19 That then brings me to the buildings constructed on the land. A substantial two storey residential building was constructed and used for residential purposes prior to 30 October 1989. There are 48 dwelling units or flats in this original building. The building is set out around four sides of a square with a substantial courtyard in the middle. There are various entries and exits into this courtyard through the building at ground floor level. However, at first floor level the building runs continuously around the courtyard without a break.
20 In fact, apart from the main hollow square building, there are a couple of buildings within the courtyard area. One is apparently an outbuilding or ancillary building of some sort, but one contains four of the 48 dwellings, two at ground floor level, and two at first floor level. A third building contains two dwellings, one at ground floor level and one at first floor.
21 If this building, or these buildings, had been left in their original state and not extended or had "buildings" added, then a 48 lot subdivision would have qualified for the exemption, provided that part of the original building or buildings was in each lot.
22 That, however, has not been the subsequent history of the site. Further new building works were carried out in 2005 whereby a structure was erected within the courtyard containing eight new dwellings, four at ground floor level, and four at first floor level. This is not a wholly detached building. It is attached to one of the structures in the courtyard. This structure is the one that contains two dwellings, one at ground floor and one at first floor. Mr Cicero has referred to this new structure as being an extension to the existing building or an existing building. Perhaps it is simpler if I just referred to the original building or buildings as the original building, as I do not think that anything material turned on whether it was one or two or more.
23 Thus, all the accommodation now on the site to 56 dwelling units, 48 in the original structure, and 8 in the 2005 addition.
24 The current subdivision is a subdivision of the whole site and all the building or buildings on it. There are 56 lots and containing a dwelling, and various areas of common property inside and outside the courtyard with various facilities such as landscaping and car parking spaces.
25 The question thus arises as to how Clause 52.01 of the planning scheme applies to this subdivision. In particular, is it exempt as a Class 1 subdivision so that no public open space contribution is payable at all? If it is not exempt, then a contribution must be paid, the amount of which is to be determined in accordance with the Schedule. It needs to be borne in mind that this subdivision is a subdivision, not two subdivisions. It either is a Class 1 subdivision, or it is not. It is not half and half. That would only be possible in the event of two subdivisions. Mr Cicero, of course, seeks to rely on the circumstance that the original building was constructed and used for residential purposes prior to 30 October 1989 and the fact that 48 of the lots created contain parts of that building. So far so good. However, his difficulty is that there are now eight lots in the subdivision, which are every bit as much a part of the subdivision as any other lots, which do not contain any part of that original building.
26 In the course of the hearing we descended to some minute points in determining where the divisions between lots are located and whether part of any walls or any little bits of the original building are in any of the eight lots. I do not find it necessary to go into those minute points here. I am, in fact satisfied, that these eight do not contain parts of the original building. However, even if one or two do contain some little bits, I consider it to be perfectly clear that at least some of them contain no parts of the original building. It is to be remembered that if there is one lot that does not contain a part of the building, then that is enough to defeat the exemption on the basis of a Class 1 subdivision.
27 Mr Cicero seeks to get around this point by arguing that a Class 1 subdivision is the subdivision of a building, and once a building has been constructed and used for residential purposes immediately prior to 30 October 1989 it, and every part of it, continues to be effectively Class 1 for subdivision purposes, even extensions created after 30 October 1989. He says, in effect, it was one building when originally constructed and it continues to be one building now, an enlarged building which includes the 2005 addition and extension. It is enough that each lot contains part of the extended building. It does not matter if some contain only parts of building that are post 1989 additions.
28 He has chosen to use the term "building" in what might be an ordinary or colloquial sense, but in doing so he is ignoring the applicable statutory definitions of building in both the Subdivision Act and the Planning and Environment Act. The Planning and Environment Act definition carries through into the planning scheme, and thus is at least normally the applicable to the meaning of the term in Clause 52.01. These statutory definitions are extended definitions that take the concept of building beyond what that word might mean in ordinary English. In both Acts building also "includes" various things that would not normally be regarded as a building. These include a structure or part of a building or a structure. Thus, the 2005 extension was itself a building, whether or not it was attached to, or even structurally part of, the original building. (Oddly enough, Mr Cicero ignored this point for his principal submission, but recognised and adopted it for his fall back position that I will deal with later).
29 I am satisfied that the contrary interpretation and analysis, urged on me on behalf of the Responsible Authority by Mr Power is the correct approach.
30 Firstly, the subdivision of a building is a subdivision of land. In this case, it is the subdivision of a building or buildings and the subdivision of land in the sense of earth. The earth is integral to the subdivision, just as the building or buildings and their various parts are. First of all the buildings sit on the land, and secondly the common property areas are part of the subdivision.
31 Mr Power urges "building" that appears three times in the quotation above of the formulation of a Class 1 subdivision means one and the same thing in each instance. In other words, the building being subdivided is the same thing as the building, part of which must be contained in each lot and, again, is the same thing as the building that must have been constructed or used for residential purposes prior to 30 October 1989.
32 He admits that if the only building in the subdivision was the original 48 dwelling structure, all would be well for the applicant and the exemption would apply. However, because of the 2005 extension we now have eight lots that do not contain any part of the building being the pre 30 October 1989 building. It only needs there to be one such lot for the Class 1 classification to fail in relation to the subdivision. It does fail for this reason, therefore the exemption fails. In the absence of the exemption, then the clause requiring the contribution which "must" be paid operates in the normal fashion so that the only remaining task is to calculate the amount in accordance with the schedule.
33 In support of his argument Mr Power calls in aide a passage from the Judgment of Byrne J of the Supreme Court of Victoria in his Judgment in Port Phillip City Council v Domain Hill Properties Pty Ltd [1998] VSC 35; (1989) 102 LGERA 11 at 15. There his Honour considers the two sentences quoted above containing the formulation for defining a Class 1 subdivision. Mr Power points to His Honour saying that the word "building" in the opening words of the second sentence must refer to the building in the first sentence. In this connection he quotes the following passage: