Quinn Group (Suncoast) Pty Ltd v Maroochy Shire Council

[2003] QPEC 16

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Quinn Group (Suncoast) Pty Ltd v. Maroochy Shire Council [2003] QPEC 016

PARTIES:

QUINN GROUP (SUNCOAST) PTY LTD      (Applicant)

And

MAROOCHY SHIRE COUNCIL                 (Respondent)

MAROOCHY SHIRE COUNCIL  (Applicant)

And

QUINN GROUP (SUNCOAST) PTY LTD    (Respondent) 

FILE NO/S:

P&E 12/03

P&E 15/03

DIVISION:

Planning and Environment Court

PROCEEDING:

Application for Declarations

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

1^st May 2003

DELIVERED AT:

Maroochydore

HEARING DATE:

16^th April 2003

JUDGE:

Judge J.M. Robertson

ORDER:

1.    The application of the Quinn Group is dismissed.

2.    I grant the application of the Council in terms of paras 4 and 5 thereof, otherwise that application is also dismissed.

CATCHWORDS:

BUILDING CONTROL AND TOWN PLANNING – development application (superseded planning scheme) – “properly made” – failure of Council to issue acknowledgment notice – whether Council obliged to issue notice – where Council requires further information – whether on a proper construction IPA excludes an implied power to request further information at the application stage – compensation implications of Council’s election – declaratory relief

Cases cited:
Hervey Bay Developments Pty Ltd v. Hervey Bay City Council (1994) 83 LGERA 216

Singh v. Beaudesert Shire Council [2002] Q.P.E.L.R. 277

Statutes cited:

Integrated Planning Act 1997, ss.3.2.1, 3.2.3, 3.2.5, 4.1.21(1), 5.4.2

COUNSEL:

C.L. Hughes S.C. for the Applicant in P&E 15/03 and for the Respondent in P&E 12/03

D. Fahl (Solicitor) for the Respondent in P&E 15/03 and for the Applicant in P&E 12/03

SOLICITORS:

Maroochy Shire Council for the Applicant in P&E 15/03 and for the Respondent in P&E 12/03

Lester Manning Lawyers for the Respondent in P&E 15/03 and for the Applicant in P&E 12/03

1. The applications before the Court involve yet again a question of construction of provisions of the Integrated Planning Act 1997 (“IPA”), with potentially important ramifications to both developers and local authorities alike in relation to development applications (superseded planning scheme) properly made prior to 1^st June 2002. I am assured by Mr Hughes and Mr Fahl that they have not been able to locate any previous decision of this Court dealing with this particular issue.

The Applications

1. There are four applications before the Court. The first in time are applications 12 and 13 of 2003 by Quinn Group (Suncoast) Pty Ltd (Quinn Group) for declarations pursuant to s.4.1.21 of IPA that:

1.          The respondent should have, on or before 15 July 2002, issued an acknowledgment notice to the applicant in respect of an application for approval of a material change for use for multiple dwellings and commercial uses (“the Application”) in respect of the land particularly described as Lot 2 on RP 137350 situated on the David Low Way, Marcoola (“the land”);

2.          The respondent forthwith issue an acknowledgment notice to the applicant, such notice to be issued in all other respects in accordance with the provisions of the Integrated Planning Act 1997;

3.          The respondent pay the applicant’s costs;

4.          Such further or other order as the Court considers appropriate.

1. It is common ground that the issues raised in both applications are the same and my judgment in relation to one will bind the parties in relation to the other. For convenience I will deal with the first application in time, No. 12 of 2003, which relates to Lot 2 on RP 137350. The Council made separate applications in relation to both parcels of land by applications 15 and 16 of 2003. Application 15 of 2003 relates to Lot 2 on RP 137350. It seeks the following:

1.          A declaration that the application lodged by the Respondent with the Applicant Council on 31 May 2002 in respect of Lot 2 on RP 137350 situated on the David Low Way, Marcoola was not in respect of a development which was permitted pursuant to the Applicant Council’s superseded town planning scheme;

2.          Alternatively to 1 above, a declaration that it is impossible to tell from the said application documents submitted on 31 May 2002 whether the application was in respect of a development which was permitted pursuant to the Applicant Council’s superseded planning scheme;

3.          A declaration that it is not possible from the said application documents submitted on 31 May 2002 to assess the proposed development against the development standards in either the Applicant Council’s superseded planning scheme, or the existing planning scheme;

