No amalgamation. Yet?

The NSW Land and Environment Court has handed down its decision in relation to the proposed merger of Willoughby, North Sydney and Mosman Councils.

The Commissioner found:

The proposed Mosman, North Sydney and Willoughby amalgamation

I have concluded that only one of the specific complaints raised by the Councils which challenged this amalgamation is valid. This means that the Delegate who had been assigned the task of inquiring into, and reporting on, this proposed amalgamation had failed, adequately, to have regard to one aspect of the elements mandated by s 263(3) of the Local Government Act 1993 (the Local Government Act) as part of his inquiring into and reporting upon this proposed amalgamation.

The consequence of this failure is that the report prepared by the Delegate, and provided by him to the Local Government Boundaries Commission (Boundaries Commission) and the Minister, does not constitute a report, in this regard, in satisfaction of the statutory requirements of the Local Government Act.

The outcome is that the Delegate has not completed the task for which he was appointed and thus, at the present time, there is no proper statutory foundation for this proposed amalgamation. This means that this proposed amalgamation remains in the hands of the Delegate.

In making this determination, the Commissioner found:

Provision of adequate, equitable and appropriate services and facilities

As earlier set out, the Councils’ complaint on this point is that the Delegate failed to give any adequate consideration to “the ability of the councils of the areas concerned to provide adequate, equitable and appropriate services and facilities”.

The Councils’ written submissions addressed this point as follows:

75. The next error committed by the Second Delegate was to fail to consider factor (e1) relating to 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. As such, the Delegate was required to consider the impact of the Second Proposal on the provision of adequate, equitable and appropriate services and facilities.

76. The Second Delegate’s consideration of this issue is contained in section 5.6 of his report. After summarising submissions made concerning likely levels of service under the proposed new entity, the Delegate concluded (as p.33) that under the merger proposal, and pursuant to Government policy, the service level trajectory was fixed for 4 years, and that beyond that time, service levels would be a matter for any new merged to determine. The Delegate comprehensively failed to consider the fundamental issue, namely whether service levels would be likely to decline or not. That was the conclusion reached by the Boundaries Commission.

To give a context to the above, I reproduce the relevant extract from the Boundaries Commission’s comments on the s 263(3)(e1) aspect of the Delegate’s report. The Commission said:

[5.2.6] – Service delivery and facilities

Section 263(3)(e1) of the Act requires the Delegate to have regard to:

“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”.

The Delegate stated that service delivery received a large level of interest with around half of written submissions identifying service factors. He noted the themes presented in this factor included differing levels of satisfaction with current service delivery, concerns over loss of services in a merged entity, local community service involvement (“volunteerism”) and the different needs of the different council areas.

The Delegate stated that under Government policy for merged entities, the service level trajectory would be fixed for four years. Beyond that time, the Delegate considered that service levels would be a matter for any new merged Council to determine in consultation with its community as part of the Integrated Planning and Reporting process including consideration of the maintenance of an administrative presence at North Sydney, Chatswood and Mosman. The Delegate also concluded that volunteering would not be expected to decrease in the event of a merger.

The Commission’s view is that the Delegate did not adequately consider the issues under this factor.

In conclusion the Commissioner found:

Mosman and North Sydney Councils

(Note: Willoughby Council had been ‘joined’ to the case’)

I have concluded that none of the general complaints concerning the proposed amalgamation process for these Councils are well founded and those complaints provide no basis to prevent this amalgamation from proceeding.

However, for the reasons earlier set out, I have concluded that the Delegate’s functions pursuant to s 263(3) have miscarried in that the Delegate constructively failed to address one of the provision’s mandatory requirements, that being the requirement to have regard “to the need to ensure that the opinions of each of the diverse communities of the resulting area or areas are effectively represented” (s 263(3)(e5)).

