King and Australian Community Pharmacy Authority and Marsden and Department of Health and Ageing
[2002] AATA 380
•23 April 2002
DECISION AND REASONS FOR DECISION [2002] AATA 380
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2000/473
GENERAL ADMINISTRATIVE DIVISION )
Re ROBERT JOHN KING
Applicant
And AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Respondent
And IAN CAMPBELL MARSDEN
Party Joined
AndSECRETARY, DEPARTMENT OF HEALTH AND AGEING
Second Party Joined
DECISION
Tribunal Mr M J Sassella Senior Member
Date23 April 2002
PlaceCanberra
Decision The decision under review is affirmed.
..............................................
Senior Member
CATCHWORDS
NATIONAL HEALTH ACT 1953 - application for approval as a pharmacist - whether another pharmacy situated within two kilometres of premises the subject of application - shortest lawful access route - erection of fence to extend distance between premises - safety issues where access route utilises car park
National Health Act 1953 ss 4(1) "pharmacist", 84(1) "approved pharmacist", 90(1), (2), (3), (3A), (3B), 98(1)(a), (2)(a), (3), 99J, 99K, 99L.
Hanna v Australian Community Pharmacy Authority (1999) 85 FCR 427
Banias v Australian Community Pharmacy Authority [1997] 648 FCA
Karelis v Australian Community Pharmacy Authority [1998] FCA 1735
Thredgold v Australian Community Pharmacy Authority (1999) 93 FCR 465
REASONS FOR DECISION
23 April 2002 Mr M J Sassella Senior Member
CHRONOLOGY
On 21 August 2000 the Health Insurance Commission ("the HIC") received from Mr Robert John King ("the Applicant") an application (dated 3 August 2000) under s 90 of the National Health Act 1953 ("the Act") for approval as a pharmacist (TD1, T4.1). It was in respect of premises at Shop 1, 213-215 Pacific Highway, Charmhaven, NSW, 2263. It involved a relocation of an approval from Clontarf in Queensland. It was proposed that business would commence on 1 December 2000.
Accompanying that application were other documents:
A request under s 98 of the Act dated 3 August 2000 for cancellation of an approval in respect of the Clontarf premises (TD1, T4.2).
Plans in respect of the Charmhaven premises (TD1, T4.4).
A copy of a sale contract in respect of Charmhaven in favour of the Applicant (TD1, T4.28ff).
Evidence of the distance from the proposed premises to the nearest approved premises (TD1, T4.43ff). This was a survey report dated 10 August 2000 by Mr M A Rolls ("the Rolls report"). It concluded that the distance was 2053 metres.
Evidence that there is no unmet community need in Clontarf, Queensland, if the approval is cancelled (TD1, T4.45).
On 29 August 2000 the HIC referred the Applicant's application to the Australian Community Pharmacy Authority ("the Respondent") (TD1, T5), confirming that there were no other pharmacies within two kilometres of the premises the subject of the Applicant's application. The Lake Haven Pharmacy was identified as the nearest existing pharmacy.
On 18 September 2000 the Respondent received a latter dated 15 September 2000 from "Cam Burnside" of "Gorokan Pharmacy", Gorokan, objecting to the opening of any new pharmacy premises in the area as that would cause a significant reduction in revenue for his business and jeopardise the viability of his extended opening hours (TD1, T6).
On 20 September 2000 the Respondent received a letter dated 18 September 2000 from Mr Ian Campbell Marsden ("the first Party Joined"), a pharmacist at Lake Haven Pharmacy, objecting to the relocation of an existing pharmacy to Charmhaven on the basis that the new pharmacy premises in Charmhaven would be less than two kilometres from his existing pharmacy at Lake Haven Shopping Centre (TD1, T7.1). He foreshadowed further material which followed and was dated 19 September 2000 and consisted of survey results showing that the distance involved is indeed less than two kilometres (TD1, T7.3ff). The distance was measured by Asquith & DeWitt, Surveyors, principally Mr M A Taylor. The report is "the Taylor report". The distance could be 1988.93 metres (TD1, T7.3) or 1910.50 metres (TD1, T7.7).
The Respondent wrote to the Applicant on 29 September 2000 requesting by 17 October 2000 further detail in the survey plans submitted on his behalf and informing him that the Respondent was arranging for an independent survey ("the Neate report") (TD1, T8.1). On 24 October 2000 Mr G Brooks, on behalf of the Applicant, wrote to the Respondent stating that the Respondent needed to provide better particulars as regards the required additional information if the Applicant was to be able to comply (TD1, T8.4ff).
The Respondent's brief to the independent surveyor was provided on 5 October 2000 (TD1, T10).
On 9 October 2000 the Applicant wrote to the Respondent stating that he was prepared to alter the point of entry to his pharmacy at Charmhaven if the results of the independent survey found the distance slightly less that two kilometres (TD1, T8.2).
On 11 October 2000 the Respondent completed a memorandum relating to a site inspection and the independent survey carried out on 9 October 2000 (T9). [This document is curious. It bears no date. The index to Ex TD1 dates it as 11 October 2000. The document states that the independent surveyors were contracted to do the work on 26 October 2000. It is clear, however, that the survey work was done on 9 October 2000.] This document is useful in setting out the principles applied to the survey. The memorandum concludes with:
"The initial measurement of the independent survey indicated that:
·the shortest lawful access route for this application would be under the 2 kilometre limit; and
·the applicant's route along the edge of the Highway was unsafe and unnecessarily used Stratford Drive (the applicant's survey ["the Rolls report"] was also incorrect in measuring from the existing to the proposed premises)."
On 16 October 2000 the Applicant wrote to the Respondent querying aspects of the routes chosen for survey for the Taylor report and the independent survey. He suggested that they crossed private land and ignored the possible erection of fences on rezoned land that might be redeveloped (TD1, T8.3). Mr Brooks, on the Applicant's behalf, wrote a similar letter on 31 October 2000 querying the propriety of assuming that measurements could be made utilising "rough bush tracks" (TD1, T8.7ff).
On 26 October 2000 the Respondent recommended rejection of the Applicant's application because Rule 6(c) of Ministerial Determination PB 8 of 2000 was not satisfied. The distance to the nearest other approved pharmacy was said to be less than two kilometres (TD1, T11). This is the decision under review in these proceedings.
On 8 November 2000 the HIC wrote to the Applicant to inform him of the decision of 26 October 2000 and of his review rights (TD1, T12).
On 15 December 2000 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review of the Respondent's decision. The Applicant noted that he had received the HIC's letter on 27 November 2000.
On 8 March 2001 Mr Marsden applied to the Tribunal to be joined as a party to the application. On 9 April 2001 the Tribunal directed that Mr Marsden be joined as a party, the first Party Joined.
On 2 July 2001 the Secretary of the Department of Health and Ageing ("the Secretary") applied to the Tribunal to be joined as a party. On 13 July 2001 the Tribunal directed that the Secretary become the second Party Joined. At that time the department was known as the Department of Health and Aged Care. The up to date title is used in these reasons.
HEARING AND APPEARANCESThe Tribunal convened a hearing in this matter at the Lake Haven Shopping Centre on 12 November 2001. Mr Stephen Holzberger represented the Applicant. Mr Greg Peek represented the Respondent and second party joined. Mr Stephen Burley represented the first Party Joined.
The Tribunal had access to the following documents which were admitted as evidence:
Exhibit TD1 – Section 37 Statement and associated documents lodged by the Respondent, 9 February 2001.
Exhibit TD2 - Section 37 Statement and associated documents lodged by the second party joined, 17 January 2001.
Exhibit A1 – Letter dated 8 June 2001 from Mr Holzberger to the second party joined.
Exhibit A2 – Survey report by Mr M A Rolls, 26 July 2001.
Exhibit A3 – Statement by Mark Anthony Rolls, 14 August 2001.
Exhibit A4 – Applicant's statement of facts and contentions, 16 July 2001.
Exhibit A5 – Map X by Mr M A Rolls, 12 November 2001.
Exhibit A6 – Map Y by Mr M A Rolls, 12 November 2001.
Exhibit A7 – Letter plus survey report dated 23 January 2002 by Rolls & Associates, Surveyors.
Exhibit A8 - Letter dated 11 April 2002 from Mr S Holzberger to the Tribunal.
Exhibit R1 – Respondent's statement of facts and contentions, 31 July 2001.
Exhibit R2 – Letter dated 16 November 2001 (with attachments) from Mr G Peek to the Associate to Senior Member Sassella dealing with revocation of Mr King's request for approval.
Exhibit R3 - Letter dated 16 November 2001 (with attachments) from Mr G Peek to the Associate to Senior Member Sassella dealing with Mr King's alleged second request for approval.
Exhibit R4 – Letter dated 19 November 2001 from Mr G Peek to the Associate to Senior Member Sassella.
Exhibit R5 - Letter dated 4 February 2002 from Mr G Peek to the Associate to Senior Member Sassella.
Exhibit M1 – First party joined's statement of facts and contentions, received 1 August 2001.
Exhibit M2 – Statutory declaration by Ms D Oakes, 10 July 2001.
Exhibit M3 – Letter dated 10 July 2001 from Ms R Vale to Ms A Mihulka & Associates, 10 July 2001.
Exhibit M4 – Plans of Lake Haven Shopping Centre.
Exhibit M5 – Latter with plans dated 31 July 2001 from Barry Hunt Associates to Ms A Mihulka & Associates, 31 July 2001.
Exhibit M6 – Lake Haven Shopping Centre Construction Report, provided on 25 October 2001.
Exhibit M7 – Letter dated 10 January 2002 (with 19 photographs) from Ms A Mihulka to Senior Member Sassella.
Exhibit M8 – Set of 19 photographs provided by Ms A Mihulka on 10 January 2002.
Exhibit M9 – Facsimile dated 14 January 2002 (with attachments) from Ms A Mihulka to Senior Member Sassella.
Exhibit M10 – Letter and survey report dated 1 February 2002 from Barry Hunt Associates, Registered Surveyors and Land Development Consultants.
Exhibit M11 - Letter and survey report dated 27 February 2002 from Barry Hunt Associates, Registered Surveyors and Land Development Consultants.
Exhibit M12 – Letter dated 14 March 2002 from Ms A Mihulka to Senior Member Sassella with a letter dated 7 August 2001 from Mr A Crampton, Development Planner, Wyong Shire, attached.
Exhibit M13 – Letter dated 15 March 2002 from Ms A Mihulka to Senior Member Sassella with a letter dated 14 March 2002 from Mr Hunt, the surveyor, attached.
Exhibit M14 – Survey plan showing Lake Haven Shopping Centre as it will be when all renovations end.
The Tribunal observes that the two Section 37 Statements contain very similar material. References earlier in these reasons, and below, to T documents will, unless otherwise noted, be to documents in Ex TD1.
As will be seen below, during the hearing in Lake Haven it became clear that the renovations and other works occurring at and around the Lake Haven centre were in a dynamic and changing state. The Tribunal considered that it would be advisable to delay making an immediate decision with a view to seeing what was to occur by the end of 2001 as regards the renovations and other works. It was foreshadowed that there would be a directions hearing to assess developments before the Tribunal set about writing its decision. After the hearing the following events occurred:
On 14 January 2002 a telephone directions hearing was held.
On 23 January 2002 the Tribunal's presiding member revisited the site, largely to ascertain what had occurred in relation to a table drain beside Lake Haven Drive.
On 11 February 2002 another telephone directions hearing was held.
On 6 March 2002 the Tribunal's presiding member revisited the site to discuss with Messrs King, Marsden, Rolls and Hunt issues arising in the directions hearing held on 11 February 2002.
These subsequent events led to additional documents being taken into evidence as Exhibits A7, A8, R2, R3, R4, R5, M7, M8, M9, M10, M11, M12, M13 and M14.
The effects of these subsequent events on the evidence is discussed below where appropriate.
RELEVANT LEGISLATIONThe relevant statutory provisions are in the National Health Act 1953: ss 4(1) "pharmacist", 84(1) "approved pharmacist", 90(1), (2), (3), (3A), (3B), 98(1)(a), (2)(a), (3), 99J, 99K, 99L.
NATIONAL HEALTH ACT 1953
Interpretation
4. (1) In this Act, unless the contrary intention appears:
…
pharmacist means a person registered as a pharmacist or pharmaceutical chemist under a law of a State or Territory providing for the registration of pharmacists or pharmaceutical chemists, …
…
Interpretation
84. (1) In this Part, unless the contrary intention appears:
…
approved pharmacist means a person for the time being approved, or deemed to be approved, under section 90;
…
Approved pharmacists
90. (1) Subject to this section, the Secretary may, upon application by a pharmacist who is willing to supply pharmaceutical benefits on demand at particular premises, approve that pharmacist for the purpose of supplying pharmaceutical benefits at or from those premises.
(2) Where a pharmacist desires to supply pharmaceutical benefits at or from several premises (being premises at which he or she carries on, or is about to carry on, business as a pharmacist) 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.
(3) Subject to this section, where an approved pharmacist desires to supply pharmaceutical benefits at or from premises (being premises at which the pharmacist carries on, or is about to carry on, business as a pharmacist) other than premises in respect of which approval has been granted, the Secretary may on application by the approved pharmacist, grant approval in respect of those other premises.
(3A) Subject to subsection (3AA), an application under this section must be referred to the Authority.…
(3AB) In subsection (3AA):
pharmacy means a business in the course of the carrying on of which pharmaceutical benefits are supplied.
…
Cancellation by Secretary of approval of pharmacists etc.
98. (1) Whenever:
(a) an approved pharmacist requests that his or her approval under section 90 in respect of all or any of the premises in respect of which he or she is approved be cancelled;…
(2) Where:
(a) an approved pharmacist gives the Secretary notice in writing that the pharmacist has ceased to carry on business as a pharmacist at premises in respect of which the pharmacist is approved; or
…
(3) Where the Secretary is satisfied that an approved pharmacist is not carrying on business as a pharmacist at premises in respect of which the pharmacist is approved, the Secretary may, by notice in writing to the pharmacist, cancel the approval of the pharmacist under section 90.
…
Establishment of Authority
99J. (1) An Authority is established.(2) The name of the Authority is the Australian Community Pharmacy Authority.
Functions
99K. (1) The functions of the Authority are:
(a) to consider applications under section 90; and
(b) to make, in respect of an application under section 90:(i) a recommendation whether or not the applicant should be approved under that section in respect of particular premises; and
(ii) if an approval is recommended - recommendations as to the conditions (if any) to which the approval should be subject; and
(c)-(e) * * * * *(2) In making a recommendation under subsection (1), the Authority must comply with the relevant rules determined by the Minister under section 99L.
(3) All recommendations of the Authority under subsection (1) are to be made to the Secretary.
Determination of rules by Minister
99L. (1) The Minister must, by writing, determine the rules subject to which the Authority is to make recommendations under subsection 99K(1).(2) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Also relevant is the Ministerial Determination issued under subsection 99L(1) of the National Health Act 1953, No PB8 of 2000 ("the Ministerial Determination").
COMMONWEALTH OF AUSTRALIA
National Health Act 1953
PHARMACEUTICAL BENEFITS
DETERMINATION UNDER SUBSECTION 99L(1)No. PB 8 of 2000
I, GRANT ERNEST JOHN TAMBLING, Parliamentary Secretary to the Minister for Health and Ageing, pursuant to subsection 99L(1) of the National Health Act 1953 hereby make the following Determination:
Commencement
1.(a) This Determination shall come into force on the day on which it is published in the Commonwealth of Australia Gazette.
…
Interpretation
2.In this Determination:
"approved pharmacist" has the same meaning as in subsection 84(1) of the Act;
…
"defined community need" in relation to the catchment area serviced or proposed to be serviced by a pharmacy, means:
(a)that the catchment area has a population of not less than 3,000 for most of the year; and
(b)that the catchment area has the equivalent of a full-time medical practitioner; and
(c)that the catchment area has general shopping facilities;
…
"pharmacist" has the same meaning as in subsection 4(1) of the Act;
"pharmacy" has the same meaning as in subsection 90(3AB) of the Act;
"the Act" means the National Health Act 1953;
"the Authority" means the Australian Community Pharmacy Authority established under section 99J of the Act;…
"the Secretary" means the Secretary to the Department of Health and Ageing.
…
Approval to Supply Pharmaceutical Benefits – Relocation of Existing Pharmacies
6.Subject to paragraphs 8 and 9, approval of a pharmacist ("the applicant") under section 90 of the Act in respect of particular premises must be recommended [by the Authority] if the applicant has a legal right to occupy those premises for the purpose of operating a pharmacy, and either:
(aa)the applicant is approved under section 90 of the Act in respect of other premises and the applicant has agreed that that approval will be cancelled immediately before the approval under consideration, if granted, takes effect; or
(ab)another pharmacist:
(i)is approved under section 90 of the Act in respect of other premises and that pharmacist has agreed that that approval will be cancelled immediately before the approval under consideration, if granted, takes effect; and
(ii)has indicated, in writing, that the cancellation is intended to enable recommendation, under these rules, of approval of the applicant; and
in either case, if the approved pharmacist has ceased to carry on business as a pharmacist at the other premises, the Secretary:
(ac) is aware of the cessation and the reasons for it; and
(ad)has decided, under section 98 of the Act, not to cancel the approval concerned;
and one of the following circumstances applies:
…
(c)the premises in respect of which approval is sought are situated not less than 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.