4.          A declaration that there was no legal impediment to the Applicant Council requesting particulars of the said application before considering and issuing an Acknowledgment Notice;

5.          A declaration that the Applicant council is not able, on the basis of the material contained in the said application, to make a lawful decision with respect to:

(a) the election required of it pursuant to Section 3.2.5; or

(b)        the contents of any Acknowledgment Notice required to be issued in respect of the said application;

6. A declaration that, for the purposes of IPA (or at least for the purposes of 3.2.3 and 3.2.5 of IPA) the application was not a duly made application capable of being processed according to law;

7.          Such further or other orders as the Court deems appropriate;

8.          An order that the Respondent pay the Applicant Council’s costs.

1. At the hearing, Mr Hughes SC on behalf of the Council concentrated on 4 and 5, although still pressing for the remaining declarations. There is no doubt this Court has the power to make the declarations sought in each application.

1. Section 4.1.21(1) of IPA is in these terms:

“Any person may bring proceedings in the court for a declaration about -

(a) a matter done, to be done or that should have been done for this Act other than a matter under chapter 3, part 6, division 2; and

(b)    the construction of this Act and planning instruments under this Act; and

(c)     the lawfulness of land use or development; …”

Background

1. On the 31^st May 2002 Quinn Group by its town planning consultants made two separate development applications (superseded planning scheme) to the Council in respect of two large parcels of land on the David Low Highway at Marcoola. The applications consisted of a letter under the hand of Mr Folker (of Dillon Folker, Town Planners)  dated the 31^st May 2002, various completed IDAS forms and a site plan purporting to show the nature of the proposed development by reference to the superseded Town Planning Scheme for the Maroochy Shire gazetted the 14^th December 1985. Mr Folker’s letter stated inter alia:

“Please find enclosed  ten (10) copies of our client’s Development Application comprising duly completed Material Change of Use Development Application forms pursuant to the 1985 Superseded Planning Scheme for a 6 storey 90 Multiple Dwelling Units and 1000m² of Commercial Space development … .
…
Under the 1985 superseded planning scheme the subject site is included in the Comprehensive Development zone which has an as-of-right limit of 6 storeys.
…
The information provided should be sufficient for the application to be deemed “properly made”. Over the next couple of weeks, ongoing Conceptual design input will be finalised and submitted under separate cover.”

1. The accompanying Attachment 1 required one of two boxes to be ticked. Both boxes were ticked, and reads (relevantly):

“1.    This application:

R  (a)   Requests that the proposal be assessed against the provisions of a superseded planning scheme (Complete Part A and other applicable Parts of the form)

OR

R   (b)   Notifies of the intention to carry out development that would have been self-assessable or exempt under a superseded planning scheme (Complete Part A only. No other part of the form is required to be completed in this instance)”

1. On the 6^th June 2002 the Council wrote to Mr Folker in these terms:

“Council has received your MATERIAL CHANGE OF USE application made under the provisions of the Integrated Planning Act, 1997 and you are advised that the application has been checked and is considered to be “properly made” in accordance with s.3.2.1 of this Act.

Should you require any further information, Council’s Environmental Planning and Development may be contacted on the above telephone number.”

1. On the 2^nd July 2002 Danielle Fitzpatrick, a Senior Planner, wrote to Mr Folker on behalf of the Council in these terms:

“I refer to the abovementioned Development Application lodged with Council on 31 May, 2002 and advise that further information is required to enable an assessment of the application. The information required is outlined below:

1.   Detailed elevations for all proposed site development (including details of proposed basement carparking).

2.   To enable an assessment of site cover, please submit plans which identify all building areas included in site cover calculations.

3.   Please submit layout plans which detail:

(a)     unit layout (particularly the number of bedrooms for each unit type to enable a determination of site population density);

(b)     commercial component layout;

(c)     carparking provision;

(d)     location of proposed kerb and channel provision;

(e)     footpath location (4 metre wide required);

(f)      crossing type/s.

4.    Please advise gross floor calculations for the multiple dwelling units and for each commercial use proposed (the individual commercial uses proposed should be detailed and gross floor areas prescribed for each).

5.   Please submit details of proposed landscaping provision (including area calculations):

(a)     10m² per habitable room;

(b)     50% landscaped open space in one area;

(c)     10% capable of being used for deep planting.

