In a recent case decided by the NSW Court of Appeal, Bronger v Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy [2023] NSWCA 104 (the appeal decision), the Court considered the proper characterisation of a pharmacy. The decision provides guidance to those required to characterise a development for the purpose of determining its permissibility under an environmental planning instrument, as well as the interpretation of an occupation certificate.
In the primary decision, [1] the Court heard a civil enforcement application for an order that the pharmacy stop operating. It was alleged that the land was being used as a “shop” contrary to the Fairfield Local Environmental Plan 2013 (FLEP) and that the pharmacy was operating in breach of its occupation certificate (OC), which allowed the use of the premises as a medical pharmacy, but not a retail pharmacy. The judge at first instance found that these allegations had not been made out.
The pharmacy in question operated within a medical complex which included a range of different health professionals.[2] To the extent that the pharmacy’s operation related to the sale of medicines and medical items to patients of the other tenets of the medical hub, it was accepted by both the primary judge and the Court of Appeal that those activities could be fairly characterised as being ancillary to the medical centre.[3] However, sales were not limited to patients, and any member of the public could purchase items from the pharmacy.[4]
The items sold by the pharmacy were characterised as including: (a) prescription or controlled medicines, (b) pharmacist only substances, (c) over the counter pharmaceuticals, (d) therapeutic goods, complementary or alternative medicines, (e) occupational therapy, mobility and physiotherapy products, and (f) items “described as complementary and ancillary to the maintenance or improvement of human health or the prevention of disease in humans.”
In the appeal decision, the Court considered whether or not it was established that the pharmacy:
The pharmacy was located on land zoned B5 business development. The appellant argued that the use of the land was properly characterised as a “shop” which was prohibited development under the relevant Land Use Table.[5] A shop is defined in the FLEP as “premises that sells merchandise such as groceries, personal care products… or the like”.
The pharmacy argued that its use of the land was properly characterised as a “medical centre”, which was permissible on the land, and is defined as “premises that are used for the purpose of providing health services…to out-patients only.”[6]
In the judgment, the Court outlined the core principles of characterisation, including:
Taking into consideration these principles, the Court concluded that the pharmacy was properly characterised as a “shop” and therefore prohibited. In doing so, the Court found that:
In relation to the OC issue, the primary judge had rejected the applicant’s argument that the pharmacy was being operated as a “retail pharmacy” rather than a “medical pharmacy”. The Court had construed the phrase “medical pharmacy” as a pharmacy which “largely, not necessarily exclusively, sells medicine to anyone (our emphasis)”. In contrast, a “retail pharmacy” was interpreted as being a “full service” pharmacy which could conceivably sell a wider range of items (including products such as sunglasses, hats, cosmetics, perfumes etc). The primary judge did not find that there was any distinction between the terms “retail pharmacy” and “medical pharmacy” on the basis of who the products were being provided to and did not identify any “obvious planning purpose” which could restrict the use to serving a limited group of people.[17] These findings were also challenged by the appellants.
In determining whether the pharmacy was a “retail pharmacy”, the Court noted that, in interpreting an OC, the certificate should be construed in the context of, and consistent with, the relevant planning instrument.[18] In accordance with this approach, the Court of Appeal held that the phrase “retail pharmacy” should be viewed as “reflective” of the meanings provided in the FLEP of “retail premises” and “shop”.[19] In turn, “medical pharmacy” should be seen to reflect the meaning of “medical centre” in the FLEP, being the ancillary, non-independent use of a pharmacy for out-patients of a medical centre only.
By distinguishing the meanings of “retail pharmacy’’ and “medical pharmacy” in this way, the Court determined that the premises had been used as a retail pharmacy, as a result of the sale of pharmaceuticals, medicines and medical items to the public, rather than to only out-patients.[20] The pharmacy was therefore found to be operating contrary to the OC.
This matter highlights the difficulties which can arise in properly characterising development. The Court of Appeal has demonstrated the importance of having regard to the text of the relevant planning instrument and undertaking an objective analysis of whether each aspect of the use of land meets a particular definition.
The Court of Appeal’s findings in relation to this case will clearly have important consequences for the characterisation of pharmacy development, but may also serve as helpful guidance in the consideration of other developments which may fall within two or more different definitions under the relevant planning instrument.
The Court’s judgment on the OC issue is a useful reminder of the need to construe certificates issued under the EPA Act with reference to the relevant environmental planning instrument.
Please note that the information detailed in this Case Note is correct as of 17 July 2023. If you have a specific question, please call Victoria McGinness from our Planning, Environment & Local Government team.
The content contained in this guide is not legal advice. Readers should contact us and receive our specific advice on the particular situation that concerns them.
[1] Bronger v Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy [2022] NSWLEC 91 (‘primary decision’).
[2] Ibid [5].
[3] Ibid [50].
[4] Ibid [10].
[5] “Land Use Table” for the relevant planning instrument, the Fairfield Local Environmental Plan 2013 (“FLEP”), specified “[c]ommercial premises” as a form of prohibited development. The Dictionary to the FLEP defines “commercial premises” as any of “(a) business premises, (b) office premises, [or] (c) retail premises”. “Retail premises” is defined as including “shops”.
[6] The Dictionary to the FLEP defines “business premises” as expressly exclusive of “medical centre”.
[7] Appeal decision [40] citing Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15 [508]; Abret Pty Limited v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 at [51] (‘Abret’).
[8] Appeal decision [40] citing North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 [59E].
[9] Appeal decision [41] citing Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61LGRA 305 [311] per McHugh JA.
[10] Appeal decision [41] citing Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 [160] – [161] per Glass JA (‘Foodbarn’).
[11] Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 [409] – [410] per Meagher JA.
[12] Appeal decision [42].
[13] Ibid [41] citing (Foodbarn at 161).
[14] Ibid [48].
[15] Ibid [52].
[16] Ibid [53] applying Abret at [62].
[17] Ibid [35].
[18] Ibid [63] citing see Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 244 [245] (‘Woolworths’); Bardsley-Smith and Another v Penrith City Council and Ors (2013) 195 LGERA 32; [2013] NSWCA 200 [73]−[74].
[19] Ibid [63].
[20] Ibid [63] citing Woolworths at 257−258.