BRETT CLARK And AUSTRALIAN COMMUNITY PHARMACY AUTHORITY

[2012] AATA 366

CATCHWORDS – HEALTH – PHARMACIES – COMMUNITY PHARMACIES – approval for supply of pharmaceutical benefits – relocation to urban locality (additional pharmacy) – identification of catchment area – whether growth in population 5% in each of two years before date of application – whether proposed premises can, under local government and State laws relating to land development, be used for purpose of operating a pharmacy – scope of enquiry – decision affirmed.

Ashfield Municipal Council v Armstrong [2002] NSWCA 269; (2002) 122 LGERA 105
Australian Community Pharmacy Authority v Eaves (1997) 47 ALD 664
Baiada v Waste Recycling and Processing Service of NSW [1999] NSWCA 139; (1999) 130 LGERA 52
Battalis v Secretary, Department of Health, Housing and Community Services [1993] FCA 348; (1993) 43 FCR 418; (1993) 116 ALR 76; (1993) 18 AAR 34; (1993) 30 ALD 349
Brickworks Ltd v Warringah Corporation (1963) 108 CLR 568
Carpenter v Carpenter Grazing Co Pty Ltd (1987) 5 ACLC 506
City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641; (1985) 55 LGRA 139
Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48
Dellmare Pty Ltd v Banyule City Council [2011] VCAT 1020
Douglas v Tickner (1994) 49 FCR 509
Freeman v Secretary, Department of Social Security ([1988] FCA 294; (1988) 19 FCR 342; 87 ALR 506; 15 ALD 671; 9 AAR 255
Hardess v Beaumont [1953] VLR 315
Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7
In the Estate of Bercovitz [1962] 1 WLR 321
Jebb v Repatriation Commission [1988] FCA 105; (1988) 80 ALR 329
Johnson v Director of Consumer Affairs Victoria [2011] VSC 595
Mallock v Tabak [1977] VR 78
McLean Bros & Rigg Ltd v Grice [1906] HCA 1; (1996) 4 CLR 835
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
Morris v Kanssen [1946] AC 459
Pacific Seven Pty Ltd v City of Sandringham [1982] VR 157
Pharmacy Restructuring Authority v Chatfield [1993] FCA 348; (1993) 43 FCR 418; (1993) 116 ALR 76; (1993) 18 AAR 34; (1993) 30 ALD 349
Port Phillip City Council v VBI Properties Pty Ltd ^[1] [2000] 6 VPR 20
Prentice v Cummins (2002) 124 FCR 67
R v City of Doncaster & Templestowe; Ex parte Mayor [1971] VR 466
Re Dunsdon and Australian Community Pharmacy Authority [2011] AATA 82; (2011) 119 ALD 696
Re Dunsdon and Australian Community Pharmacy Authority [2012] AATA 307
Re Easton and Repatriation Commission (1987) 12 ALD 777
Re Elkhisin and Australian Community Pharmacy Authority [2008] AATA 1134
Re McGourty and Repatriation Commission (1988) 9 AAR 87
Re Newman and Australian Community Pharmacy Authority [2010] AATA 1055; (2010) 119 ALD 227
Re Tascone and Australian Pharmaceutical Authority [2011] AATA 724
Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44
Secretary, Department of Health, Housing, Local Government and Community Services v Kaderbhai (1994) 51 FCR 416
Shi v Migration Agents’ Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 48 AAR 345
Shire of Perth v O’Keefe [1964] HCA 37; (1964) 110 CLR 529; 10 LGRA 147; 10 LGERA 147
Terry White Chemists Australia Fair v Secretary, Department of Health and Ageing [2009] FCAFC 74; 178 FCR 161
University of Western Australia v City of Subiaco (1980) 52 LGRA 360

National Health Act 1953 ss 84(1), 85(2) and (2A), 85B, 87, 88, 89, 90(3), (3A), (3AA), (3B), (4) and (6), 99K(1) and (3) and 99L
National Health (Australian Community Pharmacy Rules) Determination 2006 ss 9 and 10, Schedule 1 (Item 108) and Schedule 2 (Item 201(b))
National Health (Australian Community Pharmacy Authority Rules) Determination 2007 (No 1)
National Health (Australian Community Pharmacy Authority Rules) Determination 2009 (No 1)

Planning and Environment Act 1987 (Vic) ss 3(1), 4(2)(a) and (b), 4A, 5, 6(2)(b), 7(1) and (2), 8(1), 8A(1), 13(1), 14, 16, 47(1)(a), 67, 68(3)9c), 114(1) and (3), 119(a) and (b), 124, 124A-2, 125, 126(1), (2) and (3), 130(1), 141, 147(4), 126
Planning and Environment (Planning Schemes) Act 1996 (Vic) ss 18(1) and (2), 22

Caroline Springs Strategy Plan
Development Plan Overlay, cl 74
Local Structure Plan
Melton Shire Planning Scheme cll 32.01-1, ss 1, 2 and 3, 32.01-1, 62.10, 63.01-05, 63.08, 63.11, 74
Melton East Strategy Plan

DECISION AND REASONS FOR DECISION [2012] AATA 366

ADMINISTRATIVE APPEALS TRIBUNAL     )          
  )          2011/1300
GENERAL ADMINISTRATIVE DIVISION     )          

ReBRETT CLARK

Applicant

AndAUSTRALIAN COMMUNITY PHARMACY AUTHORITY

Respondent

AndJOHN KARDIS

Joined Party

AndSOTTO KOUZAS

Joined Party

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  15 June 2012
Place:  Melbourne

Decision:The Tribunal affirms the decision of the respondent dated 25 March 2011 recommending to the Secretary of the Department of Health and Ageing that the applicant’s application for approval to supply pharmaceutical benefits at Shop 1, 9-12 Federation Way, Caroline Springs in Victoria not be approved.

S A Forgie
  Deputy President

REASONS FOR DECISION

The Australian Community Pharmacy Authority (Authority) has considered Mr Clark’s application to the Secretary of the Department of Health and Ageing (Department) for approval to supply pharmaceutical benefits at Shop 1, 9-12 Federation Way, Caroline Springs in Victoria (the proposed premises).  Mr Clark made his application on 10 February 2011 under s 90 of the National Health Act 1953 (Act).  He based his application on his proposal to relocate a pharmacy from Box Hill in the same State.  In accordance with s 90(3A) of the Act, his application was referred to the Authority.  The Authority is required to consider such applications and to recommend to the Secretary whether the applicant should, or should not, be approved.[1]  In doing so, it must comply with the relevant rules determined by the Minister under s 99L of the Act.[2]  The relevant rule is to be found in s 9 of the National Health (Australian Community Pharmacy Rules) Determination 2006 (Determination No. PB 23 of 2006) as amended (PB 23/2006).[3]  An application of the sort made by Mr Clark must meet the requirements of Item 108 of Part 1 of Schedule 1 and Item 201(b) of Schedule 2 to PB 23/2006.

[1] Act, ss 99K(1) and (3)

[2] Act, s 99K(2)

[3] PB 23/2006 came into operation on 1 July 2006: PB 23/2006, s 2.  It has since been amended by the National Health (Australian Community Pharmacy Authority Rules) Amendment Determination 2007(No 1) (PB 30/2007) and the National Health (Australian Community Pharmacy Authority Rules) Determination 2009 (No 1) (PB 14/2009).

1. On 4 April 2011, the Authority wrote to Mr Clark advising him that it had decided, on 25 March 2011, to recommend to the Secretary of the Department of Health and Ageing (Secretary) that his application be refused.  Mr Clark applied for review of that recommendation.  The Authority has now conceded that Mr Clark has met all of the requirements other than whether he met the requirements of Item 108(3) of Schedule 1 i.e. whether:

   “(a)     the resident population of the catchment area for the proposed premises:

   (i)is, for most of the year, at least 8 000; and

   (ii)has grown by at least 5% in each of the 2 years before the date the application is made [10 February 2011]; and

   (b)the catchment area for the proposed premises contains 1 approved premises.”

1. There are two other parties who have been joined to the proceedings.  They are Mr John Kardis and Mr Sotto Kouzas.   They have raised a further issue.  It arises under Item 201(b) of Schedule 2, which provides:

   “The Authority is satisfied that:

   (a)…

   (b)the proposed premises can, under the applicable local government and State or Territory laws relating to land development, be used for the purpose of operating a pharmacy; and

   (c)-(d)  …”

1. I have decided that Mr Clark’s application meets the requirements of neither Item 108 nor Item 201 and have affirmed the Authority’s decision to recommend that Mr Clark’s application not be approved.

LEGISLATIVE BACKGROUND

Background

1. The Act provides that the Commonwealth will provide benefits in respect of drugs and medicinal preparations to which Part VII of the Act applies.  In broad terms, the drugs and medicinal preparations in respect of which benefits in the form of pharmaceutical benefits will be provided are those declared by the Minister for Health and Ageing (Minister) under a scheme known as the Pharmaceutical Benefits Scheme (PBS).[4] The Minister may determine the forms of pharmaceutical benefits with respect to classes of persons[5] and the Act also regulates matters such as the way in which any special patient contribution is to be made in relation to the supply of a pharmaceutical benefit[6] and the limited charges which an approved pharmacist, medical practitioner or an approved hospital authority may request.[7]

   [4] Act, ss 85(2) and (2A)

   [5] Act, s 85A

   [6] Act, s 85B

   [7] Act, s 87

1. Pharmaceutical benefits may be prescribed by a medical practitioner or by a dental practitioner.[8]  A person is not entitled to receive a pharmaceutical benefit unless it is supplied, upon presentation of the medical or dental practitioner’s prescription, by a pharmacist[9] approved under section 90 or by an approved medical practitioner or hospital authority.[10]

   [8] Act, s 88

   [9] Under s 90, a “pharmacist” includes “… a reference to a person who owns, or is about to own, a business for the supply of pharmaceutical benefits at particular premises.”: Act, s 90(6).

   [10] Act, s 89

1. Agreements between the Pharmacy Guild of Australia (Guild) and the Government have led to the structural reform of the retail pharmacy industry.  The PBS was a particular focus of the reform.  Under that scheme, pharmacists are remunerated for dispensing prescriptions.  As part of the structural reform, approvals given to pharmacists to supply pharmaceutical benefits were limited.  Approvals would only be granted if certain criteria were met. 

Application for approval

1. Section 90(1) provides for the Secretary’s approving an application by a pharmacist to supply pharmaceutical benefits at particular premises.  Where a pharmacist has already been approved under s 90, and so is an approved pharmacist,[11] the Secretary may grant approval in respect of other premises at which the pharmacist carries on, or is about to carry on, business.[12]  In most cases, an application has to be referred to the Authority.[13]  The Secretary may only grant an approval if the Authority has recommended that it be approved.  A favourable recommendation, however, does not require the Secretary to give approval.[14] 

   [11] Act, s 84(1)

   [12] Act, s 90(3)

   [13] Act, s 90(3A)  The only exceptions relate to circumstances in which the pharmacy continues to operate at the same premises but has been sold, the owner (or one of them) has died or there has been a change in the constitution of the partnership that owns the pharmacy: Act, s 90(3AA).

   [14] Act, s 90(3B)

1. The Secretary’s approval does not relieve a pharmacist from obtaining all of the approvals that he or she must obtain under the law of a State or Territory in order to operate a pharmacy business from the premises. This is the subject of s 90(4), which provides:

   “Nothing in this section authorizes the Secretary to grant approval to a pharmacist in respect of premises at which that pharmacist is not permitted, under the law of the State or Territory in which the premises are situated, to carry on business.”

