did not make any conclusive determination as to whether rates would in fact rise, as this was contingent on the further steps outlined by the Delegate discussed below (as was also acknowledged in the submissions made by the Council); (e) further noted that if an amalgamation occurred, the proclamation for the new council would preserve the rating structure for the first 12 months, that the NSW Government would freeze existing rate paths for four years and that it had commissioned IPART to identify the mechanism that will ultimately result in legislative change; (f) noted that each year, Councils were required to adopt a draft operational plan, that that draft plan would become available for public comment and the Council would have to consider community submissions before adopting it, and that, in that context, if a merger occurred, after the first four years the Council would complete the draft plan identifying its rating structure and how to achieve an equalisation of the rating impact; and (g) correctly stated that equalisation could occur through the adoption of sub-categories under s 514 of the Act. 41. In this respect, it is relevant to note that the Delegate did not assert, as is contended by the Council, that those subcategories could be based on location within one or another of the former areas, so as to misconstrue s 529(2) of the LGA (AS [107]). 42. In the circumstances, in light of the material in his report on this issue it cannot be said that the Delegate "did not have an appreciation of the relevant facts and law such as to understand the scope of the problem in relation to rate equalisation" as contended for by the Council (cf AS [108]). The weight that the Delegate gave to the various facts to which the he had regard was a matter for the Delegate: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 169 CLR 24 at 41.
8. To enable an understanding of how the Delegate dealt with this matter, it is appropriate, first, to note that s 514 of the Local Government Act provides for the categorisation of land for rating purposes. It is also relevant to set out the terms of s 529 of the Local Government Act - a provision allowing for sub-categorisation of areas for the purposes of the differential levying of rates within a category. That provision is in the following terms: 529 Rate may be the same or different within a category 1. Before making an ordinary rate, a council may determine a sub-category or sub-categories for one or more categories of rateable land in its area. 2. A sub-category may be determined: a. for the category "farmland" - according to the intensity of land use, the irrigability of the land or economic factors affecting the land, or b. for the category "residential" - according to whether the land is rural residential land or is within a centre of population, or c. for the category "mining" - according to the kind of mining involved, or d. for the category "business" - according to a centre of activity. Note. In relation to the category "business", a centre of activity might comprise a business centre, an industrial estate or some other concentration of like activities. 3. The ad valorem amount (the amount in the dollar) of the ordinary rate may be the same for all land within a category or it may be different for different sub-categories.
9. I turn first to the complaint made by the Council concerning the Delegate's statement that, based on Office of Local Government figures, Ku-ring-gai area rates were 12.9% higher than those in Hornsby. The complaint can be understood from (103) and (107) of the Council's written submissions quoted above.
10. It is clear that the Delegate's finding of fact was based on dollar amounts rather than by reference to cents in the dollar. There is no attack on the factual accuracy of the Delegate's finding when examined on the basis employed by the Delegate. There is, therefore no error of fact in that finding.
11. However, even if there were such an error (which I have rejected), an error of fact will not vitiate the exercise of the Delegate's function on this point unless it also manifests an error of law (Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25 per Brennan J at [14]). Here, it would not do so.
12. I now turn to the question of the relevance of s 529 of the Local Government Act.
13. This provision and the way the Delegate approached it were the subject of an exchange between me and Mr Kennett - an exchange recorded in the transcript in the following terms (Transcript 2 June 2016, p 35 l 12 to p 36 l 17): KENNETT: There is provision in s 529 for sub‑categories within a category. Section 529 of the Act, "Sub‑categories within one or more of the rateable categories and rateable land in an area." But subs 2 of s 529 tells us what kind of sub‑categories can be determined. And for farmland it's according to the intensity of land use and your Honour sees the other matters. For residential it's according to whether the land is rural or within a centre of population. For mining it's according to the kind of mining. And for business it's according to a centre of activity. So given those constraints it seems quite misconceived to suggest that an exercise in managing a rating impacts of a merger can be accommodated by creating sub‑categories. There just isn't capacity for sub‑categories that could address that kind of problem. So to the extent that the delegate has based his conclusions about rating and thus his conclusions about advantages and disadvantages on that understanding of how rates could be managed, we say he's fallen into an error of law and it's a further error which vitiates his report. HIS HONOUR: The dictionary to the Act does not define "centre of population." It is a term at large to be given its ordinary, reasonable meaning. Would it not be open to - I'm not aware of any cases on this at all, let me tell you - which not to say that there aren't any - but I'm not aware that that would preclude for example in what is the Hornsby area for a future rating determination to say that there will be a rate for Mount Colah as a centre of population. On a broader proposition pulling it back down into the Ku‑ring‑gai area, I'm not aware of anything that would say, provided it was the result of proper analysis that said that Pymble or West Pymble or West Lindfield was not a centre of population in those terms. Or indeed why the area of the combined council, which I know doesn't have a name so I won't call it, let me call it the Upper North Shore Council just for convenience - that the area of the Upper North Shore Council formerly known as Ku‑ring‑gai might be a centre of - now that might be stretching it too far, I accept. But provided it had sufficient particularity and identification, couldn't that be done? KENNETT: We would say no. 529(2)(b) draws a distinction between rural residential land and land that is within a centre of population. We would submit that it doesn't support - HIS HONOUR: Multiple centres of population. KENNETT: ‑‑separate sub‑categories for Mt Colah, Berowra, et cetera. It would need to be rural residential land on the other hand, land within a centre of population on the other. That's our understanding of it, so that one wouldn't define or the council couldn't define some place as a centre of population and set a different rate for there compared to somewhere else. HIS HONOUR: Consequently I infer you say to me that the relevant provision in the Interpretation Act wouldn't provide assistance in that regard? KENNETT: Wouldn't resolve this problem we say because it isn't a case of the singular including the plural or anything simple like that. It does seem as we read it to be inviting a sub‑category of rural residential land as distinct - HIS HONOUR: All right, well, let's wait and see what if anything Mr Williams says on that point. You may not need to respond.
