Uzuncakmak and Australian Community Pharmacy Authority
[2008] AATA 472
•6 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 472
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5610
GENERAL ADMINISTRATIVE DIVISION ) Re SALIH UZUNCAKMAK Applicant
And
AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date6 June 2008
PlaceMelbourne
Decision The decision under review is set aside and in substitution IT IS DECIDED that the catchment area should comprise all of the CCD's advanced by the applicant except CCD 506 and that the catchment area has, for most of the year, a resident population of at least 8,000 persons and has grown at least five per cent in each of the two years before the date of application. In those circumstances the application to supply pharmaceutical benefits at premises at 77 Hamilton Street, Craigieburn should be approved. (Sgd) John Handley
Senior Member
PHARMACY REGISTRATION ‑ application for approval to relocate pharmacy premises – proposed premises within a strip of eleven shops without anchor tenant, located 700 metres from a shopping plaza containing another pharmacy – traffic patterns, road networks, retail strategies, consumer habits and urban planning issues considered – consideration of respondent's policy – competition – defining catchment area – whether to regard resident population or significant customers – decision set aside
National Health Act 1953 (Cth)
National Health (Australian Community Pharmacy Authority Rules) Determination 2006 Rule 108
Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1980) 2 ALD 634
Re Fraser Coast Pharmacy Pty Ltd and Australian Community Pharmacy Authority [2007] AATA 1472
Re Hargreaves and Australian Community Pharmacy Authority [1995] AATA 326
Strutt Anor v Australian Community Pharmacy AuthorityOrs [2006] FMCA 1245
REASONS FOR DECISION
6 June 2008 Mr John Handley, Senior Member 1. The applicant applied to Medicare Australia (Medicare) for approval under s 90 of the National Health Act 1953 to supply pharmaceutical benefits by relocation of a pharmacy in Queensland to an intended pharmacy at 77 Hamilton Street, Craigieburn, in Victoria. Medicare remitted the application to the Australian Community Pharmacy Authority (the Authority) to make a recommendation whether the application at the nominated premises should be approved. The Authority recommended on 26 October 2007 that the application be rejected pursuant to Rule 108 of the National Health (Australian Community Pharmacy Authority Rules) Determination 2006 (as amended). The Authority was satisfied that Rule 108 (3) (a) and (b) was not satisfied namely,
(a)the resident population of the catchment area for the proposed premises:
(i)is, for most of the year, at least 8 000; and
(ii)has grown at least 5% in each of the 2 years before the date the application is made; and
(b) the catchment area for the proposed premises contains 1 approved premises.
2. This application is a review of the decision made by the Authority to recommend to Medicare that the application be rejected.
introduction
3. The expression the catchment area is not defined by the Act or by the Rules. It was considered by the Tribunal in Re Hargreaves and Australian Community Pharmacy Authority [1995] AATA 326 (Hargreaves) at 103 where the Tribunal recorded as follows:
A catchment area, by way of contrast, is concerned with the area populated by those who may come to the pharmacy. In determining that area, the actual choices which people will make are not relevant. What is relevant in identifying the catchment area are many matters which people consider relevant in making their choice as to the area in which they will available [sic] themselves of a particular service. It is all a matter of degree. It seems to me that considerations of price and substitutability of other goods are too peculiar to each individual to be relevant in determining a catchment area which is concerned with people who may use the pharmacy rather than with those who will. Considerations of distances and the existence of other attractions in the area are more broadly based considerations and do not seem to me to be relevant in determining the catchment area. They are features which could either encourage or discourage people from travelling to that pharmacy. Other features which would tend to do the same would include the distribution of the population in the area, people's ease of access to Walloon, geographical features of the area and other services and attractions located in the area. The existence of other pharmacies in the general area is not relevant in itself for that is more associated with the consumer's choice, with competition and with a market than with a catchment area.
4. The Hargreaves decision was adopted in a decision of the Federal Magistrates' Court in Strutt Anor v Australian Community Pharmacy AuthorityOrs [2006] FMCA 1245 (refer paragraphs 143 ‑ 146) and by the Tribunal in Re Fraser Coast Pharmacy Pty Ltd and Australian Community Pharmacy Authority [2007] AATA 1472 (Fraser Coast) where at paragraphs 12 – 15 inclusive the Tribunal recorded as follows:
12.It is, I think, necessary to give greater content to the concept of a catchment area if it is to be regarded in terms of those who may come to the proposed pharmacy. Entire areas would be sterilised, proper competition would be prevented and community needs would not be met if the test for determining a catchment area was based solely upon the mere possibility of use. And equally, potential use by only a small proportion of persons within a given area could not be regarded as, of itself, creating a catchment area defined by reference to the place from whence those persons came. Something more, beyond the mere possibility of use, is required to give meaning to the term “catchment area” in its present context.
13.In my view, when the issue is whether a particular area is within or without the catchment area of a proposed pharmacy the question that needs to be considered is this – “is it likely that a significant number of customers from within the area in dispute will naturally and reasonably gravitate or flow to the proposed premises?”
14.The parties seemed, at the hearing, content to accept that the question could be propounded in this way although I should note that Mr McWilliam submitted that “customers” should refer only to residents. I do not accept that argument. While it is true that the term “resident population” is used in paragraph 3(a) of Item 108, that use supports the construction urged by Mr Dillon, who appeared for the Authority, which was that sub-paragraphs (a) and (b) express different concepts. In sub-paragraph (a) the drafter has specified population requirements by reference to the resident population (i.e. “of at least 8,000”). The absence of a similar qualification in sub-paragraph (b) suggests that a different measure is to be applied. In a modern and mobile age, where shopping is frequently undertaken on the way to and from work premises and during breaks from employment, it would be wrong to regard sub-paragraph (b) as being referable only to the resident population within the area.
15.The requirement of a significant number of customers will prevent an application being defeated in circumstances where it is likely that the great majority of customers from within the area would not be expected to use the proposed premises. But it would not need to be shown that a majority of customers might use the proposed premises; for that would mean there could only be one pharmacy within each catchment area, a notion quite foreign to the requirement in paragraph 3(b) that there already be one pharmacy in the area. Further the requirement that the potential customers will “naturally and reasonably gravitate or flow” to the proposed premises excludes influences of the market and subjective choices. I respectfully agree with the conclusion of Deputy President Forgie that actual choices, while relevant to defining a market, are not relevant to determining a catchment area.
5. The concept of persons gravitating to a pharmacy has apparently also found favour with the Authority because in its Applications Handbook (T6) at Chapter 4.1, it records that a catchment area of a pharmacy is considered to be one in which the population would naturally and reasonably gravitate towards the pharmacy.
6. In reaching the conclusions which will appear later, regard will be had to the above decisions together with the evidence heard, the documents tendered into evidence and the submissions of the representatives of both parties.
the catchment area
7. The subject premises are located within the City of Hume. The initial application to Medicare (17 September 2007 T7, p145) submitted that the catchment area should be defined by regard to Australian Bureau of Statistics (ABS) statistics of population data In Census Collection Districts (CCD's). The proposed catchment area was described as five main districts embodying CCD's but this submission was modified at the hearing. The initial submission included reference to parts of Roxborough Park which is located to the south of Craigieburn which, although located within the City of Hume, borders on the district of Broadmeadows.
8. At the hearing the applicant relied only on the CCD's recorded below. The population of those CCD's was agreed between the parties at the commencement of the hearing. The identity of the CCD's and the population against each CCD was modified at the commencement of the hearing having regard to data obtained by the respondent a few days prior to the commencement of the hearing.
9. The effect of the information provided by the respondent prior to the hearing was to reduce the populations within the CCD's relied upon by the applicant but to incorporate some amendments to the CCD's made by the ABS. The effect of the amendments is that the CCD 501 now also includes CCD 517 and 518, CCD 502 includes CCD 511, CCD 505 includes CCD 512 and CCD 510 includes CCD 513, 514, 515 and 516. The census figures recorded below are agreed as applying at 30 June 2006 (being the occasion of the last census). The total population for the districts below of 12,692 exceeds the minimum population of 8,000 for most of the year (refer Reg 108 (3) (a) (i)). However in order to achieve five per cent growth, as the Regulation compels, Mr Cicero on behalf of the applicant acknowledged that there would need to be a finding of CCD's 501 and 510 as amended are within the catchment area, they being the two largest CCD's in the catchment area as proposed by the applicant.
10. The CCD's as amended and the corresponding population is recorded as follows (Ex E):
AMENDED CCD's
501}
517}
518}
564
75
724
502}
511}
852
676
503
504
615
834
505}
512}
679
704
506
507
508
932
937
809
509
1259
510}
513}
514}
515}
516}
909
559
628
607
529
12692
11. Annexed to this decision is a map depicting the CCD's (Annexure 1). Annexure 2 is a copy of a plan extracted from a road directory with annotations indicating the site of the proposed pharmacy, the site of an existing pharmacy at Craigieburn Plaza and major intersections of Craigieburn Road and Sydney Road and Amaroo Road and Hume Freeway which were regarded as significant by Ms Dunstan, a Traffic and Transport Engineer, who gave evidence and who was called on behalf of the applicant.
12. It is important to note that the map at Annexure 1 refers to the Hume Highway which was the name given to that road before the Hume Freeway was constructed. The Hume Highway as it passes to the east of the proposed pharmacy is now known as Sydney Road as described in the map at Annexure 2.
13. The respondent submitted that the only CCD of relevance was 505 and then only 50 per cent of that district. On the census figures existing prior to the agreement as to the CCD population referred to above, the resident population constituting the catchment area would have been 755. However, the respondent later received a report from Mr Kusznirczuk, a Town Planner, who was of the opinion that the catchment area would be constituted by the population existing within 350 metres walking distance of the proposed pharmacy. On his assessment the catchment area would have been confined to approximately 1500 people. This assessment was varied in closing submissions. The respondent then submitted that the catchment area comprised part of CCD 505 and 512, which incorporated the existing pharmacy at Craigieburn Plaza. On either assessment it was the submission of the respondent that the applicant could not substantiate the requisite minimum population of 8,000 as is prescribed in Reg 108 (3).
14. In a Statement of Facts and Contentions lodged prior to the commencement of the hearing, the applicant submitted that the catchment area as submitted by the respondent was restrictive and narrow and had regard only to the resident population within walking distance of the proposed site. It was the case of the applicant that the respondent in its definition of the catchment area failed to have regard to the decisions in Hargreaves and Fraser Coast where – it was submitted – that those authorities permitted regard to persons who may service or may be serviced by the pharmacy and to persons who may flow or gravitate to the pharmacy (as opposed to persons who are resident). Having regard also to opinions expressed by Mr Kusznirczuk it was submitted that actual, market and subject choices are not relevant in assessing the likelihood of use by persons and the existence of another pharmacy in the area is not relevant. (Reg 108 dictates that the catchment area must contain one other approved (pharmaceutical) premises). The map at Annexure 1 indicates that the other pharmacy within the applicant's proposed catchment are is located within CCD 505 and being within the Craigieburn Plaza located in Craigieburn Road approximately 700 metres south of the proposed premises.
location of proposed premises
15. The premises intended to be used by the applicant as a pharmacy – subject to approval – is located in Hamilton Street which runs in a north south direction and parallel to Sydney Road. It intersects with Kingswood Drive which also intersects with Sydney Road and from which traffic may enter and travel west or east. (Kingswood Drive intersects with Hanson Road which permits north / south movement of vehicles). The proposed premises are one of eleven shops comprising a shopping strip, some of which are located on the western side of Hamilton Street and the others on the northern side of Kingswood Drive. That is to say, the shopping strip is in an L shape. The shops comprise convenience take away type businesses and other professional businesses. The 11 shops comprise:
a recruitment, training and job finding business,
a podiatrist,
a real estate agent,
a clothing store,
a bicycle shop,
a women only fitness centre (Curves),
a bottle shop,
a speciality asian food and spices shop,
a chinese take away, and
a fish and chip shop.
The premises intended for use by the applicant were previously occupied by a lawnmower / small engine repair sales business.
16. Each of the shops within the above strip have 90 degree vehicle parking and parallel parking exists on the other side of Hamilton Street and Kingswood Drive.
charmaine dunstan
17. Ms Dunstan is a Director of Traffix Group Pty Ltd who holds a Bachelor of Civil Engineering, a Master of Traffic and is currently completing a Masters of Transport Degree. She is a Member of Engineers Australia and the Victorian Planning and Environmental Law Association. She has held a number of Local Government appointments including acting in the role of Transport Coordinator or Senior Traffic Engineer with the City of Moreland, City of Whittlesea and the City of Darebin. In a report completed by her on 6 March 2008 and received into evidence she recorded that she has expertise and experience in traffic management, road safety planning and engineering, parking management strategy development and development impact assessment of land use development. She has had previous experience in a number of projects in the Craigieburn district including involvement in a panel hearing relating to the proposed Craigieburn Town Centre Development located to the west of the proposed pharmacy site.