PB 23/2006

1. PB 23/2006 is made under s 99L(1) of the Act.  It provides that the Minister must determine, in writing, the rules subject to which the Authority is required to make recommendations under s 99K(1). 

1. The Authority must recommend that an applicant be approved under s 90 of the Act in respect of particular premises if the relevant criteria in s 9 of PB 23/2006 are satisfied.  Mr Clark’s application involves the cancellation of an approval that is in force in respect of approved premises being those at Box Hill.  Therefore, the relevant criteria in s 9 are those in s 9(a).  They are that:

   “(i)      the application states that it is of a kind mentioned in column 2 of an item of Part 1 of Schedule 1; and

   (ii)the requirements set out in column 3 of that item are met; and

   (iii)the requirements set out in Schedule 2 and Part 1 of Schedule 3 are met; and

   (iv)for an application described in column 2 of an item of Part 2 of Schedule 3 - the requirement set out in column 3 of that item is met; …”

Section 10 provides that the Authority must recommend that an applicant not be approved under s 90 of the Act in respect of particular premises if a requirement applying to an application under s 9 has not been met.

1. In this case, the application is of the kind mentioned in Item 108 of Part 1 of Schedule 1 being, as described in column 2: “Relocation to urban locality (additional pharmacy)”.  The requirements set out in column 3 of Item 108 are:

   “1.      The proposed premises are not in a rural locality.

   2. The proposed premises are at least 500 m, in a straight line, from the nearest approved premises.

   3.        The Authority is satisfied that:

   (a)the resident population of the catchment area for the proposed premises:

   (i)        is, for most of the year, at least 8 000; and

   (ii)has grown by at least 5% in each of the 2 years before the day on which the application was made; and

   (b)the catchment area for the proposed premises contains only 1 approved premises.”

1. Schedule 2 of PB 23/2006 referred to in s 9(a)(iii) sets out the General Requirements of which the Authority must be satisfied.  Item 201 specifies that:

   “The Authority is satisfied that:

   (a)the applicant has a legal right to occupy the proposed premises; and

   (b)the proposed premises can, under the applicable local government and State or Territory laws relating to land development, be used for the purpose of operating a pharmacy; and

   (c)within 6 months after the date on which the Authority makes a recommendation in respect of the application, the applicant will be able to begin operating a pharmacy at the proposed premises; and

   (d)the proposed premises are not directly accessible by the public from within a supermarket.”

1. Schedule 3 sets out the requirements for all applications involving the cancellation of an existing approval.  No issues arise in this case in relation to them.

THE TIME AT WHICH THE DECISION MUST BE REVIEWED

1. For the reasons I gave in Re Tascone and Australian Community Pharmacy Authority[15] (Tascone), I must decide the issues raised in this case having regard to the material currently available.  Although reference is made in some Items to changes that have happened over time – as in the case of population growth in the catchment area[16] – in most cases, there is nothing that links the provisions in PB 23/2006 that must be met with a time in the past.  Generally, compliance is clearly intended to be assessed from time to time until the application is finally determined on its merits.  This is consistent with the approach taken in Shi v Migration Agents’ Registration Authority[17] (Shi).  Illustrations of that approach are found in the authorities[18] that preceded Shi and reached a similar conclusion in relation to what were then broadly characterised as entitlement decisions.

   [15] [2011] AATA 724

   [16] e.g. Item 108 [3(a)(ii)]

   [17] [2008] HCA 31; (2008) 235 CLR 286; 48 AAR 345

   [18] Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342; 87 ALR 506; 15 ALD 671; 9 AAR 255, Re Tiknaz and Director-General of Social Services ((1981) 4 ALN N44), Jebb v Repatriation Commission [1988] FCA 105; (1988) 80 ALR 329, Re Easton and Repatriation Commission (1987) 12 ALD 777 and Re McGourty and Repatriation Commission (1988) 9 AAR 87.

1. An exception to this approach is found in Item 108(3)(a).  Paragraph (3)(a) reflects the general approach in that the requirement that the resident population of the catchment area be at least 8,000 is to be decided at the time the decision is made whether by the Authority or on review.  Paragraph (3)(a)(ii) is an exception for its terms clearly require that a decision be made about the rate of population growth in the period leading up to the date on which an application for approval was made.  In making that decision, regard may be had to more recent material that may have been collected but only if it is relevant in deciding the issue in that time period.  More recent rates of population growth are not relevant.

THE WITNESSES

1. Mr Robert Milner is an urban and regional strategic and statutory planner.  He has worked with what is now known as CPG Australia Pty Ltd and which was one of the initial advisers on the development of Sanctuary Lakes.  He has had held the positions of General Manager, Senior Principal and Adjunct Senior Planning Counsel with that company.  Previously, he has held positions in local government and private enterprise and has provided strategic advice to multi-disciplinary policy and strategy-based projects for public sector clients.  He is now a Director of 10 Consulting Group Pty Ltd. 

1. Mr Tony Dimasi is the Managing Director, Strategy and Analytics, with Pitney Bowes Business Insight.  He taught economics and statistical methods at the University of Melbourne for three years before commencing employment in 1982 in the field of activity centre analysis and related economic research.  Since then, he has been engaged in independent research on behalf of retailers, shopping centre owners and managers, property developers and public authorities regarding supply and demand as well as customer behaviour, motivation and preferences with regard to shopping and activity centre uses.  His research has been conducted throughout Australia and New Zealand.  The projects in relation to which his research and analysis has been sought have included properties in the CBD of various cities, super regional, regional and sub-regional centres, district and neighbourhood centres, homemaker retail facilities, freestanding stores, all forms of retail outlets and commercial and industrial precincts. 

FACTUAL BACKGROUND

1. Many of the factual matters forming the background to the issues I must decide were not in dispute.  They are drawn in part from a view held with the parties and supported by the material in the reports of Mr Robert Milner dated June 2011 and October 2011 and those of Mr Anthony Dimasi lodged on 16 August 2011 and 30 November 2011. 

Caroline Springs

1. The proposed premises are located at the Brookside Centre in Caroline Springs which lies to the north of the Western Highway and is bounded by Clarke Road in the west.  Caroline Springs extends to at least Taylors Road to its north.  Caroline Springs Boulevard runs north from the Western Highway to Taylors Road and beyond.  Further to the east, Westwood Drive also runs in an approximately north westerly direction from a point south of the Western Highway (Ballarat Road) and crosses Rockbank Middle Road before coming to an end a little further to the north at a reserve.  It continues further to the north.  Rockbank Middle Road runs approximately from the west to a point just east of Westwood Drive.  Kororoit Creek bisects Caroline Springs.  It is located to the north of the Brookside Centre but runs to the south of the Caroline Springs Town Centre.

1. Caroline Springs is located in the Shire of Melton.  Clarke Road represents the Urban Growth Boundary so that the land to its west is rural land.  The whole of Caroline Springs lies within Metropolitan Melbourne and, more particularly, within the Melton Shire.  Consequently, the Melton Shire Council is a municipal council within Metropolitan Melbourne for town planning purposes. 

Location of the proposed premises at the Brookside Centre

1. Federation Way, on which the proposed premises located, is a very short road.  It meets Caroline Springs Boulevard at its western end where it becomes Bridgewater Terrace and continues on.  Federation Way runs into a car park which is adjacent to the building housing the proposed premises.  The building and the car park both adjoin an oval and playing fields.  Three schools or colleges are situated in a cluster around the building: Christ the Priest Primary, Mowbray College and the Caroline Springs College.  The whole area is bounded by Caroline Springs Boulevard at its western boundary.  Rockbank Middle Road runs along the northern boundary of the oval and  playing fields but the school and colleges are, for the most part, bounded by suburban streets servicing a residential subdivision.

Current and previous use of proposed premises

1. Brookside Centre is owned by Makcorp Property Group Pty Ltd and has been since 1 December 2000.  The company was also the developer of the Brookside Centre.  On the basis of a Statutory Declaration of its Managing Director, Mr Robert Ugrinovski, I find that the development was completed in or about late 2001.[19]  Since its completion, the proposed premises have been leased continuously as a shop.  Its first use was a Blockbuster Video store and its second and continuing use is as a Video Ezy store.

   [19] Exhibit E

Approved premises in the locality

1. There are three pharmacies in Caroline Springs that have already been approved.  One, the Caroline Springs Pharmacy, is located approximately 1.5 kilometres to the north of the proposed premises in the Caroline Springs Town Centre.  The Town Centre is located on Caroline Springs Boulevard to the north of both the Brookside Centre and Kororoit Creek. 

1. Another, a Soul Pattinson Chemist, is located to the south east of the intersection of Caroline Springs Boulevard and the Western Highway.  The third approved premises is found at the Terry White Chemist at Shop 18 located in the Burnside Shopping Centre at 15-25 Westwood Drive.  That shopping centre is located just to the north of the Western Highway.

ITEM 201(b)(i) OF SCHEDULE 2: Can the … proposed premises … under the applicable local government and State … laws relating to land development, be used for the purposes of operating a pharmacy?

Outline of submissions directed to whether the Tribunal examines Victorian land development law or relies on view of Melton Shire Council

1. The answer to this question is not straightforward.  On behalf of
   Mr Clark, Mr Niall SC pointed to the Development Plan Overlay, the development plan for the relevant location and its amendment, the lease Mr Clark had entered with the premises’ owner, the use to which the premises had been put in the past, the correspondence with the Melton Shire Council and the reports of Mr Milner.  In his written submissions, Mr Niall submitted that the Tribunal is an inappropriate forum to consider the intricacies of Victorian planning law.  That is a task for the Victorian Civil and Administrative Tribunal (VCAT) and should not be moved to this Tribunal.  He noted that the Full Court’s judgment in Terry White Chemists Australia Fair
   v Secretary, Department of Health and Ageing[20] (Terry White case), to which he had referred in his written submissions, is not directly in point but drew my attention to two passages from the judgment.  In the first, the Court said:

   “… [W]hen considering an application for approval under s 90(1), the Secretary is not concerned with provisions of State or Territory laws, but only with the functioning of the Pharmaceutical Benefits Scheme. …”[21]

   [20] [2009] FCAFC 74; 178 FCR 161; Gray, Greenwood and Tracey JJ

   [21] [2009] FCAFC 74; 178 FCR 161 at [22]; 170

1. In the second extract, the Court had said that the Rules made under
   s 99L might apply State laws.  In that case, Mr Niall said, I need only be satisfied that Rule 201(b)(i) has been met.  The Joined Party did not have standing to challenge the use to which the proposed premises are put.  The relevant authority, the Melton Shire Council, has given evidence that they can be used as a pharmacy.  The Council is aware that they are located in a building that was purpose built for shops.  I should not entertain speculative arguments about local government law.  The owner of the premises is not here.  It would be an extraordinary proposition to say that the owner of the shop and the owner of the video business currently leasing the shop are engaged in an unlawful breach of planning laws.  It could never have been intended that the Tribunal conduct a planning review under the guise of reviewing the Authority’s decision.  The test of whether Item 201(b)(i) has been satisfied must be a practical test.   The evidence given by Mr Steve Finlay, who is the Acting Planning Manager of the Melton Shire Council, should be regarded as conclusive evidence that Mr Clark has satisfied Item 201(b)(i) of the Rules.  If it is not and I decide to embark on a consideration of State law, I should find that Item 201(b) is met.  The premises had previously been used as a shop, a pharmacy is a shop and so is a use consistent with its previous use and permitted by the planning scheme.  