14. On 7 June, Mr Williams turned to this provision at two points in his oral submissions. First, he said (Transcript 7 June 2016, p 66 l 9 to 36): WILLIAMS: Now, first our friends directed some criticism to that and if I understood the submission correctly, it was a reference to the categories in 529 of the Act. If your Honour has s 529, what the delegate here is doing is just accurately reflecting the terms of s 529 subs (1) and (2), council made a declare a sub‑category for one or more categories and then there are four set out, "A sub‑category may be determined for the category 'farm land'". We don't see anything in this passage to suggest that the delegate had in mind that the new council would strike differential rates across different geographic areas or anything of that kind. Simply that the delegate accurately summarises the terms of 529 (2) in identifying the ways in which equalisation could occur across different areas. Now, your Honour, we deal with this in our written submissions from paras 40 to 42. In substance, what we say is that in referring to this as a matter that the new council would need to address, the delegate wasn't, in any real sense, deferring consideration of this issue but rather, simply acknowledging that weighing the advantages and the disadvantages needs to be done in the context where there are leeways of choice open to a new council as to how it will proceed. In a sense, it's no more than a statement of the obvious to say that this is something the new council will need to deal with and if the delegate had taken a fixed view of what the new council would do, that would be more likely to lead to error than an acknowledgment that the new council could proceed in one or a number of ways. But above all, your Honour, we say it can't possibly be said that he didn't consider and take account of the issue because it was addressed at some length in the way that we describe in our 40 through to 42 of our written submissions.
15. Second, he said (Transcript 7 June 2016, p 76 l 20 to 31): WILLIAMS: We have authority that we haven't yet had the opportunity to consider, but the decision is the Council of the City of Sydney v South Sydney City Council [2002] NSWLEC 129, a decision of Pearlman J. We have copies. There are some references that I'll give your Honour and we can explore it together. Para 24 refers to the argument about subcategories of residential, no rural residential land in the areas. Then at 26, toward the end of 26: "There must be…of subcategories permissible." Then at the end of 27, her Honour refers to the ordinary language: "Accordingly, where there…the two descriptions." There's then a table or a chart. In para 30: "529(2)(b), so construed…it's a subcategory." Your Honour, I think that's as far as we can take the matter.
