Latest Botany Bay challenge to amalgamation dismissed in the Court of Appeal

Botany Bay City Council v The State of New South Wales [2016] NSWCA 243

In a new judgment handed down last week, the Court of Appeal dismissed the latest challenge by the City of Botany Bay Council to the State Government’s proposed amalgamation proposal that would see Botany merge with Rockdale Council.

The Supreme Court had previously held that the amalgamation proposal and process was valid. Council appealed this decision on 13 grounds, summarised in the following:

• The Boundary Commission’s review on the amalgamation proposal was beyond its powers as bestowed by section 218F(6)(b) of the Local Government Act and the Court failed in concluding otherwise;

• Council was not afforded procedural fairness in regards to the limited time it was given to make submissions on the review and the Delegate’s report and the Court was wrong to conclude it was;

• The Minister’s decision-making process was, or appeared to a reasonable person to be, biased;

• The Minister’s Delegate denied Botany procedural fairness by not affording an opportunity to answer the adverse findings proposed to be made regarding a community poll it had conducted on the proposed amalgamation.

The Court of Appeal unanimously held:

• The Boundary Commission’s review was lawful, having been conducted in accordance with the authority given to it by section 218F(6) of the Local Government Act;

• There was no evidence to suggest that the time given to make a submission was insufficient and the Minister’s only obligation was to afford a reasonable timeframe (which he did);

• Council had not raised the bias argument before the Supreme Court and thus it could not be argued for the first time as part of the appeal;

• The Delegate was not obligated to advise Council on each issue encountered in the Minister’s proposal to satisfy procedural fairness requirements. The Court also outlined that the Delegate was entitled to give little weight to Council’s community poll as it had been framed in opposition of the proposal rather than providing for a balanced response.

• Council must pay the Minister’s costs of the proceedings.

The decision is a further blow to those councils who maintain objections to the proposed amalgamations and it remains to be seen whether Botany will seek leave to take its challenge all the way to the High Court.

We are also currently awaiting judgment for the Woollahra Council Court of Appeal proceedings which should be handed down in the coming weeks. The Woollahra appeal was made on slightly different grounds to the Botany challenge and will have repercussions for other council challenges which have been stayed pending its outcome.

Bartier Perry will be providing further updates on amalgamation proceedings in due course. 

Author: Steven Griffiths