District Council of Kingscote v Kangaroo Island Eco Action Incorporated No. SCGRG 95/2508 Judgment No. 5819 Number of Pages 12 Environment Law (1996) 67 Sasr 410

[1996] SASC 5819

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(1), DUGGAN(2) AND DEBELLE(3) JJ

CWDS
Environment law - heritage conservation - native vegetation - roadside clearance of native vegetation by local authority - local authority has power to manage roads - whether local authority excluded from prohibition of vegetation clearance - application of exemption relating to safety - application of exemption where vegetation cleared in compliance with Management Plan - whether strict or substantial compliance sufficient - conviction set aside - complaints remitted to magistrate.

Local government - powers - control and management of roads - power to clear roadside native vegetation - whether powers of local authority subject to NativeVegetation Act. Native Vegetation Act, 1991ss 26, 27; Native Vegetation Regulations, 1991 Reg 3(1); Local Government Act, 1934ss 306, 314, 880, referred to. Goodwin v Phillips (1908) 7 CLR 1; Gill v Donald Humberstone and Co (1963) 3 All ER 180; Beckwith v The Queen (1976) 135 CLR 569; Denning 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129, applied.

HRNG ADELAIDE, 2 July 1996 #DATE 27:9:1996

Counsel for applicant :     Ms L Powell QC with Mr I Robertson

Solicitors for applicant :    Piper Alderman

Counsel for respondent:     Mr A Collett

Solicitors for respondent:    Johnston Withers

ORDER
Appeal allowed.

JUDGE1 DOYLE CJ
1. I agree with the orders proposed by Justice Debelle and with the reasons which he has given for the making of those orders.

UDGE2 DUGGAN J
2. I agree with the order proposed by Debelle J. I also agree with the reasoning upon which the proposed order is based.

JUDGE3 DEBELLE J
3. This is an appeal from a decision of a magistrate convicting the appellant District Council of Kingscote ("the Council") of a breach of s26 of the NativeVegetation Act 1991 when conducting roadside clearance. The appeal has been referred to this Court by an order made pursuant to s49 of the SupremeCourt Act.

4. The respondent Kangaroo Island Eco Action Inc is an incorporated association. It comprises citizens on Kangaroo Island who are interested in and concerned about ecology and general environmental issues. Generally speaking, the NativeVegetation Act is enforced by the Native Vegetation Council, a body established by the Act. In this case, the association has instituted a private prosecution. It is common ground that the prosecution has been duly instituted.

5. The association issued a complaint in which it charged the Council with the following offence:
    "That on or about the 16, 17, 18, 21, 24, 25, 28 February 1994 and
    1 March 1994 (as specified in attached Particulars) at Tin Hut Road
    and Ahwans Road, northwest of Playford Road on Kangaroo Island in
    the said State in contravention of the Native Vegetation
    Regulations, cleared native vegetation on road reserves vested in
    the care and control of the defendant, and consequently, breached
    section 26 of the Native Vegetation Act 1991.Attached to the
    complaint were particulars of the offence in these terms:

1. The District Council of Kingscote (the `District Council'),
    through an employee or employees of the District Council, cleared
    native vegetation from road reserves vested in that Council and
    under its care and control.

2. Pursuant to the Native Vegetation Act, 1991 and Regulations, the
    District Council has submitted to and had approved by the Native
    Vegetation Council a Roadside Vegetation Management Plan for all
    roads within its area.

3. The following roadside reserves were the subject of a vegetation
    clearance programme conducted on or about the specified dates:
     Tin Hut Road - February 16, 17, 18, 21, and 24, 1994;
     Ahwans Road - February 24, 25, 28 and March 1, 1994.

4. In the case of Tin Hut Road, the clearance occurred (on both
    sides of the road) for a continuous distance of approximately
    8.6 kilometres. In the case of Ahwans Road the distance was
    approximately 14.2 kilometres. In that case also the clearance
    occurred on both sides of the road.

5. The clearance of the vegetation was undertaken by an employee or
    employees of the District Council on the instructions of the
    District Council pursuant to the relevant contract or contracts of
    employment.

6. The clearance on or during some or all of the days mentioned in
    paragraph 3, above, was in contravention of the District Council of
    Kingscote Roadside Vegetation Management Plan in that:
     (1) the width of clearance substantially exceeded the limits
     prescribed in the Management Plan; and
     (2) in situations where encroaching vegetation consisted only of
     occasional limbs, chainsaws should have been but were not used to
     remove those limbs.

7. Specific instances of the alleged contravention occurred during
    the course of the operations undertaken on the abovementioned days.

8. The District Council was at all times aware of the practices of
    its employee or employees on the days abovementioned and
    specifically approved of the clearance or approved of the methods
    which resulted in the clearance in excess of requirements specified
    in the abovementioned Management Plan.

9. The District Council did nothing to correct the practices of its
    employee or employees during the periods specified in paragraph 3,
    above."

6. The Council pleaded not guilty.

7. Section 26(1) of the Act makes it an offence to clear native vegetation unless the clearance is in accordance with Part 5 of the Act. It provides: "A person must not clear native vegetation unless the clearance is in accordance with this Part." Section 27, which is in Part 5 of the Act, prescribes circumstances in which clearance may be undertaken. It provides:
    "Subject to any other Act or law to the contrary -
    (a) native vegetation may be cleared with the consent of the
    Council given in accordance with section 29;
    (b) native vegetation may be cleared -
     (i) if the vegetation is of a prescribed class; or
     (ii) in prescribed circumstances."

8. The reference to the Council in s27 is to the Native Vegetation Council. It is common ground that the Kingscote Council cleared native vegetation in two road reserves in February and March 1994. The roads were Tin Hut Road and Ahwans Road. The Council did not assert that the vegetation had been cleared with a consent pursuant to s29 of the Act or that the vegetation was of a prescribed class. The Council's defence was that the vegetation had been cleared in prescribed circumstances.

9. The Council relied on Reg3(1) of the Native Vegetation Regulations 1991 which is a long list prescribing circumstances in which native vegetation may be cleared. The Council relied on paras(a), (g) and (l) of Reg 3(1). At the trial the Council raised other grounds of defence. It does not pursue them on this appeal. The only issues on the appeal concerned the three paragraphs of Reg 3(1).

Councils Subject to Native Vegetation Act 10. Paragraph (a) of Reg3(1) authorises the clearance of native vegetation "If the clearance is authorized or required by an Act or Regulation." The Council pointed to its powers under the Local Government Act and submitted that it was authorised to clear native vegetation growing beside public streets and roads. The two roads the subject of this complaint are public roads and are, therefore, vested in the Council: s306 of the Local Government Act. By s314(d) of the Local Government Act the Council has power to "do all such things as pertain to the proper management of roads". The Council cannot cut down or destroy any bush or tree more than 4.5 metres in height which is growing by any road except pursuant to a resolution of the Council: s880(a). The Council, therefore, has power to cut down or remove any bush or tree less than 4.5 metres in height. The question was whether this power is an authority of the kind to which para(a) refers. The magistrate held that it was not and for the reasons which follow he was correct.

11. The use of the word "authorized" in juxtaposition with the word "required" in Reg3(1)(a) indicates that something more than a power or capacity to act in a particular way is necessary if a person is to come within para(a). It is referring to a mandate or permit to clear native vegetation as distinct from a general power or capacity to do whatever is necessary to manage roads. Although the Council has a legal capacity to do whatever is necessary to manage its roads and may fell trees or bushes less than 4.5 metres high, there is nothing in the Local Government Act which expressly authorises the Council to clear native vegetation. This is an example of a general power or capacity to act which is conferred by a statute being subject to a special provision in a later statute which deals with a particular topic: see Goodwin v Phillips (1908) 7 CLR 1 at 14, where O'Connor J said: "Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply." The special provisions of the NativeVegetation Act must, therefore, be read as a proviso to the general powers of the Council contained in the Local Government Act.

