If no amount is specified, a contribution for public open space may still be required under Section 18 of the Subdivision Act 1988.

A public open space contribution may be made only once for any of the land to be subdivided. This does not apply to the subdivision of a building if a public open space requirement was not made under section 569H of the Local Government Act 1958 or Section 21A of the Building Control Act 1981 when the building was constructed.

A subdivision is exempt from a public open space requirement, in accordance with Section 18(8) of the Subdivision Act 1988, if:

* It is one of the following classes of subdivision:

* Class 1: the subdivision of the building used for residential purposes provided each lot contains part of the building. The building must be constructed or used for residential purposes immediately before 30 October 1989 or a planning permit must have been issued for the building to be constructed or used for residential purposes immediately before that date.

* Class 2: the subdivision of a commercial or industrial building provided each lot contains part of the building.

4 It is common ground that each lot contains part of the building. However, the responsible authority contends that the subdivision does not fall within Class 2 because it is not the subdivision of a commercial building. In other words, it is more than one building it is two buildings. The responsible authority argues that looking at the development from an external perspective it appears as two separate buildings. It is not relevant that below ground level and out of sight the two buildings are connected by and share a common basement car parking area. In this the Council relies upon the case of Melbourne City Council v Becton [2003] VCAT 1077 where His Honour Justice Morris had to consider a similar question where 3 towers were joined by a podium structure, which meant that on the basis of the relevant building regulations the 3 towers were in fact one building. With respect to this, His Honour said:

113 .....However it is necessary to construe the permit, not for building regulation purposes, but to give effect to the intent of the Minister in granting the permit. It cannot be that the Minister intended some technical approach to what is a building; rather the term has been used in the permit to be applied in the common sense of the term in an urban planning context.

114 I find that the December 2001 Concept Plan shows three higher buildings, up to 57 metres, in the area at the western end of the site. If constructed, each of the towers shown on the concept plan would be regarded by a layperson as a building, possessing foundations, external walls and a roof. The towers shown on the concept plan are not at all like the Rialto building, with its north and south towers, because the two towers in that building are physically joined. Rather the proposal is more akin to the two towers which once made up the World Trade Center in New York. These towers would be regarded as two buildings, even though joined at a low level, because the predominant part of the built form expressed itself as two individual buildings. So, too, with the proposed towers described in the December 2001 Concept Plan.

5 The Council also argues that the normal rule of statutory interpretation, namely that the singular includes the plural, does not apply to the interpretation of a Class 2 subdivision. This is because the Full Court of the Supreme Court of Victoria held in City of Doncaster v Doncaster Pty Ltd (Trading as Billabong Group Hotels) 8 AATR 81 that the exemption in the planning scheme relating to a Class 2 subdivision did not apply to the subdivision in that case, because it could not be said that the subdivision was a subdivision of a commercial building in which each lot contained part of the building. The Court held that the word "building" in the exemption could not be treated as used in the plural, since the planning scheme showed a contrary intention.

6 By contrast, the applicant contends that the case of City of Doncaster v Doncaster Pty Ltd (Trading as Billabong Group of Hotels) must be interpreted in the context of the facts of that particular case and is not authority for the proposition that section 37 of the Interpretation of Legislation Act 1984 has no application to the interpretation of a Class 2 subdivision. It was submitted that there is no reason to infer an intention in the wording of clause 52.01 to confine the term "building" to the singular. Section 37 of the Interpretation of Legislation Act 1984 provides that, in an act or subordinate instrument, unless a contrary intention appears, words importing the singular include the plural. It would follow that even if the structure is considered to be more than one building, it is sufficient for the purposes of Class 2 subdivisions that each lot comprises part of one of those buildings.

7 In any event, it was further submitted by the applicant that the development should be considered to be one building. It is one structure with a common basement and need not be interpreted as comprising separate buildings. This is consistent with the definition of "building" in the Subdivision Act 1988, which defines "building" as including a structure and part of a building or structure.

8 I regard the key issue in this case to be whether a Class 2 subdivision is confined to the subdivision of a single commercial or industrial building provided each lot contains part of the building, or whether it can encompass the subdivision of more than one building provided each lot contains part of one of the buildings.

9 First it is necessary to consider what application the decision of the Supreme Court in City of Doncaster v Doncaster Pty Ltd (Trading as Billabong Group of Hotels) has on this issue. In my view, the Billabong case must be read and understood in the context of its own particular set of circumstances. I do not consider it establishes as a general proposition that section 37 of the Interpretation of Legislation Act 1984 has no application to the exemption for Class 2 subdivisions in Clause 52.01 of the planning scheme.

10 In the Billabong case the City of Doncaster and Templestowe granted a permit to the respondent for subdivision of land on which a hotel and motel were erected as separate buildings. The subdivision would result in the hotel being on one lot and the motel on another. The permit included a condition requiring a cash payment in lieu of an open space contribution. The respondent appealed against the condition to the Administrative Appeals Tribunal. The Tribunal upheld the appeal, deleting the condition, on the basis that an exemption in the Doncaster and Templestowe Planning Scheme applied to the subdivision. The exemption covered "subdivision of a commercial or industrial building provided that each lot contained part of a building". The Tribunal applied section 37(c) of the Interpretation of Legislation Act 1984 to read the word "building" as "buildings". The responsible authority appealed to the Supreme Court, which allowed the appeal.

