April 2 - 8, 2017: Issue 307

Forced Amalgamations Hit a "Procedural Fairness" Snag that may bring every imposed merger completely undone

News this week that the Ku-ring-gai Council forced merger with Hornsby Shire should not proceed in its current form, as ‘the appellant was denied procedural fairness in that the delegate had relied in his report on the KPMG documents which were not made available to either the appellant or the delegate’ has been heartening news for forced amalgamation opponents within Pittwater.

In addition, Judge Basten pointed out that "Release of the material was also necessary for public participation in the public inquiry to be meaningful."

This case point echoes that stated by many who have said that the whole of the ‘amalgamation process’ had been predetermined and any ‘public hearings’ were farcical. The full text of the court's judgement can be read here.

Ku-ring-gai Mayor Anderson encapsulated basic democratic values, the ability of an electorate to control its government, when stating on Monday,
"This merger should not proceed because Ku-ring-gai ratepayers will be robbed of the means to decide how and where our rates are spent and of any real say in how our local area is managed.”

Ku-ring-gai were successful in obtaining a copy of their Delegate’s report in April 2016, although they had to do so in proceedings against the state government in the Supreme Court.

Then Ku-ring-gai Mayor Cheryl Szatow said “Garry West’s report does nothing to dispel the cynicism surrounding the whole merger process that is being stage managed by the Baird government.”

“This is a Premier and a government that has wasted millions and millions of dollars over the last four years pushing the merger process, when the outcome was already decided.”

According to Mayor Szatow, some of the ‘most incredulous’ parts of the report included:
" • Despite 83% of submissions and speakers at the public inquiry expressing strong opposition to the merger, consistent with the results of an independent survey conducted in 2015, those views were discounted as ‘no impediment to the amalgamation proposal’. In fact, the attitude of ratepayers and residents is a mandatory legal consideration under Section 263 of the Local Government Act.
• His financial conclusions for why a merger should proceed based on superseded data and without the KPMG report, which has still not been publicly released. The Delegate accepted the state government’s financial claims about mergers without testing the veracity of those claims.
• An allegation that Ku-ring-gai Council had manipulated residents’ submissions to the public inquiry with form letters, which is untrue."

Similar sentiments were stated when Pittwater was required to answer its own case to be ‘Fit for the Future’ and then again when ‘scale and capacity’ became the means test and a prelude to all being judged per a KPMG report that still hasn’t been released. 

Richard Pearson’s report is now available, without having to go to court, and which dealt only with Warringah Council's merger proposal for the amalgamation of Manly, Warringah and Pittwater, here: 

Worldwide forced amalgamations have proved to be a failure. They are a disenfranchising of democracy which robs an electorate of its voice and does so without its consent.  Governments who have imposed them have been thrown out – those that replace them, although promising to reverse them, usually play similar shenanigans to frustrate a return to what was before.

The reasons for amalgamating councils are often touted as cost-saving, that larger government units will be more efficient, exercising economies of scale. The reality is that the economies of scale that are actually achieved are only for special interests.  The amalgamation reforms in both Victoria and in Queensland have failed to deliver the promised savings.

Given the costs already spent on the New South Wales amalgamations (Office of Local Government's annual report  states the NSW government has spent $357, 750, 000 million on council reform last financial year) the ‘cost-saving’ may be fast diminishing here too. 

Unfortunately the one regional council model imposed here has taken away ‘local’ government and seems to have reignited an old fight where history will simply repeat itself.

We spoke this week to Bob Grace, one of those who remained opposed to the amalgamation and fought, along with Councillors Hegarty, Griffith and Young to take Pittwater’s case to court too – a motion they initially won that was overturned days before a Pittwater Council Meeting at which all Councillors could be present and Pittwater was forcibly merged.

What do you think about Monday’s news regarding Ku-ring-gai councils Supreme Court appeal?
Ku-ring-gai Council have worked hard in their fight against being forcibly merged with Hornsby and this week saw a great vindication of their staunch adherence to what their community wanted them to do.

Unfortunately we in Pittwater had some Councillors who voted not to instigate legal proceedings and pursue legal action and as a result we were forcibly merged.

There is still a question over that second Motion that was brought while some Councillors were absent as the General Manager sought advice, on which that Motion was then based, without Council or Councillors permission.

Sue Young and myself strongly advocated at that quickly called last Meeting that we pursue and fight for Pittwater. We wished to employ the services of the solicitors who are still fighting on behalf of some councils, and those who have helped Ku-ring-gai Council.

Pittwater also had not had access to that KPMG Report, nor had the gentleman who was to decide the matter, Richard Pearson. In fact, not one forcibly merged council had, nor the residents who made submissions.
This reiterates that we should take action and pursue the matter.

What is the mood in the community, are people seeking a way forward to take similar action?
The mood in the community at present seems to be that people don’t really want to go out and agitate, they want and expect others to do this and they are. Those local community groups and organisations have expressed they are encouraged by this week’s developments and exploring options.
There is a definite undercurrent where people are disgusted with politicians who refuse to represent those who elected them, the perception is they are simply representing themselves. The biggest perception expressed is that the current Liberal government has sold us out and many who have been lifelong Liberal voters have stated they will not be supporting this party again.

On Sunday April 9th, the day after the by-elections, there will be a rally in Mona Vale Park, commencing 11 a.m., where the focus will be on the B-Line, which people are unhappy about and cite as a means to suit Developers ends in Mona Vale and surrounding suburbs.

I will be speaking about this week’s Supreme Court decision and I’m sure Sue Young will be joining me. Mona Vale Hospital plans are also to be discussed as the community feels their views on this are being taken no notice of.

If those attending decide to fight the merger, what grounds will they be basing their case on?
There are considerable grounds to take to court, the main one being of course the withheld KPMG Report on which all councils were forcibly merged which is procedurally unfair.

These court cases are prohibitively expensive, averaging a quarter of a million in those funded so far, how would the legal fees be raised since Pittwater Council has been forcibly merged, along with its prior and separate budget?
We are hoping those who have expressed their opposition, which bear in mind was 89% of Pittwater residents, will instigate at the rally on April 9th a fighting fund. We can get Barristers and Solicitors to take this on and act on our behalf. 

As the recent case shows, with the State Government now having to pay Ku-ring-gai Councils costs, money which the tax payer ultimately is paying, redressing what is becoming more and more transparently wrong on moral, legal and community grounds, will cost – at least once for every single council, or its residents, that now has to choose to fight, again. Once in them having to raise the funds to fight, and perhaps again when they have to pay the State Government’s bill, as taxpayers, to fight them.

We’re hoping that after next Saturday’s by-election the Premier will realise this merger is a disaster and de-merge all those councils, as their residents will continue to vehemently oppose the loss of their own representatives. 

On succeeding to the Premiership Gladys Berejiklian stated that she was a person who was going to listen to the community. In Pittwater 89% stated they did not wish to be merged with Warringah, something that will not be waylaid by sudden by-election tunnels or anything else. 

In fact she is listening to lobbyists who are intent on destroying this community to suit their own ends and diminishing the place we are seeking to have those who come after us inherit. 

This is why people are expressing their opposition to the B-Line service as it is perceived as a means to state inappropriate developments are warranted. 

In saying this I must refer to when I worked as a Warringah Shire Councillor for the A Riding Ward, which was Pittwater. We had only 3 representatives as is slated for this council for which elections are scheduled for September. We were always outvoted – nothing came Pittwater’s way except the opposite of what people wanted. 

What will happen if this takes place is we will end up with six storey buildings at Mona Vale, and then elsewhere, because Pittwater will be where it was prior to secession, a cash-cow to be milked.

What has been happening during the last 10 months is an absolute disgrace. 

This problem is not going to go away for this current State Government, or those they have employed to instigate and rush through changes to the structure of our councils. The cost for dismantling what they have imposed on communities will be just another giant cost added to that already totalling hundreds of millions of dollars to dispossess every community of basic democracy.

Below run Media Releases issued by Ku-ring-gai Council and Local Government NSW,  the association that represents the interests of NSW general purpose councils, 12 special purpose councils and the NSW Aboriginal Land Council.

A spokesperson for Local Government Minister Gabrielle Upton, once a vocal opponent of forced mergers, said the government was considering the implications of Monday's decision, but confirmed it was determined to push ahead with the merger "given the clear benefits it will have for the local communities".

By January this year Ku-ring-gai Council had paid lawyers $250,942, Woollahra $850,000 – in fact it is estimated over 3 million had been spent at the opening of this year by councils fighting against forced mergers.

This is a 'drop in the ocean' compared to the $357, 750, 000 million spent on council reform last financial year alone though - or that could have been spent on a decent hospital upgrade or more than 'patch a pothole' road remedies like that witnessed in Pittwater this week - shovel some hot mix of tar and gravel in, pat it down with shovel, move quickly along  - pothole back less than one hour later and blue gravel and bits of dried tar strewn at side of road to blind anyone unfortunately strolling past. 


Is the taxpayer better off funding something other than lawyers employed by the state government to fight against their clearly expressed wishes? - or are the statistics that were disclosed 89% wrong?

Meanwhile, in Parliament this week, the Local Government Amendment (Rates—Merged Council Areas) Bill 2017 formed part of Tuesday's the 28th of March 'debates' during its 2nd reading where it turns out 'rate freezes' prior to forced mergers is now ' The bill provides the Minister with a power to require a new council to maintain the rate path that applied to its former council area for three years following the first year of the new council once created by proclamation.'

