Realview Holdings Pty Ltd and City Of Busselton
[2017] WASAT 71
•12 MAY 2017
REALVIEW HOLDINGS PTY LTD and CITY OF BUSSELTON [2017] WASAT 71
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 71 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:239/2016 | 7 DECEMBER 2016 (FURTHER SUBMISSIONS FILED ON 23 DECEMBER 2016) | |
| Coram: | MR M SPILLANE (SENIOR MEMBER) MS R PETRUCCI (MEMBER) | 12/05/17 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Decision of respondent set aside and approval granted for proposed development, subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | REALVIEW HOLDINGS PTY LTD CITY OF BUSSELTON |
Catchwords: | Town planning Development application Land use classification Restricted Business zone Whether use correctly classified as 'Medical Centre' or 'Medical Centre and Shop' under local planning scheme 'Best fit' Words and phrases: 'pharmacy', 'pharmacist', 'medical centre', 'consulting rooms', 'professional accommodation', 'shop' |
Legislation: | City of Busselton Local Planning Scheme No 21, cl 1.6, cl 4.2.3, cl 4.4.1, cl 11.2, Sch 1 Health Practitioner Regulation National Law (WA) Act 2010 National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth) Pharmacy Act 2010 (WA), s 3 Pharmacy Regulations 2010 (WA), reg 13, Sch 1 Planning and Development (Local Planning Schemes) Regulations 2015 (WA) Planning and Development Act 2005 (WA), s 241, s 252, s 252(1) Poisons Act 1964 (WA) Shire of Busselton District Town Planning Scheme No 20 Town Planning Regulations 1967 (WA), Appendix B |
Case References: | Altz Pty Ltd v Shellharbour City Council [2014] NSWLEC 1228 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26 DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104 Gull Petroleum (WA) Pty Ltd & Ors v Nashville Investments Pty Ltd & Anor [1999] WASCA 12 Korkmaz and City of Canning [2011] WASAT 92 Magic Hand Car Wash Franchisor Pty Ltd and Town of Claremont [2015] WASAT 133 Marshall and City of Rockingham [2006] WASAT 249 Morea Architects and Town of Vincent [2006] WASAT 263 Re Minister for Planning; ex parte City of Canning (1998) 101 LGERA 284 Ronin Indelible Aesthetics Pty Ltd and Town of Cottesloe [2012] WASAT 195 Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 |
Orders | 1. The application for review is allowed.,2. The decision of the respondent dated 22 July 2016 is set aside and approval is granted for the proposed development, subject to the following conditions:,1) The Medical Centre development hereby approved must be substantially commenced within two years of the date of this decision.,2) The development shall be undertaken in accordance with the signed and stamped, Approved Development Plan(s), subject to any conditions imposed requiring amendment or variation of those plans.,3) Hours of operation of the development's pharmacy component are restricted to the same hours as those of the remainder of the development. |
Summary | The Tribunal received an application for review of the City of Busselton's decision to refuse a development application on land zoned 'Restricted Business' in West Busselton. The proposed development involved internal works to a previously approved building to create eight consulting rooms, a pathology office, reception area, surgery and treatment room, staff room, pharmacy and toilets and the use of the premises as a 'Medical Centre'.,The issue between the parties was whether the use proposed (and in particular the 'pharmacy' element) should properly be characterised as a 'Medical Centre' or should in fact be classified as a 'Medical Centre and Shop' under the City of Busselton Local Planning Scheme No 21.,The respondent argued that the pharmacy was a 'Shop' and therefore a prohibited use in the Restricted Business zone.,The applicant on the other hand argued the 'best fit' use of the development was 'Medical Centre'.,Having considered the evidence before it and the submissions of the parties, the Tribunal concluded that the use category of 'Medical Centre' should be applied to the development.,The Tribunal set aside the respondent's decision and approved the application subject to conditions. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : REALVIEW HOLDINGS PTY LTD and CITY OF BUSSELTON [2017] WASAT 71 MEMBER : MR M SPILLANE (SENIOR MEMBER)
- MS R PETRUCCI (MEMBER)
- Applicant
AND
CITY OF BUSSELTON
Respondent
Catchwords:
Town planning Development application Land use classification Restricted Business zone Whether use correctly classified as 'Medical Centre' or 'Medical Centre and Shop' under local planning scheme 'Best fit' Words and phrases: 'pharmacy', 'pharmacist', 'medical centre', 'consulting rooms', 'professional accommodation', 'shop'
Legislation:
City of Busselton Local Planning Scheme No 21, cl 1.6, cl 4.2.3, cl 4.4.1, cl 11.2, Sch 1
Health Practitioner Regulation National Law (WA) Act 2010
National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth)
Pharmacy Act 2010 (WA), s 3
Pharmacy Regulations 2010 (WA), reg 13, Sch 1
Planning and Development (Local Planning Schemes) Regulations 2015 (WA)
Planning and Development Act 2005 (WA), s 241, s 252, s 252(1)
Poisons Act 1964 (WA)
Shire of Busselton District Town Planning Scheme No 20
Town Planning Regulations 1967 (WA), Appendix B
Result:
Application for review allowed
Decision of respondent set aside and approval granted for proposed development, subject to conditions
Summary of Tribunal's decision:
The Tribunal received an application for review of the City of Busselton's decision to refuse a development application on land zoned 'Restricted Business' in West Busselton. The proposed development involved internal works to a previously approved building to create eight consulting rooms, a pathology office, reception area, surgery and treatment room, staff room, pharmacy and toilets and the use of the premises as a 'Medical Centre'.
The issue between the parties was whether the use proposed (and in particular the 'pharmacy' element) should properly be characterised as a 'Medical Centre' or should in fact be classified as a 'Medical Centre and Shop' under the City of Busselton Local Planning Scheme No 21.
The respondent argued that the pharmacy was a 'Shop' and therefore a prohibited use in the Restricted Business zone.
The applicant on the other hand argued the 'best fit' use of the development was 'Medical Centre'.
Having considered the evidence before it and the submissions of the parties, the Tribunal concluded that the use category of 'Medical Centre' should be applied to the development.