11 It is important to recognise that in the wording of the exemption, the word "building" appears twice:

The subdivision of a commercial or industrial building provided each lot contains part of the building.

12 In the Billabong case, the Court was focussing its attention upon the second use of the word "building". The Court characterised the subdivision in that case as one which subdivided the land in question into lots, but the subdivision into the lots was not one which subdivided a building. The Tribunal took the view that section 37 of the Interpretation of Legislation Act 1984 was relevant, which provides that in an act or subordinate instrument unless the contrary intention appears words in the singular include the plural. In referring to the decision of the Deputy President of the Tribunal, McGarvie J said:

"In the light of this provision it seems to me that the exemption relates to a `subdivision of commercial or industrial buildings provided each lot contains part of the buildings.' I am not able to see any contrary intention in the present case."

The short point in the case is whether that view was correct.[1]

13 In the Billabong case, argument was put only on behalf of the Council: there was no argument presented to the contrary by the respondent. In reaching his conclusion that this was not a subdivision which fell within Class 2, McGarvie J said:

Having heard the argument presented by Mr Garde, it is my view that the learned Deputy President fell into error in his construction. It could not be said in this case, in my opinion, that the subdivision was a subdivision of a commercial building in which each lot contained part of the building. It is not possible to give that expression a reasonable or practical interpretation by treating the word "building" as used in the plural. The contrary intention is shown. There was in this case no subdivision of a building.[2]

14 Reading this passage closely and relating it to the facts of the case, it seems to me that the Court is clearly referring to the second reference to "building" in the exemption, and is saying that in the phrase "each lot contains part of the building", each lot must contain part of the building (singular). This is irrespective of whether one building is being subdivided or more than one building. Thus in the circumstances of the Billabong case where there was a subdivision of two buildings but where each lot contained the whole of one building, rather than part of either building, the Court is saying that this is not a case which falls within the exemption. Even though there may be a subdivision of more than one building (and this is a factual issue not an interpretive issue) each lot must contain part of a single building. In my view there is no justification for saying, as the responsible authority does, that the Billabong case stands for the proposition that the Class 2 exemption applies only to the subdivision of a single commercial or industrial building but not to the subdivision of two or more such buildings. In my view, it is irrelevant how many buildings are being subdivided so long as each lot contains part of a single building. However, the exemption would not apply to a situation where a number of buildings were being subdivided and each lot contained the whole of one of those buildings, which was the finding made by the Supreme Court in the Billabong case.

15 I consider that to hold otherwise would result in an absurd outcome. It would result in an exemption from a public open space contribution if there was subdivision of a single building of a commercial or industrial nature on a lot but not if there were two or more buildings. This could well lead to the design of developments comprising single buildings when a better urban design solution might be to have multiple buildings simply in order to avoid liability for a public open space contribution. It will also lead to the type of esoteric argument that was put in this case about whether a structure joined at a basement or podium level but otherwise presenting as two towers comprises a single building or two buildings.

16 In my view it is not necessary for me to decide this issue in this particular case because I find that each lot of the subdivision contains part of a building and consequently the subdivision falls within Class 2 for the purpose of clause 52.01 of the planning scheme. As a result of this finding, I conclude that the subdivision is exempt from a public open space requirement and accordingly condition 3 of the permit is invalid.

17 Quite what the reason is for including the exemption for Class 2 subdivisions in clause 52.01 I cannot say. It seems anomalous that if there is a subdivision of land for commercial or industrial purposes a public open space contribution is payable, but if land is first developed for commercial or industrial purposes and the development (whether of one or more buildings) is then subdivided, no public open space contribution is payable.

18 The applicant referred to the case of Trethovan v Mornington Peninsula Shire Council 13 VPR 104 which contains a useful exploration of the purpose of requiring public open space contributions. The Tribunal describes the purpose in the following terms:

The principle involved is that the subdivision of land for residential, commercial or industrial purposes can increase the intensity of the use of the land and thereby increase the need for areas of open space for resort and recreation by the increased population occasioned by the subdivision. If the subdivision causes such an increase in need for public open space then it is appropriate that there should be a contribution required as part of the subdivision process to meet the need thus created.[3]

19 Mr Townshend submitted that the purpose of the exemptions in clause 52.01 are to recognise that there are classes of subdivision which do not increase the intensity of use of land. The subdivision of a pre-existing building is one such instance. However, no opportunity exists legislatively to consider whether there is an increased need for public open space due to an increased intensity of the use of land in the case of a commercial or industrial building because it is exempt as a Class 2 subdivision. It may be intentional that a different regime should apply to land and buildings with respect to contributions to public open space in the case of commercial and industrial subdivision or it may be a gap in the legislation. Whatever the case, I must interpret Clause 52.01 as I find it, and as it stands at present, an exemption exists for the subdivision of a commercial or industrial building provided each lot contains part of the building.

20 For the reasons given Condition 3 must be deleted from the permit.

[1] 8 AATR 81, at 83

[2] 8 AATR 81, at 84