…
Dated this 11th day of July 2000.
[Signed]
GRANT ERNEST JOHN TAMBLING
Parliamentary Secretary to the Minister for Health and Ageing
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
The Applicant sought approval as a pharmacist under s 90 of the Act. Section 90(2) requires that:
There is a pharmacist making application – the Tribunal understands from T8.6 that Mr King is already an approved pharmacist operating from an existing particular premises in Toukley;
The pharmacist must desire to supply pharmaceutical benefits at or from several premises (being premises at which he or she carries on, or is about to carry on, business as a pharmacist) – the Tribunal finds from T4.1 that the pharmacist is so willing and that that the new approval is in respect of particular premises known as shop 1, 213-215 Pacific Highway, Charmhaven, NSW, premises from which he is about to carry on business as a pharmacist;
The pharmacist must have made application to the Secretary – the Tribunal finds that Mr King did make such application (T4).
With all of those requirements met, the Secretary may approve the pharmacist for the purpose of supplying pharmaceutical benefits at two or more premises by issuing a separate approval in respect of each premises. In the present case the only approval required is in respect of the Charmhaven premises. The Applicant already has an approval in respect of other premises not relevant to this application.
The Tribunal pauses to note that officers in the HIC exercise the Secretary's powers and functions in respect of this part of the Act by delegation from the Secretary.
The Secretary's powers are subject to certain restrictions. The first of these is the requirement that the application be referred to the Respondent (s 90(3A) of the Act). As a consequence of s 90(3B), if the Respondent does not recommend the grant of an approval to the applicant pharmacist, the Secretary cannot approve the application. If the Respondent recommends approval the Secretary can nevertheless reject the application. Thus it may be said that the Respondent has a power of veto over applications, or that a favourable recommendation by the Respondent is a necessary, but not sufficient, precondition to the approval of a pharmacist to supply pharmaceutical benefits from particular premises.
The Respondent is in turn restricted by the terms of the Ministerial Determination in its consideration of any application referred to it under s 90(3A) of the Act. This flows from s 99K(2) of the Act.
The Tribunal observes that, to this point, there is no obvious barrier to the Respondent making a recommendation to the Secretary in the Applicant's favour. However, it is necessary to consider the Ministerial Determination. This appears to have entered force on 26 July 2000, the date of its gazettal. This is a relocation application and so clause 6 of the Ministerial Determination applies. The requirements therein, as relevant, are:
(a)The applicant ("the transferee pharmacist") must have a legal right to occupy the particular premises (clause 6 chapeau).
(b)Another pharmacist ("the transferring pharmacist") is approved under s 90 of the Act in respect of other premises and the transferring pharmacist has agreed that his or her approval will be cancelled immediately before any approval given to the transferee pharmacist by the Secretary takes effect (clause 6(ab)(i)).
(c)The transferring pharmacist has indicated in writing that the cancellation is intended to enable recommendation of approval of the transferee pharmacist (clause 6(ab)(ii)).
(d)The transferring pharmacist, having ceased to carry on business as a pharmacist at the other premises, the Secretary must be aware of the cessation and the reasons for it (clause 6(ac)).
(e)The Secretary must have decided under s 98 of the Act not to cancel the approval of the transferring pharmacist (clause 6(ad)).
(f)The premises in respect of which approval is sought must be situated not less than two 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 s 90 of the Act (clause 6(c)).
The Tribunal now considers whether these requirements are met in this case.
The applicant ("the transferee pharmacist") must have a legal right to occupy the particular premises (clause 6 chapeau).The transferee pharmacist, Mr King, has a conditional contract of sale for the purchase by himself and his wife of the proposed particular premises. The contract is conditional on the Applicant obtaining the Secretary's approval under s 90 of the Act (T4.28-T4.42). Mr and Mrs King would then lease the premises to the pharmacy business (Ex A4). The Tribunal notes that the condition is included in clause 41 of the contract (T4.42) and appears to permit the Applicant and Mrs King to rescind the contract if the approval "of a regulatory body to use the property for a specific purpose" (which is not disclosed to the vendor) is not forthcoming by 30 November 2000. The Applicant and Mrs King had until 4.00 pm on 7 December 2000 to rescind. There may be an issue between the contract parties as to the Applicant's rights if he fails to obtain approval from the Secretary. That is not a concern to the Tribunal, however, as there appears no barrier to the Applicant having security of tenure, if he secures approval. The Applicant satisfies this requirement.
Another pharmacist ("the transferring pharmacist") is approved under s 90 of the Act in respect of other premises and the transferring pharmacist has agreed that his or her approval will be cancelled immediately before any Approval given to the transferee pharmacist by the Secretary takes effect (clause 6(ab)(i)).According to T4.2, T4.45 and T4.46 there is a transferring pharmacist, in fact there are two, Peter John Alexander Yule and Trevis John Yule. They are the beneficiaries of approval number 8745G (T4.2). Their approval is in respect of premises in Clontarf, Queensland. They have agreed to cancellation of their approval number immediately prior to the grant of approval to Mr King (T4.2).
However, oral evidence was forthcoming at the hearing to suggest that this arrangement may have fallen through. Mr King was cross-examined by Mr Burley, counsel for Mr Marsden, the pharmacist in Lake Haven Shopping Centre who objects to the Applicant being granted his approval. Mr King told Mr Burley that the relocation proposal as evidenced in T4.2 had been overtaken by a proposal to relocate a different approval number. He was unable to identify the new transferring pharmacist. He was also unable to say whether notice had been given of this change to the Secretary or to the Tribunal.
Mr Holzberger, in examination arising, elicited the following from Mr King. The Applicant had personally signed the application for approval (T4.1). However, he had not assembled the copious materials in T4.2 to T4.46. Geoffrey Brooks & Associates had done that. The Applicant had spoken on the telephone with the Messrs Yule to explain the reasons for the delay in proceeding to the relocation. He has a contract with them. He had been advised that the Messrs Yule intended to withdraw from the contract. "David White" told him this. Another pharmacist wanted to deal with the Yules with a view to relocating their approval number. The Applicant has signed a new contract for a relocation of approval number. He is unaware whether the proposed new transferring pharmacist has signed the contract. He has paid nothing yet under the new contract.
Mr Burley put to the Tribunal that, if the proposed relocation arrangement has been abandoned, then the Applicant would need to recommence his application to the Secretary under s 90 of the Act. Advice from the Respondent confirmed that Mr Burley was correct in his assessment of the consequences of any attempt to amend an application up for consideration by the Respondent (Ex R4).
The Tribunal, with the agreement of all parties, issued a direction following the hearing day, requiring the second party joined to inquire of the HIC as to its state of knowledge of the relocation of the Yules' approval number. This information was required by close of business on 19 November 2001.
The second party joined advised (Ex R2) that it had received no notice of any withdrawal of the proposal for relocation of the approval number. The evidence on this matter available to the Tribunal, then, is that there is an understanding on Mr King's part that the Yules are impatient for the relocation to proceed and are treating with a third party. At the same time the Applicant's advisers have located another approved pharmacist who may be interested in agreeing to a relocation and the Applicant has protected his position by signing his part of a contract that may be concluded with the newly introduced approved pharmacist. However, as matters stood in April 2002, the contract between Mr King and the Messrs Yule was still in force. On the basis of this state of the evidence the Tribunal is satisfied on the balance of probabilities that Mr King's contract with the Yules is still on foot.
The transferring pharmacist has indicated in writing that the cancellation is intended to enable recommendation of approval of the transferee pharmacist (clause 6(ab)(ii)).The transferring pharmacists did this on 8 August 2000 (T4.46).
The Secretary must have decided under s 98 of the Act not to cancel the approval of the transferring pharmacist (clause 6(ad)).There is no evidence before the Tribunal that the Yules's request to park their approval number has been revoked and the number cancelled (T4.46).
The premises in respect of which approval is sought must be situated not less than two 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 s 90 of the Act (clause 6(c)).The only guidelines or policy documents of which the Tribunal is aware that relate to this criterion are from the ACPA Handbook 2000 (current edition is at and are extracted at T10.2. The relevant paragraphs are:
"It is your responsibility to provide evidence of the distance separating the proposed premises from the existing approved premises, and to give details of how it was measured. The distance should be measured from the door of the existing pharmacy to the door of the proposed premises by the shortest lawful access route.
"The shortest lawful access route can be by car, walking or any other legal means of travel, or a combination of these. The route can also include travelling through public land such as parks and reserves. The access routes considered should be those available to most members of the public, rather than those catering for persons or groups with specialised needs.
"If the distance between the existing and proposed premises is near the limits of the distance requirements, your application will need to include a detailed surveyor's report. This report will need to include clearly marked route/s on a map with the scale, the methodology and equipment employed and, if possible, interval distances. The surveyor's report must state that the distance specified is from the existing approved pharmacy to the proposed premises, measured door to door by the shortest lawful access route.
"… the route must not cut across car parking spaces, must follow traffic regulations, and must be fair and reasonable in terms of safety in all other respects."
[The current edition of the handbook is largely similar but omits a little of the above quoted section and the material in paragraph 41 below.]
The handbook also required, in certain circumstances, details about street crossings (essentially why a crossing occurred in a particular place in the survey), the safety and reasonableness of diagonal crossings as compared to straight line crossing and allowances made for negotiating existing structures such as buildings, walls, fences and vegetation.
There are some decided cases that should be considered. These stand for the following propositions. Where the facts are educative they are referred to.
(a)The fundamental test is that the shortest lawful access route is "A route generally available to be taken between approved premises and the proposed premises that could hypothetically be used by ordinary persons travelling that route". "[A] route would [not] be an access route if it could only be used for a short period each year, but … the fact that a route – even a major roadway – is subject to occasional flooding would [not] be excluded as an access route" (Hanna v Australian Community Pharmacy Authority (1999) 85 FCR 427, 431-432, paragraphs 17, 18 per Black CJ and Von Doussa J).
(b)"[T]he importance of physical features which impede the use of a route, such as steepness, danger, obstacles and the like, must be assessed having regard to the degree to which those features are likely to affect the reasonable use of the route by the members of the public whose interests are in contemplation in the Act" (Ibid 433, paragraph 24).
(c)"[A]n 'access route' for the purpose of [clause 6(d)] need not be a route that can be traversed by every member of the community however old or frail, nor need it be necessarily open for use on every day of the year. At the other extreme, it is equally plain that proof that an agile, courageous teenager can negotiate the route is not sufficient to establish that it comes within the ordinary concept of an access route" (Ibid 434, paragraph 26).
(d)"If it is recognised that an 'access route' is one that could hypothetically be used by people who include the elderly and parents with young children, then the physical characteristics of the tracks indicate that for substantial periods of the year, and in times of poor lighting none of them provide a reasonable access route for a substantial portion of the members of the public, particularly those members likely to be seeking the provision of pharmaceutical benefits" (Ibid paragraph 28).
(e)The requirement that the shortest access route must be "lawful" does not mean that the route must be positively authorised. It is enough if it is not forbidden (Banias v Australian Community Pharmacy Authority [1997] 648 FCA).
(f)Access will be lawful where a landowner expressly invites others to walk over his or her land, where the landowner gives a person a licence to walk over his or her land, or "by implication when the public habitually uses land to the knowledge of the occupier and no steps are taken to prevent the use" (Ibid). In Banias (supra) the shortest route involved entering and crossing a car park owned by the Target Shopping Centre in order to reach the relevant pharmacy. Evidence from Target's owners was that the public was strictly permitted to use the Target car park only if shopping at Target. However, there was evidence before the Court that "local residents have for many years considered the crossing of the [Target] car park to be a legitimate short cut to get to Plenty Road and the parkland and sports ground to the north of the Target Shopping Centre, that [the witness had] never heard of anyone being prevented from using that route, and that he has never seen any sign which purports to restrict access to the car park".
(g)In Karelis v Australian Community Pharmacy Authority [1998] FCA 1735 Goldberg J in the Federal Court considered that it could be legitimate to measure the shortest lawful route incorporating the crossing of a street diagonally even though this was unlawful under the Road Traffic Regulations. The reference to "lawful" relates only to whether a person has the lawful ability to be in the area traversed by the route. It is thus a matter related to trespass, not to the lawfulness of particular movement within the area.
(h)A shortest lawful access route might involve cutting through a children's playground and that would not make the route inaccessible, unsafe or subject to an impediment. The Court noted that adults could walk under an elevated horizontal ladder and around a slide without hitting either of them or being obstructed by either of them. There was no evidence that the playground was in constant use. (Karelis (supra))
Where an access route is shortened or lengthened because of the use of an unpaved footway in preference to a paced pedestrian walk-way the measurement may still be valid. In Karelis (supra) there was no evidence that pedestrians had to use the pathway, nor any evidence that they were precluded from using the unpaved route.
(j)Where a temporary wire fence temporarily impeded a route it did not follow that the fencing meant that impeded route was generally unavailable (Karelis (supra)).
(k)The question of the safety of pedestrians is a matter to be considered when testing whether a nominated route can properly be accepted as the shortest lawful access route. The rule does not contemplate a circumstance whereby a pedestrian should have to wait, to dodge and weave, to run or pause to avoid traffic movement in its conception of access route. Where the shortest lawful access route contemplates hypothetical pedestrians crossing over a main road at a forty-five degree angle this may mean that it is not an appropriate route. In Thredgold v Australian Community Pharmacy Authority (1999) 93 FCR 465 the Federal Court (O'Loughlin J) said, "I express my alarm that members of the community (especially the young, the elderly and the infirm) would be expected to cross-over a main arterial road that carries heavy traffic throughout the day with their back half-turned to west bound traffic. … the two sets of traffic lights offer a measure of safety to pedestrians that is not available when they attempt to cross the road at other points. … it was unreasonable in the extreme to contemplate a route which had pedestrians half-turning their back to the flow of traffic" (Thredgold (supra) paragraphs 37, 45).
The Tribunal received evidence of a number of distance calculations between the pharmacies. In ascending order these were:
1,910.50 metres (T7.7)
1,929 metres (T10.11)
1,944 metres (Ex M1, M5)
1,950 metres (T9)
1,959 metres (Ex M1, M5)
1,960 metres (T9)
1,981 metres (Ex M13)
1,983 metres (Ex A2)
1,986 metres (Ex M10, M11)
1,988.93 metres (T7.3, T10.6)
1,990 metres (Ex M1, M5)
1,997 metres (Ex M13)
2,002 metres (Ex A7)
2,007 metres (Ex A2)
2,025 metres (Ex A2)
2,039 metres (Ex A6)
2,049 metres (Ex A2)
2,053 metres (T4.43)
2,062 metres (Ex A2)
2,088 metres (Ex A4)
2,114 metres (Ex A5)
2,132 metres (Ex A5)
2,156 metres (Ex A5)
2,169 metres (Ex A5).
Several of these measurements are not accompanied by detailed descriptions of methodology. The Tribunal therefore discounts the 1,950 metres and 1,960 metres measurements.
The measurements that remain for consideration are affected by various allegations of error in methodology and by assumptions adopted by surveyors in doing their work. The Tribunal will consider the measurements and their sustainability.
2,053 metres
This emanates from the Rolls report (T4.43). It was used by the Applicant as evidence that his proposed pharmacy would be not less than two kilometres from the first party joined's pharmacy. The survey plan is T4.44.
This route has been criticised on several grounds. First, it involves the hypothetical person walking along the verge of the Pacific Highway only a short distance from high-speed traffic travelling in the same direction (T9.1 – objection by the Respondent). The authorities cited earlier are clear that a route that is unsafe cannot be an appropriate shortest lawful access route. Second, it did not appear to follow an earth track cutting across the corner of the intersection of Pacific Highway and Lake Haven Drive. This has the effect of running the route around two sides of a triangle rather than along the shorter third side of the triangle (T10.9 – the Neate report). A third observation is that within the Lake Haven Shopping Centre it follows a southerly route around the car park rather than the north side route along Lake Haven Drive and then through the car park entering from the trolley return area on the north edge (T10.9).
The Tribunal endorses the criticism as regards the decision not to use the bush track at the Lake Haven Drive/Pacific Highway intersection. The preponderance of the evidence is that that route is used freely by normal members of the public. The Tribunal considers also that the decision to measure along the Pacific Highway verge would generate a wider arc at any turn than a route further in from the road. This would have the effect of increasing the total distance measured.
The Tribunal therefore finds the Rolls report of limited use in deciding what should be the appropriate distance. This is on the basis of assumptions made rather than Mr Rolls's technical competence. Mr Rolls was a most co-operative witness who impressed the Tribunal, but more on that later.