1. Mr Dillon, representing the Authority, adopted a position of neutrality on this issue but did make some submissions on it.  He agreed with Mr Niall that Mr Finlay’s letter was sufficient but also submitted that it is proper to consider the material put forward on behalf of Mr Kardis and Mr Kouzas.  The issue is whether the use as a pharmacy is an existing use.  That, in turn, depends on whether a permit was granted and the use commenced before the new planning scheme came into force.  The document entitled “Amended Development Plan Approval No. DP 99/25B Southern Neighbourhood Centre Caroline Springs” (DP99/25B) approves both the development plan and usage.  It could not be said that it is not a permit, Mr Dillon submitted, and it is open to the Tribunal to find that it is a permit.  A “general store” is a “shop” as provided in cl 74 of the Melton Shire Planning Scheme.  A “convenience shop” is a “shop” and so there is no reason why a “general store” is not a “shop”.

1. On behalf of Mr Kouzas and Mr Kardis, Ms Cincotta submitted that Item 201(b)(i) of PB 23/2006 must be met at the date of Mr Clark’s application and not at the date of the hearing or of my decision.  She submitted that I must have regard to the Victorian planning laws and the relevant planning scheme to determine whether the proposed premises can, under applicable local government and State or Territory laws relating to land development, be used for the purpose of operating a pharmacy.  That requires me to examine the planning scheme for the Melton Shire Council and to form my own view, Ms Cincotta submitted, rather than rely on the view of Mr Finlay.  She referred to various authorities in support of her submission that the proposed premises cannot be used as a pharmacy. 

1. In essence, Ms Cincotta distinguished the Terry White case on the basis that the case was concerned with the judicial review of the Secretary’s decision and not, as in this case, with the review of the recommendation of the Authority. The Full Court decided that nothing in s 90(4) of the Act required the Secretary to take apparent non-compliance with planning laws into account.

1. Ms Cincotta submitted that, despite Mr Finlay’s view, the proposed premises could not be used for the purposes of operating a pharmacy.  There had been no permit for use as a pharmacy before 29 July 1999 when the Melton Planning Scheme came into operation.[22]  That is the “approval date” as defined in cl 72 of the Melton Planning Scheme.  It was essential that use be established before that approval date if existing rights are to be established under cl 63.01 of that Planning Scheme. 

   [22] Melton Shire Planning Scheme, cl 61.04 and Schedule; Exhibit JP5

1. A Development Plan Approval issued on 2 June 1999 did not meet the description of a permit.  The Development Plan Approval did not permit or authorise a shop use at the premises.  It did permit a “general store”.  Condition 6 refers to gross leasable floor area of a general store and offices not exceeding 1,902 square metres.  Unlike the word “shop”, the expression “general store” is not defined.  The conditions and plans forming part of the Development Plan refer to a “shop” but the Development Plan did not approve a shop use. 

1. Having said that, Ms Cincotta acknowledged that no permit had previously been required for use as a shop provided conditions under cl 124A were met.  That meant that prior use could be established if the proposed premises were lawfully used as a shop immediately before 2 June 1999.  Even if use was lawful, actual use has not been established.

1. If lawful use is to be established, cl 63.02 of the Melton Planning Scheme provides the manner in which land use is to be characterised.  They are to be characterised by reference to the appropriate purpose being served by the particular use and not by reference to land use definitions in the Planning Scheme.  Ms Cincotta referred to Port Phillip City Council v VBI Properties Pty Ltd,[23] Shire of Perth v O’Keefe[24] and Pacific Seven Pty Ltd v City of Sandringham,[25] City of Nunawading v Harrington[26] and Dellmare Pty Ltd v Banyule City Council.[27]

   [23] [2000] 6 VPR 20

   [24] [1964] HCA 37; (1964) 110 CLR 529; 10 LGRA 147; 10 LGERA 147; Kitto, Menzies and Owen JJ

   [25] [1982] VR 157; Marks J

   [26] [1985] VicRp 64; [1985] VR 641; (1985) 55 LGRA 139; Kaye, McGarvie and Marks JJ

   [27] [2011] VCAT 1020; Mr G Code, Member

Federal Court authority

1. While I agree with Mr Niall that the Terry White case is not directly in point, I do see it as having some significance in the way in which the scheme for the approval of pharmacists dispensing under the PBS is to be approached.

A.The Terry White case

1. In the Terry White case, the Full Court heard an appeal from a judgment of a single Judge dismissing an application for judicial review of a decision of the Secretary to grant approval to a pharmacist to supply pharmaceutical benefits from particular premises. Terry White Chemists Australia Fair had brought that application. The question in issue was whether s 90 did not authorise the Secretary to grant approval to a pharmacist in respect of premises at which, under the law of a State that pharmacist is not permitted to carry on business. That brought s 90(4) into consideration. It was agreed that, under the town planning law of the State of Queensland where the premises were situated, a pharmacy could not be conducted at the particular premises without a permit. The pharmacist did not have that permit.

1. The Terry White case is authority for the following propositions:

   (1)Section 90(4) of the Act imposes a limitation upon the Secretary’s power to grant an approval under s 90(1).[28]

   (2)A distinction must be drawn between the powers of the Secretary and their limitations and those of the Authority:

   (a)The powers of both are governed by the Act.

   (b)Section 99L of the Act permits the Minister to determine Rules requiring the Authority to consider a broader range of subjects, including land use laws, than those required to be considered by the Secretary.[29]

   (3)If the Authority were to find that Item 201(b) had not been met and had not recommended that the proposed premises be approved, s 90(3B) prevents the Secretary from granting that approval.[30]

   (4)State and Territory laws relating to town planning are irrelevant in determining any limitations imposed by s 90(4) on the Secretary’s powers.[31]

   [28] [2009] FCAFC 74; 178 FCR 161 at [10]; 165

   [29] [2009] FCAFC 74; 178 FCR 161 at [17]; 167-168

   [30] [2009] FCAFC 74; 178 FCR 161 at [17]; 168

   [31] [2009] FCAFC 74; 178 FCR 161 at [22]; 170

B.       The Terry White case’s consideration of previous authority

1. In the course of its judgment, the Full Court considered earlier authorities including that of Secretary, Department of Health, Housing, Local Government and Community Services v Kaderbhai[32] (Kaderbhai).  Mr Kaderbhai had applied for approval in respect of premises located at the Tweed Heads Estate Shopping Centre (TH Shopping Centre).  He had submitted a town planner’s report showing a group of nine shops with one marked “chemist”.  When the Authority recommended that approval not be given and the Secretary refused to approve his application and Mr Kaderbhai applied to the Tribunal for their review, he proposed that approval be given in respect of another shop in the group.  The Tribunal substituted a recommendation for that of the Authority to the effect that approval be given in respect of the TH Shopping Centre.  On appeal, a Full Court of the Federal Court held that the word “premises” in s 90(1) is perfectly apt to embrace a shopping centre and Mr Kaderbhai did not need to identify the premises from which he proposed to supply pharmaceutical benefits with any greater particularity. 

   [32] [1994] FCA 1197; (1994) 51 FCR 416; 122 ALR 577; 20 AAR 35; 33 ALD 1; Foster, Cooper and Whitlam JJ

1. It had also noted that s 90(4) is a limitation upon the Secretary’s power and had said that:

   “… The permission contemplated by s 90(4) must be specific to ‘that pharmacist’ in respect of the premises for which approval is to be granted. The permission required is not of a town planning or land use type, which would relate only to premises.

   French J explained s 90(4) in Pharmacy Restructuring Authority
   v Chatfield (1983) 18 AAR 34 at 51:

   In truth, the subsection provides that the secretary has not power to make an approval where State law would not permit the pharmacist to carry on business at the subject premises.  Because of this disempowering effect, the subsection requires the secretary to at least consider whether a proposed approval would be nugatory where by reason of State law the pharmacist would not be permitted to carry on business at the proposed premises.”[33]

   [33] [2009] FCAFC 74; 178 FCR 161 at [11]; 166

1. The Full Court read the Full Court’s statement in Kaderbhai that “The permission required is not of a town planning or land use type …” to relate to the issue it had to consider i.e. whether, before he could make a decision under s 90(4), the Secretary had to satisfy himself that the pharmacist who had applied for approval under the PBS had a development permit to use the premises as a pharmacy as required by the Integrated Planning Act 1997 (Qld) (IP Act). It is apparent that it did so because it then went on to say that the Full Court’s statement in Kaderbhai “… if correct, is fatal to the appellant’s argument in the present case.” i.e. that the pharmacist did require that approval.  

1. The Full Court in the Terry White case then turned to the judgment of Davies and Lee JJ in Pharmacy Restructuring Authority v Chatfield (Chatfield),[34] to which reference had been made in Kaderbhai.  The Full Court had considered whether the Tribunal had departed from the Minister’s rules under s 99L of the Act.  The particular rule required the pharmacist to demonstrate to the Authority that there was a “definite unmet need for” the approval.  Justices Davies and Lee had said:

   “Counsel submitted that the Tribunal ought to have had regard only to that aspect of a pharmacy which involved the dispensation of prescriptions attracting benefits under the Commonwealth’s health scheme.  However, there is nothing in the legislation which limits the ambit of the Tribunal’s consideration to such a matter.  It is not irrelevant that an approved pharmacist dispenses all prescriptions, whether they attract a Commonwealth benefit or not.  Nor is it irrelevant that pharmacies provide other services and sell other goods.  The Minister’s test is that of a definite unmet public need for an approved pharmacy.  It is not necessary to artificially limit consideration of the consequences of granting or refusing approval in a manner which does not reflect the way in which pharmacies carry on business in this country.”[35]

   [34] [1993] FCA 348; (1993) 43 FCR 418; (1993) 116 ALR 76; (1993) 18 AAR 34; (1993) 30 ALD 349; Davies, French and Lee JJ

   [35] [1993] FCA 348; (1993) 43 FCR 418; (1993) 116 ALR 76; (1993) 18 AAR 34; (1993) 30 ALD 349 at [24]; 81, 39, 423

1. The passage from Kaderbhai that I have set out at [39] above was followed in Battalis v Secretary, Department of Health, Housing and Community Services[36] (Battalis).  The Full Court noted this in the Terry White case and said that the passage would not seem to have been drawn to the attention of Kiefel J in Australian Community Pharmacy Authority v Eaves[37] (Eaves).  In that case, her Honour had said:

   “The submission that questions to be addressed by the ACPA under the rules, such as need, proceed upon an assumption that that need would be met if the recommendation and subsequent approval were granted is, I consider, met by considering the secretary’s powers.  In this respect while the terms of r 6 (and
   

   [36] (1994) 34 ALD 483 at 488-489 per Carr J

   [37] (1997) 47 ALD 664

   [38] (1997) 47 ALD 664 at 669 quoted in the Terry White case [2009] FCAFC 74; 178 FCR 161 at [14]; 167

   r 5) would not permit the ACPA to withhold a recommendation of approval, on the basis that there was some outstanding town planning consent or other statutory approval necessary, those matters are to be considered by the secretary under s 90(4).”[38]

1. After reviewing these authorities, the Full Court in the Terry White case concluded:

   “ Such authority as exists therefore reflects conflicting views on the question essential to this case, namely whether town planning and land use laws are irrelevant to the Secretary’s consideration of an application for approval under s 90(1) of the National Health Act, because they do not fall within the limitation imposed by s 90(4). French J in Chatfield and Kiefel J in Eaves both seem to suggest that s 90(4) requires the Secretary to consider the effect of State and Territory town planning and land use laws, whereas the Full Court in Kaderbhai reached the conclusion that those laws are irrelevant to the Secretary’s consideration of an application for approval under s90 (1).  Unless this Full Court declines to follow Kaderbhai, on the grounds that it is fundamentally wrong, the view of the previous Full Court should prevail.”[39]