The Tribunal set aside the respondent's decision and approved the application subject to conditions.
Category: B
Representation:
Counsel:
Applicant : Ms B Moharich
Respondent : Mr M Phillips (Acting as Agent)
Solicitors:
Applicant : Moharich and More
Respondent : City of Busselton
Case(s) referred to in decision(s):
Altz Pty Ltd v Shellharbour City Council [2014] NSWLEC 1228
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26
DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104
Gull Petroleum (WA) Pty Ltd & Ors v Nashville Investments Pty Ltd & Anor [1999] WASCA 12
Korkmaz and City of Canning [2011] WASAT 92
Magic Hand Car Wash Franchisor Pty Ltd and Town of Claremont [2015] WASAT 133
Marshall and City of Rockingham [2006] WASAT 249
Morea Architects and Town of Vincent [2006] WASAT 263
Re Minister for Planning; ex parte City of Canning (1998) 101 LGERA 284
Ronin Indelible Aesthetics Pty Ltd and Town of Cottesloe [2012] WASAT 195
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
Background
1 This is an application for review of a decision of the City of Busselton (City/respondent), to refuse an application by Realview Holdings Pty Ltd (applicant), dated 14 June 2016 for development approval for an area of 634m² to comprise a 'medical centre including a pharmacy of 202m²' on land described as Lot 17 (80) West Street, West Busselton (application).
2 The land is owned by the applicant and is located approximately 300 metres from Busselton's Central Business District (CBD). It is zoned 'Restricted Business' with an additional use for a discount department store.
3 The plans submitted with the application show two tenancies, the first for consulting rooms which comprise eight consulting rooms, a treatment room, a reception and waiting area along with staff accommodation. The second tenancy comprises the pharmacy with a dispensary, sales area, store and display shelving.
4 On 22 July 2016, the respondent refused the application for the reasons:
a) A pharmacy is a 'Shop' as defined within Sch 1 of the City of Busselton Local Planning Scheme No 21 (LPS 21 or Scheme). A shop is an 'X' use within the Restricted Business zone. As a result, it is a prohibited land use and would be contrary to LPS 21.
b) The proposal is likely to encourage retailers to relocate to the subject location, thus diminishing the sustainability and vibrancy of the existing Busselton CBD.
c) The proposal would reduce the amount of land available for Restricted Business zone purposes which are otherwise not sufficiently catered for. As a result, the proposal would be inconsistent with cl 4.2.3 (Objectives and Policies of the Restricted Business zone) of LPS 21.
d) Approval of the proposal would be in conflict with provisions (a), (i), (n) and (bb) listed under cl 11.2 of LPS 21.
5 On 9 August 2016, the applicant lodged an application with the Tribunal seeking a review of the respondent's decision pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
6 A directions hearing in the matter was held on 4 November 2016 programming the matter through to final hearing on 7 December 2016.
7 At the final hearing, Mr R Underwood, a senior planner at Planning Solutions and Mr E Pirone, the managing director of Bonmore Pharmacy Services gave evidence on behalf of the applicant. Ms J Wilson, the coordinator of Statutory Planning for the City, gave evidence on behalf of the respondent.
8 The parties were invited to submit written closing submissions, the last of which was received by the Tribunal on 23 December 2016.
Agreed facts
9 For the purposes of the Tribunal proceedings, the following facts were agreed by the parties:
a) The application was for internal works to a previously approved building to create eight consulting rooms, a pathology office, reception area, surgery and treatment room, staff room, pharmacy and toilets; and the use of those premises as a 'Medical Centre'.
b) The total area of the medical centre is 634m². The total area of approved plan marked 'pharmacy' is 202m² comprising behind the counter area (including dispensary) of 65.60m², retail area of 120.40m² and toilet and client room of 16m².
c) The land upon which the development is proposed is zoned 'Restricted Business' under LPS 21. In the Restricted Business zone, a 'Medical Centre' is a D use (discretionary use), and a 'Shop' is an X use (prohibited use).
d) The terms 'Medical Centre' and 'Shop' are defined in Sch 1 of LPS 21. They relevantly provide:
'Medical Centre' means consulting rooms and professional accommodation for duly qualified and registered medical practitioners, dentists, physiotherapists, optometrists, chiropodists and pharmacists.
'Shop' means any building wherein goods are kept, exposed or offered for sale by retail, or within which services of a personal nature are provided (including a hairdresser, beauty therapist or manicurist) but does not include a showroom, fast food outlet or any other premises specifically defined elsewhere in this part.
e) The terms 'pharmacy' and 'pharmacist' are not defined in LPS 21. A pharmacist is 'duly qualified and registered' by means of being a person registered in the pharmacy profession as found in the Schedule of the Health Practitioner Regulation National Law (WA) Act 2010 (National Law).
f) The array of the classes of goods which may be sold in the pharmacy was set out in the 'List of pharmacy products' (Product List) provided to the Tribunal.
Issue
10 The parties agreed the sole issue to be determined by the Tribunal is:
Is the use proposed by the development application the subject of this review properly characterised under the City of Busselton Local Planning Scheme No. 21 as 'medical centre' or 'medical centre and shop'?
Contentions
11 The applicant contends that the 'pharmacy' component of the proposed development is properly defined under LPS 21 as either being a 'Medical Centre' or 'forming part of a Medical Centre', as it is providing 'professional accommodation' for, in this case, medical practitioners and pharmacists.
12 The respondent contends that the area identified as a 'pharmacy' on the approved plan is properly defined under LPS 21 as a 'Shop'.
13 The parties agreed that if the respondent's contention is correct, the 'pharmacy' component of the proposed development cannot be approved. On the other hand, if the applicant's contention is correct, the respondent confirms that it has no other objection to the proposal, and the application can be approved subject to conditions.
Legislation and planning framework
14 The legislation and policy relevant to this matter is contained in the PD Act, the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations) and in particular LPS 21.
15 Section 252 of the PD Act enables a person to seek a review by the Tribunal of a decision made under a local planning scheme to refuse an application for development.
