The NSW Court of Appeal has ruled that the process used to support the proposed merger between Ku-ring-gai and Hornsby Councils did not accord with procedural fairness.
At the heart of its challenge was a report by consultancy KPMG, which recommended Council mergers and which the government refused to release in its entirety, claiming it was subject to “public interest immunity”.
Based on KPMG’s analysis and modelling, the Government’s merger proposal stated that “around $70 million in net financial savings over 20 years” would be achieved through the amalgamation of Ku-ring-gai with part of Hornsby Shire.
Judges Robert Macfarlan and John Basten ruled that the delegate appointed to assess the proposed merger could not have properly carried out his assessment without access to the KPMG report. They also found that the public interest in keeping the report secret was outweighed by the public interest in making the information available.
Judge Basten found that the financial advantages identified by KPMG for the government were a critical element in favour of the merger, but this analysis was not provided to the delegate or public. As a result, the delegate, Mr West had “constructively failed” in his statutory duty of examining the government’s merger proposal.
“The Council was right to assert that the delegate could not properly carry out his function of examination without having access to that material,” Judge Basten ruled.
“Release of the material was also necessary for public participation in the public inquiry to be meaningful.”
Greens local government spokesman David Shoebridge said: “Today the Court of Appeal has said the obvious, that it is blatantly unfair to forcibly amalgamate a local council on the basis of a secret report.
“This decision doesn’t just affect Ku-ring-gai Council, it could dismantle every single outstanding amalgamation proposal.”
This ruling could affect other Councils opposed to the merger, including Burwood, Canada Bay and Strathfield which have also lodged an appeal in the Supreme Court as well as Hunters Hill, Lane Cove and Ryde; Mosman, North Sydney and Willoughby; and Randwick, Waverley and Woollahra.
Monday’s judgment ordered that Mr West’s report recommending the Council merger be set aside and that any subsequent review by the Boundaries Commission be set aside.
(SMH, 27 March 2017)