On the other hand, I am satisfied that the Delegate’s exercise of his functions with respect to any of the other elements of s 263(3) did not miscarry.
These findings mean that the Delegate has not yet completed the task delegated to him by the Acting Chief Executive.

For the reasons earlier discussed, the appropriate outcome in each of the Mosman Municipal and North Sydney Council proceedings is the making of a bare declaration that the report furnished by the Delegate to the Boundaries Commission is not a valid report in satisfaction of the requirements of s 218F(6)(a) of the Local Government Act.

Costs

(Note that because Willoughby City Council had been “joined’ to the case and was not a Respondent in the case, there was no costs to be levied from them).

Mosman Municipal Council matter

In Matter No 155301 of 2016, the orders of the Court are:
Declares that the report furnished by the Delegate to the Boundaries Commission is not a valid report in satisfaction of the requirements of s 218F(6)(a) of the Act; and

Unless a party files a Notice of Motion proposing an alternative order on the question of costs by the close of business on Tuesday 4 October 2016, I will, on the day after that date, order that the First to Fourth and Seventh Respondents are to pay the Applicant’s costs as agreed or assessed.

North Sydney Council matter

In Matter No 158919 of 2016, the orders of the Court are:
Declares that the report furnished by the Delegate to the Boundaries Commission is not a valid report in satisfaction of the requirements of s 218F(6)(a) of the Act; and
Unless a party files a Notice of Motion proposing an alternative order on the question of costs by the close of business on Tuseday 4 October 2016, I will, on the day after that date, order that the First to Fourth Respondents are to pay the Applicant’s costs as agreed or assessed.

Commentary

What does this mean? The Government cannot forcibly amalgamate Willoughby, North Sydney and Mosman Councils at this time because the report submitted by the Delegate to assess the amalgamation proposal was deficient in one aspect. The Commissioner found that the proposed amalgamation lies in the hands of the Delegate.

The Government might reappoint the Delegate (or another Delegate to provide a complete report. Whether such a report would come to the same conclusion (recommending amalgamation) would be open to conjecture.

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Greater Sydney Commission 20 Year Plan for Northern Sydney

The new Greater Sydney Commission plan for Northern Sydney: http://www.greater.sydney The GSC has a broad remit to improve Sydney across the board, getting away from the siloed planning which unfortunately has dominated many planning decisions in the past. Currently the GSC is formulating at 20 year plan with a 40 year vision for our area. The draft will be released in November for public comment. The Commission is seeking the engagement of citizens as part of its planning process. Our Progress Associations have the opportunity to present briefly to the GSC on 19 September. We will also be preparing a more detailed submission on the draft plan. So if you have some ideas or solutions please forward them to FWPA or your local progress association as soon as possible. GSC also has a blog-style page where you can add a few words, or individuals and Progress Associations and other community groups can email engagement@gsc.nsw.gov.au if you wish to provide something more substantial.

Consider things such as GSC questions “What could we do to make your district better for people? What types of new or enhanced services (like schools, childcare and health services) and spaces (like public spaces and shops) would improve your district?” and other things such as what things do we want to retain for our community, what things do we want to change. Types of things you might like to consider are protection of existing conservation areas, more soccer & rugby fields, netball and basketball courts, a proper athletics facility, bigger kiss and drop at Chatswood Station, an off road cycleway all the way down the North Shore to the City, continued dog park access, Chatswood shops traffic issues and car access addressed, pedestrian and cyclist overpass at Boundary St. http://www.greater.sydney/places-and-spaces/forum_topics/what-will-make-a-great-place-for-future-generations

Welcome to FWPAs

The Federation of Willoughby Progress Associations is the peak body for the nine Willoughby Progress Associations. It acts on matters of general concern to the whole Willoughby community. Key issues addressed in recent years include Willoughby City’s Civic Place project, traffic and transport, improvements in community health services (particularly mental health), and water conservation and management. The Federation also supports individual progress associations’ local concerns.

New ward boundaries Under Amalgamated Council

It was commonly thought that the Administrator for Lower North Shore Council would work out the ward boundaries for the new amalgamated council after they were appointed, so that there may be time for consultation then, however word on the streets is that when the administrator was appointed to Botany Council last week after its unsuccessful court action, the new ward boundaries were announced at the same time (ie no consultation). We are liaising with the Honourable Gladys Berejiklian as to what the situation is.

Sydney Metro

The Sydney Metro has changed plans since the DA for the Metro Dive site was approved, and new plans include up to 160 truck movements a day down residential streets. There has also been poor stakeholder consultation on this issue. We have raised both issues with our local Member, The Honourable Gladys Berejiklian.

Traffic Committee

Can you please forward the following to the progress associations.

refer to the previously circulated agenda and papers (also attached to this email.)

Item 4.1 – Chelmsford Ave Naremburn. Recommendations adopted. Additional recommendation to monitor outcome. The circumstances of a short length of cul-de-sac forming a short length of a major cycle route was poor design in my view. The cycle route should be separate to the cul-de-sac road.

Item 4.2 – Ogla/Albert intersection Chatswood. Recommendations adopted. Council officers to discuss pedestrian crossing on site with local residents. Pedestrian measures will be at cost to council not RMS.

Item 4.3 – Herbert St Artarmon. Recommendation adopted. High friction pavement will be laid on a 100 metre section of Herbert St this financial year. A post meeting inspection inspection reveals an unexpected loss of kerbside lane at the bend in Herbert St just south of Ella St. Perhaps vehicles are being run off the road. The RMS accident data in the agenda papers does not say why vehicles ran off the road. Five accidents had injuries in circumstances where it wet in four instances and dark in three instances.

Item 4.4 – Hawthorne/Fuller intersection Chatswood. Recommendation adopted, but no council funding presently allocated for the works.

Item 4.5 – delegated items noted. 20 Oakville Rd Item 16/60 works are already complete.

Item 4.6 – Chatswood Public School. Recommendation 1 adopted for school days only. Recommendation 2 changed to 10 metre no stopping zone west of the crossing to improve visibility. The tree at the pedestrian crossing will be checked.

Item 4.7 – Willoughby Public School. Recommendations 2 and 3 are adopted. RMS advise convex mirrors are a poor solution and thus not approved. Council will look at other solutions such as locally pushing the footpath away from the obscuring wall and a barrier preventing people from walking next to the wall on the Oakville Road side.

Item 4.8 – 2 Robert St Artarmon. Due to other construction projects in west Artarmon, such as Metro Cable, 98-102 Hampden Rd, Artarmon Primary School, truck access to the Robert St site will be limited to a loop commencing at the Pacific Hwy, then Mowbray Road, Hampden Rd, Francis Rd, Robert St, Palmer St, Hampden Rd and back to the Pacific Hwy.

Item 4.9 – 88 Archer St – Traffic management plan for the rebuilding of Ferguson Lane approved – works already half complete.

Channel 9 development

A fabulous turnout of 180 people for a public meeting called at short notice in relation to the developers proposal to increase the number of dwellings on the Channel 9 site by 100, and to increase the number of storeys to 12. This site has been through significant consultation and the number of dwelling and the height was determined after review of the Land and Environment Court and the PAC. The developer bought the site knowing the level of consultation and the restrictions. It is not acceptable for these changes to be put up costing our community much more time and our council much more money.

The community responded to the Dep’t of Planning’s (DoP) Public Exhibition of the developer’s revised Environmental Statement with over 260 submissions.  Over 95% of these called for the development to be restrained to the previously agreed 400 apartments and 8 storey maximum height.  The department is reviewing the submissions and the developer will be asked to respond to the concerns raised.  Following this it is expected that the DoP will pass the developer’s application to the Planning Assessment Commission (PAC) and members of the local community will again have the opportunity to present their views in a public meeting before for the PAC makes its final determination.