Bronger v Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy

The appellants sought injunctive relief in the Land and Environment Court to restrain the respondent from operating a "retail pharmacy" within a medical complex. The dispute centred on whether the respondent's pharmacy operations constituted a prohibited use under the relevant planning instrument, which defined "retail premises" as prohibited and an occupation certificate specified "retail pharmacy" as an excluded use, distinct from a "medical pharmacy". The primary judge had found that no independent "shop" use or "retail pharmacy" use had been established.

The Court of Appeal was required to determine whether the primary judge erred in concluding that the respondent was not engaged in the prohibited use of a "shop" or "retail pharmacy". This involved considering whether the pharmacy's operations met the definitions of "retail premises" and "shop" under the planning instrument, and whether the former or current provisions of the Environmental Planning and Assessment Act 1979 (NSW) applied. The court also had to consider the distinction between a "retail" and a "medical" pharmacy, which was understood to lie in the sale of medicines and pharmaceutical items to the general public versus dispensing to out-patients of the medical complex.

The Court of Appeal reasoned that the respondent's pharmacy operations did indeed answer the descriptions of "retail premises" and "shop". It found that regulation 18A of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) was not engaged, meaning the former provisions of the Act did not apply. The court concluded that the primary judge had erred in not finding the premises was being used as a "retail pharmacy" because the distinction between retail and medical pharmacy, as defined by the sale of items to the public versus dispensing to out-patients, was not satisfied by the primary judge's findings.

Consequently, the appeal was allowed, and the orders of the primary judge were set aside. The Court of Appeal ordered that the respondent be restrained from making any retail sale of any item from the premises to any person who is not an out-patient of a health care professional at the Greenway Medical Centre, with specific definitions provided for "health care professional" and "retail sale". The respondent was ordered to pay the appellants' costs of the proceedings in the Land and Environment Court and the appeal.