   [39] [2009] FCAFC 74; 178 FCR 161 at [16]; 167

1. It relied on the requirements of s 15AA of the Acts Interpretation Act 1901 requiring it to prefer a construction that would promote the purpose or object of the Act and the Act’s purpose to regulate the provision of drugs and medicinal preparations to members of the public for whom they are prescribed on a subsidised basis, the Full Court in the Terry White case expressed the view that:

   “… It is unlikely that, in the pursuit of a purpose associated with that scheme, Parliament would have intended to require the Secretary to search for and consider every provision of the law of the State or Territory in which the relevant premises were situated that might bear on the legality of the person applying for approval conducting the business of a pharmacist from those premises.  Not only would the task of ascertaining what were the relevant provisions be onerous, the process of applying them would involve duplication of functions that are already committed to the authorities of the State or Territory concerned.  It is unlikely that Parliament intended that such duplication should occur.  The rights and wrongs of the conduct of particular activities at particular premises are matters for the concern of State and Territory authorities, and not for the concern of the Secretary.  A construction that requires the Secretary to engage in an onerous procedure, involving duplication of functions, should not be adopted if there is an alternative construction that promotes the purpose or object of the provisions. …

   The preferable construction is to regard s 90(4) of the National Health Act as not so much a limitation on the power of the Secretary to grant an approval pursuant to s 90(1), as a limitation on the extent of the approval that the Secretary grants. Viewed in this way, s 90(4) makes it clear that an approval beyond the purposes of the scheme set up by Pt VII of the National Health Act, the Pharmaceutical Benefits Scheme. The approval is not to be regarded as overriding any provision of State or Territory laws under which the carrying on of the business of a pharmacy at the relevant premises by the particular pharmacist would not be permitted. On this construction, the Secretary would not be concerned with the operation of any laws of any State or Territory, but only with the granting or refusal of approval to a particular pharmacist to supply pharmaceutical benefits at particular premises, for the purposes of the Pharmaceutical Benefits Scheme. A pharmacist to whom such approval is granted would still need to be permitted by the laws of the relevant State or Territory to carry on the business of a pharmacist at the premises in respect of which the approval has been granted. The Secretary cannot grant the pharmacist an approval that would oust the effect of those State and Territory laws, but only an approval for the purposes of the Pharmaceutical Benefits Scheme. It would be for the authorities of the relevant State or Territory to apply and enforce the laws of that State or Territory. Accordingly, s 90 (4) of the National Health Act is a declaratory provision that seeks to put beyond doubt that, although a pharmacist might be approved under s 90 (1) for the purpose of supplying pharmaceutical benefits at or from particular premises, he or she being willing to do so on demand at particular premises, such an approval does not cover the field of all permits, licences or approvals a pharmacist may be required to obtain in order to comply with a law of a State or Territory in which the premises are situated, in order to carry on the business of a pharmacist. In that sense, s 90 (4) of the National Health Act is not a limitation on the power of the Secretary, but explanatory of the content of the power.”[40]

   [40] [2009] FCAFC 74; 178 FCR 161 at [19]-[20]; 168-169

1. The Full Court in the Terry White case went on to reconcile its conclusion with that in Kaderbhai:

   “         The adoption of a purposive construction of s 90(4) of the National Health Act leaves the conclusion that, when considering an application for approval under s 90(1), the Secretary is not concerned with the provisions of State or Territory laws, but only with the functioning of the Pharmaceutical Benefits Scheme.  To the extent to which it stated that town planning and land use laws are irrelevant to the Secretary’s function, what the Full Court said in Kaderbhai … is consistent with that conclusion.  Not all of the reasoning of the Full Court in Kaderbhai is consistent with the reasoning based on a purposive construction, however.  Whether a purposive construction is adopted, or whether what was said in Kaderbhai is followed, the proper conclusion is that
   s 90 (4) of the National Health Act does not require the Secretary to consider laws of a State or Territory relating to town planning or land use.…”[41]

[41] [2009] FCAFC 74; 178 FCR 161 at [22]; 170

C.Reconciling Kaderbhai and the Terry White case

1. It seems to me that there is not so much a need to reconcile the judgment in Kaderbhai with that in the Terry White case as to recognise that they were considering different matters altogether and that the Full Court in the Terry White case was constrained by the grounds of appeal in considering the issues.

1. Taking the first matter, Kaderbhai was not a case that was concerned with the application or non-application of town planning and land use laws at all.  It was concerned with the application, or otherwise, of the Pharmacy Act 1964 (NSW) (Pharmacy Act). That was an Act whose purpose was, in part, “… to regulate the carrying on of business of a pharmacist …”.[42]  Section 26, for example, was headed “Restrictions on carrying on business of a pharmacist in pharmacies”.  Section 26(1) provided at the time that:

   “A pharmacist (whether as owner or otherwise and whether alone or as a partner) must not:

   (a)  carry on the business of a pharmacist in more than 3 pharmacies, or

   (b)  have a direct or indirect pecuniary interest in the business of a pharmacist carried on in more than 3 pharmacies, or

   (c)  carry on such a business in one or more pharmacies and have such an interest in one or more pharmacies so that the total number of pharmacies involved exceeds 3.”

   [42] Pharmacy Act, Long Title

1. This provision, like others in the Pharmacy Act, had nothing to do with town planning laws and the premises and everything to do with the regulation of the business of a pharmacist. What the Full Court said in Kaderbhai is that s 90(4) focused upon the “pharmacist” and not upon the “premises”.  It said that “The permission contemplated by s 90(4) must be specific to ‘that pharmacist’ in respect of the premises for which approval is to be granted.  The permission required is not of a town planning or land use type, which would relate only to the premises.”[43] It is apparent from the previous paragraph of the Full Court’s judgment that the permission it had in mind was permission of the sort found in the Pharmacy Act that related to the pharmacist and not to the premises from which he or she would conduct business. This would seem to accord with Carr J’s understanding of the judgment in Kaderbhai when he said in Battalis:

   “         The Full Court in Kaderbhai noted that no application for planning consent or building approval had been made. Quite apart from their observation that such permission is not of the type referred to in s 90(4) of the Act, it is obvious that if the court had considered such approvals were required then it would have added that matter as a further matter upon which the secretary would need to be satisfied.

   Accordingly, I consider it to be part of the ratio decidendi of the Full Court’s decision in Kaderbhai that the permission required under s 90(4) is not of a town planning or land use type and, to the extent that the applicant’s submissions in this case are based on any contrary submission, they must fail.”[44]  

   [43] [1994] FCA 1197; (1994) 51 FCR 416; 122 ALR 577; 20 AAR 35; 33 ALD 1 at [23]; 422; 582; 40; 5; and reproduced at [39] above

   [44] (1994) 34 ALD 483 at 489

1. The second matter relates to the constraints within which the Federal Court must operate on an appeal from the Tribunal.  It is confined by the notice of appeal from a decision of Dowsett J at first instance on an application brought under the Administrative Decisions (Judicial Review) Act 1977.  It could not go beyond the grounds of appeal and conduct a merits review to reach the correct or preferable decision as the Tribunal can in its jurisdiction.  Therefore, it was left to note, but not to resolve how it came to be, that the Authority had recommended in favour of the Secretary’s approving the application notwithstanding that the pharmacist required a permit under the relevant planning scheme.  The Authority’s recommendation had not been challenged.[45] 

   [45] [2009] FCAFC 74; 178 FCR 161 at [17]; 168. The Full Court said: “… It is noteworthy that, in the present case, the Authority must have recommended in favour of the grant approval, notwithstanding the fact that the second respondent requires a permit under the planning scheme to conduct the business of a pharmacy at the relevant premises, and does not have such a permit.  Neither the proceeding at first instance nor this appeal involves a challenge to the recommendation of the Authority, however. …”

1. I note that the Authority could only have made that recommendation if it had taken the view that Item 201(b) had been satisfied for Rule 10 of PB 23/2006 provides that the Authority must recommend that an applicant not be approved under
   s 90 if certain requirements, including that in Item 201(b), are not met.  If it had not been met, the Authority could not have recommended approval. 

1. How this could have come about becomes clear when regard is had to the judgment of Dowsett J at first instance.[46]  Under Queensland’s IP Act and the Gold Coast Planning Scheme, the relevant premises had been zoned for use as commercial purposes but not for use as a shop as would be its use as a pharmacy.  Justice Dowsett explained that:

   “… Under the planning scheme use as a shop is as a ‘self-assessable development’, provided that the premises comply with applicable codes.  This seems to mean that the occupier must decide whether the proposed use is permissible by assessing compliance with such codes.  In the event of non-compliance, the occupier must apply for an appropriate permit. …”[47]

One applicable code related to car parking spaces.  Only six were available and that meant that the premises could not lawfully be used as a shop unless an appropriate permit was obtained.

[46] Terry White Chemists Australia Fair v Secretary, Department of Health and Ageing [2008] FCA 1033; (2008) 104 ALD 386

[47] [2008] FCA 1033; (2008) 104 ALD 386 at [3]; 387

1. All this was apparent to Dowsett J but, at the time that the Secretary made his decision on 26 March 2007 under s 90(4) of the Act, whether a permit was or was not required was still a matter of dispute. It was a matter of dispute that had been taken to the Land and Environment Court in Queensland. On 1 February 2008, Rackemann DCJ delivered his judgment finding that the pharmacy did not meet with the requirements of the applicable code for self-assessable development and so a permit was required for use of the premises as a pharmacy to be lawful.[48]  Although no reference is made to the Authority’s recommendation in Dowsett J’s judgment, it would seem that, as an administrative decision made for the purposes of PB 23/2006 a year or so before, the Authority had formed a contrary view and so found that Item 201(b) was satisfied.  That it did so is the only explanation for the Secretary’s making the decision that he did for, if the Authority had not been satisfied that the proposed premises could, under State planning law, be used for the purpose of operating a pharmacy it could not have recommended that the Secretary approve the application and the Secretary could not have approved it.  The Authority could only have made a recommendation to approve if it had taken the view that Item 201(b) had been satisfied for Rule 10 of PB 23/2006 provides that the Authority must recommend that an applicant not be approved under s 90 if a requirement such as that in Item 201(b) is not met.  That meant that the Authority must have been satisfied that the proposed premises could, under State planning law, be used for the purpose of operating a pharmacy.

Consideration whether the Tribunal examines Victorian land development law or relies on view of Melton Shire Council

[48] [2008] FCA 1033; (2008) 104 ALD 386 at 393

1. It is clear from the Full Court’s judgment in the Terry White case that “… It is clearly open to the Minister to require the Authority to take into account the land use requirements of State, Territory and local laws if the Minister considers that to be appropriate. …”.[49]  That is what the Minister has done in Item 201(b) of PB 23/2006.  The next question turns on what the Minister requires of the Authority, and so of the Tribunal, under Item 201(b). 

   [49] [2009] FCAFC 74; 178 FCR 161 at [17]; 168

1. The Minister requires of it that it be “satisfied that … the proposed premises can, under the applicable … laws relating to land development, be used for the purpose of operating a pharmacy.”  The extent of the Authority’s enquiry, and so of mine, must be shaped not only by these words but also their context.  The first thing to note is that the Authority is acting as an administrative body making an administrative decision.  It is not a body whose decision can determine an occupier’s rights and privileges or duties or obligations under State or local government planning law.  The second thing is that the Authority is making a decision for the purpose of the PBS.  It is not making a decision for the purposes of enforcing town planning law.  That, I think, means that it need not necessarily make enquiries to the same extent as would be required of an enforcement body such as a municipal council responsible for regulating compliance with town planning laws.  It would certainly not be required to be satisfied of the matters in Item 201(b) beyond reasonable doubt as would a court deciding whether a person had committed an offence by, for example, using land in contravention of or failing to comply with a planning scheme or a permit.  Satisfaction on the balance of probabilities is all that is required but that brings me to the third point.  That is that it is the Authority that must be satisfied and not the relevant planning authority.