6.   Please provide details of carparking requirements/calculations and provision on site for each proposed use.

7.   Please submit shadow diagrams which demonstrate compliance with Division III, Section 1.(8)(a) to (c) of the Superseded Planning Scheme.

Provision of the above information will enable further assessment of the Development Application. It will also permit calculation of relevant contributions which will be the subject of a Deed of Agreement to be forwarded with a request for execution by your client. Council will require your client’s execution of a Deed of Agreement prior to the issue of an Acknowledgement Notice in respect of the Application.

If you have any queries in relation to the above, please telephone the writer on the abovementioned telephone number.”

1. There was no response until the 27^th February 2003 when Mr Folker responded as follows:

“Further to discussions with Council’s Ms Fitzpatrick, we hereby formally confirm that the applicant acknowledges Council’s correspondence of 2 July 2002 and is in the process of preparing the necessary information to provide sufficient response to the items raised by Council.

On this basis, it is requested that Council hold these applications pending the submission of such further information.”

1. On the 12^th March 2003 Lestar Manning Lawyers wrote to the Council on behalf of Quinn Group in the following terms:

“We have been instructed by the Quinn Group (Suncoast) Pty Ltd in relation to this matter. We understand that our client lodged applications under the superseded planning scheme as detailed above on 31 May 2002 in respect of both applications.

We are advised that Council has not yet provided an acknowledgment notice in either application indicating whether it proposes to allow the development to proceed under the superseded planning scheme.

You will recall that our client was required to make application to the Planning and Environment Court for the issue of an acknowledgment notice in respect of Lot 19 on David Low Way which proceedings were discontinued following Council’s issue of an acknowledgment notice on 6 March 2003.

Identical issues arising concerning Lot 2 and Lot 14.

We are advised that our client’s town planning consultants, Dillon Folker, wrote to Council on 27 February 2003 requesting that the assessment of these applications be put on hold. However, that does not mean that Council is not required to issue an acknowledgment notice in respect of both applications within 30 business days after receiving them, in accordance with s 3.2.3 of the Integrated Planning Act.

Whilst we understand that Council wish to obtain further information about the applications, it is our client’s right to receive the acknowledgment notices.

Our client seeks Council’s response by close of business on 14 March 2003 failing which it will commence proceedings for the issue of acknowledgment notices in respect of both applications.”

1. The Council responded on the 14^th March 2003. It acknowledged that the development applications were lodged on the 31^st May 2002 and that the Council has not yet issued an acknowledgment notice. The letter stated:

“I understand that your client’s application is a development application (superseded planning scheme) under Section 3.2.5(3). Any acknowledgment notice given under those provisions of the Act presupposes that the development application provides sufficient information for Council to issue an Acknowledgment Notice stating those matters dealt with under Sections 3.2.3(2) and 3.2.5(3). However, in the instance of your client’s two applications, they do not contain sufficient information as was advised to your client by Council’s letter of 2 July 2002.”

1. The letter then reiterates the contents of the letter of the 2^nd July 2002 and states:

“It is reiterated that Council is not in any position to issue an Acknowledgment Notice as your client’s application simply does not provide sufficient detail to enable Council to address those matters required under the Act.

Any Court proceedings brought by you will be strenuously defended by Council.”

The issues

1. As I have noted, the Council applications seek declarations inter alia that the application was, for the purposes of sections 3.2.3 and 3.2.5 of IPA, not duly made and capable of being processed according to law, and that there is no legal impediment to the Council requesting particulars of the application before considering and issuing an acknowledgment notice. The primary thrust of Mr Hughes’ submission was in relation to this later issue. In effect, he contends for a construction of the relevant provisions of IPA which does not preclude an implied power vested in local authorities to request more information before issuing an acknowledgment notice pursuant to s.3.2.5 of IPA.

1. Mr Fahl for Quinn Group on the other hand, argues that the stages of IDAS are clearly enunciated in IPA and that there is no basis in law for a local government to request information at the application stage of IDAS. His submission is that once an application is properly made pursuant to s.3.2.1, the assessment manager must give the applicant an acknowledgment notice within the prescribed acknowledgment period of 30 days for applications for a development (superseded planning scheme): s.3.2.3(1)(b). He argues that there is no basis for inferring any additional power to request information at the application stage of IDAS.

