25 It was common ground between the parties that Cell 9 will eventually have sufficient population to accommodate three child care centres, in locations loosely described as the north, the middle and the south of the cell. The respondent has granted planning consent for a child care centre in St John Road, in the north, on land designated residential in the ODP in the vicinity of a proposed primary school. It was said there have been no proposals for a centre in the south. The proposed child care centre can be described as being in the middle of Cell 9.
26 Mr David Tomlinson, Town Planner with the Shire of Kalamunda, appeared as a witness for the respondent. Mr Tomlinson said that the proposed child care centre is a substantial, commercial use of a non-residential nature. It was his submission that the aim of the ODP is to locate all commercial, non-residential uses in the retail or mixed use areas. In his opinion, building the child care centre outside the retail and mixed use areas in a residential area beyond the open space buffer, would create strip development, would place a commercial use in the residential area and would have an adverse impact on the amenity of the neighbouring residential uses. This would undermine the intent of the ODP.
27 Planning evidence for the applicant was presented by planning consultant, Mr Anthony Shrapnel. In his submission, the subject land is classified residential in the ODP and because the ODP report provides no useful guidance reference should be made to DPS 2 for development requirements within the residential zone. Under DPS 2, a child care centre is an "AA" use within the residential zone (that is, a use that is not permitted unless discretionary approval is granted by the respondent). Mr Shrapnel argued that residential zones normally accommodate in appropriate locations such uses as educational establishment, home occupation, place of worship, institutional home and child care centre, some of which, including child care centre, are not particularly suited to the commercial zonings. In his submission, the subject land is not particularly suited to residential because it is located on Hale Road in the vicinity of the proposed neighbourhood centre, albeit across the open space area, and so it would be appropriate for the Tribunal to exercise its discretion and approve the proposed development.
28 The respondent says that it is not legally correct to equate the "residential" designation in an ODP with the residential zoning under DPS 2. It is argued that the zoning of the subject land under DPS 2 is urban development and there are no stipulated use classes for that zone in DPS 2. The use of the subject land should therefore be in accordance with the stipulated purpose set out in the ODP and this is residential. Non-residential commercial uses should be concentrated in the neighbourhood centre and mixed use zone.
29 The respondent acknowledged that DPS 2 does provide for departure from or alteration of the ODP, but emphasised that should only occur where it will not prejudice progressive development of the area and was in the interest of orderly and proper planning. It was the submission of the respondent, that the proposed development would undermine the ODP's intended consolidation of commercial, non-residential uses.
30 The child care centre approved in a residential locality in St Johns Road to the north, was said by the respondent to be distinguishable because it is significantly removed from the central neighbourhood centre/mixed use area and there was no concern that strip commercial development would result. The child care centre was said to be of a smaller size and compatible with surrounding residential land uses. In addition, the centre by necessity is within that northern area and therefore is so far removed from the centrally located mixed use/neighbourhood centre area that it would not be appropriate to place it in those localities. This present proposal is seen by the respondent as quite different.
31 The respondent also expressed concern that the proposed development is inconsistent with the policies to be considered. Although its policy does not preclude the location of child care centres in a residential zone, it does refer to the need to protect residential amenity and the preference is for the centres to be in close proximity to community facilities, local centres, schools and public transport. The applicant believes the proposed development is consistent with the respondent's policy because of the proposed hours of operation and location in proximity to the proposed neighbourhood centre and public transport.
32 The respondent's evidence was that it also uses the Commission's Bulletin No 72 as a guide and this cautions that child care centres are becoming larger and have a potentially greater impact on the amenity of residential areas. The applicant's response was that draft Bulletin No 72 has the objective of guiding local governments in the preparation of scheme provisions and local policies on child care centres rather than guiding the exercise of discretion with respect to a development application. In any event, it is argued, Bulletin No 72 acknowledges and supports locating child care facilities in residential areas and the proposed development is consistent with Bulletin No 72 in that it is being located, as suggested, convenient to public transport and within walking distance of surrounding residences and the neighbourhood centre. The respondent referred to the child care centre approved to the north, with 82 children in a residential area, as being of comparable scale and intensity.