Victorian planning law: the statutory provisions

A.       Planning schemes

1. The Planning and Environment Act 1987 (PE Act) sets out a planning framework whose objectives include ensuring sound, strategic planning and co‑ordinated action at State, regional and municipal levels and establishing a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land.[50]  A planning scheme is:

   “… binding on every Minister, government department, public authority and municipal council except to the extent that the Governor in Council, on the recommendation of the Minister, directs by Order published in the Government Gazette.”[51]

   [50] PE Act, s 4(2)(a) and (b)

   [51] PE Act, s 16

1. Under s 18 of Part 3 of the Planning and Environment (Planning Schemes) Act 1996 (Vic) (PEPS Act), each municipal council must prepare a planning scheme for its municipal district and for any area adjoining its municipal district for which it is a planning authority.[52]  Under the PE Act, each municipal council is a planning authority for the purposes of any planning scheme prepared for its municipal district.[53]  That Act applies to any planning scheme approved under it and so to a planning scheme prepared under the PEPS Act.[54] 

   [52] PEPS Act, s 18(1)

   [53] PE Act, s 8A(1) 

   [54] PE Act, s 5

1. The PE Act, as amended by the PEPS Act, applies to the preparation of a planning scheme by a municipal council as if it were an amendment to a planning scheme. Therefore, Part 3 of the PE Act applies.[55] 

   [55] PEPS Act, s 18(2)

1. A municipal council is required to submit its planning scheme to the Minister for approval under s 31 of the PE Act.[56]  Section 6 of the PE Act sets out the matters provided for in a planning scheme.  It may, among other matters, “regulate or prohibit the use or development of any land”.[57]  A planning scheme for an area must include and specify separately State standard provisions and local provisions.[58]  The State standard provisions must consist of provisions selected from the Victoria Planning Provisions[59] (VPP).  The effect of s 7(3) of the PE Act is that local provisions must include a municipal strategic statement when it has been prepared by a municipal council and any other provision directed by the Minister to be included in the planning scheme.

   [56] PEPS Act, s 20(1)

   [57] PE Act, s 6(2)(b)

   [58] PE Act, s 7(1)

   [59] PE Act, s 7(2)  Section 4A(1) provides that: “To assist in providing a consistent and co-ordinated framework for planning schemes in Victoria, the Minister may prepare and approve standard planning provisions to be called the Victoria Planning Provisions.”

1. Clause 3 of the User Guide to the VPP provides that a planning scheme consists of a written document and any maps, plans or other documents incorporated as well as other documents including the User Guide itself, a State Planning Policy Framework, a Local Planning Policy Framework and zone and overlay provisions.

1. If a planning scheme requires a permit to be obtained for, among other purposes, the use of land, an application for that permit must be made to the responsible authority in accordance with the regulations.[60]  A municipal authority is a planning authority for any planning scheme in force in its municipal district.[61]  Permits are the subject of Part 4 of the PE Act.  Division 1 sets out the manner in which an application is made for a permit and considered by the responsible authority.  Division 1A is concerned with their amendment and Division 2 with appeals against a responsible authority’s refusal of an application for a permit, to approve it with conditions and the like by the Victorian Civil and Administrative Appeals Tribunal (VCAT).

   [60] PE Act, s 47(1)(a)

   [61] PE Act, s 8A(1)(a)

1. Section 22 of the PEPS Act provides that:

   “(1)      A planning scheme prepared under this Part^[[62]] and approved or purporting to have been approved is deemed to have been duly approved in accordance with all of the requirements of this Part and the Principal Act and to be valid and effective in all respects.

   (2) A planning scheme referred to in subsection (1) must not be called into question in any proceeding in any court or tribunal or in any proceeding by way of review under the Principal Act or this Part.

   (3) Nothing in this section applies to an amendment to a planning scheme referred to in subsection (1).”

Section 13(a) provides that:

“The person who is the responsible authority for the administration or enforcement of a planning scheme or a provision of a planning scheme under this Act is –

(a) the municipal council if the planning scheme applies to land which is wholly or partly in its municipal district unless the planning scheme specifies any other person as the responsible authority; …”.

[62] Part 3 of the PEPS Act

B.       Enforcement

1. In the absence of any provision in a planning scheme to the contrary,
   s 13(a) of the PE Act identifies the person who is the responsible authority for the purposes of the administration or enforcement of that scheme.  Where a planning scheme applies to land wholly or partly in its municipal district, the responsible authority is the municipal council. 

1. The duties of a responsible authority are set out in s 14 of the PE Act.  They are:

   “(a)     to efficiently administer and enforce the planning scheme; and

   (aa)to enforce any enforcement order or interim enforcement order relating to land covered by a planning scheme for which it is the responsible authority; and

   (b)to implement the objectives of the planning scheme; and

   (c)to comply with this Act and the planning scheme; and

   (d)to provide information and reports as required by the regulations.”[63]

   [63] PE Act, s 14(1)

1. If a use of land contravenes or, unless prevented by an enforcement order, will contravene the PE Act, a planning scheme or a condition of a permit, a responsible authority or any person may apply to VCAT for an enforcement order against, among others, the owner or occupier of the land or any other person who has an interest in the land.[64]  The application for an enforcement order is regulated by Part 6 of the PE Act as are the proceedings of VCAT in determining it.  An enforcement order made by VCAT must specify the use that has contravened or will contravene the PE Act, planning scheme or permit condition.  The enforcement order may, among other things, direct any person against whom it is made to stop the use within a specified time, not to start the use.[65]

   [64] PE Act, s 114(1) and (3)

   [65] PE Act, s119(a) and (b)

1. Where an enforcement order has been made and served on the owner or occupier of the land, it is binding on every subsequent owner or occupier to the same extent as if the order had been served on those persons.[66]  A responsible authority or any other person may apply to any court of competent jurisdiction for an injunction restraining any person from contravening the enforcement order.[67]

   [66] PE Act, s 124

   [67] PE Act, s 125

1. Any person who uses or develops land in contravention of, or fails to comply with, a planning scheme or permit is guilty of an offence.[68]  The owner and occupier of land are specifically guilty of similar offences under ss 126(2) and (3). 

   [68] PE Act, s 126(1)

1. An authorised officer of a responsible authority may serve a planning infringement notice on any person if that authorised officer has reason to believe that the person has committed an offence under s 126.[69]  In the case of a municipal authority, its authorised officer is one of its employees authorised in writing either generally or in a particular case to carry out the duty or function to exercise a particular power.[70]

   [69] PE Act, s 130(1)

   [70] PE Act, s 147(4)

Victorian planning law: the planning schemes applying in the Melton Shire

A.Melton East Strategy Plan, Caroline Springs Strategy Plan and Local Structure Plan for the Southern Neighbourhood Centre at Caroline Springs

1. The Melton East Strategy Plan, approved by the Melton Shire Council in June 1997, identified the need for three Neighbourhood Centres and a Town Centre to be located within the Caroline Springs development.[71] 

   [71] Exhibit JP6 at 2

1. The Caroline Springs Strategy Plan was lodged with the Melton Shire Council in November 1997.  It addressed broad scale issues which were relevant to the whole site and which needed to be taken into consideration in developing a comprehensive planned and integrated community.  The Delfin Property Group had produced the document for the Melton Shire Council in order to set a framework within which the Local Structure Plans would be developed.[72]

   [72] Exhibit JP6

1. On 25 May 1999, Melton Shire Council approved the Local Structure Plan (LSP) in relation to the Southern Neighbourhood Centre (Brookside Centre) south of Rockbank Middle Road at Caroline Springs.  It did so in accordance with cl 124A-2 of the Melton planning scheme.[73]   Caroline Springs is part of the Melton Shire Council’s municipal district and comes within the Melton East Strategy Plan area. 

   [73] Exhibit JP6

1. The strategic considerations leading to the LSP included a retail study of Caroline Springs and the surrounding area.  The Melton East Strategy Plan had indicated that a Neighbourhood Activity Centre should occupy a site up to 2 hectares and include 3,000 to 3,500 square metres of retail activity serving a catchment of 5 to 10,000 people.  The retail study indicated that was in excess of requirements and care would need to be taken to ensure that retail activity provided in the Neighbourhood Centre did not jeopardise the future of the Town Centre.  The two centres were only one kilometre apart.  After receiving advice, it was decided that the Neighbourhood Centre would have “… a strong learning/community focus rather than a retail/commercial focus”.[74]  In that regard and in summary:

   “The proposal involves three, predominantly primary, schools (state, catholic and private) utilising a shared campus that will include a range of facilities that will be available for use by the general public.  Complimentary retail and commercial activities will be accommodated on site.”[75]

   [74] Exhibit JP6 at 3

   [75] Exhibit JP6 at 7

B.       Amended Development Plan approval under the Melton planning scheme

1. On 2 June 1999, Melton Shire Council issued a document entitled “Amended Development Plan Approval No. DP 99/25B Southern Neighbourhood Centre Caroline Springs” (DP99/25B).  It first specified the address of the land.  Immediately under the heading: “What Will the Approval Allow?”, the following passage appears:

   “The use and development of land for the purpose of: Education Centre (Department of Education); shared resources buildings (comprising a multi-media hub, educational support and training centre, gallery, performing arts and arts); active open space (playing fields and hardcourts), passive open space (gardens, squares, landscape); general store; offices; carparking provision and traffic access in accordance with plans to be submitted pursuant to Requirement One.”[76] 

   [76] T documents at 199

1. There then followed:

   “What Will the Requirements of the Approval Be?

   Requirements Under Clause 124A-5 of the Melton Planning Scheme Requirements for Amended Plans”

   Before the use and development commences, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the plans will be endorsed and will then form part of the approval.  The plans must be drawn to scale with dimensions and three copies must be provided.  The plans submitted with the application must be modified to show:

   “Signage including traffic signs and markings;

   Provision of a bicycle rack adjoining the shop;

   Provision of a loading bay for the shop;

   The internal layout and use of all buildings including the general store and
   offices;

   …”[77]

   [77] T documents at 199

1. The amendment to the Development Plan also stated at cl 40 that:

   “This approval will expire if:

   ∙The development and use are not commenced within one year of the date of this approval

   ∙The development is not completed within one year of the date of commencement.

   The Responsible Authority may extend the periods referred to if a request is made, in writing, before or within three months of the relevant expiry date.”[78]

   [78] T documents at 203-204

C.Overview of the Melton Shire Council planning scheme

1. The Melton Planning Scheme came into operation on 29 July 1999.[79]  Clause 3 of the User Guide to that scheme explains that the planning scheme consists of a written document and any maps, plans or other documents incorporated in it including:

   [79] Exhibit JP5

   “∙The objectives of planning in Victoria

   ∙Purposes of this planning scheme

   ∙          The User Guide

   ∙          A State Planning Policy Framework

   ∙A Local Planning Policy Framework

   ∙Zone and overlay provisions

   ∙Particular provisions

   ∙          General provisions

   ∙          Definitions

   ∙          Incorporated documents.”[80]

   [80] Melton Shire Planning Scheme, cl 3

1. Clause 4 goes on to explain that the State and Local Planning Policy Frameworks contain the long term directions and outcomes sought by this scheme.  These are implemented through the Zone, Overlay and Particular provisions requirements.  Land use and development are controlled by specifying zones.  Each zone includes a description of its purpose and the requirements that apply regarding land use, subdivision and the construction and carrying out of buildings and works in that zone.  Each zone lists land uses in three sections:

   “∙Section 1        Uses that do not require a permit

   ∙          Section 2        Uses that require a permit

   ∙          Section 3        Uses that are prohibited”

1. Uses that are not specifically mentioned are covered by a reference to “any other use”. This is usually found in Section 2, but is occasionally found in Section 3.  A use specified in Section 1 or Section 2 must meet specified conditions.  If they are and are not met, the use may require a permit or may be prohibited. 