1,988.93 metres
This measurement stems from T7.3 and the Taylor report. The method is clear from T7.5. Mr Taylor measured from the Lake Haven Shopping Centre using its northern entrance, then proceeding immediately north to Lake Haven Drive (the opposite choice to that made by Mr Rolls), west along Lake Haven Drive picking up an earth track along that road. He then followed the earth track to the Lake Haven Drive/Pacific Highway intersection and along the Pacific Highway, using the earth track cut through at that intersection. He rejoined the bitumen when reaching the Charm Haven shops. He measured to the existing front door of the proposed pharmacy. At the date of this survey a railing fence did not exist near this entry door. Such a fence was later constructed, but more on that later.
This route was criticised. First, it was said by the Applicant to involve trespass on private land (T8.3). This objection was reiterated in Ex A4 but was abandoned by the Applicant at the hearing. This was a correct concession in the view of the Tribunal. The evidence appears to be that any such private land is regularly used by normal members of the public. The authorities discussed earlier make it clear that in such circumstances the route can cross such land.
Second, it was suggested that some of the land traversed by the earth track had been rezoned and could be the subject of future commercial development (the Applicant in T8.3). This was not pressed in the Applicant's statement of facts and contentions (Ex A4). Again, the Tribunal considers that the Applicant made the correct decision in not pressing this. The decision-maker under the Act must, in the Tribunal's view, make a decision based on the best evidence before him, her or it. There is no clear evidence before the Tribunal of any upcoming commercial development along the Pacific Highway or Lake Haven Drive that would compromise the Taylor report.
The use of "rough bush tracks" was a criticism by Geoffrey Brooks & Associates, the Applicant's representatives (T8.7). This applied to the route between Stratford Avenue and Moala Parade. This was another objection not pressed for the Applicant by the time his statement of facts and contentions (Ex A4) was submitted. Again the Tribunal considers this an appropriate abandonment. The decided cases permit a route to traverse bush tracks provided they are accessible most of the time to most of the public. That appears to be the case here.
The Applicant asserted that this survey measured to the Charmhaven premises at its rear sliding door, which would cut some metres off the total measurements (Ex A4). This was rebutted in the first party joined's statement of facts and contentions (Ex M1). The Tribunal accepts that this objection was misconceived and agrees with the first party joined. T7.5 makes it clear that Mr Taylor measured to the front door of the existing shop at Charmhaven.
Fifth, the Applicant alleged that the measurement is out of date because it was taken before the Applicant erected a 900-mm high railing fence in front of the Charmhaven premises (Ex A4). This is correct. From Ex M2 it appears that this fence was constructed some time in July 2001. The relevance of this fence when identifying the shortest lawful access route is discussed below by the Tribunal.
Sixth, the route adopted in exiting the Lake Haven Shopping Centre involved traversing parts of the car park and its surrounds that were closed to the public while renovations were occurring (Ex A4). The Tribunal considers this objection untenable. These works are ended in 2001. In any event, the decided cases allow a route to pass through fences, etc of a temporary nature.
In the final analysis the major objection to this survey is its failure to take account of the alterations in access to the premises at Charmhaven. An additional problem emerged, however, at the hearing of the matter in Lake Haven. Shortly before the hearing road works had commenced in Lake Haven Drive east of Stratford Avenue that could cause access problems along part of the earth track relied on by Mr Taylor in his survey. This could require the route to cross to the other side of Lake Haven Drive for a short distance, or the route to follow an alternative, but longer, earth track. The essential difficulty is that the works may, for reasons addressed further below, render the route followed by Mr Taylor unsafe.
Subsequent events, namely the possibility that the fence at Charmhaven will not be permitted to remain, and the completion of the road works, may have combined to make this measurement viable.
1,910 metres
This route is discussed at T7.7. It is another route measured out by Mr Taylor. It is a variation on the 1,988-metre route already discussed. The difference is that a new earth track between Lake Haven Drive and the Pacific Highway cuts much more off from that corner intersection, that is it bites much deeper into that corner and creates a larger triangle. This short cut ends at the corner of Moala Parade and Pacific Highway. This route is open (or not open) to the same objections as the 1,988 metre route. It should be noted that Mr Taylor is the only surveyor to have used this short cut. The short cut employed by Mr Rolls and Mr Hunt in their subsequent surveys is that used by Mr Taylor to arrive at the figure of 1,988 metres.
The Tribunal considers that this option is unattractive given that it has not commended itself to any other surveyor. As a result of taking a view the Tribunal knows that there is a network of footpaths through this bushland. These become increasingly unappealing and difficult to negotiate as one cuts more off the corner. In the Tribunal's view, this variation of the route is not one that should be included in the shortest lawful access route.
1,929 metres
This is the Neate report (T10.9). There is much detail about the choices made in measuring this route. In T9 the Respondent identified the following principles.
"The proposed premises is currently tenanted by a real estate agent. It is in a strip of shops setback some 20 metres from the Pacific Highway with a single row of parking in front of the shops. It is apparently the original shopping strip in the area which has been superseded by the Lake Haven Centre. A number of shops are vacant.
"An initial inspection of the access situation of the proposed Charmhaven premises was made. It was agreed that the shortest access exit consisted of walking:1. Directly from the door of the proposed premises to the rear of the line of parked cars;
2. Then along the back of the parking bays to cross Wyreema Avenue; and
3. then directly onto the unsealed pathway preceding South in front of the houses which were, like the shops, set back some 20 metres from the Highway."
The Respondent noted that the area had been subject to steady rain for most of the previous day and night and that it continued during the survey.
"This created a number of paddles [sic] on the unsealed portions of the route, but the conditions were not such as to prevent this being considered reasonable access.
"…
"The pedestrian route in front of the houses was straightforward until approaching Lake Haven Drive -- the service road for the shopping Centre. Some 20 metres before this junction the path diverged to the left on a long diagonal of some 30 metres which ended adjacent to Lake Haven Drive. It was apparent this path was commonly used. Measurement accordingly proceeded along this path. The route then proceeded to the corner of Stratford Drive.
"The applicant's surveyor had proceeded down the loop road of Stratford drive [sic] to enter the Centre's car park. It was evident that it was much shorter to cross Stratford Drive and either enter the car park directly by the adjacent stairs; or to continue along the grassed verge of Lake Haven Drive and then enter at the next pedestrian entrance. We observed a number of pedestrians crossing at this point."T9 proceeds to identify several routes through the car parks to the entrance to the Lake Haven Shopping Centre. T9 records that the shortest of these results in a route totalling 1,950 metres. A slight adjustment results in a total of 1,960 metres. However, when it arrived, the surveyor's report indicated a total distance of just 1,929 metres (T10.9). This is fully authenticated at T10.9-T10.10 and so is accepted for the sake of argument by the Tribunal as the definitive measure by Mr Neate.
This survey was criticised for the Applicant in Ex A4 on several bases. The survey had been conducted in the wrong direction, that is starting in Charmhaven when it should have started in Lake Haven. It did not take account of the fencing erected in front of the Charmhaven shop. It traversed private property. The route adopted through the car park at Lake Haven was not available. Most of these objections have already been dealt with in relation to the Taylor report. A possibly significant objection relates to ignoring the fencing outside the Charmhaven premises. The only other objection not dealt with so far was the decision to commence measuring from Charmhaven rather than from Lake Haven. This objection was abandoned during the proceedings. While the Ministerial Determination and the ACPA Handbook speak in terms of measuring from the existing to the proposed pharmacy, it was accepted by all at the hearing that the starting point should make no difference to a survey measurement between two points if the process is properly conducted. The Tribunal adopts this view.
The Tribunal had been inclined to favour a route involving as little use of roadways in the Lake Haven car park as possible. However, when the area was revisited on 6 March 2002, it seemed to the Tribunal that some use of the car park was possible without unduly compromising safety. This measurement is therefore possibly acceptable.
2,049 metres (and 1,983 metres, 2,062 metres; 2,025 metres, 2,007 metres)
A new survey by Mr Rolls (Ex A2) was prepared on 25 July 2001. It has several features of interest. It differs from the Rolls report (T4.43) in that it utilises an earth track in the same way as the Taylor and Neate reports. Like those reports this survey in one of its internal options cuts across an earth track at the Lake Haven Drive/Pacific Highway intersection. Unlike those reports, it takes account of the Charmhaven fencing in its measurements. It is, in fact four surveys in one in that it presents options. The shortest of these was identified as 2,007 metres and it adopted the corner cutting methodology. It offers several routes through the car park but none of them is the Neate report's route.