1. The relevant sections of IPA are contained in Chapter 3 Part 2 Division 1 of IPA.

1. Section 3.2.1 is in these terms:

“(1)     Each application must be made to the assessment manager.

(2)Each application must be made in the approved form.

(3)The approved form –

(a)     must contain a mandatory requirements part including a requirement for –

(i)   an accurate description of the land, the subject of the application; and

(ii)    the written consent of the owner of the land to the making of the application; and

(b)     may contain a supporting information part.

(4)Each application must be accompanied by –

(a)if the assessment manager is a local government – the fee set by resolution of the local government; or

(b)if the assessment manager is another public sector entity – the fee prescribed under a regulation under this or another Act.

(5)If an application is a development application (superseded planning scheme), the application must also identify the superseded planning scheme under which assessment is sought or development is proposed.

(5A) If the development involves taking, or interfering with, a resource of the State, another Act may require the application to be supported by –

(a)evidence of an allocation of the resource; or

(b)the written consent of the chief executive, of the department in which the other Act is administered, to the application being made.

(6)An application complying with subsections (1), (2), (3)(a), (4), (5) and (5A) is a “properly made application”.

(7)The assessment manager may refuse to receive an application that is not a properly made application.

(8)If the assessment manager receives, and after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.

(9)Subsection (8) does not apply to an application unless the application contains –

(a)the written consent of the owner of any land to which the application applies; or

(b)any evidence required under subsection (5A).”

1. Section 3.2.3 is (relevantly) in these terms:

“(1)The assessment manager for an application must give the applicant a notice (the “acknowledgment notice”) within –

(a)     if the application is other than a development application (superseded planning scheme) – 10 business days after receiving the properly made application (the “acknowledgment period”); or

(b)     if the application is a development application (superseded planning scheme) – 30 business days after receiving the properly made application (also the “acknowledgment period”).”

and s.3.2.5 is (relevantly) in these terms:

“(1)If an application is a development application (superseded planning scheme) in which the applicant advises that the applicant proposes to carry out development under a superseded planning  scheme, the acknowledgment notice must state –

(a)that the applicant may proceed as proposed as if the development were to be carried out under the superseded planning scheme; or

(b)that a development permit is required for the application.

…

(3)If an application is a development application (superseded planning scheme) in which the applicant asks the assessment manager to assess the application under the superseded planning scheme, the acknowledgment notice must state -

(a)that the application will be assessed under the superseded planning scheme; or

(b)that the application will be assessed under the existing planning scheme.”

1. Council’s primary contention is that the development application simply did not contain sufficient information to enable it to give an acknowledgment notice pursuant to either s.3.2.5(1) or (3). It is common ground that s.3.2.5(1) relates generally to development applications governed by the 1985 scheme which relate to as of right or permitted uses under that scheme without the need for further assessment, and s.3.2.5(3) relates to applications which may require further assessment. A development application (superseded planning scheme) is defined in schedule 10 of IPA as:

“(a)for development that would not have required a development permit under a superseded planning scheme but requires a development permit under the planning scheme in force at the time the application is made, a development application –

(i)      in which the applicant advises that the applicant proposes to carry out development under the superseded planning scheme; and

(ii)     made only to a local government as assessment manager; and

(iii)   made within 2 years after the day the planning scheme or planning scheme policy creating the superseded planning scheme was adopted or the amendment creating the superseded planning scheme was adopted.

(b)        for any other development, a development application –

(i)      in which the applicant asks the assessment manager to assess the application under a superseded planning scheme; and

(ii)     made only to a local government as assessment manager; and

(iii)   made within 2 years after the day the planning scheme or planning scheme policy creating the superseded planning scheme was adopted or the amendment creating the superseded planning scheme was adopted.”

1. The form of the acknowledgment notice which flows from a decision to be made by the assessment manager within 30 business days after receiving the properly made applications has very important ramifications under IPA in terms of potential compensation. If for example, the acknowledgment notice is given under s.3.2.5(3), and is expressed in terms of s.3.2.5(3)(b), provided the application has been made within two years after the adoption of the Maroochy Plan 2000, then s.5.4.2 comes into play and Quinn Group may have an entitlement to compensation from the Council. Section 5.4.2 is in these terms:

“5.4.2An owner of an interest in land is entitled to be paid reasonable compensation by a local government if –

(a)     a change reduces the value of the interest; and

(b)     a development application (superseded planning scheme) relating to the land has been made; and

(c)     the application is assessed having regard to the planning scheme and planning scheme policies in effect when the application was made; and

(d)     the assessment manager, or, on appeal, the court –

(i)   refuses the application; or

(ii)    approves the application in part or subject to conditions or both in part and subject to conditions.”