12. This conclusion is reinforced by reference to the powers of Council with respect to park lands and reserves. Section 450 of the Local Government Act places all park lands and reserves under the care, control and management of Councils. Sections 454-458 give a wide range of powers to Councils to effect improvements to park lands and reserves. Section 459 authorises a Council to cultivate park lands for a period not exceeding three years. Nowhere in this part of the Local Government Act is there any provision dealing with native vegetation. If a Council reserve included native vegetation, it would be possible for the Council to clear that vegetation in the exercise of its statutory powers. That is obviously not the parliamentary intention. The general powers contained in the Local Government Act are subject to the special provisions of the NativeVegetation Act and native vegetation on Council reserves can only be cleared in accordance with an approved management plan: Reg3(1)(m).Safety and the Management Plan

13. Regulation 3(1)(g) and (l) exempt clearance of roadside vegetation where it is necessary in the interests of safety or it has been undertaken in accordance with a Management Plan. Paragraphs (g) and (l) provide:
    "(g) where-
     (i) the purpose of the clearance is to prevent, or reduce, the
     risk of personal injury or damage to property (but not injury or
     damage caused by fire);
     (ii)the plant or plants comprising the vegetation exceed two
     metres in height;
    and
     (iii)the nature and extent of the clearance is reasonable; ...

(l) by, or on behalf of, a local council where-
     (i) the vegetation is growing on a road reserve in the area of
     the council;
    and
     (ii) the person undertaking the clearance complies with a
     management plan relating to the clearance prepared by the local
     council and approved by the Council or, if no such plan has been
     prepared and approved, with guidelines prepared by the Council
     relating to the clearance".

14. In para(l)(ii) "the Council" means the Native Vegetation Council. The Kingscote Council has prepared a Management Plan which was approved by the Native Vegetation Council on 6 July 1992. An amendment to the Plan was approved by the Native Vegetation Council on 17 October 1992.

15. The magistrate held that the Council could not rely on para(g) which he held was a general provision which, to use his words, "must give way" to the specific terms of para(l) of the Regulations and the Management Plan. There is nothing in the Regulations which justifies that conclusion. Both paras(g) and (l) deal with specific matters and qualify the general proscription of vegetation clearance. Each operates independently of the other. The Council is, therefore, at liberty to rely on para(g) notwithstanding the existence of the Management Plan. The force of the conclusion may be illustrated. Assume, say, that a tree which is outside the permitted width of clearing prescribed by the Management Plan is diseased and, therefore, dangerous. In such a case, the Council should be able to fell the tree pursuant to para(g) provided the conditions in sub- paras(ii) and (iii) of para(g) are satisfied. It would be absurd to hold otherwise.

The Management Plan 16. The Management Plan is a document which appears to have a number of purposes. It is divided into five main paragraphs, some of which have a number of sub- paragraphs. Paragraph 1 is called "Introduction". It acknowledges
    - that native vegetation is an important feature of Kangaroo Island
    and that roadside vegetation is an environmentally significant
    component of it, and

- the management problems associated with roadside vegetation which
    are stated to be "difficult and expensive to address".

Thus, at the outset, the Plan recognises the tension between the preservation of native vegetation and the undertaking of proper steps at a reasonable cost to manage roads in the Council area (which must include making the roads safe). These issues and in particular the difficulties of management are spelled out in para2 which contains the statement of the general policy:
    "2. STATEMENT OF GENERAL POLICY
    The District Council of Kingscote recognises the importance of its
    native roadside vegetation and is committed to its conservation
    where-ever practicable. At the same time the District Council
    recognises two key requirements which will often necessitate the
    clearance of roadside vegetation:
    - The need for the safety of road users to be the Council's first
    priority.
    - The right of landholders to fence their properties on the legal
    boundary and have safe access to their properties.

It is estimated that Council is responsible for the management of
    about 2000ha of native roadside vegetation, possibly a higher
    figure than any other Local Council in South Australia. Roadside
    management issues are probably more complex than elsewhere and the
    difficulties posed by limited finances need to be recognised."

17. Paragraph 3 then states what are considered to be the main management issues. For present purposes it is sufficient to refer to s3.1, which repeats the concern as to road safety:
    "3.1 Clearance for Road Safety

This has been the most prominent and difficult management issue in
    the Council district over many years. By nature the district's
    roadside vegetation is dense and vigorous and along numerous roads
    there is encroachment over the road surface by both trees and
    shrubs. Sections of some road (sic) have become trafficable to
    just one lane and the hazard is most pronounced where those roads
    are used by buses (school and tourist) and large farm transport.

In these situations Council is obliged to restore the carriageway
    to a safe width (usually 6 to 9 metres) and to clear back the verge
    width to provide adequate sight distance. Verge clearance also
    needs to be sufficient that maintenance work is not needed at a
    frequency which cannot be sustained.

At the same time Council recognises the land management issues
    associated with active vegetation clearance and supports the
    concept of maintaining a "living verge" of low and maintainable
    shrubs. This is discussed in more detail later.

Currently there is a range of methods available to Council for
    verge clearance. A brief analysis of these is provided as
    Table 1."

18. It is unnecessary to repeat Table 1 which is a summary of roadside clearance methods currently available, with an estimated cost of each, and some brief comments on their practicability.

19. Paragraphs 4 and 5 set out the Management Plan. It is in two parts. The first is in para4 which is headed "Policies, Standards and Methods". The second is in para5 which sets out an action plan for three years. For present purposes it is sufficient to quote paras4.1.1, 4.1.3, and 4.2 of para4.
    "4.1.1 Width and Height of Verge Clearance

Verge clearance requirements will vary according to the type and
    volume of road traffic and also according to the type of
    vegetation. Council's immediate priority is the roads used
    frequently by buses and large farm transports. Along other roads
    somewhat lower standards of clearance might be tolerated,
    particularly vertical clearance.

For the heavier used roads Council will work to a desired objective
    of 2m clearance in from the edge of the carriageway but makes two
    important qualifications.
    - greater clearance will often be needed on bends and at
    intersections: this is accepted safety practice;
    - because of the type of machinery available for verge work,
    clearance up to 3m wide will occur in some situations.

Required vertical clearance is 4.5m on roads used by tall stock
    carrying vehicles, in line with the normal Department of Road
    Transport standards.

These standards are illustrated in Figure 2.

4.1.3 Procedures for Verge Clearance
    (a) Timber Removal Prior to Council Works
    Council will seek expressions of interest from woodcutters or
    landholders regarding the cutting of usable timber prior to
    Council's works.

(b) Council Clearance Works
    This part refers to road verges with a moderate to heavy cover of
    vegetation. Verges with lighter growth/regrowth are covered in
    Section 4.2 (Road Verge Maintenance).

Clearance will normally be undertaken by bulldozer, with the blade
    angled to roll the debris into the edge of the remaining
    vegetation. With particularly heavy growth the debris may be
    angle-bladed on to the road surface and removed to a stockpile for
    later burning.

Branches intruding into the clearance space from trees further into
    the road verge will be removed by chainsaw or a "breaker-bar"
    fitted to the heavier machinery. Some "problem trees" on the
    immediate edge of the clearance space may be removed or pushed into
    the remaining vegetation.

In situations where the encroaching vegetation consists only of
    occasional limbs, these will be removed by chainsaw.

Council will continue to explore alternative clearance machinery,
    not currently available in the district, in consultation with the
    Native Vegetation Management Branch and others."

20. It is intended the Plan should be reviewed every three years: see para4.11, but road verge clearance programs will be reviewed annually in the light of available resources and any changes in priorities: para4.1.4.

21. Paragraph 5 provides for a plan of action over three years. It does so by setting out in Table 2 of the Plan a list of some of the roads on Kangaroo Island and the years in which vegetation clearance will be conducted on those roads. It refers to the type of vegetation along those roads and the desired method of clearance. It is unnecessary to recite the table. It is sufficient to note that Table 2 states that roadside clearance will be conducted in Tin Hut Road in the 1993-1994 year. The width of the road reserve is 60 metres. It notes the vegetation type and proposes as methods of clearance the use of an angle blade of a bulldozer and a chain saw. Curiously, the plan does not mention Ahwans Road, notwithstanding that it forms a fork with Tin Hut Road.The Alleged Breaches - Ahwans Road

The Alleged Breaches - Ahwans Road 22. The clearance undertaken along Ahwans Road was for a distance of 14.2 kilometres. The complainant alleged that, in that distance, there were six instances where the Council had cleared to a distance beyond the limit of three metres prescribed in the Management Plan. The magistrate did not make any findings of fact whether any of those six instances constituted a breach of the Management Plan. Instead, the magistrate held that Ahwans Road was not included in the Management Plan and that the Council could not, therefore, rely on it. It was not, he said, permissible for Council to carry out this clearance given that it had not been included in the Management Plan. In the absence of any provision as to the extent to which clearance along Ahwans Road was permitted, he could not make any finding whether the clearance complied with the Plan. The magistrate's reasoning is correct as far as it goes, but it does not go far enough. It fails to have regard to the fact that the Council could have relied on para(g) of Reg3(1). Ahwans Road forms a fork with Tin Hut Road. The work on Ahwans Road represented a continuation of the clearance on Tin Hut Road. It was reasonable for the Council to do the work while it was working on that area on Tin Hut Road.

A Defence Based on Safety 23. Because of the view he took as to the operation of para(g) the magistrate did not examine the issue whether the interests of road safety required removal of the trees the subject of the complaint in Tin Hut Road. In his remarks on penalty he held that the clearance on both side of Ahwans Road was necessary in the interests of road safety. He said:
"The breach of the Native Vegetation Act consisted in three
    instances of clearance and damage to individual trees outside the
    area permitted by the Management Plan and by utilizing methods not
    approved by the Native Vegetation Authority for protruding limbs of
    trees. Further, there was clearance both sides of Ahwans Road when
    that area had not been included as an area to be cleared within the
    terms of the Management Plan. However, in relation to this latter
    clearance I accept that it was certainly a road which required
    clearance of roadside native vegetation to allow the proper and
    safe utilization of the road by members of the public. Moreover,
    with the possible exception of certain individual photopoints that
    were the subject of evidence and complaints by the complainant, it
    appears that the clearance was done in accordance with the general
    parameters of the Management Plan."

24. The context in which this extract appears indicates that the magistrate has concluded that, in the case of both Tin Hut Road and Ahwans Road, the clearance was done in accordance with the general parameters of the Management Plan.

25. The magistrate has not, however, made any findings as to whether any of the trees in Ahwans Road the subject of the complaint had to be removed in the interests of safety. Nor has he made any findings as to the matters referred to in sub-paras(ii) and (iii) of para(g). The magistrate ought to have considered the operation of para(g) in relation to both Tin Hut Road and Ahwans Road and ought to have determined whether the interests of safety required the removal of any of the trees the subject of the complaint. It was necessary also for him to determine whether the other aspects of para(g) were satisfied. The conviction must, therefore, be set aside and the matter remitted to the magistrate for determination whether Council's actions fell within the terms of para(g).

