Bronger v Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy - [2022] NSWLEC 91

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Bronger v Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy [2022] NSWLEC 91
Hearing dates: 22-24 November 2021, 9 March 2022, 18 March 2022 (written submissions) 28 March 2022 (written submissions), 6 April 2022 (written submissions)
Date of orders: 27 July 2022
Decision date: 27 July 2022
Jurisdiction: Class 4
Before: Pain J
Decision:
See [254]

Catchwords:
CIVIL ENFORCEMENT – whether operation of pharmacy in medical centre in breach of complying development certificate because operating as a shop – no impermissible shop use occurring in business zone
CIVIL ENFORCEMENT – whether operation of pharmacy in medical centre as a retail pharmacy in breach of occupation certificate permitting medical pharmacy

Legislation Cited:
COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW)
Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW), cll 4, 18, 18A
Environmental Planning and Assessment Act 1979 (NSW), ss 1.4, 4.2, 4.3, 4.9, 4.16, 4.19, 4.26, 4.27, 4.28, 4.55, 4.56, 4.57, 6.3, 6.4, 6.7, 6.9, 6.10, 6.13, 8.16, 9.44, 9.45, 4 (repealed), 76A (repealed), 77 (repealed), 80 (repealed), 84A (repealed), 85A (repealed), 96 (repealed), 96A (repealed), 109(2), 109C (repealed), 109D (repealed), 109E (repealed), 109H (repealed) 109I (repealed), 109M (repealed), 109N (repealed), 109K (repealed), 109Q (repealed)
Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019 (NSW)
Environmental Planning and Assessment Regulation 2000 (NSW), cll 145, 151, 155
Fairfield Local Environmental Plan 2013 (NSW), cll 1.4, 2.3, Land Use Table (B5), Dictionary
Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW), s 4
Health Practitioner Regulation National Law 2009 (NSW), ss5, 39, 52, 53, Sch 5F
Interpretation Act 1987 (NSW), ss 6, 11, 34
Land and Environment Court Act 1979 (NSW), s 17(d)
National Health Act 1953 (Cth), ss 84, 90
Poisons and Therapeutic Goods Act 1966 (NSW), s8
Poisons and Therapeutic Goods Regulation 2008 (NSW), cl 3
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW)
Statute Law (Miscellaneous Provisions) Act 2020 (NSW), Sch 2, Sch 6

Cases Cited:
Abret Pty Limited v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107
Alcan NT Alumina v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Altz Pty Limited v Shellharbour City Council [2014] NSWLEC 1228
Attia v Health Care Complaints Commission [2017] NSWSC 1066
Bardsley-Smith v Penrith City Council (2013) 195 LGERA 34; [2013] NSWCA 200
Bardsley-Smith v Penrith City Council (No 2) [2013] NSWCA 284
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404
Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) (No 5) (2021) 248 LGERA 249; [2021] NSWLEC 43
Burwood Council v Ralan Burwood Pty Ltd [2014] NSWCA 404
Chamwell Pty Ltd v Strathfield Municipal Council (2007) 151 LGERA 400; [2007] NSWLEC 114
Chu v Inner West Council (2022) 251 LGERA 211; [2022] NSWLEC 14
Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11
FoodBarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
Furia Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1409
Goodwins (Sydney) Pty Ltd v Sydney City Council (1960) 5 LGRA 346
Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25
JK Williams Staff Pty Ltd v Sydney Water Corporation (2021) 249 LGERA 109; [2021] NSWLEC 23
Jojeni Investments v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147
Liu v Ku-ring-gai Council [2021] NSWLEC 1094
Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218
Moy v Warringah Council (2004) 133 LGERA 49; [2004] NSWCCA 77
Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (2021) 247 LGERA 62; [2021] NSWCA 2
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Scott’s Provision Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191
Settlers Estate v Penrith City Council (2021) 247 LGERA 84; [2021] NSWCA 13
Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204

Texts Cited:
Macquarie Dictionary (8th ed, 2020)
Pearce and Geddes, Statutory Interpretation in Australia (9th ed, 2019)

Category: Principal judgment
Parties: Catherine Bronger (First Applicant)
John Bronger (Second Applicant)
Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy (Respondent)
Representation:
Counsel:
C Ireland (Applicants)
C Bolger and M Fozzard (Respondent)
Solicitors:
McPhee Kelshaw Solicitors (Applicants)
Shiba Legal (Respondent)

File Number(s): 2021/00117816

Judgment

Amended summons
Planning legislation
Environmental Planning and Assessment Act 1979 (NSW)
Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW)
Former EPA Act
Environmental Planning and Assessment Regulation 2000 (NSW) (repealed)
Interpretation Act 1987 (NSW)
Statute Law (Miscellaneous Provisions) Act 2020
Fairfield Local Environmental Plan 2013 (NSW)
Building Code of Australia 2019

Regulation of pharmacists/pharmacies and the dispensing of medicines
Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW)
Health Practitioner Regulation National Law 2009 (NSW)
Poisons and Therapeutic Goods Act 1966 (NSW)
Poisons and Therapeutic Goods Regulation 2008 (NSW)
National Health Act 1953 (Cth)

Preliminary issue: does the former EPA Act or current EPA Act apply to the Respondent’s CDC?
Applicants’ submissions
Respondent’s submissions

Consideration of preliminary issue
Evidence in substantive proceedings
Terms of CDC and OC
Applicants’ evidence
Ms Cole’s evidence
Ms Johnston’s evidence
Ms Quinon’s evidence
Ms Adam’s evidence
Mr Di Perta’s evidence
Ms Melodia’s evidence

Respondent’s evidence
Mr Yousef’s evidence
Mr Alpeto’s evidence
Ms Toma’s evidence

Applicants’ submissions on prayers 1 and 2
Prayer 1 - Shop use not ancillary except insofar as medicines sold to patients of medical centre
Prayer 1 - Even if ancillary, still independent and prohibited use
Prayer 1 - Sale of goods not ancillary to health advice, health advice ancillary to sale of goods
Prayer 2 - The effect of the OC
Prayer 2 - Terms of CDC and OC need to be given work to do
Prayer 2 - BCA supports Applicants’ construction of CDC

Applicants’ submissions on prayer 3
Contrary to s 6.9(1)(a) and s 6.3(2) of the EPA Act

Respondent’s submissions on prayers 1 and 2
Prayer 1 - Internal inconsistencies in Applicants’ amended summons
Prayers 1 and 2 - Respondent’s use is consistent with that of a medical centre
Prayer 2 - Effect of an OC
Prayer 2 - BCA does not assist

Respondent’s submissions on prayer 3
Sections 6.9(1)(a) and 6.3(2) of the EPA Act not breached

Consideration
Prayers 1 and 2 – shop use
Breach of CDC plans not established by the Applicant
Pharmacy not a shop
Effect of BCA classification

Retail pharmacy vs medical pharmacy
Restrictions on pharmacy use or occupation not warranted

Conclusion
Orders

Judgment

The Applicants have commenced civil enforcement proceedings to stop the operation of a pharmacy in the City of Fairfield local government area because they allege the use is carried out in breach of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and the complying development certificate (CDC) pursuant to which the current use is being carried out.
The Applicants seek declarations and consequential orders to restrain the use and occupation by Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy (the Respondent) of Lot 1 DP 1136897, Unit 101, also known as Tenancy 7, for a pharmacy in the Greenway Plaza shopping complex (Greenway Plaza) in Wetherill Park. The pharmacy is part of a medical complex within the Greenway Plaza which will be referred to as the Greenway Medical Hub, containing offices and suites for a variety of health professionals. The current occupation and use of the pharmacy are being carried out pursuant to a CDC issued for the fit-out of the existing tenancy as a new medical centre. The Applicants allege that the Respondent is operating a retail pharmacy being a shop in breach of s 4.3 of the EPA Act and also in breach of the conditions of the CDC as augmented by an occupation certificate (OC) which explicitly authorises a medical pharmacy and excludes a retail pharmacy. The Applicants own the pharmacy chain Chemistworks which operates a number of premises in NSW. Any person may bring civil enforcement proceedings under s 9.45(1) of the EPA Act.

Amended summons

The amended summons annexed to a notice of motion dated 16 November 2021 which the Court granted leave to rely on during the hearing, states:

The Applicants seek the following declarations:
1 A declaration that the Respondent is carrying out development being the use of part of the premises known as Tenancy 7 Greenway Medical Centre, Greenway Plaza at Suite 1, Level 1 Greenway Plaza, 1183-1187 The Horsley Drive, Wetherill Park, New South Wales for the purpose of a retail pharmacy in breach of section 4.3 of the Environmental Planning and Assessment Act 1979 ("EPA Act").
Particulars
The building in which the premises are situated is zoned B5 – Business Development ("B5"). Development for the purpose of a shop is prohibited in the B5 zone.
2 A declaration that the Respondent is carrying out development being the use of part of the premises known as Tenancy 7 Greenway Medical Centre, Greenway Plaza at Suite 1, Level 1 Greenway Plaza, 1183-1187 The Horsley Drive, Wetherill Park, New South Wales for the purpose of a retail pharmacy in breach of Complying Development Certificate NW19/4387 granted on 30 September 2019 ("CDC NW19/4387) by NW Building Certification ("NWBC") acting as principal certifying authority in accordance with the EPA Act.
Particulars
CDC NW19/4387 was granted for the fit-out of existing Tenancy 7 of the Greenway Plaza "for medical centre". CDC NW19/4387 identifies the classification of the medical centre as Class "5" under the Building Code of Australia. Class 5 buildings are buildings used for professional or commercial purposes. A Class 5 building excludes buildings within Class 6, including a "shop".
3 A declaration that the Respondent is occupying the premises known as Tenancy 7 Greenway Plaza without an occupation certificate authorising that occupation, contrary to section 6.9(1)(a) of the EPA Act.
Particulars
OC NW19/438 authorises the occupation of existing Tenancy 7 for a new medical centre at Greenway Plaza but excludes the occupation of the premises for the purposes of a "Retail Pharmacy (not including Medical Pharmacy)". In breach of OC NW19/438 the Respondent is conducting a retail pharmacy from the premises.
4 A declaration that any pharmacy or dispensary conducted by the Respondent from the Greenway Medical Centre must be restricted in its operation to dispensing medications to patients of medical practitioners practising at the Greenway Medical Centre or clients of allied health professionals practicing at the Greenway Medical Centre.
The Applicants seek the following orders:
5 The Respondent, its servants, agents, or contractors is hereby restrained from continuing the use of the premises for the purpose of conducting a retail pharmacy.
6 The Respondent is to cease all use of the premises for the purpose of a retail pharmacy, dispensing medication to any persons who are not patients of medical practitioners working in the Greenway Medical Centre or clients of allied health professionals working in the Greenway Medical Centre.
7 Such further orders as the Court sees fit.
8 The Respondent pay the Applicants’ costs of the proceedings.

Further amendments to the above declarations and orders were proposed in the course of the proceedings by the Applicants as will be discussed below. Additional amendments were proposed by the Applicants after a further hearing on 9 March 2022, including the relief in prayer 3 that:

The Respondent is occupying the premises known as Tenancy 7 Greenway Plaza without an Occupation Certificate authorising that occupation as a shop or retail pharmacy, and contrary to the terms of OC NW 19/438, contrary to both s 6.9(1)(a) and s 6.3(2) of the EPA Act.

Prayer 4 was sought as an order and as a declaration in the alternative.
The terms of any relief if granted also depends on the answer to the preliminary issue of statutory construction which arose as to what version of the EPA Act applies to the occupation certificate: see below in [9], [27]-[75].
The issues in the substantive proceedings required a fundamental consideration of the nature of a pharmacy business. In addition to planning legislation the regulatory regime for pharmaceutical practice and the sale of medicines was raised in the parties’ argument, which requires reference to the Commonwealth laws which regulate such activities in addition to NSW laws.

Planning legislation

Environmental Planning and Assessment Act 1979 (NSW)

Relevant sections of the current EPA Act state:

Part 1 Preliminary
…
1.4 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires—
…
development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate.
…
Part 4 Development assessment and consent
Division 4.1 Carrying out of development – with consent, without consent and prohibited
…
4.2 Development that needs consent
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.

Maximum penalty—Tier 1 monetary penalty.
(2) For the purposes of subsection (1), development consent may be obtained—
(a) by the making of a determination by a consent authority to grant development consent, or
(b) in the case of complying development, by the issue of a complying development certificate.

…
(5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.
…
4.3   Development that is prohibited
If an environmental planning instrument provides that—
(a) specified development is prohibited on land to which the provision applies, or
(b) development cannot be carried out on land with or without development consent,
a person must not carry out the development on the land.
Maximum penalty—Tier 1 monetary penalty.
…
Division 4.3 Development that needs consent (except complying development)
…
4.9   Application of Division
This Division—
(a)  applies to development that may not be carried out except with development consent, but
(b)  does not apply to complying development.
…
4.16   Determination
(1) General A consent authority is to determine a development application by—
(a)  granting consent to the application, either unconditionally or subject to conditions, or
(b)  refusing consent to the application.

…
(12) Effect of issuing construction certificate If a consent authority or a registered certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55).
…
4.19 Consent for erection of building authorises use of building
A development consent that authorises the erection of a building (but not the use of the building once erected) is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose was specified in the application for development consent. This section does not authorise the occupation of such a building if Part 6 requires an occupation certificate to be issued.
…
Division 4.5 Complying Development
…
4.26 Carrying out of complying development
(1) A person may carry out complying development on land if—
(a) the person has been issued with a complying development certificate for the development, and
(b) the development is carried out in accordance with—
(i) the complying development certificate, and
(ii) any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued.
…

4.27   What is a “complying development certificate”?
(1) Terms of complying development certificate A complying development certificate is a certificate—
(a)  that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and
(b)  in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia.

…
(3) Erection of buildings A complying development certificate that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate, subject to section 6.9.
…
(5) Other requirements for complying development certificates The regulations—
(a) may impose other requirements concerning the issue of complying development certificates, and
(b) may provide for the form in which a complying development certificate is to be issued.

…
4.28   Process for obtaining complying development certificates
…
(6) Determination The council or a registered certifier may determine an application—
(a)  by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or
(b)  by refusing to issue a complying development certificate.

…
Division 4.9 Post-consent provisions
…
4.55   Modification of consents—generally
(1) Modifications involving minor error, misdescription or miscalculation A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5) and (6) and Part 8 do not apply to such a modification.
…
4.56   Modification by consent authorities of consents granted by the Court
…
(1C) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
…
4.57   Revocation or modification of development consent
…
(2) This section applies to complying development for which a complying development certificate has been issued in the same way as it applies to development for which development consent has been granted and so applies to enable a council to revoke or modify a complying development certificate whether the certificate was issued by the council or by a registered certifier.
…
Part 6 Building and subdivision certification
…
Division 6.2 Certificates required under this Part
…
6.3   Work or activity that requires certificate under this Part
…
(2) A person must not, in carrying out any such work or activity, contravene a certificate under this Part that applies to the carrying out of the work or activity.

…
Maximum penalty—Tier 1 monetary penalty.
…
6.4 Kinds of certificates under this Part
There are the following kinds of certificates under this Part—
…
(c) occupation certificate—a certificate that authorises—
(i) the occupation and use of a new building in accordance with a development consent, or
(ii) a change of building use for an existing building in accordance with a development consent.
When issued, an occupation certificate is taken to be part of the development consent to which it relates.

…
Division 6.3 Building work and certificates relating to building
…
6.7   Requirement for construction certificate
(1) A construction certificate is required for the erection of a building in accordance with a development consent.
(2) However, a construction certificate is not required for the following—
(a)  the erection of a building in accordance with a complying development certificate,
(b)  Crown building work that is certified under this Part to comply with the Building Code of Australia.

…
6.9 Requirement for occupation certificate
(1) An occupation certificate is required for—
(a) the commencement of the occupation or use of the whole or any part of a new building, or
(b) the commencement of a change of building use for the whole or any part of an existing building.

…
6.10   Restrictions on issue of occupation certificates
(1) An occupation certificate must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent have been complied with.
…
Division 6.4 Subdivision work and certificates relating to subdivision
…
6.13   Requirement for subdivision works certificate
(1) A subdivision works certificate is required for the carrying out of subdivision work in accordance with a development consent.
(2) However, a subdivision works certificate is not required for the following—
(a)  subdivision work carried out in accordance with a complying development certificate,
(b)  Crown building work that comprises subdivision work and that is certified under this Part to comply with the Building Code of Australia.

…
Part 8 Review and appeals
…
Division 8.4 Appeals—building and subdivision certification
8.16   Appeals against failure or refusal to issue certificate under Part 6
(1) An appeal may be made to the Court against the following decisions of a council under Part 6—
(a)  a decision to refuse to issue a construction certificate, occupation certificate, subdivision works certificate or subdivision certificate,
(b)  a decision to issue any such certificate subject to conditions.
…
Part 9 Implementation and enforcement
…
Division 9.5 Civil enforcement proceedings
9.44 Definitions
In this Division—
(a) a reference to a breach of this Act is a reference to—
(i) a contravention of or failure to comply with this Act, and
…
9.45 Restraint etc of breaches of this Act
(1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.
…

A key issue underpinning the Applicants’ case is that the CDC (NW19/4387) granted by Newland Wood Building Certification Pty Ltd (NWBC) on 30 September 2019 permits the operation of a medical centre. The occupation certificate NW19/438 issued on 25 June 2020 states “a Retail Pharmacy (not including a Medical Pharmacy)”. Under s 6.4(c) of the current EPA Act an OC is taken to be part of the development consent to which it relates. The EPA Act was amended by the Environmental Planning and Assessment Amendment Act 2017 (NSW) (2017 Amending Act) which largely came into force on 1 March 2018 subject to some provisions affected by the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) (the Savings Regulation). The Savings Regulation was further amended by the Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019 (NSW) (Building and Subdivision Regulation) which inserted cl 18A into the Savings Regulation, commencing 1 December 2019. In light of the 2017 Amending Act and the Savings Regulation as amended, the dates of issue of the CDC and then the OC give rise to a statutory construction question which requires consideration of the Savings Regulation. Depending on the application of the Savings Regulation the former EPA Act provisions could apply to the OC which did not include provisions equivalent to s 6.3 or the tailpiece to s 6.4(c) concerning an OC. If the former provisions apply parts of the amended summons need to be amended and/or not pressed. For the parties’ submissions on this issue and my consideration, see below in [27]-[75].

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW)

Relevant provisions of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) (Savings Regulation) state:

Part 2 Provisions consequent on the enactment of the Environmental Planning and Assessment Amendment Act 2017
4   Definitions—Part 2
In this Part—
amending Act means the Environmental Planning and Assessment Amendment Act 2017.
…
former building and subdivision provisions means—
(a)  sections 81A(2)–(6) and 86 of the Act, as in force immediately before the substitution of those provisions by the amending Act, and
(b) Part 4A of the Act, as in force immediately before the repeal of that Part by the amending Act, and the regulations made under that Part as so in force.
…
18   Postponement of revised building and subdivision certification provisions
…
(2) Until 1 December 2019, Part 6 of the Act (as inserted by the amending Act), other than Division 6.7, does not apply and the former building and subdivision provisions continue to apply in respect of a matter (whether or not the matter was pending on the repeal of those provisions).
(3) For the avoidance of doubt, the following provisions as in force immediately before 1 March 2018 continue to apply to and in respect of a breach, occurring on or after that day, of a former building and subdivision provision—
(a) Division 4 of Part 6 of the Act,
(b)  any other provision of the Act, or a regulation made under the Act, that provides for the prosecution of an offence in relation to the breach, including by way of issuing a penalty notice.

18A   Continuation of matters arising under former building and subdivision certification provisions
The former building and subdivision provisions continue to apply, despite their repeal, to or in respect of the following—
(a)  an interim occupation certificate or final occupation certificate in force under those provisions immediately before 1 December 2019,
(b)  a development consent granted before that date.

Former EPA Act

The relevant provisions of the former EPA Act which applied prior to the commencement of the provisions introduced by the 2017 Amending Act state:

Part 1 Preliminary
…
4 Definitions
…
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:
…
development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate.
…
Part 4 Development assessment
…
76A   Development that needs consent
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a)  such a consent has been obtained and is in force, and
(b)  the development is carried out in accordance with the consent and the instrument.

(2) For the purposes of subsection (1), development consent may be obtained:
(a) by the making of a determination by a consent authority to grant development consent, or
(b) in the case of complying development, by the issue of a complying development certificate.

…
(5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.
…
Division 2 The procedures for development that needs consent
77   Application of Division
This Division:
(a)  applies to development that may not be carried out except with development consent, but
(b)  does not apply to complying development.
…
80   Determination
(1) General A consent authority is to determine a development application by:
(a)  granting consent to the application, either unconditionally or subject to conditions, or
(b)  refusing consent to the application.

…
Division 3 Special Procedure for complying development
84A   Carrying out of complying development
(1) A person may carry out complying development on land if:
(a)  the person has been issued with a complying development certificate for the development, and
(b)  the development is carried out in accordance with:
(i)  the complying development certificate, and
(ii)  any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued.

…
85A   Process for obtaining complying development certificates
…
(6) Determination The council or an accredited certifier may determine an application:
(a)  by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or
(b)  by refusing to issue a complying development certificate.
…
Division 7 Post-consent provisions
…
96   Modification of consents—generally
(1) Modifications involving minor error, misdescription or miscalculation A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5) and (6), section 96AB and Division 8 do not apply to such a modification.
(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
…

(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
…
96A   Revocation or modification of development consent
…
(2) This section applies to complying development for which a complying development certificate has been issued in the same way as it applies to development for which development consent has been granted and so applies to enable a council to revoke or modify a complying development certificate whether the certificate was issued by the council or by an accredited certifier.
…
Part 4A Certification of development
Division 1 Certification of work and other matters
109C Part 4A certificates
(1) The following certificates (known collectively as Part 4A certificates) may be issued for the purposes of this Part:
…
(b)  a construction certificate, being a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A (5),
(c)  an occupation certificate, being a certificate that authorises:
(i)  the occupation and use of a new building, or
(ii)  a change of building use for an existing building,

(d) a subdivision certificate, being a certificate that authorises the registration of a plan of subdivision under Division 3 of Part 23 of the Conveyancing Act 1919.

…
(2) An occupation certificate:
(a) may be an interim certificate or a final certificate, and
(b) may be issued for the whole or any part of a building.

(3) If the regulations so provide, a construction certificate may be issued subject to conditions.
(4) In this section:
new building includes an altered portion of, or an extension to, an existing building.
…
109N Change of building use of existing building requires occupation certificate
(1) A person must not effect a change of building use for the whole or any part of an existing building unless an occupation certificate has been issued in relation to the building or part.
…
109K   Appeals against failure or refusal to issue Part 4A certificates
(1) An applicant for:
(a)  a construction certificate, or
(b)  a final occupation certificate, or
(c)  a subdivision certificate,

may appeal to the Court against a consent authority’s (or, in the case of a subdivision certificate for subdivision that is not the subject of development consent, a council’s) decision to refuse to issue such a certificate or to issue a construction certificate subject to conditions.
(2) An appeal under this section is to be made within 12 months after the date on which the decision was made.
…

Environmental Planning and Assessment Regulation 2000 (NSW) (repealed)

The Respondent referred to the following clauses in the now repealed Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation 2000):

Part 8 Certification of development
…
Division 2 Construction Certificates
…
145 Compliance with Development Consent And Building Code Of Australia
(1) A certifier must not issue a construction certificate for building work unless—
(a1) the plans and specifications for the building include such matters as each relevant BASIX certificate requires, and
(a) the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifier under clause 140) is consistent with the development consent, and
(b) the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made).

…
(3) Subclause (1)(b) does not apply to the extent to which an exemption is in force under clause 164B, 187 or 188, subject to the terms of any condition or requirement referred to in clause 164B(4), 187(6) or 188(4).
…
Division 3 Occupation Certificates
…
151 Procedure for determining application for occupation certificate
(1) The determination of an application for an occupation certificate must be in writing and must contain the following information:
(a) the date on which the application was determined, and
(b) whether the application has been determined:
(i) by approval, or
(ii) by refusal, and

(c) if the application has been determined by refusal:
(i) the reasons for the refusal, and
(ii) if the certifying authority is a consent authority and the application relates to a final occupation certificate, of the applicant’s right of appeal under the Act against the refusal.

(2) The certifying authority must notify the consent authority and the council of the determination by forwarding the following documents to the council within 7 days after the date of the determination:
(a) a copy of the determination,
(b) copies of any documents that were lodged with the application for the certificate,
(c) if an occupation certificate was issued, a copy of the certificate.

…
155 Form of occupation certificate
(1) An occupation certificate must contain the following information:
(a) the identity of the certifying authority by which it is granted,
(b) if the certifying authority is an accredited certifier:
(i) his or her accreditation number, and
(ii) the name of the accreditation body by which he or she is accredited,

(c) the date of the certificate,
(d) indicate the type of certificate being issued (that is, interim or final),
(e) a statement to the effect that:
(i) the health and safety of the occupants of the building have been taken into consideration where an interim occupation certificate is being issued, and
(ii) a current development consent or complying development certificate is in force for the building, and
(iii) if any building work has been carried out, a current construction certificate (or complying development certificate) has been issued with respect to the plans and specifications for the building, and
(iv) the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and
(v) a fire safety certificate has been issued for the building, and
(vi) a report from the Fire Commissioner has been considered (if required).

(2) The certificate must be accompanied by a fire safety certificate and fire safety schedule for the building
…

Interpretation Act 1987(NSW)

Sections 6, 11 and 34 of the Interpretation Act 1987 (NSW) (Interpretation Act) are relevant to the preliminary question in these proceedings, and state:

Part 2 Words and Expressions
6 Definitions to be read in context
Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject-matter otherwise indicates or requires.
…
11 Words etc in instruments under an Act have same meanings as in the Act
Words and expressions that occur in an instrument have the same meanings as they have in the Act, or in the relevant provisions of the Act, under which the instrument is made.
…
Part 5 Construction of Acts and Instruments
…
34 Use of extrinsic material in the interpretation of Acts and statutory rules
(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material—
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or
(b) to determine the meaning of the provision—
(i) if the provision is ambiguous or obscure, or
(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes—
(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer,
(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made,
(c) any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made,
(d) any treaty or other international agreement that is referred to in the Act,
(e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made,
(f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,

(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and
(h) any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament.

(3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to—
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage.

Statute Law (Miscellaneous Provisions) Act 2020

The Statute Law (Miscellaneous Provisions) Act 2020 (NSW) (2020 Miscellaneous Amendment) is relevant to the preliminary question and amended the Land and Environment Court Act 1979 (NSW) (LEC Act) by virtue of Sch 2.23[1] and Sch 6 cl 2 and states:

Schedule 2 Amendments by way of statute law revision—miscellaneous amendments
2.23 Land and Environment Court Act 1979 No 204
[1]   Section 17(d)
Omit “sections 75K, 75L, 75Q, 75W(5), 95A, 96, 96A, 97, 97AA, 98, 98A, 109K, 121ZK, 121ZM, 121ZS and 149F of”.
Insert instead “sections 4.55, 8.7, 8.8, 8.9, 8.16, 8.18, 8.21, 8.22, 8.23 and 8.25 of, and clause 35 of Schedule 5 to,”.
…
Schedule 6 General savings, transitional and other provisions
…
2   Effect of amendment or repeal on acts done or decisions made
Unless expressly provided to the contrary, if this Act—
(a)  amends a provision of an Act or an instrument, or
(b)  repeals and re-enacts (with or without modification) a provision of an Act or an instrument,
any act done or decision made under the provision amended or repealed has effect after the amendment or repeal as if it had been done or made under the provision as so amended or repealed.

Fairfield Local Environmental Plan 2013 (NSW)

Greenway Plaza is on land zoned B5 business development of the Fairfield Local Environmental Plan 2013 (FLEP). Relevant parts of the FLEP state:

Part 1 Preliminary
…
1.4 Definitions
The Dictionary at the end of this Plan defines words and expressions for the purposes of this Plan.
…
Part 2 Permitted or prohibited development
…
2.3 Zone objectives and Land Use Table
(1) The Land Use Table at the end of this Part specifies for each zone—
(a) the objectives for development, and
(b) development that may be carried out without development consent, and
(c) development that may be carried out only with development consent, and
(d) development that is prohibited.

(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
(3) In the Land Use Table at the end of this Part—
(a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and
(b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.

(4) This clause is subject to the other provisions of this Plan.
…
Land Use Table
…
Zone B5   Business Development
1   Objectives of zone
•  To enable a mix of business and warehouse uses, and specialised retail premises that require a large floor area, in locations that are close to, and that support the viability of, centres.
•  To encourage the establishment of light industrial uses that are compatible with nearby residential areas, generate employment and contribute to the economic development of Fairfield.
2   Permitted without consent
Environmental protection works
3   Permitted with consent
Centre-based child care facilities; Funeral homes; Garden centres; Hardware and building supplies; Kiosks; Landscaping material supplies; Light industries; Oyster aquaculture; Passenger transport facilities; Plant nurseries; Respite day care centres; Roads; Specialised retail premises; Take away food and drink premises; Tank-based aquaculture; Timber yards; Vehicle sales or hire premises; Warehouse or distribution centres; Any other development not specified in item 2 or 4
4   Prohibited
Agriculture; Air transport facilities; Airstrips; Amusement centres; Animal boarding or training establishments; Biosolids treatment facilities; Boat building and repair facilities; Boat launching ramps; Boat sheds; Camping grounds; Caravan parks; Cemeteries; Charter and tourism boating facilities; Commercial premises; Correctional centres; Crematoria; Depots; Eco-tourist facilities; Entertainment facilities; Environmental facilities; Exhibition homes; Exhibition villages; Extractive industries; Farm buildings; Forestry; Freight transport facilities; Function centres; Heavy industrial storage establishments; Helipads; Home-based child care; Home businesses; Home industries; Home occupations; Home occupations (sex services); Industries; Jetties; Marinas; Mooring pens; Moorings; Open cut mining; Pond-based aquaculture; Recreation facilities (major); Research stations; Residential accommodation; Resource recovery facilities; Restricted premises; Rural industries; Sewage treatment plants; Sex services premises; Tourist and visitor accommodation; Transport depots; Truck depots; Vehicle body repair workshops; Waste disposal facilities; Water recreation structures; Water recycling facilities; Water supply systems; Wharf or boating facilities
…
Dictionary
…
business premises means a building or place at or on which—
(a)  an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis, or
(b)  a service is provided directly to members of the public on a regular basis,
and includes a funeral home and, without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, internet access facilities, betting agencies and the like, but does not include an entertainment facility, home business, home occupation, home occupation (sex services), medical centre, restricted premises, sex services premises or veterinary hospital.
…
commercial premises means any of the following—
(a)  business premises,
(b)  office premises,
(c)  retail premises.
…
health care professional means any person registered under an Act for the purpose of providing health care.
…
health services facility means a building or place used to provide medical or other services relating to the maintenance or improvement of the health, or the restoration to health, of persons or the prevention of disease in or treatment of injury to persons, and includes any of the following—
(a)  a medical centre,
(b)  community health service facilities,
(c)  health consulting rooms,
(d)  patient transport facilities, including helipads and ambulance facilities,
(e)  hospital.
…
medical centre means premises that are used for the purpose of providing health services (including preventative care, diagnosis, medical or surgical treatment, counselling or alternative therapies) to out-patients only, where such services are principally provided by health care professionals. It may include the ancillary provision of other health services.
…
retail premises means a building or place used for the purpose of selling items by retail, or hiring or displaying items for the purpose of selling them or hiring them out, whether the items are goods or materials (or whether also sold by wholesale), and includes any of the following—
…
(l)  shops,
…but does not include highway service centres, service stations, industrial retail outlets or restricted premises.
…
shop means premises that sell merchandise such as groceries, personal care products, clothing, music, homewares, stationery, electrical goods or the like or that hire any such merchandise, and includes a neighbourhood shop and neighbourhood supermarket, but does not include food and drink premises or restricted premises.
…
specialised retail premises means a building or place the principal purpose of which is the sale, hire or display of goods that are of a size, weight or quantity, that requires—
(a)  a large area for handling, display or storage, or
(b)  direct vehicular access to the site of the building or place by members of the public for the purpose of loading or unloading such goods into or from their vehicles after purchase or hire,
but does not include a building or place used for the sale of foodstuffs or clothing unless their sale is ancillary to the sale, hire or display of other goods referred to in this definition.

