Council of the Shire of Rosenthal v Minister for Housing, Local Government & Planning & Anor [1994] QSC 6

0 :Qf ' ,{) IN THE SUPREME COURT OF QUEENSLAND No. 954 of 1993 Brisbane Before Mr Justice Dowsett [Re: Rosenthal Shire Council and Ors] BETWEEN: COUNCIL OF THE SHIRE OF ROSENTHAL Applicant AND: THE MINISTER FOR HOUSING, LOCAL GQVERNMENT AND PLANNING First Respondent G T HOFFMAN Second Respondent REASONS FOR JUDGMENT - DOWSETT J. Judgment delivered tCounsel:; Solicitors: Hearing Date: 21/01/1994 Mr Clifford Q.C., with him Mr Roney for Applicant Mr H Fraser Q.C., with him Mr Lane for First ·Respondent Mr Boughan for Second Respondent Corser Sheldon & Gordon ( TI A Lyons) for Applicant Crown Solicitor for First Respondent Sly & Weigal Cannan & Peterson for Second Respondent 22nd December, 1993 -- 1 of 12 -- 0 0 0 IN THE SUPREME COURT OF QUEENSLAND No. 954 of 1993 Brisbane Before Mr Justice Dowsett [Re: Rosenthal Shire Council & Ors] BETWEEN: COUNCIL OF THE SHIRE OF ROSENTHAL Applicant AND: THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND PLANNING First Respondent G T HOFFMAN Second Respondent REASONS FOR JUDGMENT - DOWSETT J. i Judgment delivered 21./01/1994 t; The~applicant is a local authority constituted under the Local Go~ernment Act 1936 (as amended), the first respondent is the Minister responsible for the administration of that Act and the second respondent is the Local Government Commissioner appointed thereunder. Pursuant to s.4H of the Act, the Commissioner is obliged to examine, report and make recommendations to the Minister on any reviewable Local Government matter referred to him by the Minister. On -- 2 of 12 -- 2 29th March, 1993 the first respondent referred to the second respondent a series of such matters involving review of the external boundaries of the City of Warwick and the Shires of Glengallen, Rosenthal, Allora and possibly, Stan thorpe, the division of any new local authority area for electoral purposes and associated electoral matters. The only possible effect on the Stanthorpe Shire was the suggested inclusion in that Shire of an area described as the "Dalveen area", presently in the Shire of Rosenthal. The Local Government (Review of External () Boundaries) Regulation 1992 prescribes various matters which the Commissioner must take into account in considering external boundaries of a local authority area. I will refer to that regulation again at a later stage. Warw~ck city is the administrative centre of the region and is also the geographical centre. The Allora Shire is to the north and east of Warwick, Glengallen is to the south-east and south and Rosenthal is to the south-west and west. The populatio~ of this area, as at 1991, was slightly in excess of 19,000 pe~ple. I was informed in the course of argument that (J both Roserlthal and Glengallen Shires have their administrative CJt' offices in or near Warwick city. Broadly speaking, the second respondent was to consider the possibility of abolishing one or more of the existing local authority areas of Warwick, Glengallen, Rosenthal and Allora and creating a new area or new areas. After substantial investigation and consideration, a preliminary report was prepared. A summary of that . report appears at p. 116 of ex. 1 to the affidavit of Charles Patrick -- 3 of 12 -- 0 0 0 3 Evans filed on 10th December, 1993. The recommendations contained in the preliminary report were broadly as follows:- (a) that the four local authority areas, including the Dalveen area, be merged into one local authority area; (b) that the council for the new local authority area be first elected at the elections due in March 1994; (c) that the area be a shire; (d) that it be called the Shire of Warwick; (e) that it be divided into six divisions for electoral purposes; (f) that the composition of the council be a chairman and 12 members; (g) that the members be assigned amongst the divisions as follows:- Division 1 One Member Division 2 One Member Division 3 Two Members Divi;sion 4 One Member '~ Division 5 One Member Div4sion 6 Six Members (h) That. theI system. of voting be "first past the post" voting. The }balance of the recommendations concerned transitional matters. Sub-s.5(4) of the Act provides:- "If the Commissioner is considering recommending in a report that a reviewable local government matter be implemented, the Commissioner must first cause public notice to be given, by advertisement published at least once in - (a) the Gazette; and -- 4 of 12 -- 4 (b) a newspaper circulating in areas that would be affected by the reviewable local government matter if it were implemented." The section goes on to prescribe the form which the notice must take and the availability of appropriate documents for inspection. It was common ground before me that advertisement of the recommendations in the preliminary report was necessary in the present case and was effected in accordance with the Act. Section 5 further provides:- "(10) ( 11 ) The Commissioner may vary the proposed recommendation of which public notice was given under subs.