16 LPS 21 was gazetted on 15 October 2014. It replaced the Shire of Busselton District Town Planning Scheme No 20 which was gazetted on 7 September 1999.
17 The aims of LPS 21 are set out in cl 1.6 of the Scheme. The aims relevant to this matter are:
…
(a) to provide for the development and, where necessary, the improvement of the City of Busselton in physical, social and economic terms (and, in particular, to broaden its economic base) and for orderly and economic development and optimum use of its land and other resources, consistent with the conservation of important natural and manmade features, and to do so in such a way that the likely need and aspirations of the people of the City, the region and the State will be provided for and realised;
(b) to provide a comprehensive planning instrument for the City that is clear and explicit but which provides flexibility in its application;
…
(d) to ensure that rational decisions are made with regard to land use and that the assessment and classification of land resources on the basis of capability and suitability are an essential facet of the planning process;
…
(f) to ensure that growth and development of the City occurs in a way which preserves existing environmental qualities and minimises adverse environmental impacts[.]
18 Clause 4.2.3 of LPS 21 sets out the following guidelines in relation to the 'Restrictive Business' zone:
…
(a) To provide for development having relatively low trafficgenerating characteristics, but not high turnover shops and offices that might more properly be located in the Business zone.
(b) To provide for relatively low intensity commercial and retail uses with extensive floor space requirements which, by the nature of the activity conducted, require relatively direct and easy access to motor vehicle parking areas for loading purposes.
(c) To provide for development which will not result in a detrimental impact on surrounding commercial centres or an overall adverse impact on commercial centres.
(d) To restrict development which is likely to contribute to ribbon development, the spread of town centres, or otherwise detrimentally impact the efficiency of main or arterial roads.
19 Further, cl 4.2.3 of LPS 21 sets out the objectives of the 'Restrictive Business' zone as:
To make adequate provision for other commercial needs and opportunities not ideally located in the town centres of Busselton and Dunsborough whilst having regard to the strategic importance and need to maintain the commercial primacy of the town centres.
Summary of respondent's submissions and evidence
Dual use
20 The respondent acknowledged that aspects of the pharmacy could be considered under the 'Medical Centre' use classification as it would accommodate a pharmacist that being the dispensary and store area, together with the staff room, client room and toilet as these aspects reflect the primary professional functions or roles of a pharmacist, being the supply and sale of preparations, admixtures or extracts containing poisons as defined in the Poisons Act 1964 (WA). The respondent further acknowledged that the consulting rooms (for the doctors and other professions listed) per the application fits within the definition of 'Medical Centre'.
21 The respondent calculated that about 52m² of the proposed pharmacy (for the consulting rooms, dispensary, toilet and client room, store room and staff room) would be reasonable to be within a medical centre but the remaining 147m² (leaving 5m² unaccounted for) is predominantly for the proposed pharmacy's retail area.
22 The respondent is of the view that a pharmacy is a 'Shop'. Relying on the decision in Gull Petroleum (WA) Pty Ltd & Ors v Nashville Investments Pty Ltd & Anor [1999] WASCA 12 (Gull Petroleum), the respondent argued that:
… the fact that the 'Shop' aspects of the Pharmacy as proposed being the sale of goods and products that have no direct relationship to the professional functions of a pharmacist share floor space and a cashier with aspects of the Pharmacy as proposed that have a direct relationship to the professional functions of a pharmacist, does not alter the character of the 'Shop' aspects of the Pharmacy or vice versa.
Accommodation for pharmacist
23 The respondent submitted that the definition of 'Medical Centre' refers to 'consulting rooms' and 'professional accommodation' which is intended to focus on the professional functions or roles of the vocations referred to in LPS 21.
24 The respondent submitted that the proposed pharmacy will not predominantly provide accommodation for a pharmacist in the supply and use of medicines.
25 The respondent asserted that it is incorrect to suggest a pharmacist may only provide their services within a pharmacy. They acknowledged that there may be implications if the relevant payments are linked to the Pharmaceutical Benefits Scheme (PBS) but this was not prohibitive of alternative arrangements. The respondent submitted that a medical centre may employ a pharmacist directly in an advisory role and other examples of pharmacists providing their services other than from a pharmacy include a consultant pharmacist or general practice (GP) pharmacist, although no evidence was before the Tribunal to support those submissions.
26 The respondent submitted that a common sense interpretation of 'consulting rooms and professional accommodation' supports only limited low intensity development as necessary for relevant professionals.
27 At paragraph 8 of the respondent's submissions dated 21 December 2016, the respondent set out the definition of pharmacy business in s 3 of the Pharmacy Act 2010 (WA) as:
pharmacy business means a business -
(a) consisting of the provision of pharmaceutical services; and
(b) from which goods and services relating to the provision of pharmaceutical services may be available,
other than a business carried on at premises operated by -
(c) a public hospital, as defined in the Health Services Act 2016 section 6; or
(d) the holder of a permit or licence under the Poisons Act 1964 of a type prescribed by the regulations.
28 The respondent acknowledged that 'professional accommodation for ... pharmacists' in the definition of 'Medical Centre' in LPS 21 would extend to some capacity to provide and/or sell pharmaceuticals.
29 However, the respondent submitted that it could not be concluded that the definition of pharmacy contemplates a retail pharmacy with the broad range of goods for sale and to the scale of the applicant's proposal.
Predominate use - retail sale of goods
30 Ms Wilson, gave evidence that she visited a number of pharmacies throughout the City to examine the extent of items sold and to gain an understanding of what pharmacies (as compared to a 'Shop') are allowed to sell. She concluded that all the pharmacies in the City operate as a 'Shop' and that everything that is sold 'infront of the counter' can be purchased at supermarkets or health food stores and are not restricted for sale by pharmacies only. Further, Ms Wilson submitted that the goods listed on the Product List are very similar to the goods sold by every pharmacy operating within the Busselton CBD, with the majority of those goods capable of also being purchased from supermarkets.