1. The development applications here were made on the last day of the two year time limit, and as Mr Hughes noted seemed to be put together with considerable haste. Mr Folker acknowledged as much in his evidence.

1. The development application contains an obvious error, which Mr Folker acknowledges, that is both boxes in Attachment 1 have been ticked. As Ms Fitzpatrick states in her affidavit filed the 14^th April 2003 in support of the Council’s application:

“11.In other words, it is not possible to tell from the face of the application whether the Applicant viewed the proposed development as permitted (self assessable or exempt) or permissible (code or impact assessable) under the superseded planning scheme.”

1. At the hearing, in relation to its submission that the application lacked sufficient detail, Mr Hughes on behalf of the Council concentrated on the height of the proposed buildings. He acknowledged that, if I was against him on this issue, he would have difficulty persuading me in relation to the other issues in which the Council contends the application lacks detail, e.g. site cover, shadowing etc.

1. The subject land is in the Comprehensive Development Zone pursuant to the superseded planning scheme, and is covered by Item 20 in the Table of Zones. Under Part V of the Scheme the permitted height of buildings is determined by reference to Division II section 1 and the number of storeys (permitted as of right) shall be no greater than six, which “shall include any storey or part thereof which is above natural ground level at any part of the building”; and “Any storey that has an internal height of more than 5.2 metres shall be regarded as two storeys”. The development application included a set of scale drawings which contained no detailed elevations. The only elevations are two drawings at the base of the plan, described variously (and perhaps a little unkindly) by Mr Hughes as “a squiggle” and “the ratty sketch”. Mr Folker fairly conceded that the drawings, albeit to scale, revealed no detail that would enable the Council to make an assessment under section 1 Division 2 of Part V of the 1985 planning scheme.

1. I agree with Mr Hughes that a simple visual examination of the drawings reveals at least two areas of concern. Firstly the basement area seems to extend above the natural ground level, and by definition would constitute two storeys. Secondly, the top storey seems to be much higher than the below stories, and if one assumes they are of 5.2 metres, then the top storey again by definition would constitute two storeys. I agree with Ms Fitzpatrick who says in her affidavit in relation to the issue of height:

“Without such detailed information it is not possible for me to determine whether the proposed development is permitted development under the superseded planning scheme in terms of the number of storeys.”

1. This is a fundamental deficiency going to the heart of the assessment manager’s election as to which form of acknowledgment notice he or she will issue pursuant to s.3.2.5.

1. The Quinn Group acknowledged at all stages of its dealings with the Council that the application lacked detail.

1. In the application itself, Mr Folker on behalf of his client says:

“The information provided should be sufficient for the application to be deemed “properly made”. Over the next couple of weeks, ongoing Conceptual design input will be finalised and submitted under separate cover.”

1. No “ongoing conceptual design input” was submitted to the Council at any time.

1. After receipt of the request for further information dated the 2^nd July 2002, Quinn Group made no response until the letter from Mr Folker on 27^th February 2002 in which he stated inter alia “(the applicant) is in the process of preparing the necessary information to provide sufficient response to the items raised by Council”. Even in the letter from Lestar Manning on the 12^th March 2003, in which demand was made for the issue of an acknowledgment notice, there is the statement “whilst we understand that Council wish to obtain further information about the applications, it is our client’s right to receive the acknowledgment notices”.

1. The interaction of principles of equity with, and the applicability of equitable doctrines and remedies to, applications for declarations pursuant to s.4.1.21 of IPA was not fully argued before me, and it is not necessary for me to consider this to determine the present applications. However, as Mr Hughes observed, the delay of the Quinn Group in insisting on the issue of an acknowledgment notice, in the context of its application only just being within the two year time limit to possibly bring into play the superseded planning scheme, may give rise to the equitable defence of laches, in the sense that the delay constitutes acquiescence in the Council’s position. Even Mr Fahl described his client’s conduct as being not “gilded in rectitude”, nevertheless he submits that IPA is clear, and equity will not assist where the law is so clear.