(4). However, the Commissioner may substantially vary the proposed recommendation only if the Commissioner gives public notice of the varied proposed recommendation under subs . ( 4 ) . " It was common ground before me that the Commissioner could not substantially vary his proposed recommendations as to any reviewable local government matter after advertisement unless he first advertised the proposed amendments in accordance with I subs.5(4). Creating a new local government area, fixing its ( )) ()l ,. (J!boundarier and its electoral divisions are all reviewable local matters. recommendation, ! the Following advertisement of his second respondent varied those recommendations in his final report, but did not advertise those variations. The final report recommends amalgamation and the division of the new area into six electoral divisions. However the suggested allocation of members amongst those divisions is now as follows:- -- 5 of 12 -- () 0 5 Division 1 One Member Division 2 Two Members Division 3 Two Members Division 4 Two Members Division 5 One Member Division 6 Four Members The boundaries of the recommended divisions also differ from those advertised. Exhibit GTH 3 to the affidavit of Mr Hoffman, filed by leave on 22nd December, gives an effective description of each of the proposed divisions pursuant to both recommendations. I was also provided with three maps, one showing the existing shire and city boundaries, the second showing the proposed electoral division boundaries according to the preliminary report and the third showing the divisional boundaries pursuant to the final report. I will summarize the differences between the two proposals by reference to the divisions. By way of explanation, I should point out that all voters have been classified as "urban", I "rural-residential", "rural township" or "rural". Residents of I Warwick pity are generally classified as "urban". The other expressions are self-explanatory. Division !1 The final report substantially reduces the area of this division, but marginally increases the total number of electors (1092 to 1115). Under both proposals, the division is a mixture of rural township and rural voters. 263 voters included in the division under the preliminary report are removed under the final report and 286 added. Those figures represent a change in voter -- 6 of 12 -- 6 composition of about 25 per cent. The maps suggest that this charge has been effected by transferring the eastern part of the Allora Shire to Division 2 and transferring the southern part of that shire to Division 1 from Division 5. Division 2 Under the preliminary report, this division was to contain rural township and r~ral voters totalling 1, 054. Under the final report, it comprises urban, rural residential, rural township and rural voters totalling 2,093. Its area is also greatly increased, and it becomes a "two member" constituency. It gains in excess of 400 rural voters, retains 115 rural township voters and gains 633 urban and rural residential voters, of whom the overwhelming proportion are urban. Clearly, this division is quite difterent from that originally recommended. It has acquired rural voters from Division 1 and urban and rural-residential voters from Division 6. Division 3 OrigiJ?.ally, this division was to be a mixture of urban, rural town~hip and rural voters and remains in that form. The C) (J l) number of Jrban voters has been increased slightly and the number (J ( < of rural v6ters decreased slightly. The total number of voters'{ has been s~ightly reduced (2,084 to 2,077). 212 voters included ( in this division under the preliminary report are no longer included, whilst 205 voters have been transferred in from elsewhere. This is a change in composition of about 10 per cent. Under both proposals, this is to be a "two member" division. Division 4 I -- 7 of 12 -- () ) 0 0 1 0 7 This division was originally a mixture of rural-residential, rural township and rural voters, totalling 1,041. It is now to be a mixture of urban, rural-residential, rural township and rural voters, totalling 2,197, with two members instead of one. The area has also been increased. Total numbers of rural township and rural voters remain the same, although some of the latter voters will be drawn from different sources. The number of rural-residential voters has been substantially increased from 478 to 643, and 991 urban voters have been added to this division. In addition, 253 rural voters (out of a total of 495) who were to have been in this division are no longer there. They are replaced by the same number of rural voters from other sources. Of the 1,041 voters originally in this division only 788 remain. Obviously, the addition of a substantial parcel of urban voters, the increase in the number of rural-residential voters and the change in identity of half the rural voters alter the nature of this division quite appreciably. Division 5 ~ This was originally to be a primarily rural division with a small n~mber of rural township voters and continues as such, (. but with ~he addition of a small parcel of rural-residential voters. T,he total number of voters has increased slightly. 