Johnson v Kent

The basic challenge made by the present respondents - whom I shall call the objectors - as plaintiffs in the Supreme Court of the Australian Capital Territory and as cross-appellants in this Court was and is that the Commonwealth lacks power to erect this tower on Black Mountain incorporating a restaurant and viewing facilities.

The only arguments for the objectors before this Court are, firstly, that any relevant source of power to construct such a tower must be statutory and, secondly, that the only possible source of such statutory powers are three Acts relating to the powers of the Postmaster-General (viz. the Post and Telegraph Act, 1901-1970, the Wireless Telegraphy Act, 1905-1966 and the Broadcasting and Television Act, 1942-1969) and that no such power is to be found in any of the three Acts.

It is clear that there is express statutory power for the Postmaster-General to erect structures for "telegraphic, telephonic and other like services"; see, for example, s. 80 of the Post and Telegraph Act. Whilst I am ready enough to assume, if it be relevant, that the provision of "telegraphic, telephonic and other like services" is the principal purpose of this tower, it is plain that this is not its sole purpose. A statutory power to erect any structure for "telegraphic, telephonic and other like services" is, of itself, insufficient, in my opinion, to authorize the erection of a tower of which an integral part goes beyond making provision for such services. This is so even though what is extraneous to the purpose of providing such services will afford reimbursement for the cost of the tower. It is not sound doctrine that the Commonwealth may do anything that will help it to reimburse itself for moneys lawfully spent for its purposes. After examining the Acts relating to the powers of the Postmaster-General to which the objectors have referred, I am unable to find in any of them a power which covers the building of this tower incorporating a restaurant and viewing facilities. Thus, if the cross-appellants are correct in their primary submission that statutory authority for the erection of such a tower is necessary, their secondary submission would be made out.

It is important to point out that we are not here concerned directly or, in my opinion, indirectly with what the Commonwealth may do elsewhere than in the Australian Capital Territory. Accordingly, I do not feel called upon to express any opinion as to the power of the Commonwealth executive to perform works in parts of Australia other than the Australian Capital Territory without statutory authority. It is enough for the disposal of this matter to decide the power of the executive in the Australian Capital Territory relevant to the subject-matter of the suit.

Power to make laws for the government of the Australian Capital Territory is derived from s. 122 of the Constitution. Section 61 in relation to the Territory in my opinion includes traditional executive power broadly embraced in the description of "the prerogative" exercisable in the Territory. Just as the legislative power for the Territory derived from s. 122 is non-federal in the sense I used that description in Spratt v. Hermes [1] , so it seems to me that the executive power in relation to the Territory is not federally restrained. Consequently, whatever the position in other parts of Australia, the executive, unless its power is relevantly reduced by statute, may in my opinion do in the Territory upon or with respect to land in the Territory anything which remains within the prerogative of the Crown. Here the land, namely, Black Mountain, is the property of the Commonwealth having been vested in the Commonwealth as part of the Australian Capital Territory by the Seat of Government Acceptance Act, 1909-1938. But what the executive does upon and in respect of such lands will be done by virtue of the prerogative and not by virtue of proprietorship. There can be no objection in my opinion to the Commonwealth, in the absence of any statutory provisions, establishing parks, gardens, sports grounds, tourist facilities and the like upon land it possesses in Canberra. But, of course, funds to be expended on any such activity must be the subject of due appropriation according to law (s. 83 of the Constitution). Such a conclusion would cover the erection in the present circumstances of a restaurant and viewing facilities, assuming that there is no relevant statutory impairment of the prerogative.

The question therefore remains whether there is any Act limiting the exercise of the prerogative in the Australian Capital Territory. The only Acts which were mentioned in argument were the three Acts to which I have already referred, viz. Post and Telegraph Act, 1901-1970, the Wireless Telegraphy Act, 1905-1966 and the Broadcasting and Television Act, 1942-1969. But none of these, in my opinion, relevantly impinges on the prerogative exercisable in the Australian Capital Territory. Section 80 of the Post and Telegraph Act was specially relied on. That section although in terms conferring an exclusive privilege is apt, in my opinion, to confer authority to do the things which it describes; but the authority is limited to those things. But in so far as it provides authority, it does so where no like or greater authority already exists. It is not intended to limit any existing authority. Consequently, it is inapt to limit or confine the exercise of the prerogative in the Australian Capital Territory. Accordingly, the objectors' arguments based on Attorney-General v. De Keyser's Hotel [2] must be rejected.