1. I note that the three sections refer to the use of land, not to the development of land.  This is stated in cl 4, which goes no to explain that:

   “Development of land includes the construction of a building, carrying out works (such as clearing vegetation), subdividing land or buildings, or displaying signs. The zones indicate whether a planning permit is required to construct a building or carry out works.  Some buildings and works, such as fences and underground services, usually do not require a permit. These are listed in Clause 62 of the scheme under Uses, buildings, works, subdivisions and demolition not requiring a permit.”

1. Overlays, cl 4 explains, affect subdivisions, buildings and works.  They operate in addition to the zone requirements and generally concern environmental, landscape, heritage, built form, and land and site management issues. It is essential to check whether an overlay applies to your land before commencing any use or development.

D.       The Development Plan Overlay to the Melton Planning Scheme

1. The Development Plan Overlay (DPO) to the Melton Planning Scheme is required by the Victorian Planning Provisions.  Subject to any exception provided for in the DPO itself, cl 43.04-1 provides that a permit must not be granted to use or subdivide land, construct a building or carry out works until a development plan has been prepared to the satisfaction of the responsible authority.  A permit that is granted must be “… generally in accordance with the development plan” and “include any conditions or requirements specified in a schedule to …” the DPO.  The development plan must, among other matters, describe the proposed use and development of each part of the land.  It may be amended to the satisfaction of the responsible authority.[81] 

   [81] DPO, cl 43.04-3

1. Clause 74 of the DPO is entitled “Land Use Terms”.  It includes a table setting out:

   “… terms which may be used in this planning scheme in relation to the use of land.  This list is not exhaustive.  However, a term describing a use or activity in relation to land which is not listed in the table must not be characterised as a separate use of land if the term is obviously or commonly included within one or more of the terms listed in the table.”[82]

   [82] Exhibit 2 at 1

1. The term “pharmacy” or related words are not defined.  Other relevant entries in the table for the purposes of this case are:

Land use term	Definition	Includes	Included in
Convenience shop	A building with a leasable floor area of no more than 240 square metres, used to sell food, drinks, and other convenience goods.  It may also be used to hire convenience goods.	Shop
Retail premises	Land used to: a) sell goods by retail, or by retail and wholesale; b) sell services; or c) hire goods.	Food and drink premises Gambling premises Landscape gardening supplies Manufacturing supplies Market Motor vehicle, boat, or caravan sales Postal agency Primary produce sales Shop Trade supplies
Shop	Land used to sell goods or services, or to hire goods.  It includes the selling of bread, pastries, cakes or other products baked on the premises.  It does not include food and drink premises, gambling premises, landscape gardening supplies, manufacturing sales, market, motor vehicle, boat, or caravan sales, postal agency, primary produce sales, or trade supplies.	Adult sex bookshop Beauty salon Bottle shop Convenience shop Department store Hairdresser Restricted retail premises Supermarket	Retail premises

1. The way in which this table is to be interpreted is set out in cl 74:

   “Meaning of terms
   A term listed in the first column, under the heading ‘Land Use Term’, has the meaning set out beside that term in the second column, under the heading ‘Definition’.

   No definition of listed term indicates ordinary meaning
   A term listed in the first column, under the heading ‘Land Use Term’, which does not have the meaning set out be side that term in the second column, under the heading ‘Definition’, has its ordinary meaning.

   Terms which specifically include other listed terms
   A term listed in the first column, under the heading ‘Land Use Term’, which has other terms listed beside it in the third column, under the heading ‘Includes’, includes any term so listed in the third column in any term included within that term in the third column, but does not include any other term listed in the first column.
   A term listed in the first column which has other terms listed beside it in the third column may also include other terms which are not listed in the first column.
   All terms listed in the third column are also listed in the first column.

   Terms which do not specifically include other listed terms
   If a term listed in the first column, under the heading ‘Land Use Term’, does not have any term listed beside it in the third column, under the heading ‘Includes’, that term does not include any term listed in the first column.
   However, a term listed in the first column which does not have any term listed beside it in the third column may include other terms which are not listed in the first column.

   Terms which are included within other listed terms
   A term used in the first column, under the heading ‘Land Use Term’, which has a term listed beside it in the fourth column, under the heading ‘Included in’, is included within the term so listed in the fourth column and any term which includes that term in the fourth column.
   All terms listed in the fourth: are also listed in the first column.

   Terms which are not included within other listed terms
   If a term listed in the first column, under the heading ‘Land Use Term’, does not have a term listed beside it in the fourth column, under the heading ‘Included in’, that term is not included within any other term listed in the first column.”

1. Land may be zoned as Residential 1 Zone or R1Z. Among the purposes of such a zoning is, as provided in cl 32.01 of the Melton Shire Planning Scheme, “… to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.”  Clause 32.01-1 sets out the uses for which a permit is not required and for which it is required as well as uses which are prohibited. 

1. A permit is not required for those uses listed in the Table of uses in cl 32.01-1 under the heading of “Section 1 - Permit not required”.  They do not include any uses resembling use as a shop or retail premises of any description.[83]

   [83] Melton Shire Planning Scheme, cl 32.01-1, Section 1; Exhibit JP8

1. A permit is required for those uses listed in that table under the heading “Section 2 - Permit required”.  A permit is required for a number of uses.  They include use as a convenience shop (whose leaseable area must not exceed 80 square metres), food and drink premises (other than a convenience restaurant and take away food premises) and a store (which must be in a building, not a dwelling, and used to store equipment, goods, or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot).  The uses also include any “Any other use not listed in Section 1 or 3”.[84] 

   [84] Melton Shire Planning Scheme, cl 32.01-1, Section 2; Exhibit JP8

1. Prohibited uses are listed under the heading “Section 3 – Prohibited”.  They include use as “Retail premises (other than Community market, Convenience shop, Food and drink premises, and Plant nursery)” as well as cl 62.01 uses.[85]

   [85] Melton Shire Planning Scheme, cl 32.01-1, Section 3; Exhibit JP8

1. An existing use right is established in relation to use of land under the Melton Planning Scheme if any of the following apply:

   “∙        The use was lawfully carried out immediately before the approval date.

   ∙A permit for the use had been granted immediately before the approval date and the use commences before the permit expires.

   ∙A permit for the use has been granted under Clause 63.08 and the use commences before the permit expires.

   ∙Proof of continuous use for 15 years is established under Clause 63.11.

   ∙The use is a lawful continuation by a utility service provider or other private body of a use previously carried on by a Minister, government department or public authority, even where the continuation of the use is no longer for a public purpose.”[86]

   [86] Melton Shire Planning Scheme, cl 63.01

1. Clause 63.02 is concerned with the characterisation of use.  It provides:

   “If a use of land is being characterised to assess the extent of any existing use right, the use is to be characterised by the purpose of the actual use at the relevant date, subject to any conditions or restrictions applying to the use at that date, and not by the classification in the table to Clause 74 or in Section 1, 2 or 3 of any zone.”

1. Clauses 63.03, 63.04 and 63.05 are concerned with the application of clause 63.01.  Clause 63.03 provides that:

   “The definition of a term in this scheme, or the amendment of any definition, does not increase or restrict the extent of any existing use right established prior to the inclusion of the definition or amendment.”

1. Clause 63.04 is concerned with the application of cl 63.01 to a use in Section 1 of a zone.  It provides:

   “A use in Section 1 of a zone for which an existing use right is established may continue provided any condition or restriction to which the use was subject and which applies to the use in Section 1 of the zone continues to be met.”

Clause 63.05 applies in relation to a use in Section 2 or 3 of a zone for which an existing right is established.  That use may continue provided no building is constructed or work carried out without a permit, any condition or restriction to which the use was subject continues to be met and the amenity of the area is not damaged, or further damaged, by a change in the activities beyond the limited purpose of the use preserved by the existing use right.

E.       Melton Shire Council

1. Mr Finlay, who was the Acting Planning Manager of the Melton Shire Council at the time, set out the history of the use of the proposed premises and of the Council’s view of their permitted use.  He said in a letter dated 17 August 2011:

   “Soon after the approval of the Local Structure Plan, the Planning System in Victoria changed to essentially the format that applies today, and the land at Federation Way was rezoned from a Melton Urban Development Zone to a Residential One Zone.  The current Melton Planning Scheme came into effect on 29 July 1999. 

   It is understood that since the approval of the Local Structure Plan, the land has been used for a variety of retail, shop and other commercial land uses.  Clause 63.01 of the Melton Planning Scheme caters for scenarios where there are existing use rights, and it would seem that in this case, you would be able to apply existing use rights to the proposal, amongst which, indicates that an existing use right would apply if:

   ‘A permit for the use had been granted immediately before the approval date and the use commences before the permit expires.’

   It is understood that the use of the land for a shop was conducted lawfully within the parameters of the Melton Planning Scheme, despite the change in the zoning of the land.

   The tenancy at Unit 1, 9-12 Federation Way has until recently been used as a video shop.  It is understood that there are now plans to operate a pharmacy from the tenancy.  From a town-planning perspective, changing the use from a video shop to a pharmacy would not require separate town-planning approvals as there is, in effect the changing of the tenancy for one shop use to another shop use, and the primary use of the tenancy will not change (ie: it is still used as a shop).

   The Shire of Melton realises that there is a somewhat anomalous situation with the Neighbourhood Activity Centre in Federation Way, Caroline Springs having been zoned Residential One Zone given that past and existing land uses have been of the retail and commercial variety.  Amendment C87 to the Melton Planning Scheme seeks to rezone the land to a Business One Zone, and Council has resolved to support the adoption of the Amendment subject to the payment of a financial contribution by the landowner towards the construction of a car-park in the locality.  This contribution is yet to be received, so the Amendment has not yet been finalised.

   Despite the rezoning having not yet been finalised, and the current zoning prohibiting the use of the land for a shop, it would seem that there is an existing use right enabling the land to be used for a shop without the need for a further planning permit.  This is due to the previous approvals that have been given to the land prior to the land being zoned Residential One Zone and previous use of the site, including for a video shop.”[87]

Consideration of whether the proposed premises can be used for purpose of operating a pharmacy

[87] Exhibit 3

A.Determination of issue not a matter of evidence

1. From a practical level, it is tempting to take Mr Finlay’s letter and oral evidence as establishing that, were Mr Clark to use the proposed premises as a pharmacy, the Melton Shire Council would not take any steps against him for any alleged breach of the Melton Planning Scheme.  That is clear from his letter.  There are two aspects to the difficulty that I have with taking that approach. 

1. First, Item 201(b) of the Act requires me to decide whether the proposed premises can, under the applicable local government and State law relating to land development, be used for the purpose of operating a pharmacy.  The question is not whether the relevant responsible authority will take action against the occupier of the proposed premises under that law if they are used for the purpose of operating a pharmacy. 