However, the Tribunal has ascertained that a potentially valid route, using Mr Rolls's new figures, is an even shorter distance of 1,983 metres. This is constructed as follows:
A-B (from Mr Marsden's pharmacy to the northern entrance of Lake Haven Shopping Centre) is 139 metres.
B-C (from that entrance to the lane behind the first row of parked cars in the car park) is 49 metres (running total is 188 metres).
C-G (from the start of the row of parked cars to the southern end of that row, right to pedestrian steps up from the car park to Stratford Avenue near Lake Have Drive) is 156 metres (running total is 344 metres.
G-H (from the top of the pedestrian stairs to a point along the north kerb of Lake Haven Drive opposite Twin Lakes Drive utilising an earth path) is 152 metres (running total is 496 metres).
H-I (from the Twin Lakes Drive point on Lake Haven Drive to where there is an earth track that cuts across the corner of Lake Haven Drive and the Pacific Highway) is 57 metres (running total is 553 metres).
I-J (the distance along the earth track short cut from Lake Haven Drive to the Pacific Highway) is 91 metres (running total is 644 metres).
J-K (from where the earth track short cut hits the Pacific Highway to the other side of Moala Parade) is 178 metres (running total is 822 metres).
K-L (from Moala Parade to near side of Jetty Avenue) is 390 metres (running total is 1,212 metres).
L-M (from near side of Jetty Avenue to lane way on Pacific Highway) is 168 metres (running total is 1,380 metres).
M-N (from the lane way to the near side of Parkside Drive) is 232 metres (running total is 1,612 metres).
N-O (from the near side of Parkside Drive to Wyreema Avenue at the nearest corner of the first shop) is 166 metres (running total is 1,778 metres).
O-P (from the first shop corner to the furthest corner on the Pacific Highway of the proposed pharmacy premises) is 169 metres (running total is 1,947 metres).
P-Q (distance from furthest corner of proposed pharmacy as it abuts the Pacific Highway along the path around the recently erected fencing to the pharmacy door) is 36 metres (running and final total is 1,983 metres).
There has been no recorded challenge to these figures. The 1,983 calculation would be acceptable if the shortest lawful access route is within the Lake Haven car park rather than along the north-western side of Lake Haven Drive, and if the road works present no impediment.
2,088 metres
This figure emanates from Ex A4 and appears to be the original Rolls report figure of 2,053 metres with 35 metres added on to reflect the fence constructed at the Charmhaven premises. As such, it is subject to the same criticisms as applied to the 2,053 metres route (see paragraphs 46-49 above). The relevance of the fencing has also still to be addressed by the Tribunal.
1,944 metres, 1,959 metres, 1, 986 metres, 1,990 metres
These routes are from surveyor Barry Hunt who was commissioned to do them on behalf of the first party joined, Mr Marsden. The first, second and fourth appear in Ex M5. The 1,986 measure is from Ex M10, M11. Mr Hunt adopted a route similar to the Rolls route that resulted in the distance of 1,983 metres discussed in paragraphs 66 and 67 above. The difference is in the distance from points B to G in Mr Rolls's survey. Mr Hunt relied on the Lake Haven Shopping Centre redevelopment plans to measure a route from point B to point G that was expected to become available in December 2001 when the shopping centre renovations were to be completed and some temporary hoardings then in place removed. This is shorter than Mr Rolls's route. All present at the tribunal hearing walked a path parallel to this proposed pathway to ensure that it will be easily negotiated, and to ensure safe entry and exit from the centre perimeter at the point indicated (ie through the shopping trolley return bay into Lake Haven Drive). Mr Hunt's route took advantage of the earth tracks, notably the track that short cuts the corner of Pacific Highway and Lake Haven Drive. Unfortunately Mr Hunt did not provide segmented distances along the route as Mr Rolls had done so it is not really possible to analyse how or if there are discrepancies between them. Most regrettably there is no distance given for the journey from the centre entrance to its perimeter or for the journey from the point of exit in Lake Haven Drive to, say, point H on Mr Rolls's map.
At the Charmhaven end Mr Hunt has measured up to two points on the Charmhaven premises using two micro-routes. The distance of 1,944 metres takes the route to the sliding door on the south wall of the proposed pharmacy premises. The distance of 1,959 metres takes the route to the current front door of the Charmhaven premises ignoring the 900-mm fence. The third measurement, 1,990 metres, finishes at the current front door after measuring the path around the fence erected in July.
Mr Burley ascertained from Mr Hunt that a variation on any route involving crossing to the south side of Lake Haven drive merely to avoid the road works would increase the distance by 13 metres.
There has been no fresh objection to these surveys.
The 1,986 figure was the 1,990 measurement but adjusted in Ex M10 for a short cut of four metres where a pedestrian might exit from the Lake Haven centre car park to Lake Haven Drive. This is a short cut near the trolley-return. This option (ie 1,986 metres) was examined on site on 6 March 2002 and found to be no longer practicable as fence wiring had been put in place since Mr Hunt had done his earlier measurements.
The Applicant's later measurements: 2,039 metres, 2,114 metres, 2,132 metres, 2,156 metres, 2,169 metres
These measures from Mr Rolls emanate from Ex A5 and A6. Each of these involves diversions away from the earth track in the immediate south-western direction from the intersection of Stratford Avenue and Lake Haven Drive. Each also takes into account the additional distance resulting from the fence at Charmhaven. Ex A5 contemplates a detour through bushland cutting the corner of Stratford Avenue and Lake Haven Drive, and then a detour back up Stratford Avenue towards Lake Haven Drive to rejoin the route through the car park. Ex A6 contemplates crossing over Lake Haven Drive to avoid the road works. The different figures above are based on alternative options within Ex A5.
These are potentially useful measurements if it is decided that the road works and the resultant effect on the table drain render passage along the earth track on the north-western side of Lake Haven Drive unsafe.
The Applicant's later measurement: 2,002 metres
This measurement from Mr Rolls (Ex A7) followed the direction hearing on 14 January 2002 at which it was reported that the temporary hoardings near the north entrance to the Lake Haven centre had been removed. This permitted a clearer consideration of potential paths from the centre to Lake Haven Drive. Mr Rolls arrived at a measurement of 2,002 metres incorporating these features:
The access route hugged the Lake Haven centre buildings rather than utilising the car park lanes.
The route utilised Lake Haven Drive's northern side. The route deviated to pram ramps when crossing Stratford Avenue. The route then picked up the earth track with no deviation resulting from the road works and table drain.
The short cut at the Lake Haven Drive, Pacific Highway corner was utilised.
The Charmhaven fence was taken in to increase the calculated distance.
This route is potentially viable if the road works have not caused safety problems, if it is necessary to deviate to the pram ramps, if the Charmhaven fence is acceptable and if the route out of the shopping centre is accepted.
First Party Joined's later measurements: 1,981 metres and 1,997 metres
Mr Hunt provided these measurements following the view and tour of 6 March 2002 (Ex M13). On 6 March 2002 the Tribunal's presiding member met with the Applicant and first Party Joined and the two main surveyors, Messrs Rolls and Hunt, at the Lake Haven centre to consider for one last time the most appropriate route in view of the physical changes that had occurred in and near the centre since November 2001.
The Tribunal member considered that any final measurements were to have the following elements, it being clear to him that these were sustainable in accordance with the law, given the current physical state of the centre and the nearby area.
A direct track from the northern entry door of the centre to a car park roadway was available without trespassing into the projected children's playground near the entrance. The centre management provided a survey plan (Ex M14) showing where that playground will be. We were able to mark out the area by reference to existing building features which we could discern from Ex M14. This had the effect of reducing by a few metres the distance because it is a short cut across the third side of the triangular path otherwise having to be dealt with along the two shorter triangle sides.
The route should follow the road along the row of cars parked against the centre wall as regards exiting the centre. Hugging the centre wall was not an option because a car parked well in towards the wall cannot be passed by a pedestrian who has to move out onto the roadway to continue. This wall-hugging route was considered by the Tribunal to be too uncertain.
The pram ramps at Stratford Avenue must be used. Crossing at Lake Haven Drive was considered too dangerous by the Tribunal.
The earth track along the northern side of Lake Haven Drive was to be used because it is not unsafe.
The two measurements address the final element of interest. It appeared to the Tribunal member that it was sufficiently safe for the route to remain in the car park until exiting up pedestrian stairs to the pavement at Stratford Avenue. These pedestrian steps commence at a "no parking" point in the car park. Within the car park this route involves accessing two car park roads and walking along them. The first is the road already preferred over the route that hugs the centre's wall. The second is at right angles to that and runs parallel to Lake Haven drive. Utilising this road means that it is unnecessary to leave the car park via the trolley return into Lake Haven drive.