16. In reply, Mr Kennett acknowledged that there was force in the matters arising from the decision of Pearlman CJ in Council of the City of Sydney v South Sydney City Council [2002] NSWLEC 129. However, Mr Kennett suggested I should conclude her Honour was wrong. Mr Kennett submitted (Transcript 7 June 2016, p 83 l 1 - 37): KENNETT: Could I turn to the delegate's discussion of the rating issue and this relates to what he says at p 19 of the applicant's tender bundle. He goes a little beyond recording the substance of s 529, in our submission, because subcategories within categories of property could only be an answer to the issue that had been raised if one took a particular view about what subcategories could comprise. We say it was a wrong view. So the complaint that we're making at this point, and this is our ground 9, it's not about deferral of the issue per se to a future council, but about what we say is a misunderstanding of what the future council could do about rates. We say that on the proper construction of s 529, the creation of subcategories was just not a tool that could have been used to overcome or mitigate the rating effects of a merger. That's our submission. The case that your Honour was given at the end of my friend's submissions, City of Sydney v South Sydney, does appear to be against us on that. If necessary, we would say this case is wrong. The reason I say it seems to be against us is: if your Honour goes to para 15 of that report, you can see the nature of the subcategories of residential land that the South Sydney Council had resolved to create. There were three population centres, each comprising a list of suburbs. Then what the City of Sydney said was wrong with that is set out at para 24. So the argument wasn't the argument I'm putting here; it was the argument that the power to determine a subcategory just wasn't engaged because there was no rural residential land in South Sydney. Then after the reasoning, which your Honour has been referred to, her Honour, in effect, agrees with South Sydney and concludes in para 33 that South Sydney was entitled to determine - this is about four lines from the end of 33 - South Sydney was entitled to determine the subcategories which it did in relation to land categorised residential, despite there being no rural residential land within the South Sydney area. So what's decided in that case upholding the creation of those three different population centres is, on the face of it, against my submission and supportive of what the delegate did, but I just note that the submission that we've sought to advance here in relation to the effect of s 529 doesn't seem to have been advanced or considered in that case. So we do maintain that ground.
17. It seems to me that the Council misunderstands the flexibility permitted by s 529. This follows from what is to be drawn from her Honour's decision in City of Sydney where she said, in [27]: 27. … The term "according to" indicates that the determination of a sub-category must correspond to or be in conformity with the descriptions that follow. The use of the word "whether" indicates choices or alternatives, and that is emphasised by the repetition of the word "is". Accordingly, where there is land that is categorised residential, then sub-categories of land may be determined so long as the land that is to be so sub-categorised corresponds with one or other of the two descriptions.
18. After reproducing and commenting on a chart in the Local Government Act and commenting on it, her Honour continued, at [30] to [32]: 30. Section 529(2)(b), so construed, does not impose any limit on the number of sub-categories of residential land that may be determined. There may, in land that is categorised residential, be more than one parcel of land that fits the description of rural residential land, and there may be more than one parcel of land that fits the description of centre of population. So long as the particular parcel fits one or other of the alternatives, then a sub-category in respect of that land may be determined. 31. In my opinion, the construction of s 529(2)(b) which I consider is correct conforms with the statutory context for two reasons. First, it is consistent with the remainder of s 529. Although each of the subsections adopts different formulations of words, each provides alternatives and those alternatives limit the ambit of the power. Thus, for the category farmland, the sub-categories must be determined to correspond with the intensity of land use or economic factors affecting the land (sub-s 2(a)). For the category mining, the sub-categories must be determined to correspond with the kind of mining involved, which implies alternatives (sub-s (2)(c)). For the category business, the sub-categories must be determined to correspond with a centre of activity, and the note to the subsection itself indicates choices that may be made (sub-s (2)(d)). 32. Secondly, that construction recognises reality and promotes the underlying legislative purpose of permitting a council to make and levy different rates. The reality is that land which is categorised as residential within a city or urban context (such as South Sydney) is unlikely to have within it land that is rural residential (as defined), yet it is quite likely to have land within a centre of population. The flexibility of making and levying different rates for different categories and sub-categories (which is permitted by s 528(1) and s 529(3)) would be rendered considerably reduced for most city or urban local government areas if the construction of s 529(2)(b) which the City of Sydney urges is adopted. The land within such areas would, realistically, be entirely within a residential or a business category; and yet, if the City of Sydney's construction of s 529(2)(b) is correct, the power to sub-categorise and thus make and levy different rates would be severely curtailed. Sub-categories of land categorised business could be determined, but sub-categories of land categorised residential could not.
19. I am satisfied that her Honour's analysis was correct and that there can be many sub-categories of residential land provided they are identifiable "centres of population.
20. It is also clear from several rating merit appeals in this Court that s 529(2)(d) permits quite precise definitions of sub-categories to be established (see Barrak Corporation Pty Ltd v Parramatta City Council [2014] NSWLEC 1077 and Barich v Parramatta City Council [2014] NSWLEC 1259). There was no challenge to the validity or scope of the sub-categorisation in either of those proceedings.
21. There would not seem to me to be any reason why the approach to "centre of activity" demonstrated in the Parramatta rating cases cited above was not also capable of application to "centre of population" in s 5292)(b).
22. In any event, the Council also does not seem to have considered the extent to which the power to make special rates on a geographic basis might be utilised to address the Council's concerns (see ss 495, 498(1)(b) - second element and 538(1) of the Local Government Act) - these matters were not adverted to in the Council's written or oral submissions.
23. Finally, the Delegate determined what weight he should give to the Council's submission on the topic of rating equity (as I describe it) in his findings on s 263(3)(a) matters to which he was obliged to have regard. In Minister for Aboriginal Affairs v Peko -Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Mason J said, at 41: … in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power [citations omitted]. I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable".