On 19th September 1973, the Governor-General in Council accepted a recommendation from the Minister for Works, as follows:

Construction of Communication Tower at Black Mountain in the Australian Capital Territory.

Recommended for the approval of His Excellency the Governor-General in Council, that, pursuant to all powers him thereto enabling, he authorise the Minister for Works to proceed to construct on land owned by the Commonwealth of Australia at Black Mountain in the Australian Capital Territory the communications tower and associated revenue producing facilities referred to in the report of the Parliamentary Standing Committee on Public Works dated 13th July 1972.

The construction of the tower incorporating the restaurant and viewing facilities was then expressly authorized, even if it be there had been no earlier formal authority from the Governor-General in Council for its construction.

The question raised by the cross-appeal, namely, whether the Minister for Works armed with the minute of 19th September 1973 has power to erect on Black Mountain the communications tower and associated revenue-producing works referred to in the report of the Parliamentary Standing Committee, should be resolved in the affirmative. The submission of the appellants that the Minister may only construct the tower with the authority of Parliament expressed in the Act should be rejected.

Before disposing of the matter I should observe that the hearing of this appeal and cross-appeal took an unusual course, no doubt due in some measure to the form of the judgment of the learned trial judge. His Honour, in his reasons for judgment, made what were described as a number of "findings" which were not reflected in the declarations that he made. The appellants sought to appeal against some of these findings. It was intimated by the Court to counsel for the appellants that such a course was not open to the appellants, only the declarations being appealable. These declarations were as follows:

1. That if, subject to the second declaration hereunder, the tower were constructed and operated for restaurant and tourist purposes without adequate arrangements being made to control traffic to ensure reasonable access by road to the Black Mountain Reserve and reasonable use of the road for passage by persons not desiring to visit the tower a public nuisance would be committed by those so operating it.

2. That the construction of the Post Office tower on the summit of Black Mountain as proposed without the approval and against the will of the National Capital Development Commission would constitute an exercise in undertaking and carrying out the planning, development and construction of the City of Canberra as the National Capital of the Commonwealth of Australia and as such would be an unlawful usurpation of the functions of the National Capital Development Commission in contravention of the National Capital Development Commission Act 1957, and ought to be restrained.

Accordingly, the power of the Commonwealth to erect a tower - save to the extent to which it was affected by the second declaration - was not in issue upon the appeal. Counsel for the appellants, therefore, having informed the Court that, after the judgment under appeal had been given, the National Capital Development Commission had, by reason of action taken under s. 12 of the National Capital Development Commission Act, approved the erection of the tower, intimated that in these circumstances it was not necessary to proceed further with the appeal in support of the second declaration.

I would observe that the first declaration, which relates to arrangements made for the control of traffic in the vicinity of the tower, does hardly seem to have been a matter put in issue by the pleadings. However, the appellants, having informed the Court they understood that the Minister intended to make proper provision for the control of such traffic in the vicinity of the tower, did not seek to canvass the declaration. Accordingly, the appeal as to that declaration will be treated as having been withdrawn. In these circumstances it would seem sufficient to dismiss the appeal without expressing any view as to the propriety of the declarations. Thus, the cross-appeal relating to the powers of the Commonwealth to erect the tower became the only matter that was argued in the proceedings. The cross-appeal should be dismissed for the reasons I have given.

I am in agreement with the Chief Justice's reasons for judgment and with his conclusions in this case. Accordingly I would dismiss the appeal and the cross-appeal.

In this appeal and cross-appeal all that now arises for decision is the cross-appellants' contention that there exists no power to erect, as proposed, a communications tower and associated facilities on land owned by the Commonwealth of Australia on Black Mountain in the Australian Capital Territory.

I have had the advantage of reading the reasons for judgment of the Chief Justice; I would wish to dispose of this matter upon the narrow ground that what is here in issue is the proposed construction of works within the Australian Capital Territory and since I agree with the reasons for judgment of the Chief Justice I would accordingly dismiss both appeal and cross-appeal.