Mr King objected to this route on the basis that it had not commended itself as an acceptable route earlier, largely for safety reasons. The Tribunal member asked Messrs Rolls and Hunt if they could do fresh measurements along this new route, and through the trolley return and along Lake Haven Drive, utilising the pram ramps. This request was dependent on whether Messrs King and Marsden were prepared to pay for the surveyors to do these measurements. In the final event Mr Hunt submitted measurements (Ex M13). The route within the car park was 1,981 metres. The route through the trolley return was 1,997 metres.
Mr Holzberger, for the Applicant, commented on this route in a letter to the Tribunal dated 11 April 2002 (Ex A8).
"…
Our client cannot confirm that the hypotenuse track will be clear of the playground, but obviously accepts that any diagonal crossing to the front entrance will reduce the measurement. The difficulty is in determining where to measure. There may well be a shorter route but is not currently apparent.
The decision in Karelis referred to by the Senior Member is not authority for the proposition that access can be taken through any playground. It is confined to its facts. In this case, it is proposed that the playground be fenced. It adjoins a busy car park and to consider using for access defeats the purpose of providing a secure playing area for young children.
The parking prohibition which makes possible this alternate route is of recent origin. It permits the diversion of pedestrian traffic from Lake Haven Drive and what has been represented to the Tribunal in evidence as a dedicated pedestrian entry to the Shopping Centre. A pedestrian taking that route will travel approximately 200 metres through the car park roadway walking behind parked cars, presumably negotiating cars entering and reversing out of car parks and entering and exiting the car park.
It has been argued that the fence at Charm Haven is a contrivance and should be disallowed. This is no less of a contrivance, but this is not in itself sufficient to dismiss it. What makes this route disallowable, in our submission, [sic] that it is unsafe. It is simply irresponsible to direct traffic from a pedestrian walkway into a busy car park. We have previously referred the Tribunal to the decision of Thredgold v Australian Community Pharmacy Authority [1999] FCA 23 and the decision in The Australian Community Pharmacy Authority v Hanna (1996-1997) 24 AAR.
In Hanna, Mansfield J said at 225:
'The rule does not in my view contemplate a circumstance whereby a pedestrian should have to wait, to dodge and weave, to run or pause to avoid traffic movement in its conception of access route.'"In our submission that is precisely what a pedestrian would need to do negotiating the Lake Haven Shopping Centre car park.
…"
The road works
As mentioned earlier, road works were in progress at the time of the hearing in Lake Haven Drive along the road away from the Lake Haven Shopping Centre towards the Pacific Highway. Viewed from the shopping centre they were beyond Stratford Avenue, which forms a northern boundary to the shopping complex. They were on the right hand side of the road viewed from the shopping centre towards the Pacific Highway. The purpose was to create a new deceleration traffic lane into Stratford Drive for vehicles entering the shopping centre car park. The road works were important in the present context because they could have interfered with the use of the earth track as part of the shortest lawful access route. The works had the effect of reducing the width of the earth track because the roadway had been widened. Looking towards the Pacific Highway, at its narrowest point the earth track appeared likely to be about 30 cm wide with the very start of the roadway on the left and a large open drain on the right. The drain was at least a metre deep with, at the Tribunal's viewing, some water at the bottom, not apparently very deep. The use of this piece of track was arguably going to be dangerous because of the proximity of traffic to the right and the risk of falling into the drain to the left. Ms Wray, the centre redevelopment project officer, was unaware of any proposal to cover the drain.
Mr Rolls very helpfully surveyed the routes which presented themselves should it be desirable to avoid this stretch of the earth track. One of these routes (Ex A5) involved taking a detour earth track between Lake Haven Drive and Stratford Avenue and then walking up Stratford Avenue to rejoin Lake Haven Drive. This would have added 107 metres to any route utilising the earth track along Lake Haven Drive.
The other involved crossing to the south/west side of Lake Haven Drive to avoid the dangerous piece of earth track and crossing again to rejoin Lake Haven Drive on the north/east side once past the dangerous segment (Ex A6). This would have added 32 metres to the shortest route. Essentially that suggested that Lake Haven Drive is about 15 metres in width.
The Tribunal member saw the result of the road works when he visited the site alone on 23 January 2002. His observations tallied with the depiction in the photographs in Ex A9. The table drain had been relocated a considerable distance away from the road. There was a sufficient area between the roadway, even with the deceleration lane, and the table drain for a person or persons to pass by safely using the earth track. The Tribunal finds that there is no need for the shortest lawful access route to detour away from the table drain.
The fence at CharmhavenIt is necessary to understand the configuration of the Charmhaven premises to understand this matter. The premises is part of a group of eight separate but joined shopfronts straddling two blocks of land (nos 213-215 Pacific Highway). They are in a U-shape. The empty centre of the U-shape is a small three-sided courtyard that is grassed over. It currently accommodates a wishing well. The right-hand arm of the U-shape accommodates shops 1-4 of the eight in the small complex. The Applicant wishes to acquire all four of these units and combine them into one shop. Shops 5-8 are owned by another corporation and are leased to other storeholders. Some shops amongst the eight are empty. Originally the grassed courtyard was open to the public.
On 10 July 2001 Ms D Oakes, the real estate agent in shop 1 of the premises that the Applicant wishes to take over in Charmhaven, made a statutory declaration (Ex M2) to the following effect. A property managing agent had spoken to her on 15 July 2001. He told her that it was proposed that a 40 mm diameter galvanised white painted handrail about 900 mm high would be erected across the front of the courtyard so that customers wishing to enter shop 1 would have to proceed down the path outside shops 8 to 5, around the left side and apex of the U-shape, and then up the right arm to the entrance to shop 1. She was offered compensation of $300 a month until the railing was no longer needed, "maybe 3 months". "This money and the cost of the railing was being met by the proposer of the development to have Shops 1-4 as a chemist shop." It was suggested that the grassed area might be paved in future to make it more appealing and the railing could be used to display the real estate listings. Later in Ex M4, Ms Oakes declared that she was told the railing would be in place three weeks to 12 months. She said the supplier of the fencing materials gave a discounted price because he could later remove and reuse the fencing when it was no longer required.
The Applicant addressed this issue orally at the hearing. He said that the fence had been erected because of the distance issue. When he applied for approval he understood that the distance to the nearest pharmacy was about 2,060 metres. His application appeared sound. When the later survey came in at just below two kilometres he decided to install the fence in order to extend the distance. He told Tribunal that he intended to use the fenced courtyard to create a playground for children. He told the Tribunal that the owners of the rest of the eight units in the shopping centre were agreeable to the erection of the fence.
The Applicant told the Tribunal of his plans for redevelopment of shops 1 to 4. He proposed to remove the walls between each of the shops and have one entry point near the existing door to shop 1. The existing sliding rear door on the south wall of shop 1 would be glassed in and become a window. There would be only one entry to the shop. This was partly for reasons of security.
Mr Burley, counsel for Mr Marsden, cross-examined the Applicant. The Applicant told him that he had not attended body corporate meetings at Charmhaven. He had no council approval for the proposed development of the courtyard. It appeared that he also has no council approval relating to the fence. The Applicant was asked if he was definite that the fence would be left in place on a permanent basis. The Applicant insisted that this was the case. He saw advantage in having a children's playground in the vicinity. He was asked whether he would install a gate near shop 1 in the fence if the pharmacy was not trading well once it was established. The Applicant said that there would be no difficulty creating awareness of the existence of the pharmacy. Signage could achieve this. He considered access to the proposed shop adequate despite the fence. The Applicant was adamant that the business would succeed at Charmhaven. At one point in his answers he did say that he could not predict the future of the fencing if the business did experience problems. The entry door in shop 1 would be where it now is but would be larger.
On 14 March 2002 Ms Mihulka sent to the Tribunal a letter containing new evidence about the fence (ex M12). She attached a letter from Mr A Crampton, development planner for Wyong Shire Council, and she said that Mr Crampton's letter indicated that an order had been issued "pursuant to Section 121H of the Environmental Planning and Assessment Act 1979 requiring that the metal fence erected around the courtyard at 213-215 Pacific Highway Charmhaven be removed". The reasons were stated to be that the fence:
"…
Was erected without prior development consent of Council being obtained, where development consent was required; and
Is acting to unreasonably restrict easy access to shops within the Mall.