31 Finally, Ms Wilson said all pharmacies within the City are located on land in the 'Business Zone' where 'Shop' is a Permitted ('P') use.
32 The respondent submitted that the proposed pharmacy is preoccupied with offering a broad range of goods for sale by retail and that the reference to some of those goods being medicines does not detract from the predominantly retail character. This view, according to the respondent, is supported by the New South Wales Land and Environment Court's decision in Altz Pty Ltd v Shellharbour City Council [2014] NSWLEC 1228 (Altz).
33 The respondent argued that it cannot be said that the proposed pharmacy has been scaled down and limited to just what is necessary for a pharmacist in their professional practice. They noted the pharmacy in Altz accommodated wheelchair access and was 80m² which was significantly less than the proposed pharmacy (202m²).
34 Furthermore, the respondent stated that the pharmacy requires retail assistants who have no connection to facilitating the professional services of the pharmacist. The respondent referred to the case of Morea Architects and Town of Vincent [2006] WASAT 263 (Morea Architects) to support their view that the characterisation of the proposed pharmacy as being predominantly for offering goods for sale by retail and contrasted this with a dentist's assistant or a doctor's receptionist, who it was submitted are directly involved in facilitating the service provided by the relevant medical professional.
35 The respondent further submitted that most of the headings in the Product List refer to a class of goods that are barely medical let alone medicines. In addition, the respondent stated that the argument that these goods could have a medical effect does not bring the function of selling them within the professional role of a pharmacist. Further, the fact that it might be convenient for customers to purchase such goods from the pharmacist in conjunction with the professional service of a pharmacist is irrelevant to the proper application of the 'Medical Centre' use class.
36 The respondent also referred to the decision of the Full Court of the Supreme Court in Re Minister for Planning; ex parte City of Canning (1998) 101 LGERA 284 (City of Canning), to support its contention that the pharmacy in this case is a shop.
37 They submitted that LPS 21 is very explicit in its treatment of retail land uses and elicits a clear intention for their treatment and this is reflected in the objectives and policies of the 'Business' and 'Restricted Business' zoning.
38 In conclusion, the respondent asserted that the proposed pharmacy is a 'Shop' under LPS 21 due to:
a) the substantial majority of floor space [120.40m²] dedicated to displaying goods for sale by retail;
b) the broad range of goods offered for sale by retail that has not been limited to relate to the professional role of a pharmacist; and
c) the staffing of retail/sales assistants in at least equal number to the pharmacists.
39 The respondent submitted the approval of a retail pharmacy, as per the application, within the 'Restricted Business' zone would be contrary to the objectives and policies of the Restricted Business zone, and would enable a number of retailers to be able to relocate outside the Busselton CBD which would result in diminishing the sustainability and vibrancy of the Busselton CBD.
Summary of applicant's submissions and evidence
Best fit
40 Mr Underwood, the planner called by the applicant, submitted that, from a planning perspective, it is necessary to consider the mostspecific use (or 'best fit') category in the first instance and only when the specific use categories have been discounted that the more general use categories should be considered and he referred to cl 4.4.1 of LPS 21 which provides:
Where a specific use is mentioned in the Zoning Table, it is deemed to be excluded from the general terms used to describe any other use.
41 In Mr Underwood's view, the use category of 'Medical Centre' provides a more specific and fitting land use description and, with respect to the pharmacy component of the application would be considered a better fit land use category than a 'Shop'. This is because, according to Mr Underwood, a 'Shop' classification is a catchall use for a wide range of retail and personal services, under which other, more specific uses are excluded. Therefore, in Mr Underwood's view, the pharmacy component of the application would only be categorised as a 'Shop' if it did not fit within the description of a 'Medical Centre'.
42 In support of this argument, Mr Underwood referred to the website of the Pharmaceutical Society of Australia which describes the profession of a pharmacist as:
Pharmacy is not just about filling prescriptions. [I]t is about promoting health awareness and contributing to the betterment of the community.
Pharmacists may:
• prepare or supervise the dispensing of medicines, ointments and tablets
• advise patients on how their medicines are to be taken or used in the safest and most effective way in the treatment of common ailments
• advise members of the public and other health professionals about medicines (both prescription and over-the-counter medicines), including appropriate selection, dosage and drug interactions, potential side effects and therapeutic effects
• select, give advice on and supply non-prescription medicine, sickroom supplies and other products
• develop legally recognised standards, and advise on government controls and regulations concerning the manufacture and supply of medicines
• work in the research and development of medicines and other health-related products
• be involved in the management of pharmaceutical companies.
(Pharmaceutical Society of Australia, < Mr Underwood said the description by the Pharmaceutical Society of Australia reflects his own understanding that a pharmacist operating from a pharmacy is a professional predominantly providing health advice and retailing healthrelated goods and products (including nonprescription items) to the public.
'Professional accommodation' for pharmacists
44 The applicant submitted that 'professional accommodation for pharmacist' is not limited to either:
a) a pharmacist who is only dispensing substances scheduled under the Poisons Act 1964; or
b) a pharmacist who is a GP pharmacist, and therefore does not dispense or sell any goods.
The applicant gave three reasons for that contention.
45 Firstly, the applicant submitted that it is necessary to read LPS 21 as a whole and not in isolation and refered to the High Court's decision in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26 (Cooper Brookes).
46 In reading LPS 21 as a whole, according to the applicant, the term 'dispensary' is a term used in relation to the term 'hospital' in LPS 21 and therefore had the drafters of LPS 21 wanted to limit the work of a pharmacist at a medical centre, for example, to that of a dispensary (that is, for only dispensing medicines and drugs), then that could have been done by using the word 'dispensary' rather than 'professional accommodation for duly qualified and registered … pharmacists' in the definition of 'Medical Centre'.
47 Therefore, the applicant submitted, using the normal rules of interpretation it must be considered that 'professional accommodation for … pharmacists' is something more than a mere 'dispensary'.
48 The second reason is that when taking a common sense approach (Marshall and City of Rockingham [2006] WASAT 249), one must find a common sense and nontechnical way of giving meaning to terms.