The Hon. Peter Primrose stated during this reading that:
"Individual rates are also affected by other factors, such as land valuations that can affect percentage changes to rates alongside the rate-pegging process. The Valuer General provides new land values every three years, which affects rates, but the bill does not make clear how this will affect so-called rate paths. Thus, for the Northern Beaches Council, rates in the former Warringah and Pittwater council areas are based on land values as at 1 July 2015, while those in Manly are based on 1 July 2014. Despite the so-called rate path, the Northern Beaches Council and its website states that, when property values are assessed again, individual ratepayers may experience large rate increases. At the same time, the website acknowledges the imminent passage of this legislation."

This Bill passed this week.

The Hon. Brad Hazzard, MP for Wakehurst and NSW Minister for Health also spoke during the Tuesday sessions regarding birthing pools at the new hospital, stating the number of these would be increased from two to three and praising the work done by staff at Manly and Mona Vale Hospitals. 

The councils that have not yet been merged because of legal challenges are: Burwood, Canada Bay and Strathfield; Hornsby and Ku-ring-gai; Hunters Hill, Lane Cove and Ryde; Mosman, North Sydney and Willoughby; and Randwick, Waverley and Woollahra.

Court judgement on forced merger between Ku-ring-gai Council and Hornsby Shire

Published on 27 March 2017 by Ku-ring-gai Council
The Court of Appeal has found in favour of Ku-ring-gai Council in a decision handed down today.

Acting Justice Sackville delivered the verdict by a panel of three judges at 10.15am on Monday 27 March, finding that there were reasons in law why the proposal to forcibly merge Ku-ring-gai Council and Hornsby Shire should not proceed in its current form.

Speaking after the judgement was handed down, Mayor Anderson said she was ‘heartened’ by the court’s decision.

“The very real concerns of our Council and residents over this merger have been ignored by the government and we feel vindicated by today’s decision.”

“This merger should not proceed because Ku-ring-gai ratepayers will be robbed of the means to decide how and where our rates are spent - and of any real say in how our local area is managed.”

“We believe the court’s decision signals a turning point for Premier Berejiklian’s government. If they continue with the merger process they will be flying in the face of our community and the court.”

The Mayor said she and her councillor colleagues would wait to see what the state government would do after the court’s decision.

“We will continue to seek meetings with Premier Berejiklian and the Minister for Local Government Gabrielle Upton to press our case against being forcibly merged with Hornsby,” Mayor Anderson said.

“When Premier Berejiklian was elected as leader of the government she promised to listen to the people. We have had to go to court to get the government to listen to us and I am seeking a change of heart from the Premier on this issue as a matter of urgency.”

The full text of the court's judgement can be read here.

Did Govt's Tight Lips Sink the Amalgamation Ship?

Tuesday March 28, 2017 – By LGNSW
Metropolitan councils challenging forced amalgamations have been given new hope after the NSW Court of Appeal today effectively overturned the NSW Government's bid to merge Ku-ring-gai and Hornsby councils.

Local Government NSW President Keith Rhoades said the decision had significant implications for the metropolitan councils still in the courts - and questioned what it says about amalgamations that had already taken place.

The Court of Appeal today upheld Ku-ring-gai Council's appeal against its forced amalgamation on the grounds that the former Local Government Minister's decision to proceed was fundamentally flawed.

At the heart of the issue was the Government's failure to release in full a KPMG report which the Government claimed demonstrated significant financial benefits of amalgamation.

The Local Government Act includes financial advantage or disadvantage as a key criterion which must be considered by any delegate tasked with investigating an amalgamation proposal and forming a recommendation for Government.

Two of the three Appeal Court Judges held that the delegate for the Ku-ring-gai-Hornsby merger could not properly determine financial advantage or disadvantages because the report was not made available to him.

The NSW Government has withheld the KPMG report to date.

However, Justices Basten and Macfarlan today said the public interest in releasing it far outweighed any claims to confidentiality.

Clr Rhoades said the Government appeared to have become a victim of its own secrecy.

"The old saying is that loose lips sink ships, but in this case it looks like secrecy and a lack of transparency has done a job on the SS Forced Council Amalgamation," he said.

"Today's judgment poses a real problem for the Government, because every delegate for every forced amalgamation that has taken place relied on this unseen KPMG Report."

Councils still awaiting the decision of  the courts include Burwood, Canada Bay and Strathfield; Hunters Hill, Lane Cove and Ryde; Mosman, North Sydney and Willoughby; and Randwick, Waverley and Woollahra.

"Unsurprisingly those councils mounting court challenges feel pretty vindicated today," Clr Rhoades said.

The Court of Appeal today also confirmed that the delegate did not assess the merits or otherwise of the boundary change which shifted part of Hornsby Shire south of the M2 motorway to the City of Parramatta Council.
Report by A J Guesdon, 2017.