24. Even if I am wrong on matters concerning the potential operation of s 529 and the special rating provisions of the Local Government Act Act, there is no basis to find that the weight given to the rating equity issue was "manifestly unreasonable".
25. This ground fails.

Consideration of the area south of the M2 - s 263(3)(a), (b), (d) and (f)

1. As earlier set out, the matters requiring examination pursuant to s 263(3) require the Delegate to examine and report upon each of the mandatory factors. Where the use of the word "areas" (a plural) is incorporated in the provision, it is clear that that requirement relates to the whole of each of the existing local government areas that are the subject of the proposal, even when, as is here the case, it is proposed to excise an area from one of them.
2. As a consequence, for the purposes of s 263(3), the Delegate was required to examine and report upon each of those factors, not merely as they affected the portion of the Hornsby local government area that was proposed to be amalgamated with the Ku-ring-gai local government area into the new, composite local government area, but also to examine and report upon each of those factors with respect to the area south of the M2 Motorway proposed to be excised from the Hornsby local government area and transferred to form part of a new local government area.
3. The Council pleaded this concern in Ground 8 of its Second Further Amended Summons in the following terms: 1 The First Defendant made a further jurisdictional error in failing to take into account relevant considerations, namely: a. The financial advantages or disadvantages of the Merger Proposal to the residents and ratepayers of the areas concerned: s 263(3)(a) of the LG Act; b. The community of interest and geographic cohesion in the existing areas and in any proposed new area: s 263(3)(b) of the LG Act; c. The attitude of the residents and ratepayers of the areas concerned: s 263(3)(d) of the LG Act; d. Such other factors as he considers relevant to the provision of efficient and effect local government in the existing and proposed new areas: s 263(3)(f) of the LG Act. Particulars i. The First Defendant expressly declined to consider submissions relating to impacts associated with the excise of the areas of Hornsby south of the M2 Motorway: Report p 20, 24, 39. ii. The area covers approximately 20,000 rate-payers in the Hornsby area which are part of the existing area concerned. iii. Accordingly, the First Defendant was obliged to consider the attitudes of those residents and/or the financial, community, geographic and any other relevant impact on those residents.
4. The Delegate considered the excision of the area south of the M2 motorway in a limited fashion. His report sets out, on pages 10 and 11, the impact on the income and expenditure patterns of the (then) Hornsby Shire Council of the proposed excision. The analysis also dealt with what might be the impact on the amalgamated area of the excision.
5. The financial impact was also discussed in a further short section on page 14 of the Delegate's report. This section also only dealt with the financial impact on the Councils, if amalgamated, of the proposed excision.
6. In his consideration of s 263(3)(b) of the Local Government Act of the community of interest in geographic cohesion and the existing areas and in any proposed new area, the Delegate commenced his conclusion on this point, at page 20 of his report, by saying: The area south of the M2 Motorway is the subject of another merger proposal, therefore while the issues and concerns are noted it would be expected they would primarily be considered in that report. Cognizance though is given to the financial impacts this change to the Hornsby Council boundary will have and is considered and reported under another factor of this report.
7. In his summary of community submissions, the Delegate said, inter alia, at page 24 of his report, at the commencement of this section: At the public enquiry the majority of people spoke against the merger proposal, this is also reflected in the submissions. However it must be indicated that while majority of the submissions were opposed to the Hornsby (part)/Ku-ring-gai merger proposal approximately a quarter were against excising the areas of Hornsby south of the M2 Motorway. As these are the subject of another merger proposal the detail is not summarised below.
8. In his conclusion on this topic, the Delegate merely noted that Hornsby Council had: … clearly sought to advocate for on behalf of those residents who live south of the M2 Motorway.
9. Under s 263(3)(f), the catch-all provision, the Delegate dealt with Hornsby Council's submissions concerning the area south of the M2 Motorway (page 38 of his report). The Delegate wrote: The proposal to excise land south of the M2 Motorway should have a major impact on the forecast dwelling supply for Hornsby Shire in the short term as Epping is currently the focus of significant development activity. The anticipated dwelling numbers for the Epping and Carlingford area (approximately 4000 dwellings) would therefore need to be discounted from any revised dwelling targets for a combined Hornsby/Ku-ring-gai Council. Hornsby Shire Council currently undertakes a number of planning, compliance, certification and health functions for lands south of the M2 Motorway. These functions include, but are not limited to, the following: * Development application assessment * Receipt of section 94 contributions * Planning proposal evaluation * Principal certifying authority (PCA) * Essential service (annual fire safety registrar) * Swimming pool inspections * Section 194 planning certificates * Food premises inspections Should the decision to excise the lands south of the M2 Motorway as part of the Hornsby/Ku-ring-gai proposal be progressed, it will be necessary for the State Government to provide guidance to Hornsby Shire and Parramatta City Councils on the processes and procedures for the transfer of these functions. Specifically, consideration will need to be given to who will be the determining authority for development applications received but not yet determined, transfer of the PCA responsibilities from Council to Council, transfer of current and historic records and statutory status of the Section 94 plans and planning controls until such time as the new relevant council has undertaken a review and established appropriate procedures and legislative framework.