The Greenway Plaza contains ‘specialised retail premises’ within the definition in the FLEP that are permitted with development consent under the B5 zoning table. Commercial premises are prohibited in land zoned B5 business development. Commercial premises as defined in the FLEP include ‘business premises’ and ‘retail premises’, which are each defined in the terms. A ‘shop’, as defined, is a retail premises under paragraph (l) of the definition of retail premises and is prohibited in the B5 zone. Under the definition of business premises, a medical centre, also defined, is not a business premises. The CDC permitted a medical centre, a use permitted with consent under the zoning table by virtue of the expression ‘any other development not specified in item 2 or 4’ in item 3 of the zoning table.

Building Code of Australia 2019

The Building Code of Australia within the National Construction Code 2019 (BCA) defines Class 5 Buildings as:

an office building used for professional or commercial purposes (p33, A6.5).

A Class 6 building is:

a shop or other building used for the sale of goods by retail or the supply or services directly to the public… (page 34, A6.6).

The BCA states in the context of determining whether a building is Class 6 or Class 7 that:

As a rule, however, if the general public has access to the building, it is considered a shop, and therefore a class 6 building (p40, A6.11).

A shop has particular requirements for access and egress. It requires floor area of 3 square metres per person (Table D1.13, p135, D1.12).

Regulation of pharmacists/pharmacies and the dispensing of medicines

The following State and Commonwealth legislation and instruments concerning the regulation of pharmacists and pharmacies and the dispensing of medicines were referred to by the parties.

Health Practitioner Regulation (Adoption of National Law) Act 2009(NSW)

Section 4 of the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) (HP Adoption Law) states:

Part 2 Adoption of Health Practitioner Regulation National Law
4 Adoption of Health Practitioner Regulation National Law
The Health Practitioner Regulation National Law, as in force from time to time, set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland—
(a) applies as a law of this jurisdiction, with the modifications set out in Schedule 1, and
(b) as so applying may be referred to as the Health Practitioner Regulation National Law (NSW), and
(c) so applies as if it were a part of this Act.

Health Practitioner Regulation National Law 2009(NSW)

Relevant provisions of the Health Practitioner Regulation National Law 2009 (NSW) (HP Law) state:

…
5 Definitions
In this Law—
health practitioner means an individual who practises a health profession.
…
health profession means the following professions, and includes a recognised specialty in any of the following professions—
…
(k) pharmacy;
…
health service includes the following services, whether provided as public or private services—
(a) services provided by registered health practitioners;
…
(d) pharmaceutical services;
…
health service provider means a person who provides a health service.
…
registered health practitioner means an individual who—
(a) is registered under this Law to practise a health profession, other than as a student; or
(b) holds non-practising registration under this Law in a health profession.
…
Part 5 National Boards
…
Division 3 Registration standards and codes and guidelines
…
39 Codes and guidelines
A National Board may develop and approve codes and guidelines—
(a) to provide guidance to the health practitioners it registers; and
(b) about other matters relevant to the exercise of its functions.

…
Part 7 Regulation of health practitioners
Division 1 General regulation
52 Eligibility for general registration
(1) An individual is eligible for general registration in a health profession if—
(a) the individual is qualified for general registration in the health profession; and
(b) the individual has successfully completed—
(i) any period of supervised practice in the health profession required by an approved registration standard for the health profession; or
(ii) any examination or assessment required by an approved registration standard for the health profession to assess the individual’s ability to competently and safely practise the profession; and

(c) the individual is a suitable person to hold general registration in the health profession; and
(d) the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession; and
(e) the individual meets any other requirements for registration stated in an approved registration standard for the health profession.

(2) Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for general registration in the profession by imposing conditions on the registration under section 83.
53 Qualifications for general registration
An individual is qualified for general registration in a health profession if—
(a) the individual holds an approved qualification for the health profession; or
(b) the individual holds a qualification the National Board established for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification; or
(c) the individual holds a qualification, not referred to in paragraph (a) or (b), relevant to the health profession and has successfully completed an examination or other assessment required by the National Board for the purpose of general registration in the health profession; or
(d) the individual—
(i) holds a qualification, not referred to in paragraph (a) or (b), that under this Law or a corresponding prior Act qualified the individual for general registration (however described) in the health profession; and
(ii) was previously registered under this Law or the corresponding prior Act on the basis of holding that qualification.

…
Schedule 5F Pharmacies
Part 1 Preliminary
1 Definitions
In this Schedule—
…
pharmacy means premises in or on which a person carries on a pharmacy business and includes—
(a) the portion (if any) of the premises in or on which the person sells or offers for sale goods of any kind; and
(b) a professional services room;
but does not include premises located in a public hospital controlled by a public health organisation (within the meaning of the Health Services Act 1997).
…
Part 3 Approval of premises and registration of financial interests
…
14 Council to keep register
(1) The Council must keep a register (a Register of Pharmacies) containing particulars of—
(a) approved premises; and
(b) registered holders of financial interests.

…

Poisons and Therapeutic Goods Act 1966(NSW)

Section 8 of the Poisons and Therapeutic Goods Act 1966 (NSW) (PTG Act) states:

Part 2 Poisons Advisory Committee and Poisons List
…
Division 2 Poisons List
8 Poisons List
(1) The proclamation of the Poisons List in force under this section immediately before the commencement of Schedule 2 to the Poisons (Amendment) Act 1987 continues in force at the commencement as the proclamation of the Poisons List for the purposes of this Act.
(2) The Poisons List shall contain 9 Schedules and the substances included in the list shall be classified as follows:
Schedule One
Substances which are of such extreme danger to life as to warrant their being supplied only by medical practitioners, nurse practitioners authorised under section 17A, midwife practitioners authorised under that section, pharmacists, dentists, veterinary practitioners or persons licensed under Part 3.
Schedule Two
Substances which are dangerous to life if misused or carelessly handled, but which should be available to the public for therapeutic use or other purposes without undue restriction.
Schedule Three
Substances which are for therapeutic use and:
(i) about which personal advice may be required by the user in respect of their dosage, frequency of administration and general toxicity,
(ii) with which excessive unsupervised medication is unlikely, or
(iii) which may be required for use urgently so that their supply only on the prescription of a medical practitioner or veterinary practitioner would be likely to cause hardship.

Schedule Four
Substances which in the public interest should be supplied only upon the written prescription of a medical practitioner, nurse practitioner authorised to prescribe the substance under section 17A, midwife practitioner authorised to prescribe the substance under that section, dentist, optometrist authorised to prescribe the substance under section 17B, podiatrist authorised to prescribe the substance under section17C or veterinary practitioner.
Schedule Five
Poisonous substances of a dangerous nature commonly used for domestic purposes which should be readily available to the public but which require caution in their handling, use and storage.
Schedule Six
Substances which should be readily available to the public for agricultural, pastoral, horticultural, veterinary, photographic or industrial purposes or for the destruction of pests.
Schedule Seven
Substances of exceptional danger which require special precautions in their manufacture or use.
Schedule Eight
Substances which are addiction producing or potentially addiction producing.
Schedule Nine
Substances which are specified in Schedule 9 of the current Poisons Standard (within the meaning of Part 6-3 of the Commonwealth Act).

…
(6) The Poisons List may be amended or replaced by proclamation made on the recommendation of the Minister and published on the NSW legislation website.
(7) An amendment of the Poisons List may be made by applying, adopting or incorporating, with or without modification, provisions of the current Poisons Standard (within the meaning of Part 6-3 of the Commonwealth Act) or any other published standard, as in force at a particular time or as in force from time to time.

Poisons and Therapeutic Goods Regulation 2008 (NSW)

Clause 3 of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTG Regulation) states:

3 Definitions
(1) In this Regulation—
…

retail pharmacy means premises included in the Register of Pharmacies kept under Schedule 5F of the Health Practitioner Regulation National Law (NSW).

…

National Health Act 1953(Cth)

Relevant extracts of the National Health Act 1953 (Cth) (NH Act) state:

Part VII – Pharmaceutical benefits
Division 1 – Preliminary
…
84 Interpretation
(1) In this Part, unless the contrary intention appears:
…
pharmaceutical benefit means the following:
(a) if a declaration under subsection 85(2) is in force in relation to a drug or medicinal preparation (the drug) and paragraph (b), (c) and (d) do not apply the drug;
(b) if a determination under subsection 85(3) is in force in relation to a form of the drug and paragraph (c) and (d) do not apply the drug in that form;
(c) if a determination under subsection 85(5) is in force in relation to a manner of administration of that form of the drug and paragraph (d) does not apply the drug in that form with that manner of administration;

(d) if a determination under subsection 85(6) is in force in relation to a brand of a pharmaceutical item that is the drug in that form with that manner of administration that brand of the drug in that form with that manner of administration.
…
Division 2 – Supply of pharmaceutical benefits
…
90 Approved pharmacists
(1) Subject to this section, the Secretary may, upon application by a pharmacist for approval to supply pharmaceutical benefits at particular premises, approve that pharmacist for the purpose of supplying pharmaceutical benefits at those premises.
(2) Where a pharmacist desires to supply pharmaceutical benefits at more than 1 premises, a separate application shall be made in respect of each of the premises and, where approval is granted in respect of 2 or more premises, a separate approval shall be granted in respect of each of the premises.
…
(3D) The Secretary must not grant approval under this section to a pharmacist in respect of particular premises if the Secretary is satisfied that on or after the day the approval would otherwise be granted:
(a) the pharmacist would be unable to supply pharmaceutical benefits at the premises; or
(b) the premises would not be accessible by members of the public for the purpose of receiving pharmaceutical benefits at times that, in the opinion of the Secretary, are reasonable.