413 of the original 1,088 voters in this division have been removed from it and 432 voters added. In other words, the composition of this division has changed by about 40 per cent. Division 6 This was originally to be an urban electorate with a small number of rural-residential and rural voters. It is now to be : :r il !ii. -- 8 of 12 -- 8 purely urban and rural-residential. Its original voter population was 6,902 of whom 342 were rural, 527 rural-residential and 6, 033 urban. It now is to have 4, 672 voters of whom 4, 433 are urban and 239 rural residential. Instead of six members, it now has four. Obviously, this division includes most of the Warwick city area. Of the voters included in this division under the preliminary report, 2r 352 are to be removed and 486 added. The applicant submits that these changes constitute (_J substantial variations of the advertised recommendations requiring re-advertisement. In determining whether or not the recommendations have been substantially varied, it is necessary to have a clear understanding of the duty with which the Commission~r was charged. This is the point at which the Local Government (Review of External Boundaries) Regulation becomes relevant. The Commissioner was required to observe the principles set out in the schedule in determining the external boundaries~ of the area. The regulation required that the external bbundaries be such as to:- (a) ~nsure a sufficient resource base for the local authority; if . (b) tacilitate planning and development for the benefit of the area and the efficient and effective provision and maintenance of services and facilities, having regard to existing and future population growth; (c) have regard to community of interest, reflecting local communi ties and linkages between local communi ties, (J u -- 9 of 12 -- ): () I 0 9 and provide a centre or centres of administration and service easily assessable to the population; (d) ensure effective elected representation for residents ·and rate payers; (e) have external boundaries not dividing local neighbourhoods, adjacent rural and urban areas with common interests or interdependencies, following the natural geo9raphical and non-natural features that separate different communities, but not dissecting properties; (f) generally, include water catchment areas in the local authority area which they service. The requirement that the second respondent consider the provision of effective elected representation in considering external boundaries means that such boundaries must be drawn to facilitate achievement of that objective. Of course, such representation is not the only relevant consideration, but it is possible/ to conceive of a situation in which difficulties encountered in designing an effective division of an area for electorai purposes might dictate changes in the external ,. boundari~s. This matter assumes importance because it was submitted that if I were to conclude that the changes in the divisions ought to have been re-advertised, it would not necessarily follow that the recommendation as to the external boundaries should also be re-advertised as the latter recommendation might not depend upon the recommendation as to the divisions. I have concluded, however, that such a course is not possible. The need to draw divisions arises from the -- 10 of 12 -- 10 recommendation as to amalgamation, and the decision as to external boundaries is necessarily dependent upon due weight being given to the ne.ed to provide an effective electoral system. The validity of the decision as to external boundaries may be challenged if effective electoral representation is not possible. The questions are too closely intertwined to be decided separately. In summary, the effects of the changes are:- (a) To change the divisional allocation of almost 24% of the (J voters; (b) To dissociate part of the old Allora Shire from Division 1 and associate it with Division 2, which is predominantly derived from the old Glengallen Shire; (c) To ad¢! a significant urban element to Division 2, which was previously rural township/rural; (d) To add a significant urban element to Division 4 and to increase its rural-residential element; (e) To ch~nge the composition of Division 5 by about 40%; ' (f) To rJduce the voter population of Division 6 by about one-third and its number of representatives from 6 to 4. Alth~pgh I have considered the matter, I have been unable to drawn ~ny conclusions as to how the changes may affect the balance of representation on the council. I am, however, satisfied that the changes involve substantial variations to the original recommendations. The relocation of 24% of the voter population and the reduction in size of and number of representatives for the Warwick region would cumulatively be CJ lJ ( .\__) -- 11 of 12 -- G .~ ' ' 1 1 sufficient to justify such a conclusion. The recommendations should have been re-advertised. I propose to quash the recommendations contained in the report of 24th November, 19,93 and remit the matter to the Commissioner to proceed in accordance with law. I will hear submissions as to the form of order. 0 0 0 0 'I -- 12 of 12 --