1. That leads back to the primary argument of Mr Hughes, and that is, a proper construction of relevant IPA provisions does not preclude is an implied power in local authorities to obtain information before issuing an acknowledgment notice; where the information provided with the application is so deficient as to prevent the Council making the election pursuant to s.3.5.3. Obviously, he concedes that there is no provision in Chapter 3 Part 2 Division 1 relating to the application stage of IDAS analogous to s.3.3.6 which specifically empowers the assessment manager to request information at the information and referral stage of IDAS.

1. Mr Hughes argues that the issue of an acknowledgment notice is not a mere formality, particularly when one considers that in relation to a development application (superseded planning scheme) the Act provides a period of 30 business days for the provision of the notice, as compared with 10 business days for all other development applications: s.3.2.3(1)(a).

1. In relation to the express power contained in s.3.3.6, at the information and referral stage, he submits that as a matter of construction the existence of a narrow express power does not preclude the existence of a broader implied power in some other place. By analogy only, he refers to the decision of the Court of Appeal in Hervey Bay Developments Pty Ltd v. Hervey Bay City Council (1994) 83 LGERA 216 in which the Court was there considering the power to impose conditions under the repealed Act at a rezoning and subdivision stage. At 220-221 the Court appears to reject an argument advanced by the appellant that the existence of an express power to secure the performance of conditions requiring the work to be done by the applicant in satisfaction of the conditions, precluded an implied power to require security for other conditions.

1. In advancing his submission that IPA does not preclude an implied power to request information at the application stage, Mr Hughes relies on what he describes as a “very important indicator from the legislator” that the making of the election pursuant to s.3.2.5 is a much more complicated procedure, than a decision to issue an acknowledgment notice for all other properly made development applications. In this context he refers to the importance of this election in relation to compensation implications. As regards the Council’s election under s.3.2.5, he makes the point that the Council is required to make the decision responsibly having regard to proper planning principles, and also the compensation implications. He put it rather well when he said “it puts a value on the community’s planning decisions”.

1. In a broad sense, such an approach is itself consistent with the purposes of IPA, and is likely to advance those purposes which include:

“(a)   ensuring decision-making processes –

(i)   are accountable, co-ordinated, and efficient …”

(my emphasis):  s.1.2.3(1)

1. Consistently with this section, IPA contains specific provisions to stop abuse by Councils in the acknowledgment notice process as part of the application stage. Section 4.1.23 relating to costs provides:

“(1)Each party to a proceeding in the court must bear the party’s own costs for the proceeding.

…

(6)If a person bring a proceeding in the court for a declaration and order requiring an assessment manager to give, under section 3.2.3, an acknowledgment notice and the court makes the order, the court must award costs against the assessment manager.”

1. There is no doubt that the Council is under a statutory obligation to make an election under s.3.2.5: see the judgment of Quirk DCJ in Singh v. Beaudesert Shire Council [2002] Q.P.E.L.R. 277. Mr Hughes submits therefore that logically and necessarily the Council must have sufficient information to enable it to make this important election.

1. However, unlike other provisions in IPA there is no deeming provision such that if an assessment manager does not give the acknowledgment notice within time, notice is deemed to be given. An example of such a deeming provision is s.6.1.30(5). Mr Hughes submits that had the legislature wished the acknowledgment notice stage to be a mere formality, then it could have enacted a provision similar to s.6.1.30(5). He submits therefore, when one considers these arguments in aggregate, it is appropriate to construe these provisions in IPA as not excluding a power to request information at the acknowledgment notice stage in appropriate circumstances. I agree. It would be an extraordinary result, in my opinion, if an applicant for a development application under a superseded planning scheme could formally comply with s.3.2.1(1)-(5) (which it must be said contain only formal requirements and even anticipate an application containing no information at all: subsection (3)(b)); such that its application is then “properly made”, and would then be able to force the Council to make the important election which it must make in its acknowledgment notice pursuant to s.3.2.5, without providing adequate information to enable the Council to make that election. To that extent I am satisfied that a proper construction of these provisions of IPA does not preclude an implied power to request information. I am also satisfied that the application in this instance did not contain sufficient information to enable the Council to elect under s.3.2.5.

1. The application of the Quinn Group is dismissed. I grant the application of the Council in terms of paras 4 and 5 thereof, otherwise that application is also dismissed.

1. I will hear further submissions as to any consequential directions (if any) required by the parties to give effect to these reasons.