Can the supplementary information form part of the EIS and the development application?
34 I now turn to the council's assertion that the EIS and the development application comprised only the material lodged when the development application was submitted.
35 There is no doubt, however, that an EIS and a development application can be supplemented by further or additional information: Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270 at 279, Botany Bay City Council v Remath Investments (No. 6) Pty Ltd (2000) 50 NSWLR 342 at [14]; [41]-[48]; Currey v Sutherland Shire Council (2003) 129 LGERA 223 at 230-231.
36 Mr Hale SC seeks to draw a distinction, however, with the present case where the development application is for designated development. In particular, the supplementary information was not accompanied by the declaration required by cl 71(f) of the Regulation. Mr Hale thus submits that the supplementary information cannot form part of the EIS.
37 I reject the submission. Clause 71 of the Regulation refers to the form for an EIS. The opening words are: "For the purposes of s 78A of the Act, the prescribed form for an environmental impact statement to accompany a development application is a form that contains the following information: …." Section 80(1) of the Interpretation Act 1987 provides that if a form is prescribed by an Act or statutory rule, strict compliance with the form is not necessary but substantial compliance is sufficient.
38 The supplementary information was clearly intended to supplement the EIS and was so understood by both the COI and by the Minister, who incorporated the supplementary information into that to which he was granting consent: see condition A1.1 of the consent. Moreover, an EIS is not a decision; rather it is to aid the decision-maker in his or her task: Leatch v National Parks and Wildlife Service at 279. The supplementary information was publicly exhibited, was the subject of submissions to the COI, was the subject of consideration and assessment by the Commissioner, and was the subject of consideration by the Minister. The furnishing of the supplementary information clearly fulfils the objective of aiding the decision-maker in his task in this case.
39 Clause 71 is part of a procedural scheme. In Currey v Sutherland Shire Council (2003) 129 LGERA 223 it was held that any defect or irregularity in a development application may be cured if, during the course of its consideration, the suggested invalidity is cured before it is determined. In the same case Spigelman CJ (Sheller JA and Foster AJA concurring) held that Div 2 of Pt 4 of the EP&A Act (which includes s 78A) "is entirely permissive and procedural", and went on to say at [34], that there is no basis for inferring a prohibition from a permissive and procedural scheme.
40 For these reasons I reject the submission that the absence of the declaration required by s 71(f) in relation to the supplementary information means that the supplementary information cannot be regarded as part of the EIS and as part of the development application, or that the absence of the declaration leads to invalidity of either the EIS or the development application.
41 Mr Hale SC also relies upon the form of public notice of the re-exhibition of the development proposal. The public notice of the re-exhibition states that the Minister directed that a COI held into the proposal and that the Inquiry was adjourned on 31 May 2004 to allow the applicant to address an amended terms of reference which requires analysis of any potential feasible alternatives at Port Botany. The public notice then goes on to state:
Exhibition of Additional Information
The original development application, EIS and additional information will be on public exhibition from 26 August 2004 until 27 September 2004, during regular business hours, at the locations listed below: You may also purchase a copy of the EIS from the Information Centre (9762 8044) for $27.50 or $11.00 for a CD copy (including GST), or view a copy of the executive summary of the EIS at www.dipnr.nsw.gov.au
42 Mr Hale SC submits that, since only a copy of the EIS was able to be purchased (and not the additional information), any potential objector would be misled into thinking that the original EIS was the complete document and in purchasing a copy of the EIS would not have access to the additional information.
43 I reject the submission. The public notice is not misleading. It states that three things will be on public exhibition: (i) the original development application; (ii) the EIS; and (iii) additional information. Of the three things, the notice states that a copy of the EIS is available for purchase. Anyone wanting to look at the original development application or the additional information would have been able to do so, but would not have been able to take a copy away. The fact that only one of the three things placed on public exhibition was able to be purchased and taken away does not mean that anyone was likely to have been misled. The notice made it perfectly clear that there was additional information which was on public exhibition.