(4) 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.
…

Preliminary issue: does the former EPA Act or current EPA Act apply to the Respondent’s CDC?

Following the hearing on 22-24 November 2021 the Court required the parties to clarify certain aspects of the legislative scheme potentially applicable to this matter, the issue identified in [9] above. The question sought to be answered during further rounds of submissions and an additional day of hearing on 9 March 2022 was whether, by operation of the Savings Regulation, the applicable building and subdivision proceedings in this matter were Part 4A of the former EPA Act (prior to the commencement of the provisions introduced by the 2017 Amending Act), or Part 6 of the current EPA Act which contains ss 6.3, 6.4 and 6.9. The issue arises because the CDC was issued on 30 September 2019 and the OC on 25 June 2020, one before and one after 1 December 2019.
As Basten JA (Payne and Brereton JJA agreeing) noted in Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (2021) 247 LGERA 62; [2021] NSWCA 2 (Omaya) at [40], “[t]he operation of this Regulation [the Savings Regulation] has caused considerable difficulties; and worse, they are not apparent on the face of the legislation.” That observation certainly applies to the statutory construction task here.

Applicants’ submissions

Four arguments are made by the Applicants in support of their contention that Part 6 of the current EPA Act applies to the CDC and OC so that the OC is taken to be part of the development consent, defined to include a CDC, as provided by s 6.4(c).
Firstly, cl 18A(b) of the Savings Regulation refers to a “development consent granted before that date” (emphasis added), the date being 1 December 2019 from which time Part 6 was applicable. Section 1.4 of the EPA Act defines development consent as a “consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate”. The use of the word granted in cl 18A(b) is deliberate and must be given effect to. A development consent “granted” cannot be a CDC. Where expressly excluded or where context provides a relevant contraindication, a development consent does not include a CDC. The drafter of the Savings Regulation has adverted to the distinction between the two kinds of development consent namely a development consent granted pursuant to a development application and a CDC. The terminology of the EPA Act is consistent in respect of development consents granted pursuant to Division 4.3 in the use of the word “granted”. The following references to the provisions of the EPA Act demonstrate this: s 4.26(1)(a); s 4.28(6) (ss 84A, 85A in the former EPA Act). Contrast s 4.28(6)/s 85A(6) providing that the determination of a CDC occurs by the certificate’s “issue” with the provision in s 4.16(1)/s 80(1) referring to the “grant” of the other kind of development consent by the consent authority. This specific terminology is used throughout the Act to apply to the grant of development consent: see for example s 4.55/ss 96(1), 2(1A), (2), (4). This terminology is distinguished from the issue of a CDC by the Act, see s 4.57/s 96A(2) as an example of the way the Act refers to the grant of a development consent (other than a CDC) and the issue of a CDC and distinguishes between the two concepts. Other examples include ss 4.16, 4.27(5), 4.55, 4.56(1C), 4.57(2). Terms used in the Savings Regulation take the meaning given to them in the EPA Act: Interpretation Act s 11.
The choice to use the term “granted” is an express exclusion of CDCs from the definition of development consent under s 1.4 of the EPA Act, or in the alternative, a contextual contraindication that development consent in cl 18A(b) does not include a CDC. The word “grant” can only ever apply to a development consent granted pursuant to a DA, not a CDC that is only ever “issued”.
The text of cl 18A is the surest guide to the legislative intention and extrinsic material cannot displace the clear meaning of the text: Alcan NTAlumina v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]. The text is to be construed in the light of the context and purpose of the Savings Regulation: Chu v Inner West Council (2022) 251 LGERA 211; [2022] NSWLEC 14 (Chu) at [48]-[49]; Sydney SeaplanesPty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 (Sydney Seaplanes) at [26]–[30], Bell P with whom Leeming JA and Emmett AJA agreed. The context and purpose also support the drawing of this distinction as it would require the smaller and less impactful types of development that the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) makes complying development to switch over to the new Part 6, preserving Part 4A only in relation to more significant kinds of development. The new Part 6 provision for subdivision works certificates, a new form of certificate, does not apply at all to CDCs: s 6.13(2)(a). Neither does the requirement for a construction certificate (CC): s 6.7(2)(a). The non-application of the Savings Regulation after 1 December 2019 to CDCs is therefore entirely consistent with the purpose of the Savings Regulation, as significantly less adaptation and inconvenience is required for complying development as compared to non-complying development upon the coming into operation of the new Part 6.
If reliance is to be placed on extrinsic material, and this is not a case to do so under s 34 of the Interpretation Act, the planning circular issued by the Department of Planning, Industry and Environment on 30 August 2019 is consistent with the Applicants’ interpretation as it distinguishes between development consents in the traditional sense and CDCs.
The case for contextual contraindication under s 1.4 of the EPA Act in this matter is even stronger than in Chu. In Chu the COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW) was found not to extend the lapsing period of CDCs under s 4.29 of the EPA Act in doing so for “development consents”, due to relevant contextual contraindications as to the applicability of the provisions to CDCs: at [55]. Here, there is an express exclusion.
Secondly, cl 18A(a) would be redundant if the Respondent’s construction is correct. There would be no need for cl 18A(a) to provide that the repealed Part 4A applied to OCs granted or issued prior to that date, as the operation of cl 18A(b) and the existence of a prior development consent would be enough to achieve this result. Clause 18A distinguishes between OCs and development consents. If the intention had been to apply the repealed Part 4A to the exclusion of Part 6 in relation to an occupation certificate granted after 1 December 2019, this could easily have been provided for by express words. The Court’s task is to ascertain the objective intention of the Governor promulgating the regulation.
Thirdly, cl 18A must be read with cl 18. Clause 18(2) provides that until 1 December 2019 Part 6 does not apply and the repealed Part 4A provisions continue to apply to any matter. Clause 18A, on the other hand, is a narrower savings provision, only providing that the repealed Part 4A continues to apply in two specific respects, namely, to or in respect of pre-existing OCs in force before 1 December 2019 and to or in respect of a development consent granted before that date. Importantly, cl 18A does not provide that Part 6 does not apply after December 2019, in contrast to cl 18 which does so provide with effect up to 1 December 2019. As the continuation of those provisions affected by cl 18A is much more specific and targeted, there is no corresponding exclusion of the operation of Part 6 generally in cl 18A. Both Part 4A and Part 6 can apply simultaneously. There is no inconsistency between the application of the former building and subdivision provisions to the CDC and the OC being deemed to be part of it; those former provisions are not worded in the same way and do not address that matter at all and neither do they provide for any inconsistent result.
Fourthly, the Respondent's suggested construction of clause 18A has impractical and surprising consequences. If the Respondent is right that the whole of the former Part 4A continues to apply to the exclusion of Part 6 in relation to OCs granted after 1 December 2019, then this would have the effect that s 109K, the appeal provision, is the only appeal provision applicable. However, s 17(d) of the LEC Act has now been amended to only refer to s 8.16 of Part 6 of the current EPA Act, rather than s 109K, by the 2020 Miscellaneous Amendment. If the Respondent's construction of clause 18A is correct, there would be no appeal right from a decision not to grant or a delayed decision in relation to an OC application after 1 December 2019. The 2020 Miscellaneous Amendment does not cure this problem because Sch 6 cl 2 only saves the effect of acts done or decisions made under the LEC Act, not the EPA Act, and the making of an OC or the appeal under s 109K are acts done under the EPA Act. The amendments were made to the LEC Act after the introduction of the Savings Regulation. The Applicants submitted that the amendments to the LEC Act were nevertheless relevant to the construction of the Savings Regulation. If the legislature had intended the Savings Regulation to operate in the way contended for by the Respondent, it would not have eliminated the appeal rights of a person under Part 4A.
The Applicants also referred to the OC in evidence, which refers to the provisions of Part 6 of the EPA Act, as supporting its construction.
In relation to Omaya (see the Respondent below in [45]), the Applicants submitted that that case has no relevance because it was not considering s 6.4 and in any case the parties agreed on the applicable provisions in Omaya.
In reply to the Respondent’s submission below in [50], the Applicants submitted that cl 18A of the Savings Regulation was inserted by the Building and Subdivision Regulation and was as a result made under the EPA Act as then in force, meaning the definition of development consent was to be found in s 1.4 of the EPA Act rather than s 4, the definitions provision in the former EPA Act. In either case, both definitions contain the same caveat to the application of the definition of development consent.

Respondent’s submissions

The CDC was issued before 1 December 2019. Consequently, and by operation of cl 18A(b) of the Savings Regulation, the former Part 4A applies to the development consent, here a CDC. The former Part 4A includes the provision for, requirements of and the effect of occupation certificates to development consents under the EPA Act before the commencement of the 2017 Amending Act. The OC was issued after 1 December 2019. It follows that cl 18A(a) of the Savings Regulation does not apply to the OC. It is trite to say that the current EPA Act Part 6 and former EPA Act Part 4A cannot both apply.
If contrary rights and obligations were intended to be created, the Savings Regulation would have specifically stated as such; that is clause 18A(b) would have provided an “exclusion” that, despite the application of Part 4A to the development consent, it does not include sections 109C(1)(c), 109(2), 109D(1)(c), 109D(2), 109E(3)(d), 109E(3)(e), 109H, 109I, 109K(1)(b), 109K(3)(b), 109K(4), 109M, 109N, 109Q(1)(f) (the provisions relating to OCs). There is no such exclusion. The aim and effect of the Savings Regulation is clear. Part 4A applies to the development consent and the Court would construe the provision so that it is consistent with the language and purpose of all the provisions of the statute on the prima facie basis that its provisions are intended to give effect to harmonious goals and give meaning to every word of the provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[71] (Project Blue Sky).
An example of the inconsistency that would arise is that for a development consent issued before 1 December 2019, the former Part 4A applies, which means that pursuant to s 109M(2)(b) of the former EPA Act, an occupation certificate is not required if a building is occupied or used for 12 months. No similar provision is found in Part 6 of the current EPA Act.
The position taken above is consistent with the NSW Department of Planning, Industry and Environments’ own publications and information/resources including:

Planning circular PS 19-004 made on 20 August 2019; and

Information published on their website as a “Guide to the Updated Environmental Planning and Assessment Act 1979” in respect of Part 6.