49 The applicant argued that in understanding what 'professional accommodation for pharmacists' means, consideration must be given to the ordinary meaning or understanding of what a pharmacy is and does. In this regard, the applicant submitted that it would not be common sense to assign a meaning that requires a pharmacist to be a consulting or GP pharmacist as suggested by the respondent. This the applicant argued was supported by Mr Pirone who stated that such a concept is quite foreign to the way pharmacists practice and run pharmacies in Australia.
50 According to Mr Pirone, the only places where a pharmacist is capable of 'consulting' and obtaining PBS benefits in Australia is from either a pharmacy or from a customer's residence.
51 Therefore, according to the applicant, it could not have been the intention of the drafters of LPS 21 to contemplate a type of use (that is, the consulting rooms of a GP pharmacist) in circumstances where that use is not one commonly found in Australia (if at all).
52 The third reason put forward by the applicant to support their contention regarding 'professional accommodation for … pharmacists' is that the definition of 'Medical Centre' makes the distinction between 'consulting rooms' and 'professional accommodation' for a reason. The applicant submitted that the definition contemplates that some of the work undertaken by the medical practitioners listed in the definition of 'Medical Centre' will occur by consulting directly with a patient within 'consulting rooms', but that other work will occur within 'professional accommodation'.
53 In this regard, the applicant argued that in the interpretation of the definition of 'Medical Centre', professional accommodation for a pharmacist must be a 'pharmacy' as an optometry shop is the professional accommodation for an optometrist where the optometrist provides consultations but also sells prescription and nonprescription glasses.
54 Finally, the applicant stated that although it is not clear what the drafters of LPS 21 intended, in planning schemes where the definition of 'Medical Centre' includes pharmacy, it normally requires that the consulting room component and the pharmacy component be colocated together to make up the medical centre, which is what is proposed here.
Retail sale of goods
55 Mr Pirone, the representative of the applicant and a pharmacist, explained that there has been a 'creep' over the years of supermarkets selling goods that were otherwise only available in pharmacies such as pain killers like Panadol and Nurofen.
56 However, according to Mr Pirone, pharmacists still play an important role in the provision of advice to customers regarding the correct medications or treatments of their conditions and also importantly provide advice on possible contraindications between prescription and nonprescription medication they are taking. Further, Mr Pirone stated that having a pharmacy adjacent to a medical centre plays an important role in providing patients with athome treatments to continue their care, for example, wound dressings.
57 Mr Underwood submitted that the majority of products on the Product List can be described as healthrelated. Further, he submitted the display and sale of nonhealth related products (such as baby accessories and fragrances) comprise an insignificant portion of the overall Product List and are as such an 'incidental use'.
58 The applicant submitted that while some products may be available in supermarkets or health food shops, a pharmacist stocks a completely different range of brands with different ingredients formulated for particular conditions. Further, they submitted that it would be an artificiality to exclude generic examples, such as a sorbolene cream, just because they are available elsewhere. Finally, the applicant argued that to restrict the sale of these types of goods would be to stop pharmacists from practising a large component of their profession from their professional accommodation, namely the pharmacy.
59 The applicant asserted that it is the provision of advice and assistance provided by both the pharmacist and the pharmacy assistants that sets a pharmacy apart from a 'Shop'.
60 The applicant did not dispute that a major part of the floor area of the proposed pharmacy would comprise a broad range of goods for sale by retail. However, the pharmacist provides advice to customers on the full range of goods stocked.
61 In conclusion, the applicant submitted that the definition of 'Medical Centre' in LPS 21 was drafted to allow a pharmacist to operate from a pharmacy.
Consideration
62 Turning first to the parties contentions it is common ground that the land, the subject of the application, is zoned 'Restrictive Business' under LPS 21.
63 As outlined earlier, the objective of 'Restrictive Business' zoning in LPS 21 is to make adequate provision for other commercial needs and opportunities not ideally located in the town centres of Busselton and Dunsborough whilst having regard to the strategic importance and need to maintain the commercial primacy of the town centres.
64 The Tribunal accepts the respondent's contention that by having a 'Restricted Business' zone, the City intends to limit the commercial development that will not detract from other zones such as the 'Business' zone (for example, the town centre).
65 The land, as described in the application, is subject to two other land use controls under LPS 21. They are:
a) Special Provision Area 26; and
b) Additional Use, which expressly permits a discount department store.
66 The Tribunal also notes the legislative framework as it applies to pharmacies in Australia, which is highly regulated and requires both Federal and State approval.
67 In particular, the Tribunal notes reg 13 of the Pharmacy Regulations 2010 (WA) when taken together with Sch 1 which specify for pharmacies in Western Australia that:
The premises are to
(a) have at least one door allowing direct access to members of the public from a street or thoroughfare; and
(b) have no direct access to any adjoining properties.
68 There is therefore a specific requirement under state law, that a pharmacy must 'have at least one door allowing direct access to members of the public from a street or thoroughfare' and 'have no direct access to any adjoining premises'.
69 Further, Mr Pirone, himself a pharmacist, explained that under the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth), a large medical centre, which is what is proposed here, means a medical centre that:
(a) is under single management; and
(b) operates for at least 70 hours each week; and
(c) has one or more prescribing medical practitioners at the centre for at least 70 hours each week.
70 The respondent referred to the decision in Morea Architects to support its argument that the predominant use of the pharmacy is for the offering of goods for sale by retail. However, in that case the Tribunal was not considering whether the proposed pharmacy was a 'shop' under the relevant town planning scheme. Rather, the issue was whether the use of the site in the District Centre Zone as a shop and ancillary storage required development approval under the local planning scheme.
71 Further, the Tribunal does not accept the respondent's argument by reference to the methodology established in Gull Petroleum. In that case, the Court of Appeal was discussing two land uses operating from the same site but made it clear that 'each proposal must be looked at on its own merits' and at [52] stated:
However it seems to me that each proposal must be looked at on its own merits. The classification of the proposed uses should not be carried out either in a mechanical or in an arbitrary way. If, in a particular case, the manner in which two uses are to be combined on a particular site makes it inappropriate to categorise the resulting use as a dual use with each use falling within a definition in the Scheme, perhaps because the proposed manner of combining the two uses so changes the character of one or both of them that it or they can no longer sensibly be taken to fall within the definition or definitions in the Scheme, then there should be no such categorisation[.]