10. The Delegate's conclusion on this point was: Submissions concerning the proposed transfer of the area south of the M2 Motorway have been dealt with in another section of this report, however, the concerns are noted and considered.
11. In his final recommendations, in Chapter 6 of his report (pages 41 and 42), the Delegate made no comments concerning the area south of the M2 Motorway except to recommend consideration be given of a further boundary adjustment to transfer an additional area of land, in the vicinity of the excised area, to the enlarged Parramatta City Council. This recommendation was in the following terms: 8. Consider the merit and financial impact of adjusting the boundary of the new council to the transfer of North Epping to Parramatta if both merger proposals are implemented.
12. None of these matters dealt with the impact on the residents and ratepayers of the area south of the M2 Motorway and now excised and incorporated in the enlarged Parramatta City Council, except in a tangential fashion. The impact on those residents and ratepayers was mandated to be considered by s 263(3)(a).
13. Whilst it was undoubtedly the position that for the Delegate appointed to consider the proposal for the formation of a new local government area to which the excised area was proposed to be added and that that addition would form part of that Delegate's examination and report, nonetheless the countervailing requirement remained with this Delegate, for the relevant mandated elements of s 263(3) to consider the impact of the excision on the residents and ratepayers of the area proposed to be excised.
14. In this context, I do not have the report of the Delegate who examined and reported on the proposed new local government area to which the excised area has been added, nor would it be appropriate for me to do so. Matters concerning that area, in the context of that Delegate's functions, were properly a matter for that Delegate and did require that Delegate to have appropriate regard to the proposal to include the excised area. However, in the specific context of the residents and ratepayers of the excised area, this Delegate was obliged to have regard to their excision as part of his examination and reporting functions.
15. In failing to do so, he misapprehended a significant element of what was required of him by s 263(3). It follows that, in this regard, his examination and reporting process miscarried.

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. The role of the Boundaries Commission is confined to reviewing and commenting upon the report of the Delegate.
2. In these proceedings, the Council submits that this role is a broad one, mandating the Boundaries Commission to comment on the merits of matters contained in the Delegate's report rather than confining itself, as is here the case, to an assessment of whether the Delegate met the statutory enquiring and reporting responsibilities mandated for him by the Local Government Act.
3. In this respect, the Council says that the process undertaken by the Boundaries Commission, as shown from its report to the Minister, did not fulfil the statutory tasks set for it. As a consequence, the Council submits that this is a fundamental failure and that this failure caused this element to miscarry and to do so in such a fashion as to vitiate the process.
4. The 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 his report and provided its own report to the Minister, commenting on that which had been provided to it by the Delegate. A copy of the Boundaries Commission's report is in evidence.
5. The Council pleaded its concerns about the role of the Boundaries Commission in Ground 14 of its Second Further Amended Summons in the following terms: The Fourth Defendant's [the Boundaries Commission] Comments on the Report by the Delegate dated 22 April 2016 ("Comments") misunderstood its statutory task, improperly fettered its discretion and thus failed to complete its jurisdictional task. Particulars (a) On 22 April 2016, the Fourth Defendant prepared Comments on the Report, in purported compliance with s 218F(6) of the Act. (b) The Comments were directed to whether the Delegate adequately considered the factors required by section 263(3) of the Act. (c) The Comments expressly stated that the Fourth Defendant's role does not involve re-examining the advantages and disadvantages of the proposed mergers, accepting submissions or holding public inquiries. (d) Contrary to the Fourth Defendant's finding, as part of its function of review and comment, the Fourth Defendant: i. May re-examine the advantages and disadvantages of the proposed merger, accept submissions or conduct a further inquiry; and ii. Was implicitly required to review the merits of the Report as opposed to merely whether the Report complied with the requirements of the Act.
6. A broadly similar complaint had been heard and determined by Garling J in Botany Bay City Council v State of New South Wales [2016] NSWSC 583. Garling J had rejected that complaint concerning the role of the Boundaries Commission. Garling J's decision was appealed.