In Omaya, it was common ground in the court below and the Court of Appeal that the former EPA Act continued to operate by virtue of cl 18A(b) because the development consents considered in that case were granted before 1 December 2019. The Respondent acknowledged that the facts of Omaya were different and the issue being considered now was not disputed between the parties.
On the question whether cl 18A(b) of the Savings Regulation extends to CDCs or only development consents, the Respondent accepted that a development consent is generally “granted”, and an OC “issued” under the EPA Act.
First, the use of the term “granted” in clause 18A(b) of the Savings Regulation is not restrictive in the manner suggested. The definition of development consent in s 1.4 of the EPA Act expressly includes a CDC, which definition was the same in s 4(1) of the former EPA Act. Clause 18A(b) of the Savings Regulation applies the definition of development consent in the EPA Act prior to the Amending Act, the former EPA Act. Consent is not defined in the current or former EPA Act. Section 11 of the Interpretation Act strengthens this approach to construction.
Second, cl 18A does not alter the essential meaning of development consent which includes a CDC unless expressly excluded. Clause 18A(b) does not expressly oust the definition, unlike Division 4.3 of Part 4 of the current EPA Act (or Division 2, Part 4 of the former EPA Act) or s 4.9 (former EPA Act s 77). The Savings Regulation cannot alter the definition of ‘development consent’.
Third, the use of the term ‘grant’ in cl 18A(b) of the Savings Regulation cannot oust the expanded definition of ‘development consent’ that includes complying development certificates. Consistent with the definition in the former EPA Act, cl 18A(b) does not expressly exclude a complying development certificate. This approach is consistent with Project Blue Sky.
Fourth, the Applicants misuse the opening chapeau in s 1.4 of the current EPA Act to ascertain the meaning of the Savings Regulation. The definition of ‘development consent’ in the Savings Regulation applies the definition in the former EPA Act so that is relevant to its interpretation. Examining selected provisions in the current EPA Act to ascertain the meaning of development consent in the Savings Regulation is an incorrect approach.
The chapeau in s 1.4 of the EPA Act provides the limitation “in this Act, except in so far as the context or subject-matter otherwise indicates or requires”. The former EPA Act s 76A (and similarly s 4.2 of the current EPA Act) did not draw a distinction between CDCs and development consents.
Chu does not assist the Applicants because Chu at [55] is directed at the application of definitions and the chapeau in s 1.4 of the same version of the EPA Act, not a different statutory instrument.
The statutory provisions must be given an harmonious meaning. Use of the term “granted” in the manner suggested by the Applicants would cause mischief to the full and proper defined term of development consent and to do so would be against the imperative to give the Savings Regulation a harmonious reading with the defined term in the former EPA Act.
The Applicants’ submission (above in [32]) that the context and purpose supports the distinction between development consents granted and CDCs issued in the Savings Regulation is mere conjecture and actually supports the Respondent’s approach in any case because if the Applicants are right about the intended purpose, then CDCs would have been expressly excluded.
As for the fact that the certifier who authored the OC in evidence considered that they were making an OC under Part 6 of the current EPA Act, the certifier has no power to determine the applicable law to the OC; merely because the OC says something does not make it so.
In relation to the Applicants’ submission concerning the impracticality attending the Respondent’s construction caused by amendments to s 17(d) of the LEC Act, the Respondent submitted that Sch 6, cl 2 of the 2020 Miscellaneous Amendment means that the Court’s jurisdiction to hear appeals under s 109K would be preserved. The right of appeal is still preserved by the continued operation of s 109K as saved by cl 18A(b) of the Savings Regulation and picked up by s 17 of the LEC Act in any case. The Applicants conceded that the amendments to the LEC Act were propounded after the Savings Regulation.
The effect of the preservation of the former ‘building and subdivision provisions’ on the CDC is that the OC is not rendered part of that development consent. The Applicants’ reliance on and application of s 6.4(c) of Part 6 of the current EPA Act to the CDC and OC is misplaced. The impact on the Applicants’ case is that the OC cannot be read as part of the development consent and that must cause the Applicants’ case to fail at prayer 2 and 3, as the Applicants rely on the exclusionary term ‘retail pharmacy’ in the OC under these discreet prayers for relief. This must also carry through to prayer 1 (and to the Order for relief sought at prayer 5) because the Applicants rely on the same basis, that is ‘retail pharmacy’. In our submission, that only leaves prayer 4 (and order 6) of the Applicants’ substantive case.
It may be possible for the Applicants to maintain prayer 1 by disavowing any reliance on the OC under its prayer for relief at 1 of the Summons, however the Applicants do not make that concession.

Consideration of preliminary issue

The preliminary issue of statutory construction to arise is whether Part 6 of the current EPA Act or Part 4A of the former EPA Act applies to the CDC and hence what are the applicable provisions relating to the OC. If Part 6 of the current EPA Act applies to the OC it is ‘taken to be part of’ the CDC under s 6.4. No such provision existed in the former Part 4A. Construction of cl 18A of the Savings Regulations to determine whether the former building and construction provisions (which include Part 4A) continue to apply to a development consent granted before 1 December 2019, so that the OC issued after 1 December 2019 is not subject to the provisions of Part 6 in the current EPA Act, arises. This has not proved a straightforward exercise.

The Applicants argue that customers of the pharmacy should only be patients of the medical centre meaning patients of the health and allied health practitioners who practice in rooms in the medical centre, as that is said to be consistent with the description of medical centre in the CDC. The Applicants submitted that any sale of goods in a pharmacy including of prescription drugs is a sale of goods meaning a shop use. While that is prohibited such sales to a patient of a health practitioner in the medical centre is ancillary and therefore permissible despite being otherwise prohibited, the pharmacy operating in these circumstances as an in-house dispensary. A sale to an external customer, being a member of the public is not ancillary to the medical centre use and is therefore a prohibited shop use.
To the extent that any limitation on operations is necessary in order to comply with the CDC there is no guidance in the planning legislation or instruments before the Court of what is required. In contrast to the Applicant’s case, according to the evidence of Mr Yousef the Respondent is operating as required by the CDC on the basis that the goods sold by the pharmacy are limited in the manner he identifies.

Breach of CDC plans not established by the Applicant

One further matter should be considered now in relation to the CDC and whether any breach of it is proved. In final oral submissions the Applicants argued that the use of the pharmacy did not accord with the plans which form part of the CDC, which includes those plans extracted above in [79], on the basis that pharmacy items which were non-medicinal were displayed on all or some of the larger gondolas shown on the CDC plan in the central area not only the five smaller gondolas shown in front of the dispensing area. The three large gondolas are intended for mobility products and bulky goods according to the traffic and parking report as incorporated into the CDC (attached to Ms Johnson’s first affidavit, see above in [91]). The Applicants also submitted that the layout of the gondolas was not in conformity with the CDC plans.
The primary evidence that the Applicants relied on for this assertion was the photograph marked Ex B taken from outside the Greenway Medical Centre by Ms Cole summarised above in [83(2)]. The Applicants’ counsel insisted that this showed gondolas being used not in conformity with the CDC plan. Ms Cole’s evidence was also relied on to the effect that when she walked into the pharmacy space she saw gondolas, which I note did not fill the area. As identified to the Applicant’s counsel during the hearing, Ex B does not allow any conclusion to be drawn about whether the layout of the gondolas and their use is different to the CDC plans as the photograph was taken from outside the medical centre. If anything, the layout to the extent it is shown in photograph Ex B and Ms Cole’s oral evidence appears to be consistent with the CDC plans. Ms Cole’s evidence did not include any detail of the floor layout of the pharmacy and did not identify precisely from which gondolas general non-medical items were taken by her for purchase.
The Applicants also relied on the amended traffic and parking report as this identified a pharmacy of 245 square metres and attached a plan. This report did not take matters further than the plans attached to the CDC. The Applicants have not established that the layout of the pharmacy and the location of pharmacy goods does not conform with the CDC plans.
I agree with the Respondent’s submission that the location of goods on gondola shelves could have been put to the pharmacists when they gave oral evidence and was not. It should have been if this issue was to be seriously relied on rather than arising very late in the proceedings. It was not particularised by the Applicants in any written submissions.

Pharmacy not a shop

The Applicants submit that the characterisation of the use of the pharmacy in the medical centre must be undertaken in order to determine whether it is a prohibited shop use. The Respondent submitted that the appropriate characterisation of what was occurring at the pharmacy was use for a medical centre involving the provision of health services which complies with the definition in the FLEP.
Characterisation of use is a matter of fact and degree and is to be determined on the evidence. I discussed the principles of characterisation of land uses most recently in Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) (No 5) (2021) 248 LGERA 249; [2021] NSWLEC 43 at [74]-[77]. Relevant paragraphs state:

74 Principles for characterisation of use of land are identified in Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (Chamwell) and also in Dooralong [Dooralong Residents Action Group Pty Limited v Wyong Shire Council (2011) 186 LGERA 274; [2011] NSWLEC 251] at [121]. ln planning law, use must be for a purpose: Chamwell at [27]; Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37 at 534-5; and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106 at 121. The purpose is (or purposes are) the end to which land is seen to serve. It or they describe(s) the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe.
75 In approaching the question of characterisation of a use of land for planning purposes, what is required is the determination of the appropriate genus which best describes the activities in question: North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50 (North Sydney v Boyts) per Kirby P. It is appropriate to look at the entirety of the proposal for the purpose of characterisation: Woolworths Ltd v Pallas Newco (2004) 61 NSWLR 707; [2004] NSWCA 422 at [101] per Spiegelman CJ.
…
77 A development may be for more than one purpose. In Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404, the Court of Appeal (per Meagher JA) held (at 409-10) that:
... it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is a question of fact and degree in all the circumstances of the case whether such a result ensues or not. ... But when one use of the land is by reason of its nature and extent is capable of being an independent use it is not deprived of that quality because it is “ancillary to”, or related to, or interdependent with, another use.

In Jojeni Investments v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 (in the context of existing use rights) Leeming JA stated at [74]-[76] (Macfarlan and Gleeson JA agreeing):

74 I return to the question of characterisation, which is not free from difficulty. As Professors Twining and Miers have said in a different context, “There are no categorical rules to direct judges about the selection of appropriate levels of generality”: W Twining and D Miers, How to Do Things with Rules, (5th ed, 2010, Cambridge University Press) at 309. The same is true here.
75 However, there are well-established principles to guide the exercise of judgment. The question is the appropriate characterisation of the purpose of the use: O’Keefe at 535. That question is not answered through a meticulous examination of the details of the activities undertaken on the land: O’Keefe at 535. It is necessary to have regard to the purpose served by those activities: Abret Pty Ltd v Wingecarribee Shire Council at [51]. That use is characterised liberally, having regard to the principle that provisions designed to protect and preserve existing use rights should be as liberally construed as the statutory language in its context allows: Dorrestijn v South Australian Planning Commission (1984) 59 ALJR 105 at 108.
76 In Royal Agricultural Society (NSW) v Sydney City Council at 310, McHugh JA (with whom Hope and Samuels JJA agreed) stated that the level of generality was “not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land”. In determining the appropriate genus, “attention should be focused on the [town-planning] purpose for which the determination is being made ... because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided”: Boyts at 59; Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359; 159 LGERA 57 at [69].