1. My second difficulty relates to the nature of the Melton Planning Scheme as a statutory instrument which regulates the activities of those who would seek to carry them out in the area it regulates and which may be enforced in VCAT.  It is made under the PEPS Act and is a planning scheme for the purposes of the PE Act.  Arguably, it is part of the Victorian domestic law as much as the PE Act and the PEPS Act are themselves.  The general principle is that the “… domestic law is not a matter of proof or disproof”.[88] 

   [88] Prentice v Cummins (2002) 124 FCR 67 at 85 per Sackville J

1. Section 141 of the PE Act sets aside the general principle in relation to planning scheme provisions and permits.[89]  Section 141(1) provides that a written statement signed by the secretary of the responsible authority regarding four types of matters it describes is evidence of the matters stated.  The “secretary” of a municipal council is its Chief Executive Officer or “… any person for the time being authorised by the authority to exercise the powers and perform the duties of that office”.[90] 

   [89](1)     In any proceedings under this Act a statement in writing appearing to be signed by the secretary of a responsible authority to the effect that at a specified date—

   [90] Definition of “secretary”; PE Act, s 3(1)

1. Mr Finlay’s evidence does not meet the criteria for the application of
   s 141 of the PE Act.  It does not meet any of the criteria set out in that section, which appears at FN 89 above.  Second, there is no evidence to the effect that Mr Finlay was authorised at the relevant time to exercise the powers and perform the duties of the Chief Executive Officer of the Melton Shire Council.  Indeed, he does not claim to be authorised.  He gave his evidence as its Statutory Planning Coordinator and with its knowledge.  Mr Finlay is a very experienced officer of the Council but he does not come within the description of the “secretary” of the Council.  Therefore, his statement in the form of his letter does not meet the requirements of s 141 of the PE Act and is not determinative of the issue I must decide under Item 201(b) of PB 23/2006.  His oral evidence too cannot be taken as probative of the issue.

B.Under the applicable local government and State laws relating to land development, can the proposed premises be used for the purposes of operating a pharmacy?

Identifying the catchment area

[136] Note to [3(a)] of Item 107

A.       Evidence relating to factors relevant in identifying the catchment area

1. On behalf of Mr Clark, Mr Milner described Caroline Springs as:

   “… one of a new generation of master planned residential communities that have been developed over the last decade in Metropolitan Melbourne. It … constitutes approximately 8,000 lots located on approximately 800 hectares.  By 2013 it is anticipated [sic]that the estate will be home to approximately 23,000 persons.

   The project is almost completely developed and constitutes a vast residential area incorporating a major town centre and a series of neighbourhood centres, evenly distributed throughout the estate. … ”[137]

   [137] Exhibit D at 7

1. In identifying the catchment area, both Mr Milner and Mr Dimasi took into account a number of factors.  For the purposes of comparison, I will set them out in table form:

Mr Milner	Mr Dimasi
“natural flow of the population and any natural barriers which may influence this;	“The strength and attraction of the facility in question, which is determined by factors including the scale and nature of the facility, the ease of access to the subject site, and the amount of carparking available.
distribution of the population and any unique characteristics of the population;	The pattern of urban development in the area surrounding the facility in question, and the relationship of the subject site to that surrounding area, including the site’s exposure to natural and established traffic flows.
other services and attractions in the area which might target the population from a larger region; and	The presence or absence of physical/geographical barriers which may impede accessibility, such as mountainous terrain, rivers, freeways or railway lines with infrequent or inconvenient crossing opportunities.
access to existing pharmacies and to the proposed premises, including road networks and public transport.”[138]	The proximity and relative attraction of competitive retail outlets, and their comparative strengths and weaknesses with regard to the same attributes of location, accessibility and parking.”[139]

[138] Exhibit D at 7

[139] Exhibit JP1 at 5

1. Each took into account the following features pertinent to the particular proposed premises at Caroline Springs:

Mr Milner

Mr Dimasi

“I … accept the western boundary of the Caroline Springs ABS Suburb Boundary as the extent of the western catchment of the proposed site.

“The location of Brookside Central SC adjacent to Caroline Springs Boulevard, which is the only direct north-south arterial route through the Caroline Springs residential area.

The same applies to the south.  I cannot envisage any basis upon which this centre would draw custom from land to the south of the Western Highway.”[140]

The other facilities which are provided adjacent to Brookside Central SC, in particular:

-           a range of shops and services which includes a convenience store, a bakery, a café, a pizza shop, hair & beauty outlet, a fish & chips shop, a liquor store and a video store.

-           The non-retail facilities also provided adjacent to the subject centre which includes Caroline Springs College Brookside Campus, the Brookside Early Learning Centre and commercial floor space which makes up the Brookside Central Business Centre.

“… I cannot accept that the subject site will have a natural catchment that draws custom from the areas north of the Kororoit Creek.

The pattern of urban development in the surrounding area, and the quality of access to the subject site from the surrounding residential areas.”

The area of potentially greatest interpretation is the area to the east as there are no clear-cut physical boundaries that define the catchment.”[141]

… all of the residents within the catchment area … would be able to access the site within a drivetime of 5 minutes or less.”[142]

[140] Exhibit D at 8

[141] Exhibit D at 8

[142] Exhibit JP1 at 7

B.Evidence relevant to identifying the catchment area of the proposed premises

1. Both Mr Milner and Mr Dimasi identified the catchment area in terms of Census Collection Districts (CCDs).  CCDs are identified by the Australian Bureau of Statistics (ABS) for the purposes of collecting statistical data about the Australian population and housing and are the smallest geographical unit in the Australian Standard Geographical Classification.   Some CCDs were common to both but Mr Milner and Mr Dimasi also differed in their choice of others.  Their final position is summarised in the following table.[143]  I have used bold font to indicate those that APRA initially identified as coming within the catchment area:

   [143] Each CCD is formally preceded by the reference “21.1.”.  I have omitted it in each instance.

Mr Milner	Mr Dimasi
2121218
2121220°	2121220
2121221
2121222	2121222
2121223	2121223
2121224	2121224
2121225*	2121225*
2121230	2121230
2121231*	2121231*
2121232	2121232
2121233	2121233
2121236
2121240°	2121240
2121241°	2121241
2121242	2121242
2121243*	2121243*

1. Those CCDs marked with an asterisk are located between the Caroline Springs Shopping Centre and the Brookside Centre but to the south of Kororoit Creek.  Those marked with ° lie to the east and south of the Brookside Centre but, in the case of CCDs 2121240 and 2121241, to the north of 2121220 in which is found the Soul Pattinson Chemist.  CCD 2121232 is bordered in the west by Clarke Road and to the south by the Western Highway.  The CCDs I have mentioned in this paragraph were initially not accepted by the Authority as coming within the catchment area for the proposed premises.  It now does accept them as coming within the catchment area and so does Mr Dimasi.

1. Only CCDs 2121218, 2121221 and 2121236 remain in dispute.  CCD 2121236 is found in the south eastern corner of Caroline Springs.  It is bounded by the Western Highway in the south and CCD 2121234 to the east.  The eastern boundary of CCD2121234 forms the boundary between Caroline Springs and Deer Park further to the east.  CCD 2121218 is adjacent to CCD 2121234 at its northern perimeter and to the east of CCD 2121221.

1. Mr Dismasi expressed his difficulties with Mr Milner’s declining to include CCDs 2121218, 2121221 and 2121236 in the catchment area for the proposed premises.  In his first report:

   “The easterly extent of Mr Milner’s catchment area is, in my view, somewhat arbitrary.  I can see no reasons why, for example, the residents of CCD 2121225 would fall within the catchment area of the proposed pharmacy, but the residents of CCD 2121236 would not.  The access to the subject site would be equally straightforward for residents of both these CCDs, and in each case would take less than 5 minutes.  I have similar views regarding CCDs 2121221 and 2121218.”[144]

He did not resile from his position in his second report.[145]

[144] Exhibit JP1 at 13

[145] Exhibit JP2 at 2

1. In Mr Milner’s view, Mr Dimasi has been influenced by his decision to include within the catchment area any location within five minutes’ drive of the proposed premises.  He has done so, Mr Milner said, without fully or properly appreciating the structure of the road network and the manner in which the estate developed.  He has not had regard to the location of an aged care home near the Burnside Shopping Centre. 

1. Mr Milner said that CCDs 2121218, 2121221 and 2121236 are principally located within an estate which is known as Burnside and which was developed separately from Caroline Springs.  Burnside, in which the Burnside Shopping Centre and so the Terry White Chemist are located, was developed by the Dennis family and relied on Westwood Drive as the major connector road running from south to north to service the population of Burnside.  There are no traffic lights between the intersection of Westwood Drive and the Burnside Shopping Centre to the south.  That shopping centre was developed to the west of Westwood Drive and at the southern end of Burnside to provide convenience retail services to the population of the area.  The Melton Planning Scheme allowed for 6,000 square metres of shop floor at the Burnside Shopping Centre.

1. Caroline Springs was subsequently developed by Delfin Property Group Limited.  Rockbank Middle Road was extended to meet Caroline Springs Boulevard at that time.  Mr Milner said that there had never been a natural gravitational pull taking residents from Burnside to the Brookside Centre unless they needed to attend one of the three schools co-located with it or to use the recreational facilities.  The shopping facilities are much more limited in the 925 square metres of retail floor space permitted at Brookside when compared with the larger Burnside Shopping Centre.  The route is more convoluted requiring residents from Burnside to travel through two roundabouts on Rockbank Middle Road to get there.  That is to be compared with a straight run up or down Westwood Drive to reach the Burnside Shopping Centre and the pharmacy located within it.  

C.Identifying the catchment area

1. Identification of the catchment area of proposed premises is not a matter of exact science.  It is a matter on which I have had the benefit of expert evidence and a view.  I have accepted that the CCDs agreed upon by the parties as coming within the catchment area do come within it.  They do not include CCDs to the north of Kororoit Creek which, I find, forms a barrier of sorts between the southern and northern parts of Caroline Springs.  The same is true of Clarke Road in the west although that is in the nature of the boundary of Caroline Springs. 

1. I accept Mr Milner’s evidence in so far as he states that Westwood Drive forms a natural route from the north to the south of that south eastern quadrant.  A person living in CCD2121218, which is one of the three disputed CCDs, would reasonably be expected to travel to the Terry White Chemist at the Burnside Shopping Centre if he or she wanted items from the chemist or a range of goods available from the retail stores there. 

1. The same would be true of those living in CCD 2121221.  They are on the western side of Westwood Drive and so closer to the proposed premises than those in CCD 2121218 but the drive down Westwood Drive would still appear to be a more attractive proposition than winding through several suburban streets to Caroline Springs Boulevard and so Federation Way and the proposed premises either directly in the south or by way of Rockbank Middle Road in the north. 

1. The Burnside Shopping Centre lies in CCD 2121236.  Its residents might not use Westwood Drive but would use the suburban streets surrounding the Burnside Shopping Centre whether by car or on foot. 

1. Ease of access is, though, only one of the relevant factors in deciding the boundaries of the catchment area of the proposed premises.  Another is the facilities available at its location and the availability of similar facilities elsewhere.  As far as retail facilities are concerned, more comprehensive facilities are available at the Burnside Shopping Centre than at the Brookside Centre where the proposed premises are located.

1. People do not travel solely to do their shopping and may use one trip for more than one purpose.  The proposed premises are located in the Brookside Centre which is co-located with three educational institutions and sporting facilities.  They are facilities that are not offered by the Burnside Shopping Centre and yet residents in the CCDs near that centre would travel to them.  Certainly, educational and sporting, as well as retail, facilities are available at the Caroline Springs Shopping Centre but that lies to the north of the natural boundary of Kororoit Creek and does not come into consideration. 

1. This is a case in which I consider that the three CCDs in dispute, CCDs 2121218, 2121221 and 2121236, form the catchment area of both the Terry White Chemist at the Burnside Shopping Centre and the proposed premises at the Brookside Centre. The reasons for their doing so differ in each case but that makes them no less part of the respective catchment areas. That means that I accept the CCDs listed under Mr Dimasi’s name at [147] above. Apart from CCD 2121236, they are also shown in the area coloured violet on the map at Exhibit C.