7. On 2 September 2016, the Court of Appeal dismissed the appeal against Garling J's decision (see Botany Bay City Council v The State of New South Wales [2016] NSWCA 243). The judgment in those proceedings was written by Sackville AJA (with whom Bathurst CJ and Ward JA concurred). His Honour dealt with the complaint raised by Botany Bay City Council concerning the role of the Boundaries Commission at [91]-[101], saying: 91. In addressing Botany's submissions, it is convenient to start with the construction of s 263(1) of the LG Act. It will be recalled that s 263(1) requires the Commission (or, in the present case, the Chief Executive) to "examine and report on any matter with respect to the boundaries of areas…which may be referred to it by the Minister". 92. This language appears to be very broad. However, in Botany Bay City Council v Minister for Local Government, this Court held that the Chief Executive's role, where the Minister refers a proposal for examination pursuant to s 218F(1), is constrained by the proposal that is the subject of the referral. The role of the Chief Executive in such a case is to examine and report on the proposal that has been referred by the Minister. Accordingly, the Court upheld the trial Judge's conclusion that Botany's separate proposal for the alteration of its boundaries was irrelevant to the Chief Executive's examination of the Minister's Proposal. 93. It follows from the reasoning of the Court in Botany Council, that the functions of the Chief Executive on the referral of a proposal by the Minister are not at large, but are constrained by the purpose of the referral. The stark contrast between the language of ss 218F(1) and 263(1) on the one hand, and s 218F(6) on the other, demonstrates that the functions of the Commission in conducting a review of a report of the Chief Executive are substantially more confined than the functions of the Chief Executive in preparing a report on a proposal by the Minister. Under s 218F(6) the Commission is not to examine and report on the Minister's proposal. Instead, the Commission is directed to review the Chief Executive's report and send its comments to the Minister. 94. It is no doubt true, as Mr Robinson submitted, that the word "review", considered in isolation, is capable of describing a reconsideration of the merits of the decision or a proposal. But s 218F(6) must be construed in context. The provision applies to an amalgamation proposal or a proposal that is not supported by at least one of the councils affected. It is the Chief Executive's report on the proposal, not the proposal itself,that is to be furnished to the Commission for "review and comment". The Commission is then required to "review the report and send its comments to the Minister". The "comments" are clearly intended to be the views of the Commission arising from its review of the Chief Executive's report. 95. Mr Robinson emphasised that, as pointed out by Spigelman CJ in South Sydney, the Commission has expertise in local government issues and enjoys a degree of independence from the Minister. However, these characteristics do not compel the conclusion that the Commission's role under ss 218F(1) and 263(1) extends to re-examining the merits of a Minister's proposal that has already been examined by the Chief Executive. The contrast in statutory language to which I have referred demonstrates that the Commission's expertise and independence are to be utilised for a different purpose. The Commission's primary function is to review the report already prepared by the Chief Executive and comment whether the Chief Executive has performed his or her functions in accordance with the legislation. If not, the Commission is to make such comments as it considers appropriate in order to assist the Minister in determining whether or not that the Governor implement the proposal, with or without modifications. 96. It is implicit in the language of s 218F(6) that the Commission's role is not necessarily limited to commenting whether the Chief Executive's report complies with the statutory requirements. Section 218F(7) contemplates that the Minister may recommend that the Governor implement the relevant proposal with such modifications as arise, inter alia, out of the Commission's comments on the Chief Executive's report. This language implies that the Commission, on the basis of its review of the Chief Executive's report, may draw the Minister's attention to matters that may warrant modification of the proposal. However, the statutory language does not imply that the Commission must go beyond a review of the Chief Executive's report and undertake its own independent evaluation of whether the proposal should be recommended for implementation. 97. If Botany's construction of s 218F(6) of the LG Act were to be accepted, the Commission would be entitled and perhaps bound to re-examine afresh the merits of the Minister's proposal. Yet, in doing so, it would not be required to observe the statutory procedures that govern the Chief Executive's examination of the merits of the proposal. For example, the Commission would be free to re-examine the merits of an amalgamation proposal without conducting an inquiry of the kind that the Chief Executive must undertake when examining the proposal on a referral under s 218F (see s 263(2A)). Not only would this set the Chief Executive's examination of the proposal at nought, it would effectively negate the right of the public to participate in the decision-making process, contrary to the evident intention of the legislation. 98. Mr Robinson submitted that the Commission's error was revealed in its statement that: "the Commission's role does not involve re-examining the advantages and disadvantages of the proposed merger, accepting submissions and holding inquiries." Putting aside the reference to "accepting submissions", as to which no issue arises in the present case, this statement is unobjectionable. For the reasons I have given, the Commission's role did not involve re-examining the merits of the Minister's Proposal. Nor was the Commission empowered by the legislation to conduct inquiries when discharging its function of reviewing the Delegate's Report. 99. Mr Robinson did not suggest that the Commission lacked power to make the comments on the Delegate's Report summarised in Section 1 of the Commission Review. His complaint was that the Commission did not go further. It is, however, one thing to recognise the Commission as having the power to make additional comments on the Delegate's Report; it is quite another to contend that by choosing not to make additional comments the Commission committed an error of law, let alone a jurisdictional error that might invalidate its report. 100. It follows from the foregoing that the Commission did not commit any legal error by observing that the name of the new council and the Delegate's suggestion of a boundary realignment were matters for the Minister. There is nothing in the legislation that obliged the Commission to go any further than to draw these matters to the Minister's attention with a view to considering whether the merger proposal should be modified. 101. For these reasons I reject Botany's challenge to the validity of the Commission Review. It is not necessary to consider whether, if the challenge had been made good, any relief could be granted in respect of the Minister's public announcement on 12 May 2016.