This appeal arises out of the proposal to build a telecommunications tower on the summit of Black Mountain overlooking the city of Canberra. The proposal has led in these proceedings to what may be regarded essentially as an environmental dispute, the proposal being criticized by many on aesthetic grounds, visual and architectural, and on ecological grounds because of the proximity of the proposed tower to the natural reserve on Black Mountain. Burley Griffin in his Plan of October 1913 stated:

Ainslie, Black Mountain, Mugga Mugga, rising almost 700 feet (too lofty and too exposed for building purposes), afford objective points of prospect to terminate great garden and water vistas, with conspicuous positions for future commemorative monuments, and conversely offer points of outlook over a city arranged in an orderly way with reference to them.

The Post Office Tower is not proposed as a commemorative monument, but would be a striking construction on the skyline. Hence the controversy. Some see it as a desecration of the skyline; others see it as an exciting structure reflecting the century and the society in which we live. The lines of battle are not unique. But the substance of the battle is not one which easily lends itself to determination by the courts along established avenues of legal decision. So what was at base a dispute involving community attitudes and purposes, a political dispute in the broad sense, had perforce when it was brought before the Court to turn itself largely into a technical legal dispute on the question whether there was legal authority to erect the structure. However, this was not altogether so. In two ways the plaintiffs sought to have something of the environmental dispute made the subject of judicial determination. First, it was claimed that under the National Capital Development Commission Act 1957-1960, the approval of the Development Commission was necessary as it alone could exercise the function of undertaking and carrying out the planning, developing and constructing of the national capital and that there was no such approval. Smithers J. found in favour of the plaintiffs on this claim and made a declaration accordingly. Secondly, it was claimed that the erection of the tower would constitute a public nuisance and the grounds upon which this claim was based related mainly to the effect which the tower would have on the visual appearance of the capital's surroundings, the effect on the ecology of the Black Mountain Reserve and on the weight of traffic on the road to the summit. A mass of evidence was produced on these subjects and thus one objective of the proceedings was met, namely, the marshalling and presentation before the Court of a large body of evidence whereby the objections of the plaintiffs as citizens could be expressed. Smithers J. found that the interest of even a broad section of the community in the enjoyment of a particular skyline did not constitute a right in the public of such a nature that invasion of it constituted a public nuisance. He also found that the matters of alleged public nuisance other than the matters of road access had not established a case for relief, but he found that if the tower were constructed and operated for restaurant and tourist purposes without adequate arrangements being made to control traffic to ensure reasonable access by road to the Black Mountain Reserve and reasonable use of the road for passage by persons not desiring to visit the tower a public nuisance would be committed by those so operating it. He made a declaration in those terms.

The appellants lodged a notice of appeal challenging the correctness of both of the declarations, but on the hearing of the appeal counsel for the appellants informed the Court that they did not wish to argue the ground of appeal relating to the power to erect the structure in the absence of an approval by the Development Commission. It is therefore unnecessary to determine this question. As to the other declaration which was made, the first declaration in the order appealed from, the attitude of the appellants was indeterminate. The appeal was not withdrawn nor was this ground formally abandoned. It would be my opinion that the appeal in respect of this declaration should be allowed and the declaration set aside, but as the majority of the Court is of the view that as a result of the course taken at the hearing of the appeal the ground was not pressed, I am not prepared to dissent from that view. However, I wish to state that in my opinion the declaration cannot be supported. It is not a public nuisance to increase traffic upon a highway. Every member of the public has the right to use the highway as such. The act of one user in so doing does not in law injure any other user, nor is the creation of an attraction by an owner of land so that the number of users is increased a wrongful act. User of a highway as such is never an obstruction. There is an obstruction when a person uses a highway otherwise than for passage and an attraction of a crowd which congregates and ceases to use the highway for passage may by causing such a congregation result in a public nuisance for which the attractor may be liable. The cases to this effect which were relied on by the judge at first instance are not in my opinion applicable to a case where the attractor does no more than increase the number of persons using the highway for the purposes of passage.

Upon the cross-appeal I am of the opinion that the executive power of the Commonwealth extends to the doing of acts upon its own lands within a territory surrendered by a State to the Commonwealth without any statutory authority other than the necessary appropriation of funds if those acts are of the kind which lie within the prerogative of the Crown. The erection of a restaurant and viewing facilities on the lands in question fall within such a category. I agree with the reasons expressed by the Chief Justice.

I am of the opinion that the appeal and the cross-appeal should be dismissed.

[The Right Honourable Mr. Justice Menzies died before judgment was delivered in this case.