The Alleged Breaches - Tin Hut Road 26. The clearance along Tin Hut Road was for a distance of about 8.6 kilometres. In that distance the complainant identified four instances where the Council had cleared to a distance beyond the limit of 3 metres prescribed in the Management Plan. The magistrate held that he was not satisfied that one of those instances was a breach of the Management Plan but he held that the Council had acted in breach of the Plan in the case of the other three instances which were described as photo points 6, 8 and 9.

27. In the case of photo point 6, a major limb of a tree had been removed from the main trunk by the use of a bulldozer blade. The rest of the tree still stands and is living. The bulldozer operator had used the blade to break off a branch which was overhanging the verge. However, in doing so, the major limb also fell. The limb which fell was attached to the base of the trunk. Thus, a substantial part of the tree was removed. The photograph shows that there is still a substantial amount of native vegetation remaining at this site. The base of the limb was at least two to three metres from beyond the three metre clearance line.

28. At photo point 8, a Messmate Stringy Bark tree had been substantially uprooted and the tree has been destroyed. The bulldozer operator had attempted to break a branch which was extending into the roadside verge by use of the bulldozer blade. In the course of this operation, the whole tree rotated and was uprooted from the ground. The photograph shows other trees and vegetation still standing beside this tree.

29. At photo point 9 the main trunk of the tree had been substantially scarred by a bulldozer blade. The trunk was at least five metres from the three metre line. The top-most branch of the trees had been overhanging the road. The bulldozer operator had used the blade to remove those branches but in doing so had travelled beyond the three metre line and caused the damage to the tree. In effect the tree was rotated on its base. The photographs show that other vegetation including trees and shrubs remains beside this tree.

30. The complainant says that in each case damage would not have been caused had the bulldozer operator used a chain saw. The evidence was that work safety requirements required two persons to be present when a chain saw was being used. In addition, it would be necessary to have brought equipment such as a cherry picker to the site to enable the limbs to be felled. It seems that the bulldozer operator decided to use his blade as a more economical means of breaking the branches. There is nothing to show that he intended to damage any trees. The damage occurred in consequence of the fact that the limbs did not readily part from the main trunk. The bulldozer did not have a "breaker-bar" fitted to it which could have been used instead of a chain saw. It is not possible for this court, which has not been given the whole of the transcript to say whether the damage to the trees was negligently caused. There is no suggestion that the operator deliberately breached the requirements of the Plan.

31. It will have been noticed that para4.1.3 states that clearance will normally be undertaken by a bulldozer and states the branches intruding into the clearance space should be removed by chain saw or by a breaker-bar. It also provides that "some `problem trees' on the immediate edge of the clearance space maybe removed or pushed into the remaining vegetation". A chain saw is required when encroaching vegetation consists of occasional limbs only. The Management Plan does not spell out as clearly as it might the requirement to use a chain saw particularly where, as here, the vegetation being removed was quite thick.

Substantial Compliance Sufficient 32. The Management Plan is a statement of general objectives. It acknowledges the tension between the desirability of preserving native vegetation and the necessity for roadside clearance to be conducted in a efficient and practicable manner. In other words, the Plan recognises that clearance of roadside vegetation is necessary to enable vehicles to pass along a road easily and safely but, at the same time, recognises also that the Council should not have to incur an excessive cost in clearing vegetation. The Plan is not expressed in absolute terms. Given the variety of topography and terrain over which roads pass, the infinite variety of routes followed by roads and in particular the differences in bends, curves and gradients of roads, and the differences in road dimensions, it would be quite an impossible task to spell out in a Management Plan of this kind detailed specifications as to how roadside clearance should be conducted. At best, the Plan sets out a series of guidelines. It should, therefore, receive a broad and reasonable interpretation. The Plan should be interpreted in the light of practicable considerations rather than by meticulous measurement: cf Lord Reid in Gill v Donald Humberstone and Co (1963) 3 All ER 180, 183.

