Coghill and Australian Community Pharmacy Authority and Anor - [2000] AATA 247

DECISION AND REASONS FOR DECISION [2000] AATA 247

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/1029

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MALCOLM COGHILL
  Applicant
           And    AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
  Respondent
   And  PATRICK THORNTON

Joined Party

DECISION

Tribunal Mr. D.W. Muller, Senior Member

Date30 March 2000
PlaceBrisbane
DecisionThe Tribunal affirms the decision under review.

...............Signed...............................
D.W. MULLER
SENIOR MEMBER

CATCHWORDS
PHARMACY RESTRUCTURING SCHEME – community need – adequate service by other pharmacist – catchment area
National Health Act 1953: ss 90,99L

REASONS FOR DECISION

30 March 2000 Mr. D.W. Muller, Senior Member

This is an application to review a decision of the Australian Community Pharmacy Authority to make a recommendation that Malcolm Coghill, the applicant, should not be approved under section 90 of the National Health Act 1953 (the Act) in respect of premises located at Tweed Heads West in New South Wales.
Under section 99L of the Act the Minister for Health and Aged Care must, in writing, determine the rules subject to which the Authority is to make recommendations under subsection 99K(1). In this instance the operative determination under subsection 99L(1) was No. PB13 of 1998. That Determination came into operation on 1 July 1998.
Determination No. PB13 of 1998 provides, in paragraph 5:
"5.Approval of a pharmacist ("the applicant") under section 90 of the Act in respect of particular premises must be recommended if the applicant has a legal right to occupy those premises for the purpose of operating a pharmacy and:
(a) (i)those premises are situated at least 2 kilometres, measured door to door by the shortest lawful access route, from the nearest other premises in respect of which a pharmacist is approved under section 90 of the Act; and
(ii)the Authority is satisfied that there is a definite community need for pharmaceutical services in the area in which those premises are situated; and
(iii)in the case of an application for approval of a pharmacist received by the Secretary before 1 March 1997, there has not been a grant of financial assistance under section 99ZC or 99ZD of the Act paid after 28 February 1994 in respect of premises situated within 2 kilometres; measured door to door by the shortest lawful access route, from the premises in respect of which approval is sought; or"