Goodwins considered whether a use was severable requiring consideration of whether a use was comingled with another use so that practically one use could not be conducted without the other.
The Applicants urged the Court not to adopt the reasoning in Macquarie Clinic where the use of various buildings for a hospital, a teaching hospital and a private hospital facility were held to be collectively a teaching hospital use.
Bardsley-Smith No 1 and Bardsley-Smith No 2 were relied on by the Applicant. In Bardsley-Smith No 2 the Court of Appeal formulated orders in broadly similar terms to those sought by the Applicants limiting a pharmacy to the sale of PBS drugs and OTC medicine only. The facts in Bardsley-Smith No 1 varied from this matter. The Court of Appeal was concerned with the operation of a development consent for a warehouse/distribution centre for pharmaceuticals which had a pharmacy in one corner where a wide range of products not just medicines were sold to members of the public. Having considered the size of the area used by the pharmacy and the amount of goods sold in the context of the other parts of the distribution business (Chemist Warehouse consented to) the pharmacy use was limited to the retail sale of pharmaceuticals identified in the statement of environmental effects as the development application had emphasised that limited retail sales restricted to these items were proposed.
In Altz whether a proposed development application for the fit out of an existing unit in a light industrial zone which included a pharmacy with a registered pharmacist was a prohibited shop use or was a permissible neighbourhood shop use arose. Medicines were accepted to be personal care products. The definition of shop in the relevant LEP included a neighbourhood shop which was defined as premises for the sale of general merchandise such as foodstuffs, personal care products, inter alia to provide for the day to day needs of people who live or work in the local area and may include ancillary services such as a post office, bank or dry cleaning the retail floor area of which must not exceed 80 sq metres. In finding that the proposal was a neighbourhood shop the commissioner accepted that goods normally associated with a pharmacy including pharmaceutical goods such as prescription drugs could be considered as personal care products and therefore general merchandise within the definition. In the alternative, at [45], if there is a doubt that prescription drugs do fall within the meaning of ‘general merchandise’ the area occupied was small in the context of the overall development.
Neither Altz nor Bardsley-Smith No 1 were considering the same facts and the precise facts of each case require careful consideration in determining characterisation. The outcome in those cases does not dictate an outcome on the different facts before me.
The functions of the pharmacist operating in this privately operated pharmacy should be considered as this informs the characterisation of the use being undertaken by the Respondent, as the Respondent submitted. Doing so will enable a determination of whether the FLEP definition of medical centre applies or whether the Applicants are correct to describe the pharmacy as a shop. The Applicants applied a dictionary definition of pharmacy to identify two components, the dispensary and separately the chemist’s shop. The two components are not readily separable in this case, as I discuss below.
The functions of a pharmacist as a registered health practitioner are regulated extensively in the legislation summarised above in [21]-[23]. Pharmacists provide a health service as defined under HP Law. Pharmacists are health practitioners within the definition in the HP Law. The definition of health care professional under the FLEP includes a pharmacist as they satisfy the definition of any person registered under an Act for the purpose of providing health care.
In terms of dispensing medicines, the PTG Act in s 8 identifies nine classes of poisons, some of which must be obtained from a pharmacist being Sch 3, 4 and 8 substances.
The only evidence of what is sold in the pharmacy beyond the individual shoppers’ evidence is of Mr Yousef summarised above in [122]-[123]. He identifies six categories of items sold in the pharmacy being 1(a) prescription or controlled medicines (Sch 4 and Sch 8 drugs), 1(b) pharmacist only substances (Sch 3 drugs), 1(c) OTC pharmaceuticals, 1(d) therapeutic goods, complementary or alternative medicines, 1(e) occupational therapy, mobility and physiotherapy products, and 1(f) items described as complementary and ancillary to the maintenance or improvement of human health or the prevention of disease in humans.
The ethical obligations of the pharmacy profession and their duty of care to the public is identified in the Code of Ethics for Pharmacists annexed to the affidavit of Mr Yousef summarised above in [117]-[119]. Mr Alpeto above in [133]-[137] attests to the ethical duties of pharmacists and the duty of care owed to patients. Pharmacists are required to provide professional advice at the time of dispensing medicine to members of the public under the Guidelines for dispensing medicine issued by the Pharmacy Board, summarised in Mr Yousef’s evidence above in [120]-[121]. The provision of advice occurred on all of the occasions that medicine was dispensed according to the evidence of the three pharmacists. Ms Toma’s evidence confirmed that she believed she gave advice to Ms Cole during Ms Cole’s visit to the pharmacy. To the extent that pharmaceuticals are sold by pharmacists at a pharmacy they are conducting their professional activities as regulated by the relevant Commonwealth and NSW laws identified above in [21]-[26]. These obligations were emphasised in the Respondent’s submissions summarised above in [180]-[182]. Reference is made above in [181] to cases in NCAT and the Supreme Court, particularly Kazeme, where the professional and ethical obligations of pharmacists are identified, and these submissions are accepted.
The activities of the pharmacy as a whole must be considered in their context in the medical centre. Categories (a) and (b) identified by Mr Yousef come within the items which pharmacists distribute under their professional obligations. OTC drugs can be purchased at pharmacies and other locations such as some shops.
The pharmacy is operating in a medical centre with other health care providers and the communications between the other providers and the pharmacists in the pharmacy is discussed by Mr Yousef in his written and oral evidence (above in [124]) in relation to consultation about medicines and requests to the pharmacy for items to be obtained for patients. Categories (d) and (e) reflect the categories of items intended to be sold as a result of those interactions. Their sale is pursuant to the medical centre use given these circumstances.
Pharmacists dispense medicines as required by the Guidelines: see above in [120]. The process for doing so including providing advice is described above in [121]. In doing so they sell medicine in a pharmacy. The dispensing of drugs by sale is not to be equated with a retail sale transaction for the purposes of selling personal care products in a shop. Given the legislative regime for pharmaceuticals considered above I am not inclined to find that all categories of medicine should be considered personal care products falling within the definition of shop. I do not apply Altz in this regard. If they are so classified all the items sold at the pharmacy including to patients of other practitioners at the medical centre would be personal care products. Essentially nothing could be sold by the pharmacy without falling into the definition of shop, as both parties submitted but with differing consequences. Such a finding does not reflect accurately the nature of this pharmacy use in the medical centre.
Given the professional obligations of pharmacists I do not agree with the Applicants’ submission that a pharmacy is synonymous with a shop in relation to the sale of medicine as identified in categories (a)-(c) and reflecting the operation of the pharmacy in the medical centre in relation to categories (d) and (e).
Whether a shop use is occurring also depends on how the sixth category identified by Mr Yousef is to be characterised. That category is somewhat undefined in scope. Mr Yousef described this category as complementary or ancillary to the improvement or maintenance of human health, a broad description, and otherwise by omission, namely by reference to a reasonably lengthy list of items that would not be sold under category 1(f), as set out in category 2 above in [123].
The Applicants have adduced evidence of one occasion (Ms Cole above in [84]) when several items of what could be called personal care products were sold in addition to prescription and OTC medicines. The further issue therefore is to consider the extent of retail sales of non-medicinal items in the evidence to determine if this amounts to an independent use to be considered separately from the dispensary use.
Apart from the limited number of individual events referred to in the shoppers’ affidavits, the only evidence of the extent to which category 1(f) items are sold by the Respondent is Mr Yousef’s unchallenged evidence in his affidavit of sales figures for complementary products sold in July 2021 as constituting 4% of sales. Everyday complementary items were described as toothpaste, chewing gum, lip gloss and razors. In his opinion such items commonly have medical purposes. They can also be considered personal care products. His evidence is to the effect that the range of such products is very limited, as identified in the table annexed to his affidavit. The criteria by which items are limited is not stated. The only evidence available of the volume of the sale of 1(f) items some of which can be classified as personal care products confirms that it is minor in the overall operation of the pharmacy business. The volume of sales of other categories of items sold in July 2021 are set out above in [110] to the effect that the sale of Sch 4, Sch 8, Sch 3 and Sch 2 (PTG Act) medicines made up 76% of sales through the dispensary; sale of therapeutic goods, complementary and alternative medicines made up 11%; occupational therapy, physiotherapy and mobility goods sales made up 9%.
The 1(f) category sales are ancillary to the pharmacy operation in that they can be considered complementary to other categories, as well as being able to be described as personal care products. While small in volume compared to the overall trade evidence they are not de minimis or trivial as the Respondent submitted. Considering Baulkham Hills at [409]-[410] whereby an ancillary use may still be regarded as an independent use, an independent use as a shop is not established given that the sales of category 1(f) items are conducted within the footprint of the pharmacy identified on the CDC plans, are low in volume compared to the other categories of what is sold and are limited in range. No independent shop use is occurring at the pharmacy. No breach of s 4.3 of the EPA Act based on a shop use has been established.

Effect of BCA classification

Contrary to the Applicant’s submissions, the BCA Class 5 classification which applies to the medical centre does not assist in characterising the use of the pharmacy area and whether it may constitute a shop (Class 6 classification) given that the Applicants have not proved that the CDC floor plan is not being complied with.

I next consider the term retail pharmacy as contained in the OC to the extent relevant in light of my previous findings. As the Applicants employ the term retail pharmacy interchangeably with shop in the prayers they seek, my finding that there is no independent prohibited shop use occurring is also relevant in considering a retail pharmacy, to the extent that term could be defined for current purposes. As I observe below there is difficulty in doing so in this planning context.