33. The complainant contends that the Council must comply strictly with the Management Plan. That, it says, is a consequence of the fact that the Regulations are an exemption from the general prohibition in the Native VegetationAct against clearance of native vegetation. The complainant adds that the Plan spells out in reasonable detail the requirements for roadside clearance. This argument fails to have sufficient regard to the nature of the Management Plan and the fact that it is not drawn so as to spell out in clear terms the content of the obligations of the Council. There are several indicators to that conclusion. The first is that the Plan on several occasions recognises that the overall objective of the Plan is subject to the requirements of road safety and the need for roadside clearance to be carried out at a reasonable cost having regard to the financial position of the Council. Thus, the Plan expressly states in para2: "Roadside management issues are probably more complex than elsewhere and the difficulties posed by limited finances need to be recognised." Next, the Plan goes no further than to spell out desired objectives and guidelines to achieve those objectives. In the second paragraph of para3.1 reference is made to the necessity "to clear back the verge width to provide adequate sight distance". What is an adequate sight distance will vary from point to point along the road. The need to provide an adequate sight distance might, therefore, according to circumstances, override the clearance distances prescribed for each of the roads listed in Table 2. Similarly, para4.1.1 recognises that "greater clearance will often be needed on bends and at intersections: this is accepted safety practice". This, again, will vary from point to point along roads and will, according to circumstances, require that the distances prescribed in Table 2 be subject to that qualification. The occasions when a chain saw should be used are not clearly stated. The obligation only exists in the case of occasional limbs encroaching across the road: see para4.1.3. In this case, the uncontested evidence was that there was a substantial canopy of trees along both Tin Hut Road and Ahwans Road. Moreover, regard must be had to the overall objectives of the Management Plan, namely, to allow reasonable roadside clearance while at the same time preserving native vegetation. That objective is not defeated by occasional isolated instances of a departure from the terms of the Management Plan.

34. Strict compliance with the Plan would result in the breach of the Act even if one tree was removed in breach of the Plan in the course of clearing along both sides of a road 20 kilometres long. To assert that fact is to demonstrate that strict compliance is not required. It is sufficient, therefore, if there has been substantial compliance. The question whether in any particular instance the Council has substantially complied with the Management Plan will be a question of fact and degree having regard to all relevant circumstances.

35. There is a further reason why the Council is not required to comply strictly with this Management Plan. Reg3(1)(l) is silent as to whether strict or substantive compliance is required. There is, therefore, an ambiguity which remains after applying the ordinary rules of interpretation. That ambiguity is to be resolved by adopting the most lenient construction: Beckwith v The Queen
(1976) 135 CLR 569, 576; Denning 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129 at 145. The most lenient construction is that substantial compliance suffices.

36. Although not expressly stated, it is nevertheless apparent from his reasons that the magistrate has taken the view that strict compliance with the terms of the Management Plan is necessary. He has, therefore, made an error of law which requires the convictions to be set aside.

37. This is not a case where the identified instances of a failure to comply with the Development Plan are representative of other breaches. Instead, it is a case where there are a few instances only where there has been a failure to comply with the Plan. In the case of Tin Hut Road only three instances in a distance of 2.2 kilometres were proved. In the case of Ahwans Road only six instances were alleged in a distance of 3.2 kilometres and no finding has been made that the allegation has been proved. But, as the particulars state, the road side clearance was on both sides of each road for a continuous distance of 8.6 kilometres along Tin Hut Road and 14.2 kilometres along Ahwans Road. The fact that there have been a few isolated instances of a failure to comply with the Management Plan in a relatively extensive area of clearing points to the conclusion that the Council has substantially complied with the Plan and that the Council was not guilty of a breach of the Management Plan in relation to Tin Hut Road. However, this Court does not have the whole of the evidence. Nor has it had the benefit of the view which was taken by the magistrate. In all the circumstances the appropriate course is to remit the matter to the magistrate to be determined in accordance with these reasons.

Conclusion 38. The magistrate has erred in the two respects identified above. The convictions should, therefore, be set aside and the matter remitted to the magistrate for determination in accordance with these reasons.