72 The Tribunal is satisfied, based on the facts of this case and the relevant definitions in LPS 21, that the Tribunal's determination in this matter is consistent with the Court of Appeal's findings in Gull Petroleum.
73 The question in the present case is whether the definition of 'Medical Centre' in LPS 21 creates a combined land use which may contain separate constituent parts such as, doctors' consulting rooms and professional accommodation for such other professions as pharmacists, optometrists, dentists, physiotherapists and chiropodists and what form that may take.
74 The respondent's submission that it should characterise the pharmacy based on the Product List as being predominantly preoccupied with selling goods following Altz is also not accepted by the Tribunal. This is because in Altz the question was whether the pharmacy was a 'shop' or a 'neighbourhood shop' as those terms were defined in the Shellharbour Local Environmental Plan 2013 (NSW) and, as submitted by the applicant, there is no definition which includes the concept of a pharmacy or a dispensary and it was therefore necessary in that case to revert to the more generic definition of 'neighbourhood shop' or 'shop'.
75 In relation to the respondent's reliance on the decision in City of Canning to indicate a similar approach by another local government to treat the pharmacy as a 'shop', the Tribunal finds that matter to be distinguishable. This is because the question before the Court in the City of Canning was whether the pharmacy was an incidental use to the doctors' consulting rooms, as a pharmacy could only be approved in that case if it was an incidental use under the City of Canning's local planning scheme.
76 The issue of whether the pharmacy is an 'incidental use' was also touched on by Mr Underwood, as outlined earlier, however, it is not the issue before the Tribunal in the present case.
77 Although the respondent has classified the existing pharmacies located in the Busselton CBD (a 'Business Zone' under LPS 21) as 'Shop', it does not follow, in the Tribunal's view, that the pharmacy component of the 'Medical Centre' application to be located in a 'Restricted Business Zone' be automatically similarly classified as 'Shop'. The question is whether the definition of 'Medical Centre' in LPS 21 allows a pharmacy as a component part of the medical centre.
Interpretation of LPS 21
78 In Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134, the Tribunal referred to the principles in relation to the proper interpretation of local planning schemes and stated at [72]:
The principles in relation to the proper interpretation of local planning schemes were set out by the Tribunal in Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312 (Paintessa) at [20] [21] as follows:
Under s 87(4) of the PD Act, TPS 3 'has full force and effect as if it were enacted by [the PD Act]'. The Court of Appeal has recently said the following in relation to statutory interpretation:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 4647 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78]. (City of Kwinana v Lamont [2014] WASCA 112 at [47]).
In giving the words of a planning scheme the meaning that the maker of the scheme is taken to have intended them to have, the terms of the planning instrument:
… will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.
(Chiefari v Brisbane City Council [2005] QPELR 500 at 502 (Wilson J); referred to by the Tribunal in Galloway and Associates and City of Melville [2007] WASAT 238 at [41]).
80 The primary concern in the present case is not the fact that there may be two distinct uses but whether a pharmacy can be included with doctors' consulting rooms as part of a medical centre under LPS 21.
'Shop'
81 As the Tribunal stated in Ronin Indelible Aesthetics Pty Ltd and Town of Cottesloe [2012] WASAT 195 (Ronin) at [20]:
It has long been understood in planning law and practice, and in other areas of the law, that land use designated for the purposes of a shop connotes, at the minimum - as has already been suggested - the retail sale of goods. Thus, at common law, the following general definition from the Encyclopaedic Australian Legal Dictionary seems apposite:
A building or structure permanent in its location from which the occupier can exclude persons at will and in which the occupier stores, displays, offers for sale and sells over the counter goods to persons on a retail basis: Plummer v Needham (1954) 56 WALR 1[.]
83 However, it is noted that the definition of 'shop' in LPS 21, as set out earlier, also includes the provision of a number of retail services of a personal nature such as hairdressers, beauty therapists and manicurists.
84 Therefore, the ordinary meaning of 'shop' as referred to in Ronin has in LPS 21 been extended to include services of a personal nature such as having one's hair cut by a hairdresser or having a facial treatment by a beauty therapist. It is noted that the LPS 21 definition is similar to the definition present in the Model Scheme Text in Appendix B of the former Town Planning Regulations 1967 (WA) which defined 'shop' as:
… premises used to sell goods by retail, hire goods, or provide services of a personal nature (including a hairdresser or beauty therapist) but does not include a showroom or fast food outlet[.]
'Medical Centre'
85 Turning then to the definition of 'Medical Centre' in LPS 21, it is noted that the definition includes 'pharmacists' but not 'pharmacy' but also refers to 'consulting rooms' and 'professional accommodation'. However, none of these are defined in LPS 21.
86 It is noted that 'Professional Consulting Rooms' is defined in LPS 21 to mean:
… a room or a number of rooms forming either the whole of, or part of, attached to or within the curtilage of a dwelling house and used by not more than three legallyqualified medical practitioners or by not more than three dentists, or by not more than three health care professionals, who practise therein the profession of medicine, dentistry or health care respectively and, if more than one, practise in partnership and who employ not more than three employees in connection with that practice.
87 It would appear that under that definition of 'Professional Consulting Rooms' a limit is set on the number of practitioners that may be accommodated and is therefore clearly aimed at smaller medical, dental or health professional practices. Importantly, pharmacists are not mentioned in that definition.
88 However, in the definition of 'Medical Centre' where pharmacists are mentioned, no size limitation appears.
89 The parties agreed a 'pharmacist' is duly qualified and registered by means of the person being registered in the pharmacy profession as found in the Schedule of the National Law. The Tribunal accepts the type of work carried out by a pharmacist as detailed by the applicant referring to the Pharmaceutical Society of Australia set out earlier, as being the preparing and/or supervising of the dispensing of medicines, and advising patients on how medicines are to be taken or used.
90 Accepting the definition of 'pharmacist' as agreed by the parties, it follows that a pharmacist is a professional person, being a person engaged in a profession requiring special skill or training and a formal qualification.
91 This raises the question, where do pharmacists, being professional people, carry on their profession?
92 The term 'professional accommodation' is not defined in LPS 21. However, the noun 'accommodation' is defined in the Oxford English Dictionary Online (2017) as:
Suitable or sufficient space to hold or contain something, esp. a specified number of people or things; room enough for something to be accommodated[.]
93 Further, the Oxford English Dictionary Online (2017) defines the adjective 'professional' as:
A person engaged in a profession, esp. one requiring special skill or training; a professional person, or a member of the professional classes.
94 Finally, the noun 'profession' is defined in the Oxford English Dictionary Online (2017) as:
An occupation in which a professed knowledge of some subject, field, or science is applied; a vocation or career, especially one that involves prolonged training and a formal qualification[.]
95 The Tribunal is satisfied that 'professional accommodation' as used in the term 'Medical Centre' in LPS 21 means suitable or sufficient space provided for people engaged in a profession requiring skill or training. The Tribunal is also satisfied that each of the professions identified in the definition of 'Medical Centre' require professional accommodation.
96 Nothing in the ordinary meaning of 'accommodation' set out above prescribes the area or size of the accommodation. Further, there is nothing in the legislation governing pharmacists which restricts pharmacists from selling goods apart from some prohibited items (which the Tribunal notes are not listed on the Product List) or the quantity of goods sold.
97 The noun 'consulting room' is defined in the Oxford English Dictionary (2017) as:
a room in which a consultation takes place; esp. the room in which a doctor examines his patients.
98 As the work carried out by a pharmacist (as detailed by the applicant and accepted by the Tribunal) does not generally include the examination of a patient, for example, like the medical examination of a patient by a doctor, in the Tribunal's view, it is appropriate for the definition of 'Medical Centre' in LPS 21 which references various professionals including pharmacists, to include both 'professional accommodation' and 'consulting rooms', as the former would be required by pharmacists but not necessarily the latter.
Conclusion
99 In DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104, the Tribunal touched on the tension that arises in attempting to characterise a use and stated at [43] [44]:
The relevant task of a planning court or tribunal in this regard has been described by Rackemann DCJ in Yu v Brisbane City Council [2005] QPEC 78; [2006] QPELR 102 at [16] (internal citations omitted) as follows:
In determining the description which is applicable, the Court must undertake its task of characterisation in a practical and common sense way to determine the appropriate genus which best describes the activities in question. Where there are two or more defined purposes which are apt to cover a particular proposal, a 'best fit' approach is appropriate. What must be characterised is the proposal the subject of the application, rather than some further or other application which might be made at another time.
Characterisation of a use 'naturally involves an analysis of the factual circumstances surrounding a proposal'. This is no narrow inquiry: see AAD Design Pty Ltd v Brisbane City Council [2011] QPEC 54 at [21].
100 The Tribunal acknowledges that in undertaking such an analysis in circumstances such as the present case, opinions may differ.
101 The services provided by pharmacists, for example, advising members of the public and other health professionals about medicines are, in the Tribunal's view, of a professional rather than a personal nature (which the definition of 'Shop' in LPS 21 is more concerned with) and fit more easily beside the other professional services identified in the definition of 'Medical Centre'.
102 The Tribunal finds that such professional services are provided in 'professional accommodation' which in this case is a pharmacy comprising of a dispensary, toilet and client room, store room, staff room, retail area and sales counter.
103 In the Tribunal's view, therefore, 'professional accommodation' for a pharmacist in the context of the definition of 'Medical Centre' in LPS 21 can be a pharmacy. The mention of pharmacists in the definition of 'Medical Centre' must be given some meaning and the limited meaning given to it by the respondent is not supported by the Tribunal, particularly based on the lack of any evidence before the Tribunal from the respondent to support such a contention.
104 Furthermore, as submitted by the applicant:
… the term 'dispensary' is a term used in relation to the term 'hospital' in LPS 21 and therefore had the drafters of LPS 21 wanted to limit the work of a pharmacist at a Medical Centre, for example, to that of a dispensary (that is, for only dispensing medicines and drugs), then that could have been done by using the word 'dispensary' rather than 'professional accommodation for duly qualified and registered … pharmacists' in the definition.
105 The definition of 'Medical Centre' must make sense and the Tribunal is satisfied that it makes sense for a medical centre to allow for the inclusion of a pharmacy being the professional accommodation of a pharmacist as it would be for the other professions mentioned, such as dentists, optometrists or chiropodists, particularly when the pharmacist will only operate for the same hours as the remainder of the centre which is to accommodate 'registered medical practitioners' (doctors).
106 Under the definition of 'Medical Centre', therefore, the Tribunal is satisfied that both the use of doctors' consulting rooms and the use of pharmacy being professional accommodation for a pharmacist fall within the definition of 'Medical Centre' in LPS 21.
107 The Tribunal does not accept the argument that if the Tribunal approves the application it is likely to encourage retailers to relocate to the subject location thereby diminishing the sustainability and vibrancy of the existing Busselton CBD. This is because most 'retailers', as that term is generally understood, would fall within the definition of the term 'Shop' in LPS 21 and would therefore not be permitted to be located in the 'Restricted Business' zone where the pharmacy being part of the medical centre is proposed to be located.
108 As stated earlier, this matter is limited to the definition of 'Medical Centre' in LPS 21 and what it may accommodate.
109 In regards to the respondent's argument that the proposed pharmacy is inconsistent with cl 4.2.3 of LPS 21 (policies and objectives of the 'Restricted Business' zone set out earlier in these reasons for decision), the Tribunal disagrees. There is no evidence before the Tribunal that the commercial primacy of the City of Busselton's CBD has declined or that as a result of the proposed medical centre, which will include a pharmacy component, restricted business purposes will not be sufficiently catered for.