Paragraph 2 of the determination provides:
"'definite community need', in relation to the catchment area serviced or proposed to be serviced by a pharmacy, means that none of the following conditions applies to the area:
(a)that the catchment area has a population of less than 3,000 for most of the year;
(b)that the proportion of disadvantaged persons (aged persons and persons who are unemployed or receive pensions) is less than 10 per cent and can be reasonably serviced by other means;
(c)that the catchment area does not have the equivalent of a full-time medical practitioner;
(d)that the catchment area is being adequately serviced by other approved pharmacists;
(e)that the total number of claimable PBS prescriptions and RPBS prescriptions claimed by approved pharmacists in respect of the catchment area in the last 12 months is less than 3,000;
(f)that isolation from, or poor public transport system to, general shopping does not hinder the bulk of the population;
(g)that the population is mobile and contains a high proportion of commuting workers;
(h)that the catchment area has no general shopping facilities."
In this review the relevant issues are whether:
(a)The catchment area is being adequately serviced by other approved pharmacists;
(b)The bulk of the population in the area is not hindered by isolation from, or a poor public transport system to, general shopping; and
(c)The population in the area is mobile and contains a high proportion of commuting workers.
The determination provides that there is not a definite community need if any of the situations described in paragraph 4 above exist.
The criteria for the approval of new pharmacies are intended to be restrictive. It was intended that the number of new approvals given to pharmacists to supply pharmaceutical benefits would be limited. No new approvals for the use of premises as a pharmacy under the scheme would be granted unless the criteria set out above were met.
For a community need to be "definite" it must be certain and existing. It must not be merely speculative, potential or prospective.
The site proposed by Mr. Coghill is situated in a shopping centre at Panorama Plaza, corner of Inlet and Scenic Drives, Tweed Heads West. There are ten shops at the shopping centre, eight of which are occupied. It is proposed that one of the vacant shops would be the pharmacy (approved by the Tweed Shire Council) and the other would be a doctor's surgery. The centre is adjacent to a bus stop, two public telephone booths and a post box. The traders open seven days per week.
The catchment area covers a very large area of countryside inland from Coolangatta/Tweed Heads. The only practical road access to the catchment area is by way of Kennedy Drive which traverses a bridge over Cobaki Creek at the eastern border of the catchment area. The catchment area can be compared to an island to which entrance and egress can only be obtained by traversing the said bridge. The area is bounded by Cobaki Creek and Terranora Broadwater to the east, by Cobaki Broadwater to the northeast, by the Queensland/New South Wales border escarpment to the north and west, and by Bilambil Creek to the south. The total area is approximately 120 square kilometres.
Upon entering the catchment area by crossing the said bridge, the road system divides into Piggabeen Road and Scenic Drive. Piggabeen Road services Cobaki Broadwater Village, Cobaki Lakes and Piggabeen. Scenic Drive services the area around the defunct Seagulls Football Club (Panorama), Daveys Island, Terranora Valley Retirement Village, Bilambil Heights and Bilambil.
The catchment area contains areas of close settlement of relatively expensive housing in picturesque hilly surroundings, retirement villages, nursing homes, mobile home parks with a high percentage of permanent residents, rural properties of a few hectares or more and small farms. The total population is between 6,000 to 10,000, depending on which view is taken of the boundaries of the catchment area.
There is a council bus service into the area which travels from Coolangatta to Bilambil Heights. There is a shuttle bus from Terranora Valley Retirement Village to Coolangatta/Tweed Heads. There is a shuttle bus service from the caravan/transportable housing park at Cobaki Broadwater to Coolangatta/Tweed Heads. It would be almost unthinkable for anyone to live anywhere in the catchment area without private transport unless the person was very close to a bus service, or wanted to be a recluse. The statistics show a very high percentage of households with at least one car and the percentage of households with two or more cars is considerably higher than the Australian Community Profile.
There is very little employment of any significance in the area. There are the retirement villages and nursing homes which employ staff. There is a primary school at Bilambil. There are small shopping centres at Panorama Plaza and Bilambil Heights. Most of the adult inhabitants who work do so outside the catchment area. The recreational, educational, medical, commercial and employment facilities and opportunities offered within the catchment area are vastly inferior to those offered outside the catchment area. People who live in the area do so because they have made a life-style choice. It is a very beautiful part of Australia. The bulk of those people who work for a living leave the catchment area daily to travel to their working destinations. They do so by way of the bridge over Cobaki Creek and Kennedy Drive.
The closest large shopping centres are at Coolangatta and Tweed Heads. Access to those shops is also by way of Kennedy Drive.
There is a pharmacy at Endless Summer Shopping Centre, Kennedy Drive, situated about two kilometres east of the bridge over Cobaki Creek. This is run by Patrick Thornton, the Party Joined. There are seven pharmacies in Coolangatta/Tweed Heads and there are two pharmacies at Banora Point, a few kilometres south of Tweed Heads.
There is a full-time medical practitioner at the Bilambil Heights shopping centre which is about 3.5 kilometres west of Panorama Plaza.
Panorama Plaza is just over half a kilometre west of the bridge over Cobaki Creek. Panorama Plaza and Endless Summer shopping centre are 2.8 kilometres apart.
Currently the pharmaceutical needs of the catchment area are serviced by Mr. Thornton's pharmacy, the pharmacies at Coolangatta, Tweed Heads, Banora Point or any of the countless pharmacies on the Gold Coast to which most of the workers of the area commute each day.
The site proposed by Mr. Coghill has some advantages over Mr. Thornton's site because Mr. Coghill would be closer to Cobaki Creek bridge than Mr. Thornton, but he would be servicing virtually the same customers as Mr. Thornton is already. The advantage to the customers of Mr. Coghill's site over Mr.Thornton's site might be a kilometre or two but in the context of the size of the catchment area the difference is almost insignificant. Access from the catchment area to the two sites would generally be by bus or car. Pedestrian traffic to either site would be restricted to the people living at Panorama and West Tweed Heads but would be negligible when compared with the whole of the catchment area.
Mr. Coghill told the Tribunal that he would provide an order and delivery service to the area. Mr. Thornton already does this but his manager, Mr. Gregory, said that there is not much call for the service.
It is the Tribunal's view that the pharmacy site proposed by Mr. Coghill at Panorama Plaza would provide almost the identical service to that provided by Mr. Thornton at Endless Summer.
The Tribunal determines that:
(a)The catchment area is being adequately serviced by other approved pharmacists, including Mr. Thornton and the large number of pharmacies at Coolangatta and Tweed Heads.
(b)The bulk of the population of the area is not hindered by isolation from general shopping at the large shopping centres.
(c)The population is mobile.
(d)Most of the workers in the area are commuters to the larger commercial areas of the coast.
The Tribunal affirms the decision under review.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member.
Signed:         .....................................................................................
           R. Hayes, Associate
Date/s of Hearing  11, 12 October 1999
Date of Decision  30 March 2000
Solicitor for the Applicant         Mr. J. O'Neill, O'Neills
Solicitor for the Respondent    Mr. S. Ridgway, Blake Dawson Waldron
Solicitor for Interested Party     Mr. S. Holzberger, McCarthy & Holzberger