Population growth in the catchment area

A.The evidence

1. Mr Dimasi relied on ABS data in compiling his estimate of the population in the catchment area and the annual growth in that population since Mr Clark lodged his application on 10 February 2011.  He concluded that the 5% growth rate in population had not been met.  In his supplementary statement of evidence, Mr Dimasi set out the ABS’s estimated residential population (ERP) for each of the CCDs in the catchment area I have identified for each of the years from 1006 to 2010.  He then showed an estimate population for 2011:[146]

   [146] Exhibit JP2 at 4

Table 1 Caroline Springs Pharmacy – PBBI Revised Catchment Population 2006-2011
CCD	ERP 2006	ERP 2007	ERP 2008	ERP 2009	ERP 2010	PBBI     Est 2011
2121218	776	833	881	905	933	960
2121220	959	908	936	962	984	1,009
2121221	927	933	967	1,009	1,036	1,072
2121222	567	558	587	614	628	650
2121223	1,283	1,398	1,498	1,641	1,746	1,885
2121224	1,132	1,226	1,321	1,377	1,412	1,460
2121225	808	826	834	881	917	962
2121230	614	708	726	768	785	816
2121231	771	770	831	881	902	940
2121232	884	1,006	1,021	1,026	1,049	1,063
CCD	ERP 2006	ERP 2007	ERP 2008	ERP 2009	ERP 2010	PBBI     Est 2011
2121233	909	911	947	1,008	1,031	1,076
2121236	568	596	622	634	649	663
2121240	470	484	494	522	534	555
2121241	714	713	753	768	785	802
2121242	611	589	612	616	630	639
2121243	648	731	853	978	1,020	1,115
Total	12,641	13,190	13,883	14,590	15,041	15,667
Growth	4.3%	5.3%	5.1%	3.1%	4.2%
Source: ABS (Regional Population Growth Australia, Cat. No. 3218.0); Pitney Bowes Business Insight

1. Mr Milner noted that the ABS is constrained in its estimates in years between taking a census by information it obtains from sources such as those recording dwelling approvals, Medicare enrolments and electoral enrolments.  That error increases, as Mr Milner said, the longer the period since the census year in 2006 and the higher growth area.  In Mr Milner’s view, the average percentage by which the ABS underestimated high growth areas was in the order of 4.1%.  This had been demonstrated by the results of the 2006 census when compared with previous estimates.

1. In view of the errors, Mr Milner said that he considers it beneficial to have regard to other sources of data when it is available.  He has used geographical information system (GIS) data from local government authorities.  That data shows how many detached dwellings are located in a given area at a given point in time.  On this occasion, he had not been able to obtain relevant GIS data.

1. In his first report, Mr Milner set out a table showing the population growth estimates for the Melton East Statistical Local Area (SLA) and for Caroline Springs, which forms part of that SLA.  The table shows an average annual growth rate for Caroline Springs of 10.9% and Mr Milner concluded:

   “Based on these figures, although exact figures cannot be determined, I am convinced that the rate of growth of the catchment area over the last two years has been substantially greater than 5%.”[147]

   [147] Exhibit D at 14

1. The table on which Mr Milner relied was drawn from ABS data published in 2010 for the Melton SLA data and from “ID Consulting 2011” for the Caroline Springs data:[148]

   [148] Exhibit D at 14

Table 2 – Average Annual Population Growth Estimates
2006	2007	2008	2009	2010	Average Annual Growth Rate
Melton (S)-East	40,776	44,548	48,712	53,382	57,670	9.1%
Caroline Springs	12,658	13,974	15,362	17,298	19,176	10.9%

1. Mr Milner said in his Supplementary Advice that the ABS’s ERP data for the SLA shows that it grew at the rate of 8.2% per annum between 2009 and 2010.[149]  That estimate accorded with his own observations of growth in population in the Caroline Springs area.  Mr Milner continued in his Supplementary Report:

   [149] Exhibit E at [2.3.7]

   “2.3.8  Much of the growth in my proposed catchment area since the 2006 Census was in the northernmost area of CCDs 2121224 and 2121231 to the south of Kororoit Creek and the northernmost area of CCDs 2121231 and 2121243 to the south of Kororoit Creek.  Whilst the ABS ERP data shown in the Dimasi Report does indicate growth in these areas, the aerial photographs of the northern areas of CCDs 2121224 and 2121231 for 2009-2011 (attachments 3 to 5) obtained from Nearmap[150] provide a detailed view.

   2.3.9The ABS ERP data indicate that the growth in the whole of the CCDs 2121224 and 2121231 between 2009 and 2010 was only 54 residents, and between 2010 and 2011 was only 86 residents.  Based on the ABS ERP data and the estimates in the Dimasi Report, the population in my catchment area would fall short of 5% growth in 2010 by just 222 residents (approximately 102 dwellings).

   2.3.10However, A [sic] simple count of dwellings with roofs on them in the above aerial photographs indicate that there were 50 dwellings constructed in these northern regions of CCDs 2121224 and 2121231 between 2009 and 2010 and 62 between 2010 and 2011.  Using an average dwelling occupancy rate of three people[151], this would indicate that there were 336 new residents in the northern areas of CCDs 2121224 and 2121231 alone in these periods.

   2.3.11The aerial photographs at Attachments 6 to 8 from Nearmap show the entirety of my proposed catchment area over the period since 2009.  They show significant housing growth in my proposed catchment area over this period.

   2.3.12The above aerial photographs suggest to me that the ABS ERP data substantially underestimates the actual population in my catchment.

   2.3.13Whilst I cannot provide an exact figure for population growth within my catchment area in this period, the information available to me, particularly the Nearmap aerial photographs over the period 2009 to 2011, suggests that:

   (a)the ABS data referred to in the Dimasi Report underestimates the rate of population growth in my defined catchment in the 2009 to 2011 years; and

   (b)the population growth in my defined catchment area is more likely than not to have been at least 5% in each of the two years preceding 10 February 2011.”[152]

   [150] 2006 Census

   [152] Exhibit E

1. Mr Dimasi agrees with Mr Milner that, in non-census years, the ABS data can be an estimate only and that there can be a sizeable error.  The error is not always an underestimate of population and can equally be an overestimation when compared with subsequent census data.

1. Mr Dimasi does not agree with Mr Milner that it is relevant to have regard to the photographs attached to Mr Milner’s Supplementary advice.  It is impossible to draw from them any conclusion as to the number of houses completed or to estimate the number of people living in each.  All that is observable in the photographs are rooftops and, in Mr Dimasi’s view, it is impossible to distinguish between the rooves of houses and those of other buildings such as garages.  Furthermore, the fact that a building has a roof does not mean that it is complete or that it is ready for occupation. 

1. What Mr Dimasi drew from the photographs was a conclusion that the bulk of the catchment area seems to have been developed as early as 2009.  The only new residential area appears to have taken place in the “northern peninsula” comprising the northernmost parts of CCDs 2121224 and 2121231 situated adjacent to the Caroline Springs Town Centre.

B.Consideration

1. I will begin with the aerial photographs.  In some cases, such photographs may carry some weight.  That may occur, for example, where there is separate evidence of the number of building approvals and/or the number of certificates of occupation issued by the responsible authority in the relevant period, where the photographs are taken at times that have some correlation with the period of growth in issue and that can be seen in the context of the whole of the catchment area.

1. The aerial photographs annexed to Mr Milner’s Supplementary advice were taken on 13 November 2009 (some nine months after the start of the two year period from the date of the application), 24 December 2010 and 28 June 2011 (some four months after the application was made on 10 February 2011).  The photographs certainly show building activity on the peninsula formed by and to the south of the curve in the Kororoit Creek in the period they cover.  Mr Milner very properly included an aerial photograph of the whole of the catchment area at what appear to be the same time as the more particular photographs.  They show that, for the most part, the remainder of the catchment area was fully developed with infill occurring only on a vacant block here and there.

1. Mr Milner has relied on an estimate of three people living in each new house.  I do not have any evidence of the average number of persons living in each household in Caroline Springs and so have no basis on which I can accept Mr Milner’s estimate.  He has estimated 50 new dwellings appeared on the photographs between 2009 and 2010 and 62 between 2010 and 2011.  On the basis of three people in each dwelling, that means that 336 extra persons appeared in the two year period but that number falls short of the numbers required on the ABS ERP data to achieve a 5% growth rate.  On that data, a total of 528 residents had to be achieved with 222 in the first year of the two year period and 306 in the second.  If Mr Milner is correct and the ABS data underestimates the population in the catchment area, his estimates of the population arriving in the two year period will fall even further short of the 5% growth rate required by Item 108(b).

1. I have looked at the evidence relating to the growth rate of the SLA and of Caroline Springs but find it does not assist.  The SLA takes in a much broader area than Caroline Springs.  It takes in Diggers Rest, or part of it, in the north and extends to an area south of the Western Highway.  It takes in a rural area to the west of Clarke Road.  The growth area of such a disparate area cannot, in the absence of any evidence as to why it should, be applied to a discrete area of it such as Caroline Springs.  The same is true of the growth rate of Caroline Springs.  Although the aerial photographs I have show that, apart from the peninsula, building has been completed on most of the southern part of Caroline Springs, no evidence was given about building on the area to the north of Kororoit Creek.  Evidence of that sort would be relevant in understanding the growth rate for Caroline Springs as a whole.  On the evidence that I have, I am not satisfied that I can extrapolate a growth rate of the whole to the growth rate of a part being the catchment area.

1. Mr Milner regards the ABS data as unreliable but, apart from census data, the ABS itself regards its EPR data as no more than an estimate.  In the absence of any analysis of the ABS’s EPR data with actual census data over a period of time, I prefer Mr Dimasi’s evidence that it may err by either over or underestimating population rather than Mr Milner’s that it errs by underestimating.  In this case, it seems to me that the ABS EPR data is the most reliable data that I have.  It shows that the population growth required by Item 108(3)(a)(ii) has not been met. 

DECISION

1. For the reasons I have given, I have decided that Mr Clark’s application does not meet the requirements of either Item 108(3)(a) of Schedule 1 to PB 23/2006 or of Item 201 of Schedule 2.  Therefore, I have affirmed the decision of the Authority dated 25 March 2011 to recommend to the Secretary that Mr Clark’s application be refused.

I certify that the one hundred and seventy three preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:   .......................................................................
  Leah Berardi, Associate

Dates of Hearing  7 and 8 December 2011

Date of Decision  15 June 2012

Counsel for the Applicant             Mr R Niall SC

Solicitor of the Applicant             Mr R Pedley

Rotstein Lockwood Reddy

Solicitor for the Respondent         Mr A Dillon and Ms M Allen

Australian Government Solicitor

Solicitor for the Joined Parties      Ms T Cincotta

Solicitor for the Joined Parties      Best Hooper Solicitors

Health Industry Consultants to     Ms A Mihulka

Joined Parties  Ann Mihulka & Associates

(a)the land described in the statement or any specified part of the land was in an area in which land was to be used for specified purposes under a specified planning scheme; or

(b)under a specified planning scheme any specified use or development of land in that area was prohibited or was a use or development for which a permit was required; or

(c)no permit was in force in respect of the use or development described in the statement; or

(d)a permit or permits identified in the statement were in force in respect of the use or development described in the statement—

is evidence of the matters stated.

(2)        In any proceedings under this Act, the production of a document which appears to be—
            (a)        a copy of a permit issued by a responsible authority; and
            (b)        certified by the secretary of the responsible authority to be a true copy—
is to be accepted as a true copy of the permit until the contrary is proved.”