On Friday 15 April, the Court of Appeal delivered its judgement against Botany Bay City Council (Council) with respect to whether the Delegate assessing the Minister’s amalgamation proposal was required to consider a Council initiated amalgamation proposal.

Background

On 18 December 2015, the Minister informed Council of the proposed amalgamation with Rockdale City Council. On 6 January 2015, the Minister’s proposal was referred by the Minister to the Departmental Chief Executive for examination and report. On the same day, the Chief Executive delegated his functions to the Delegate.

On 7 January 2016, the Delegate formally notified the Council of the Minister’s proposal and of his appointment to examine that proposal. The Delegate invited representatives of Council to meet and discuss the Minister’s proposal and any relevant information relating to the proposal. The Delegate also encouraged Council to make its own submissions before 28 February 2016, and invited the Council’s representatives to speak at a public inquiry.

Council provided its submission to the Delegate on 28 February 2016, and an addendum on 3 March 2016. An update on Council’s submission was provided on 7 March 2016.

On 11 March 2016, Council initiated its own amalgamation proposal. When Council’s proposal was formally provided to the Minster on 11 March 2016, it requested that the Council- initiated proposal be urgently referred to the Delegate.

On 31 March 2016, Council’s legal representatives wrote to the Delegate enclosing the Council’s original letter to the Minister and the Council’s proposal. The Council’s legal representatives also wrote to the Minister seeking confirmation that the Council-initiated proposal had been referred to the Delegate. The Crown Solicitor’s office responded confirming that the Delegate would consider all relevant information provided by Council and that consideration of Council’s proposal of 11 March 2016 was a matter for the Chief Executive.

Land and Environment Court

On 23 March 2016, the Council commenced judicial review proceedings in the Land and Environment Court insisting that its proposal be considered by the Delegate in the Delegate’s consideration of the Minister’s proposal. The Council claimed that a failure to consider its proposal in the process of examining and reporting on Minster’s proposal would be denial of procedural fairness.

Justice Pain disagreed.

On Appeal

Before the Court of Appeal, Council argued that its proposal was a mandatory relevant consideration to which regard must have been given by the Delegate and the Departmental Chief Executive in the course of their examination of the Minister’s proposal.

In dismissing the Appeal, the Court held that there was no statutory basis for suggesting that the Delegate must take into account other new proposals when he is considering the Minister’s proposal as those proposals were not an essential consideration under s263 of the Local Government Act 1993 (NSW). The Court of Appeal held that it did not need to consider whether Council’s proposal constituted a modified or new proposal as in any event, the Delegate had informed Council that he would consider its proposal. Under the circumstances, the Court of Appeal held that Council was not able to establish a lack of procedural fairness.

Council’s appeal was dismissed, with costs.

A link to the Court of Appeal’s judgment can be found here.