8. That which Sackville AJA wrote is equally applicable to the complaint by the Council in these proceedings. As a consequence, this ground fails.

Summary of findings

1. As I have concluded that the sole defect in the process conducted by the Delegate and by the Boundaries Commission with respect to the Minister's proposal for the amalgamation of part of the Hornsby local government area with the whole of the Ku-ring-gai local government area was the failure of the Delegate to fulfil a single, significant element of his responsibilities pursuant to s 263(3), it has been necessary to consider what should be the result.
2. Although this delegate's process has miscarried in this one respect, for the reasons earlier set out, the failure giving rise to the miscarriage concerns, solely, the Delegate adopting the incorrect position with respect to having regard to the impacts of the proposal on the residents and ratepayers of the area south of the M2 Motorway, an area proposed to be excised from the Hornsby local government area for the purposes of this proposal. The area proposed to be excised has now, as a matter of law, been excised from the Hornsby local government area and now forms part of the City of Parramatta Council local government area as a consequence of the Local Government (City of Parramatta and Cumberland Councils) Proclamation 2016 made on 12 May 2016 (the 12 May Proclamation).
3. There are no proceedings challenging that the 12 May Proclamation or any of the antecedent processes undertaken pursuant to s 263(3) (indeed, there is no challenge, whatsoever, concerning that which has occurred as a consequence of the 12 May Proclamation or any of the statutory steps antecedent to the Governor making it).
4. The ultimate effect of this is that, absent some hypothetical, future excision of that area, that area is, in common parlance, "gone for good".
5. As a consequence, although I am dealing with circumstances where this Delegate's function has miscarried in a single, limited regard, the process undertaken with respect to the flipside of the coin, as it were, has been completed, leading to an irretrievable legal result with the only possible rectification, in the future, involving political and policy considerations entirely outside the scope of these proceedings.

Discretion

1. During the course of the hearing, I asked Mr Kennett what the Council submitted should be the outcome if I were to reach the conclusion (as I have now done) that the sole defect in the process was the matter pressed by the Council concerning the deficiency in the Delegate's consideration of the impact on the residents and ratepayers of the area south of the M2 Motorway. I made this enquiry because, if that were to be the sole ground, matters of discretion would arise as to whether any relief should be ordered. My exchange with Mr Kennett was in the following terms (Transcript 7 June p 89 L 36 to p 90 L 21): KENNETT: Your Honour, the next matter I was going to come to was the matter that you raised with me just before lunch, which is what the implications are of the excision of an area of Hornsby having already occurred, should the matter go back to the delegate. And this is on the assumption, I think as your Honour put to me, that that's the only basis on which‑‑ HIS HONOUR: I understand that. KENNETT: Firstly, as I think I acknowledged on Thursday, the circumstance that the delegate would be faced with and would have to consider would be the revised or the smaller Hornsby, the excision of the area south of the M2 being a fait accompli and, as we've said, nobody has challenged the proclamation that brings that about. And whether somebody in a process such as this might recommend that the excision be reversed is a matter for another day. HIS HONOUR: Well, that would be a new proposal, wouldn't it, in terms of‑‑ KENNETT: At least arguably, yes, I don't want to suggest that that's a necessary step. HIS HONOUR: You're not inviting me to go there, I'm assuming. KENNETT: No. If the only basis upon which we concede it was what I was putting to you just before lunch, which is that the delegate had failed properly to consider the effects of the excision and the position of ratepayers in that excised area. We would say that if that's an error of law and an error going to the delegate's jurisdiction, then it is still an error, even if the practicalities of the matter have changed by the time it gets back to him, so that the report is ultra vires or invalid or however one wishes to describe it, prima facie at least, my client is entitled to have it set aside. The only reason why your Honour might consider not setting it aside would be a question of utility. As to that, there is utility for my client because, with the report having been set aside, the delegate would, effectively, have to begin - or a delegate, not presupposing who it would go to, would need to start again and we would have a chance to convince that delegate of everything.