…"
Ms Mihulka wrote that Mr Crampton had that day confirmed that the order to remove the fence was still in place. Negotiations with Eafo Pty Ltd, owners of 213-215 Pacific Highway, were continuing with a view to the fence being removed after the Tribunal proceedings.
Mr Crampton's letter was dated 7 August 2001 and described its subject-matter as a "proposed order". The terms of that letter are relevant:
"In accordance with the provisions of Section 121H of the Environmental Planning and Assessment Act 1979 Council hereby gives notice of its intention to serve an Order pursuant to Section 121B of the Act.
"The terms of the proposed Order No 2 are to require you to remove the metal fence erected around the courtyard of the Mall.
"The period proposed to be specified in the Order as the period within which the Order is to be complied with is 30 days from the date of issue of the proposed Order.
...
"You are further advised that you may make representations to the Council as to why the Order should not be given or as to the terms of or period for compliance with the Order.
...
"Representations are to be made to the Council by 4.00 pm Friday September 7, 2001 and be addressed to, or made in person to, Mr Garry McLachlan...."
The Tribunal sought comments on Ex M12 from all parties. Mr Holzberger responded to this, and to Mr Hunt's measurements in Ex M13, on 11 April 2002 (Ex A8). In relation to the fence he wrote:
"The correspondence from the Wyong Shire Council is not an order. It is a notice of intention to serve an order.
"Our client cannot comment on the adequacy of service of a notice, but is aware of its contents. On our instructions, a submission was made to the Council to the effect that the fence would form part of a development application for the pharmacy should approval to dispense be obtained. The Council has accepted the submission and no order has issued and no further action taken.
"The only direct evidence on this issue is that of Mr King. All other material is hearsay and while the Tribunal is entitled to receive it, it is in our submission unreliable. If this information remains contentious, further evidence should be taken.
"We submit that the fence is not contentious. It has been in place for several months. Notwithstanding the constant references to the 'temporary fence,' it is one of a few constant features of the region throughout these proceedings."
Final submissions
These are as presented on 12 November 2001. They necessarily do not address some of the issues that loomed larger after November 2001, or address them but in an inapposite way.
Mr Holzberger, for the Applicant, suggested that none of the routes advanced were particularly attractive and, as a matter of commonsense, people would travel between Charmhaven and Lake Haven Shopping Centre by car. There is little doubt that that would be a trip of over two kilometres. The Tribunal accepts that this is so. The Rolls report would back up that proposition. The Tribunal notes too that the Respondent's handbook contemplates that a route traversed by car is acceptable. However, there are shorter, lawful routes in contention here, so Mr Holzberger's observation is merely of interest.
Mr Holzberger submitted that the fence at the Charmhaven premises is permanent. It will remain. It was installed for the very purpose of solidifying the distance between the relevant pharmacies.
Mr Holzberger argued against measuring to the sliding south door at Charmhaven. The rule, he said, must refer to the functional entry door, otherwise it could be taken to refer to an interior door.
Mr Holzberger submitted that the Tribunal should not accept Mr Hunt's measurement to the front door assuming a gate in the fence such that customers will not have to walk around the U-shape to gain entry to the pharmacy. There is no evidence that the Applicant will put a gate into the fence. There is likewise no evidence that the fence will be removed.
Mr Holzberger argued that the original route propounded for Mr Marsden is now unusable, as there is a permanent building, a "Supercheap" built on it. The Tribunal takes this to be a reference to the Taylor report. There is, however, no evidence about this before the Tribunal. The Tribunal notes too that that report had, in any case, been superseded by the Hunt survey by the time of the hearing.
Mr Holzberger pressed that the creation of the deceleration lane has made the shortest route propounded for the first party joined and the Respondent unsafe.
Mr Burley pressed that the confusion surrounding the relocation proposal involving the Yules means that the Applicant's application should be regarded as invalid.
Mr Burley provided a written outline of submissions. That outline canvasses much that the Tribunal has addressed. For instance, it recites the main facts and distils the major principles of law. The major arguments advanced are:
There is no basis in fact or law for the Tribunal to ignore the multitude of lawful access routes that are described in the surveys advanced for the Respondent and for the Tribunal.
The Tribunal should have regard to routes that will be permanently available to the public even if temporarily closed because of works in progress.
Having considered all of these issues the Tribunal makes a number of findings. First, the Tribunal finds that the fence erected by the Applicant outside the shop at Charmhaven is on the balance of probabilities unlikely to be a permanent structure and barrier to access. This means that the distance that a person must negotiate to reach the entrance to shop 1 is to be the distance without the fence. There may be some force in Mr Holzberger's submissions in Ex A8 wherein he expresses some confidence that the Wyong Shire Council will be persuaded to permit the fence to remain. However, in the Tribunal's view, the best evidence currently before it suggests that the Council is not minded to tolerate the continued existence of the fence. In any event, in view of the finding that the Tribunal will make as regards the shortest lawful access distance, the Applicant cannot succeed in this application even if allowance is made for this fence to have a permanent existence.
The Tribunal finds that it is not appropriate to measure the distance utilising the sliding door on the southern side of shop 1 in the Charmhaven premises. The Tribunal found Mr King's evidence convincing on this matter. The Tribunal accepts that this door will be converted into a window if and when Mr King takes possession of the premises. The Tribunal understands Mr King's explanation, that one reason to take this step is to minimise the risk of robberies from the shop, a major consideration in pharmacy practice.
The Tribunal finds that the use of as much earth track as it is possible to utilise in tracking from Charmhaven to the Lake Haven Shopping Centre is legitimate. The Respondent in T9 has assessed the useability of the earth track, even in entrenched wet conditions, and the Tribunal accepts the Respondent's assessment that, even in adverse conditions, the earth track provides reasonable access.
The Tribunal finds that the creation of the deceleration lane into Stratford Avenue has not made the earth track along the north side of Lake Haven Drive just above Stratford Avenue unsafe to use as the shortest lawful access route. The drain has been moved to permit the widening of a path that would otherwise have been unsafe.
The Tribunal finds that Mr Hunt's latest survey plan (Ex M13), utilising the path within the car park is the most appropriate to use for that part of the shortest lawful access route within the Lake Haven Shopping Centre. This survey results in a distance of 1,981 metres, even if the Charmhaven fence remains in place. Even the alternative route in Ex M13, the longer route utilising Lake Haven Drive in preference to the car park, results in a distance of 1,997 metres with the Charmhaven fence in place.
It is not, therefore, necessary to address Mr Holzberger's submissions on the safety issues involved in the preferred shortest route (paragraph 83 above). However, the Tribunal has considered Mr Holzberger's submissions and comments on them as follows:
The preferred route does not impinge on the children's playground. The Tribunal is confident that it was able to identify on the ground from Ex M14 where the outermost corners of the playground will be. There is a straight line path from the centre doorway to the pathway that avoids the playground.
The Tribunal considered the safety issues involved in pedestrians using the car park. It concluded that pedestrians could use a route within the car park in relative safety. This was for several reasons. First, pedestrians are expected to share the car park with cars. That is how they return to their parked cars. Second, from observation of Lake Haven car park movements by pedestrians and cars at various times of the day the Tribunal finds that each type of user is aware of the other and takes account of the other's needs and movements. The Tribunal does not see the situation in the Lake Haven car park as equivalent to that in Thredgold (supra). The Tribunal considers this case to be closer to the Banias (supra) authority where it was held that the shortest lawful access route could include a pathway through a car park.
CONCLUSION
This is an application for review of the Respondent's decision to recommend to the delegate of the second party joined that the application under s 90 of the Act submitted by the Applicant not be approved. The Tribunal has decided that the correct or preferable decision by the Respondent as regards its recommendation was to oppose Mr King's application on this basis. The Tribunal's decision is that the shortest lawful access distance under rule 6(c) of the Ministerial Determination is 1,981 metres minus the distance created by the Charmhaven fence (ie 36 metres). The shortest lawful access route is therefore 1,945 metres.
DECISIONThe decision under review is affirmed.
I certify that the 113 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella
Senior MemberSigned: .....................................................................................
AssociateDate of Hearing 12 November 2001
Date of Decision 23 April 2002
Counsel for the Applicant Mr S Holzberger
Solicitor for the Applicant McCarthy Holzberger Solicitors
Counsel for the Respondent Mr G Peek
Solicitor for the Respondent Australian Government Solicitor
Counsel for Party Joined Mr S BurleyAdviser to Party Joined Ann Mihulka & Associates, Health Industry Consultants
Counsel for
Second Party Joined Mr G Peek
Solicitor for
Second Party Joined Australian Government Solicitor
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