110 It is not clear why the respondent considers the approval of the proposed pharmacy to be in conflict with cl 11.2 (a), (i), (n) and (bb) of LPS 21. In any event, in the Tribunal's assessment, the proposed pharmacy as part of the medical centre is a compatible use and preserves the amenity of the location. Indeed, it is not uncommon for a pharmacy to be part of a medical centre as explained by Mr Pirone in his evidence.
111 If the pharmacy was not part of a 'Medical Centre' then it may well be that the 'best fit' classification might be 'Shop', however, as part of a 'Medical Centre', as that term is defined in LPS 21, in the Tribunal's view, it is allowable.
112 Bearing in mind that the definition of land use classifications are unique to every town planning scheme, the Tribunal is satisfied in this case if approval is given to the proposed pharmacy component of the medical centre that:
i) the aims of LPS 21 as set out in cl 1.6 will not be disturbed; and
ii) the approval is in line with orderly and proper planning.
113 The Tribunal concludes that the pharmacy may form part of the 'Medical Centre' which is a discretionary use for the 'Restricted Business' zone in LPS 21. For the reasons set out above, conditional planning approval will be granted to the proposed development subject to the conditions set out below.
Conditions
114 As required by the Tribunal, the respondent prepared 'without prejudice' draft conditions to be imposed if the Tribunal considered that approval of the application, subject to conditions, was appropriate. The respondent submitted the following seven conditions:
1. The Medical Centre development hereby approved must be substantially commenced within two years of the date of this decision notice.
2. The development shall be undertaken in accordance with the signed and stamped, Approved Development Plan(s) (enclosed), including any notes placed thereon in red by the City.
…
3. The development, or any works required to implement the development, shall not commence until the City has received and approved in writing, an amended plan with the floor space within the pharmacy component of the development, to be used for the display of goods for retail sale or hire, limited to Xm² [amount of area to be determined by the Tribunal] as shown on the approved plans.
…
4. The development shall not be occupied, or used, until all plans, details or works required by Condition 3 and 5 have been implemented.
…
5. The pharmacy component of the development is only permitted to offer, for retail sale or hire, goods that are ancillary or incidental to the dispensing of medicines as defined in the Poisons Act 1964(WA), with a schedule of such goods to be provided by the applicant and agreed to by the City prior to the commencement of the use.
6. Hours of operation of the development's pharmacy component are restricted to the same hours as those of the remainder of the development.
7. The works undertaken to satisfy Conditions 3, 4, 5 and 6 shall be subsequently maintained for the life of the development.
115 The applicant agreed with conditions 1 and 6 but disagreed with the other four conditions.
116 In respect of condition 2, the applicant submitted that it should be amended to read:
The development shall be undertaken in accordance with the attached plans, subject to any conditions imposed requiring amendment or variation of those plans(Original emphasis)
117 In response, the respondent in its final written submissions to the Tribunal of 21 December 2016 stated it does not have any objections to the applicant's amendment to condition 2 provided that any relevant conditions are properly reflected on the plans.
118 The Tribunal agrees with the changes recommended by the applicant to condition 2 and will amend condition 2 accordingly.
119 As to condition 3, the applicant submitted that this condition should be deleted as there is no planning basis to require a different floor area for the pharmacy component of the development and the pharmacy is a size which is reflective of the number of consulting rooms within the medical centre, and is therefore appropriate in an orderly and proper planning sense.
120 In response, the respondent noted that this condition was included to limit the pharmacy's retail component to a clearly defined area and configuration. Further, the respondent noted this condition would protect against any future reconfiguration of the pharmacy that would expand the retail area incrementally in a way that would not be captured by an obligation for further development approval. Finally, the respondent stated that the applicant's suggestion that the pharmacy is in proportion to the consulting rooms has no planning basis and that the term 'Medical Centre' infers no proportionate rational or criteria for the purposes of combining what is another useclass of 'Shop'.
121 The Tribunal does not agree with the respondent's reasons for wishing to impose such a restraint as it is largely based on the respondent's view that the pharmacy is a 'Shop'. In line with the Tribunal's earlier findings, condition 3 is not therefore appropriate and will not be imposed.
122 The applicant states condition 4 should be deleted. The respondent repeated its position as per condition 3 and noted this condition protects against the proposal being undertaken and used at times when conditions 3 and 5 remain outstanding.
123 As conditions 3 and 5 (for the reasons set out below) will not be imposed, condition 4 is not necessary.
124 In relation to condition 5, the respondent submitted that the range of goods to be sold by way of retail should be constrained to a product list that is only medicinal and directly relevant to the professional role of a pharmacist. Alternatively, the respondent submitted, to provide greater clarity and certainty, the condition could reference the product list.
125 The applicant fundamentally disagrees with a condition that restricts the goods that the pharmacy may sell and says it is not clear what the respondent means by 'goods that are ancillary or incidental to the dispensing of medicines as defined in the Poisons Act 1964 (WA)'.
126 The Tribunal agrees with the applicant and considers that it is not appropriate that the pharmacy be restrained in the way suggested by the respondent, particularly in light of the Tribunal's findings that a pharmacy is an allowable component of a Medical Centre under LPS 21.
127 Finally, the applicant submitted condition 7 is unnecessary and should be deleted. The respondent stated it should be retained for clarity.
128 However, as conditions 3, 4 and 5 as proposed by the applicant are now not being imposed and condition 6 is clear on its face, condition 7 no longer has any relevance and will not be imposed.
129 In the circumstances the Tribunal makes the following orders.
Orders
1. The application for review is allowed.
2. The decision of the respondent dated 22 July 2016 is set aside and approval is granted for the proposed development, subject to the following conditions:
1) The Medical Centre development hereby approved must be substantially commenced within two years of the date of this decision.
2) The development shall be undertaken in accordance with the signed and stamped, Approved Development Plan(s), subject to any conditions imposed requiring amendment or variation of those plans.
3) Hours of operation of the development's pharmacy component are restricted to the same hours as those of the remainder of the development.
I certify that this and the preceding [129] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, SENIOR MEMBER
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