2. It is settled that the making of a bare 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). The making of such a declaration in these proceedings would have no functional value of a prophylactic nature (contra the position in 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 some legal requirement has been contravened will serve to redress some or all of the harm brought about by that contravention. However, it seems to me that an appropriately framed declaration would have no utility in these proceedings in circumstances where there is absolutely no other defect in the process undertaken for this proposed amalgamation.
4. As a consequence, I have concluded that I am unable to agree with Mr Kennett's proposal that I should, in effect, use this confined defect in the Delegate's carrying out of his function as a basis to set aside the totality of the process and, in effect, return the matter to the Acting Chief Executive to permit a further process to be undertaken pursuant to s 263 of the Local Government Act (whether by Mr West or by a different delegate then being a matter for the Acting Chief Executive).
5. Although the Delegate's process for this proposal has miscarried in a single (albeit important) aspect, the consequence of that failure has now been rendered immaterial as a consequence of the 12 May Proclamation creating the new local government area into which the area south of the M2 Motorway, formerly in the Hornsby local government area, has now been incorporated.
6. Requiring the Delegate to examine and report upon the matters inherent in the consideration of the excised area would be futile, as the excised area cannot be "recovered", and the report of the Delegate in his consideration of the remaining aspects he was required to examine and report upon contain no defects requiring the conclusion that the Delegate's functions miscarried in any other respect.
7. It therefore remains for me to consider what, as a matter of discretion, I should do as a consequence of my finding that the Delegate's process for this proposal miscarried in the narrow fashion I have earlier set out.
8. Ordinarily, it might be expected that the outcome of this conclusion would be a declaration that the Delegate's process had miscarried and, perhaps, an injunction restraining the Minister from making any recommendation to the Governor founded on the Minister's consideration of the Delegate's report and recommendation and the comments on the Delegate's report provided to the Minister by the Boundaries Commission.
9. Such a process, in effect, would leave it open to consideration by the Acting Chief Executive to recommence the process or have the Delegate rectify the defect found. If, on the other hand, having regard to the fact that the defect in the Delegate's process is one that can no longer impact on the implementation of the process should the Minister determine to proceed with it in the fashion envisaged by s 263(7), there is no defect in the Delegate's examination and reporting process, nor in the comments made by the Boundaries Commission upon it arising out of that body's review of the Delegate's report, that would act as an impediment to the Minister doing so.
10. Whilst it is also the position that the making of a bare declaration without granting any consequential relief might have the effect of admonishing the Delegate, such a process should not be undertaken as it would lack any practical effect and thus be contrary to authority as earlier discussed.
11. As a consequence of there being no other defect in any aspect of that which has been undertaken concerning this proposal, other than a defect for which there is no practical remedy, I have concluded that it would not be appropriate, in effect, to require the process to restart by restraining the Minister from acting on the Delegate's report.

Conclusion

1. I have concluded that the only defect in the process undertaken concerning this proposed merger was a failure by the Delegate to give adequate consideration to one aspect of the mandatory matters to which he was required to have regard, by the terms of s 263(3) of the Local Government Act, in his examination of and reporting on the proposed merger.
2. This defect was his failure to consider the impact of the proposed merger on the residents and ratepayers of the area south of the M2 Motorway that had been portion of the Hornsby Shire Council local government area. However, as that area south of the M2 Motorway has been excised from the Hornsby Shire Council local government area and incorporated in the expanded Parramatta City Council (by virtue of the 12 May Proclamation), there is no functional utility in making a declaration that would have the effect of setting aside the Delegate's report until he had remedied this omission.
3. As the mere making of a declaration about the extent to which the Delegate's process has miscarried without granting any relief for it would be inappropriate, the outcome, after consideration of relevant discretionary matters, must be the dismissal of the proceedings.

Costs

1. Although the proceedings are to be dismissed, for the reasons of lack of practical utility in doing otherwise, the Council has succeeded on one of the grounds advanced. How this should be dealt with in the context of any costs order was not considered during the hearing. It is therefore appropriate that costs be reserved.

Orders

1. Therefore, the orders of the Court are: 1. The proceedings are dismissed; and 2. Costs are reserved.

Amendments 21 September 2016 - Changes to appearances for the Respondent on the cover sheet. 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