Retail pharmacy vs medical pharmacy

While prayer 1 alleging a breach of s 4.3 of the EPA Act refers to the term ‘retail pharmacy’ as well as ‘shop’ that ground has been fully addressed in my findings above and no basis to grant it has been established.
Prayer 2 alleging a breach of the CDC refers to a retail pharmacy as well as shop in the particulars. Given that the CDC does not refer to a retail pharmacy the assumption underpinning prayer 2 must be that an OC can amend a CDC which relies on the application of s 6.4(c). I have found above in [73] on a preliminary basis that Part 6 of the current EPA Act does not apply. I will nevertheless determine whether a retail pharmacy is impermissibly operating having heard extensive argument on that issue.
Prayer 3 seeks a declaration that the Respondent is operating without an OC and therefore in breach of s 6.9 of the EPA Act, because a retail pharmacy is being conducted. The Applicants sought in the alternative relief pursuant to s 109N(1) of the former EPA Act if Part 4A of the former EPA Act applies, which is the equivalent provision to s 6.9(1)(b) of the current EPA Act. The Applicants also sought to amend prayer 3 by adding a breach of s 6.3 of the EPA Act in the course of the hearing, which the Respondent opposed as a substantial amendment which was made very late, as indeed it was. Such an amendment if allowed appears essential to establishing a breach of the EPA Act given that s 6.9(1) and s 109N(1) simply identify the requirement for an OC and do not provide for a breach of the EPA Act for contravening a term of an OC. As the Respondent identified, there was no failure to issue an OC. The appropriate breach provision would be s 6.3 of the EPA Act, of which there was no equivalent in Part 4A of the former EPA Act. Even if Part 6 of the current EPA Act had applied I would not have formally allowed the amendment given its lateness for the reasons given by the Respondent.
Given prayer 2 (assuming that s 6.4 of the current EPA Act applies and the OC is incorporated into the CDC), prayer 3 (assuming that s 6.3 of the current EPA Act can be relied on contrary to my finding immediately above) and the alternative pleading relying on s 109N(1) (assuming that breach of the terms of an OC can arise under that provision) all rise and fall on whether a retail pharmacy is being conducted at the Greenway Medical Hub, I will consider that issue by construing the terms of the OC.
The usual principles of statutory construction apply to the OC: JK Williams Staff Pty Ltd v Sydney Water Corporation (2021) 249 LGERA 109; [2021] NSWLEC 23 at [61]. These include that the plain and ordinary meaning of the words must be considered in their context, mindful of purpose: Sydney Seaplanes. While the Applicants have emphasised that work must be given to the terms ‘retail pharmacy’ and ‘medical pharmacy’, in the absence of any definitions in a planning context the correct construction is not immediately apparent in the circumstances of this case where there is no challenge to the CDC, no breach of the CDC plans is established, and no independent shop use is occurring. The only legislative reference to a retail pharmacy identified by the Applicants is the PTG Regulation which defines retail pharmacy as premises which are included in the Register of Pharmacies kept under Sch 5F of the HP Law. That schedule refers to pharmacy (not retail pharmacy) as premises where a pharmacy business is conducted and includes the portion of the premises on which sales of goods take place and a professional services room. Premises in a public hospital controlled by a public health organisation are distinguished. Those statutory references do not take the issue of construction as between the two terms in the OC any further.
As found above in [232] the dispensing of medicines in a pharmacy while also resulting in a sale of that medicine does not satisfy the description of shop which includes the sale of personal care products. Since that retail sale function is integral to the dispensing of medicine by pharmacists the distinction between a retail pharmacy and a medical pharmacy is not readily apparent in this context where the CDC does allow a dispensary to operate in the medical centre, which inherently involves a sale. In the absence of any legislative context to inform construction and giving the words ‘medical’ (meaning relating to the science and practice of medicine; curative; therapeutic according to the Macquarie Dictionary) and ‘retail’ (meaning selling to consumers according to the Macquarie Dictionary) some work to do, a medical pharmacy could be conceived of as one which largely, not necessarily exclusively, sells medicines to anyone, to be contrasted with a ‘full service’ retail pharmacy which could conceivably sell all the items identified by Mr Yousef as not being sold in the pharmacy.
The existing pharmacy operation is limited by the small size of the five gondolas immediately in front of the dispensary, its location at the rear of the medical centre and Mr Yousef’s self-imposed limit on what can be sold under general category 1(f) by reference to those items in category 2 not sold in 1(f). No principle of statutory construction justifies a finding that this is a retail pharmacy not a medical pharmacy. Defining these terms by reference to who can be sold items does not serve any obvious planning purpose such that the permissible use can only be achieved by serving a limited group of people, the patients of the medical centre, and not any member of the public.
Photographs of the signage advertising the Greenway Plaza Pharmacy outside the Greenway Plaza were in evidence. Their existence does not assist in determining whether the pharmacy is a retail pharmacy or a medical pharmacy.
The Applicants have not established that the pharmacy is an impermissible retail pharmacy rather than a medical pharmacy and no breach of the OC has been proven.
I note that I heard extensive argument concerning the effect of an OC on a CDC in light of the addition of the words “taken to be part of the development consent to which it relates” in s 6.4(c) of the current EPA Act. I have found above that Part 6 of the EPA Act does not apply to the OC in these proceedings. I have also found that even if s 6.4(c) applied and had the effect contended for by the Applicants (that the OC is incorporated into the CDC) they would not be granted relief as no retail pharmacy rather than medical pharmacy use is being conducted. Given those findings I did not need to decide the proper interpretation and effect of the tailpiece to s 6.4(c).

Restrictions on pharmacy use or occupation not warranted

Apart from the assertion by the Applicants that the independent operation of the pharmacy is not consistent with the CDC (or the OC) no constructional basis for finding that the pharmacy must operate solely to serve the needs of patients of other health practitioners and allied health professionals in the medical centre has been identified. While Mr Yousef accepted such a limitation could be given effect I consider the evidence of Mr Alpeto in relation to the pharmacist’s duty of care not to refuse health services is highly material to the assessment of the pharmacy function. I agree with the Respondent that the provision of pharmaceutical services is consistent with the definition of medical centre regardless of where a person comes from to the pharmacy. The dispensing of medicines to anyone be they patient of other health care providers in the medical centre or members of the public is consistent with the duties of pharmacists and the definition of medical centre in the FLEP does not warrant such a limitation.
My finding that no independent shop use, or retail pharmacy use, has been established also means that the relief sought by the Applicants should not be granted.

Conclusion

The Applicants have been unsuccessful and their amended summons should be dismissed.
The usual costs order in Class 4 proceedings is that costs follow the event. As the Applicants have been unsuccessful the Respondent should have its costs paid by the Applicants. Such an order will be made within 14 days unless an application is made for an alternative order within that period.

Orders

The Court orders:

The amended summons dated 16 November 2021 is dismissed.

The Applicants are to pay the Respondent’s costs unless application is made for a different costs order within 14 days.

The exhibits to be returned.

**********

Amendments

08 February 2023 - corrected paragraph numbering

Decision last updated: 08 February 2023

Medium Neutral Citation:	Bronger v Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy [2022] NSWLEC 91
Hearing dates:	22-24 November 2021, 9 March 2022, 18 March 2022 (written submissions) 28 March 2022 (written submissions), 6 April 2022 (written submissions)
Date of orders:	27 July 2022
Decision date:	27 July 2022
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See [254]
Catchwords:	CIVIL ENFORCEMENT – whether operation of pharmacy in medical centre in breach of complying development certificate because operating as a shop – no impermissible shop use occurring in business zone CIVIL ENFORCEMENT – whether operation of pharmacy in medical centre as a retail pharmacy in breach of occupation certificate permitting medical pharmacy
Legislation Cited:	COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW) Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW), cll 4, 18, 18A Environmental Planning and Assessment Act 1979 (NSW), ss 1.4, 4.2, 4.3, 4.9, 4.16, 4.19, 4.26, 4.27, 4.28, 4.55, 4.56, 4.57, 6.3, 6.4, 6.7, 6.9, 6.10, 6.13, 8.16, 9.44, 9.45, 4 (repealed), 76A (repealed), 77 (repealed), 80 (repealed), 84A (repealed), 85A (repealed), 96 (repealed), 96A (repealed), 109(2), 109C (repealed), 109D (repealed), 109E (repealed), 109H (repealed) 109I (repealed), 109M (repealed), 109N (repealed), 109K (repealed), 109Q (repealed) Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW), cll 145, 151, 155 Fairfield Local Environmental Plan 2013 (NSW), cll 1.4, 2.3, Land Use Table (B5), Dictionary Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW), s 4 Health Practitioner Regulation National Law 2009 (NSW), ss5, 39, 52, 53, Sch 5F Interpretation Act 1987 (NSW), ss 6, 11, 34 Land and Environment Court Act 1979 (NSW), s 17(d) National Health Act 1953 (Cth), ss 84, 90 Poisons and Therapeutic Goods Act 1966 (NSW), s8 Poisons and Therapeutic Goods Regulation 2008 (NSW), cl 3 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) Statute Law (Miscellaneous Provisions) Act 2020 (NSW), Sch 2, Sch 6
Cases Cited:	Abret Pty Limited v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 Alcan NT Alumina v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Altz Pty Limited v Shellharbour City Council [2014] NSWLEC 1228 Attia v Health Care Complaints Commission [2017] NSWSC 1066 Bardsley-Smith v Penrith City Council (2013) 195 LGERA 34; [2013] NSWCA 200 Bardsley-Smith v Penrith City Council (No 2) [2013] NSWCA 284 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) (No 5) (2021) 248 LGERA 249; [2021] NSWLEC 43 Burwood Council v Ralan Burwood Pty Ltd [2014] NSWCA 404 Chamwell Pty Ltd v Strathfield Municipal Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Chu v Inner West Council (2022) 251 LGERA 211; [2022] NSWLEC 14 Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11 FoodBarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Furia Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1409 Goodwins (Sydney) Pty Ltd v Sydney City Council (1960) 5 LGRA 346 Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 JK Williams Staff Pty Ltd v Sydney Water Corporation (2021) 249 LGERA 109; [2021] NSWLEC 23 Jojeni Investments v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 Liu v Ku-ring-gai Council [2021] NSWLEC 1094 Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218 Moy v Warringah Council (2004) 133 LGERA 49; [2004] NSWCCA 77 Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (2021) 247 LGERA 62; [2021] NSWCA 2 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Scott’s Provision Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191 Settlers Estate v Penrith City Council (2021) 247 LGERA 84; [2021] NSWCA 13 Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204
Texts Cited:	Macquarie Dictionary (8th ed, 2020) Pearce and Geddes, Statutory Interpretation in Australia (9th ed, 2019)
Category:	Principal judgment
Parties:	Catherine Bronger (First Applicant) John Bronger (Second Applicant) Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy (Respondent)
Representation:	Counsel: C Ireland (Applicants) C Bolger and M Fozzard (Respondent) Solicitors: McPhee Kelshaw Solicitors (Applicants) Shiba Legal (Respondent)
File Number(s):	2021/00117816