The Resolution of the Primary Council Contention
22 In my view the construction for which the Council contends by way of its primary contention is to be preferred and the Class 2 exemption does not apply to a situation where more than one building is subdivided by way of the one subdivision. First, it reflects the plain meaning of the words used.
23 Secondly, although I do not regard the point to be of great weight in itself, another sub-clause of cl.52 of the planning scheme namely cl.52.24 which deals with community care centres, utilises the phrase "the building or buildings" when that is what the draftsperson intended and there might otherwise be dispute as to that intention.[5]
24 Thirdly, although the Pellicano Builders' proposal subdivides the land into 16 lots, it does so by way of a pattern which effectively divides the land into two halves each containing one building and then creates lots within each half, each of which occupies part of a building and an adjacent car parking area. Both halves are separated by a common access area but after subdivision the northern part of the land could be owned or occupied by one owner or occupier and the southern by another owner or occupier. If the resultant subdivision had in fact been created in two stages, the first stage dividing the land into two halves with associated mutual rights of carriageway and the second stage subdividing the building within each of the resultant lots, it is clear from the decision in the Billabong case that the first stage would not comprise an exempt subdivision. It would be odd if, by rolling up both the spatial components of the land and the buildings into one subdivision, the subdivider could expand the exemption and avoid the effect of the limitation expressly stated in the Class 2 provisions.
25 Fourthly, the meaning of the Class 2 exemption would be materially different from its apparent meaning if Mr Gobbo's construction were preferred.
26 Fifthly, I am of the view that the use of the definite article within the proviso to the Class 2 exemption is deliberate. (Just as it is in the proviso to the Class 1 exemption). More particularly it appears to me that the choice of the phrase "the building" rather than "a building" is a deliberate one. Mr Gobbo accepted during the course of argument that the construction put forward on behalf of Pellicano Builders would amount to substituting the words "a building" for the words "the building" in the proviso. In my view cl.52.01 provides for the making of contributions upon subdivision of buildings but then exempts a specific and limited class of subdivision of commercial and industrial buildings namely the subdivision of a building where each lot contains part of that building.
27 Sixthly, the above views are very strongly supported by the conclusions of McGarvie J in the Billabong case.
28 Seventhly, the Billabong case has stood without provoking a subsequent amendment to the planning scheme for 14 years.[6]
29 I do not, however, regard the contentions put forward on behalf of the Council as to the purpose of the provisions as helpful. Rather, it seems to me that the fundamental scheme propounded by Mr Townshend on behalf of Callaghan George is correct, namely that subdivisions of land are caught but the subdivision of buildings of the type specified is exempt. The difficulty confronting the defendants is that for the reasons I have stated subdivisions of the type of the Pellicano Builders' subdivision in effect roll up the subdivision of land with the subdivision of separate buildings.
30 The history of the provisions supports the recognition of a fundamental conceptual distinction between subdivision of land and subdivision of buildings but it does not compel a different conclusion to that which I have set out above.
31 It is clear that the current provisions are the product of refinement and change. Thus, the second reading speech with respect to the Subdivision Bill which formed the basis of the Act included the following statement: