South Sydney Council v Local Government Boundaries Commission and Anor.

South Sydney Council v Local Government Boundaries Commission and Anor. - [2001] NSWLEC 280 - NSWLEC 2001 case summary — Zoe

[24]

By letter dated 28 November 2001, the Mayor respondent as follows: Dear Ms Hall, I write in response to your letter received on the 27th November 2001 to present a formal submission to the Boundaries Commission, by December 5th, within 6 working days. The proposal announced in Parliament this month has not been the subject of any assessment by the residents and ratepayers who legally and in good faith elected South Sydney Council. This is contrary to the intent of Section 263 of the Local Government Act, especially 2B, Reasonable Public Notice and (3) Consideration, and suggests that such precipitous action by the Government makes a mockery of undue process or accountability. Consequently, my colleagues and I expect reasonable time to consult with those citizens and ratepayers before formulating the formal submission. I note that the current proposed boundary changes are not those recommended by Professor Sproats. Further, Professor Sproats only sought submission from interested citizens and parties. He did not conduct a survey or poll. Submissions could obviously contain inherent bias throwing considerable doubt on the submission being reflective of public opinion. This aside, if the inference by Professor Sproats was that suburbs are not to be split between local governments, then I would submit that the jagged boundary that exists from re-establishment of this Council when it separated from the City of Sydney of 1st January 1989 is the boundary that needs justifying. You will note that the citizens of South Sydney have not elected either the Minister who made this decision or the Lord Mayor of Sydney who covets those citizens. Therefore, despite what this Council chooses to do, Section 265 of the Act clearly requires the Commission to seek assistance for their considerations by determining the attitude of the residents by opinion survey. Such a survey must include those citizens and ratepayers of the whole of South Sydney Council local government area. The haste of your proposal is more alarming when it is noted that the third position of the Commission in unfilled. If this situation remains when your considerations begin, broad criticism will surely follow. Finally, your comments if you are intending to take this opportunity (for a formal submission) …, in the face of the removal of one third of residents and half of Council's income, is insulting to the citizens and ratepayers of South Sydney. Respectfully, and in the interests of good governance, I urge you urgently review the methods and the timetable for the undertaking of the Commission's functions.

[28]

In the following passages (at par 13 to par 18 inclusive) from his affidavit the Mayor expresses his concern that the first Respondents' consideration of the proposed boundary changes will proceed in "the absence of adequate information in relation to the impacts of the proposal":
I am aware that for the purposes of preparing a report to the Minister in relation to a boundary change, the Boundaries Commission is required to have regard to the matters set out in s263(3) of the Local Government Act 1993.
Given the statements made in its letter to Council, I am concerned that the Boundaries Commission will proceed to examine and report on the Proposal in the absence of adequate information relating to the impacts of the Proposal.
I note from the Boundaries Commission letter of 26 November 2001, that it will review and consider comments made as part of the Sproats review. I have considered the Sproats Report. In my opinion, the Sproats Report does not provide information that would permit the Boundaries Commission to consider the matters it is required to consider in s263(3) of the Local Government Act.
The Council made a written submission to the Sproats inquiry. That submission addressed matters relating to amalgamation. It did not specifically address matters relating to boundary changes other than in relation to minor boundary re-alignments.
In my opinion, the council's submission to the Sproats Inquiry does not provide information that would permit the Boundaries Commission to consider the matters it is required to consider in s263(3) of the Local Government Act.
I have previously reviewed the submissions made by councils that were also involved with the Sproats Inquiry including Waverley Council, Woollahra Council, Marrickville Council, Leichhardt Council and Randwick Council. In my opinion, those submissions do not provide information that would permit the Boundaries Commission to consider the matters it is required to consider in s263(3) of the Local Government Act.

[40]

Section 263 which specifies the functions of the Commission relevantly provides as follows: 263. (1) The Boundaries Commission is required to examine and report on any matter with respect to the boundaries of areas and the areas of operation of county councils which may be referred to it by the Minister. (2) For the purpose of exercising its functions, the Boundaries Commission: (a) may hold an inquiry if the Minister so approves, and (b) must hold an inquiry if the Minister so directs, but may not hold an inquiry otherwise than as referred to in paragraph (a) or (b). (2) When considering any matter referred to it that relates to the boundaries of areas or the areas of operations of county councils, the Boundaries Commission is required to have regard to the following factors: (a) The financial advantages or disadvantages (including the economies or diseconomies of scale) of any relevant proposal to the residents and ratepayers of the areas concerned; (b) the community of interest and geographic cohesion in the existing areas and in any proposed new area; (c) the existing historical and traditional values in the existing areas and the impact of change on them; (d) the attitude of the resident and ratepayers of the areas concerned; (e) the requirements of the area concerned in relation to elected representation for resident and ratepayers at the local level, the desirable and appropriate relationship between elected representatives and ratepayers and residents and such other matters as it considers relevant in relation to the past and future patterns of elected representation for that area; (e1) the impact of any relevant proposal on the ability of the councils of the areas concerned to provide adequate, equitable and appropriate services and facilities; (e2) the impact of any relevant proposal on the employment of the staff by the councils of the areas concerned; (e3) the impact of any relevant proposal on rural communities in the areas concerned; (e4) in the case of a proposal for the amalgamation of two or more areas, the desirability (or otherwise) of dividing the resulting area or areas into wards; (e5) in the case of a proposal for the amalgamation of two or more areas, the need to ensure that the opinions of each of the diverse communities of the resulting area or areas are effectively represented; (f) such other factors as it considers relevant to the provision of efficient and effective local government in the existing and proposed new areas. E. IS THE COUNCIL'S CLAIM TO INTERLOCUTORY RELIEF WITHIN THE COURT'S JURISDICTION?

[56]

Concerning the second assumption, the question whether there has been a breach or denial of the obligation to afford procedural fairness depends upon the content of the relevant obligation. In this respect, the following passage from the judgment of Mason J in Kioa v West (1985) 159 CLR 550 at 584-5 has been adopted by subsequent High Court decisions: The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention ... But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision: ... which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a policy or political decision and is not subject to judicial review.' (Salemi (No 2) 1977 137 CLR at 452 per Jacobs J). Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. ... What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision maker is acting. ... In this respect the expression procedural fairness more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, ie in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, in the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations."

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