18. In evidence Ms Dunstan said that she had been involved in a peer review of the proposal by the Hume City Council in its development of the Craigieburn Town Centre. Specifically she was involved in examining and reviewing the road networks and specifically there was no existing east / west network of convenient roadway connection between the proposed town centre and the Hume Freeway / Sydney Road (refer map at Annexure 3). Accordingly, persons to the east of the proposed town centre would not have easy access. Persons responsible for planning acknowledge that it would not be desirable to have traffic running through residential streets from east to west and accordingly it is proposed to have traffic access the proposed town centre by the main arterial links of Craigieburn Road, Grand Boulevard and Windrock Avenue.
19. In relation to the proposed site of the subject pharmacy, Ms Dunstan described it as being within a local shopping strip located at the intersection of Hamilton Street and Kingswood Drive, the latter being described by her as a significant collector road carrying 5,000 vehicles per day. A collector road is regarded as being in the higher order local council managed road which is expected to collect the traffic from the arterial road network and provide access to the residential area. She regarded Hanson Road, Cimberwood Road and Medway Road also as being a collector roads. It runs in a north south direction and intersects at the western end of Kingswood Drive. Ms Dunstan described Grand Boulevard as being a secondary arterial road it being located to the north of Kingswood Drive and being an extension of the Amaroo Road exit from the Hume Freeway. Grand Boulevard runs in a east west direction but then turns into a north / south direction. It intersects with Hanson Road and further to the west, intersects with Windrock Avenue. Ms Dunstan explained that a local road is regarded as providing a through – connection to other local roads and is expected to carry less than 2,000 vehicles per day with some local roads carrying less than 1,000 vehicles a day. A collector road is typically regarded as carrying between 3,000 and 6,000 vehicles per day and in the context of Kingswood Drive, carrying 5,000 per day, it is regarded as a higher order collector road. It is noted that it provides signalled access to and from Sydney Road which makes access into the neighbouring precinct attractive because the only other entrance is either from Amaroo Road to the north or Craigieburn Road to the south.
20. Prior to the opening of the Hume Freeway, Ms Dunstan said that the section of what is now known as Sydney Road (but which was previously known as the Hume Highway) running to the immediate west of the proposed pharmacy site, carried approximately 30,000 vehicles per day. A consequence of the construction of the Hume Freeway is to reduce traffic along Sydney Road to between 10,000 and 11,000 vehicles in the vicinity of Kingswood Drive. A consequence however of the interchange between Sydney Road and Craigieburn Road, the location of a rail line and the presence of the Craigieburn Railway Station has caused a circuitous manner of entry into the precinct on either side of Craigieburn Road or for those persons who would otherwise use Craigieburn Road to access Hanson Road to travel north. Indeed entry into the Craigieburn Plaza would also be difficult because of the circuitous method of crossing Sydney Road.
21. The method of entry from Craigieburn Road on the eastern side of Sydney Road onto Craigieburn Road to the west, is depicted in the map at Annexure 2 and was described by Ms Dunstan as follows:
(i)Turn left at the intersection of Craigieburn Road and Potter Street, travel under Sydney Road (which at that point is an overpass) and proceed south along Potter Street;
(ii)Turn left at the end of Potter Street and travel east onto Sydney Road;
(iii)Travel north along Sydney Road over the railway line to a roundabout;
(iv)Turn left at the roundabout and travel south to a roundabout on Craigieburn Road and then turn right and travel in a westerly direction.
22. The above intersection and the difficulty accessing one side of Craigieburn Road from the other highlighted the benefit, in the opinion of Ms Dunstan, in either staying on Sydney Road, if travelling north, and leaving it at the intersection of Kingswood Drive or Grand Boulevard or, if travelling north on the Hume Freeway, bypassing the Craigieburn exit and leaving the Freeway at the Amaroo Road exit, travelling into Grand Boulevard and then travelling south on Hanson Road. Ms Dunstan also noted that the passage of the east side of Craigieburn Road to the west side by the circuit described above is devoid of any traffic signals and there is the risk of motorists facing congestion. She noted the presence of traffic signals at the intersection of Kingswood Drive and Sydney Road.
23. Ms Dunstan expanded on her earlier evidence with respect to collector roads and noted that in addition to Kingswood Drive currently carrying in excess of 5,000 vehicles per day on a seven day count conducted in February 2008, it is a divided carriageway with parking available on either side and it has the capacity in her opinion to carry higher traffic volumes. Cimberwood Drive runs in a north / south direction commencing at Craigieburn Road and intersects with Medway Road which provides east / west access to Hanson Road. Medway Road concludes at Hanson Road, close to the intersection between Kingswood Drive and Hanson Road thereby enhances the opportunity of persons to the west to access Sydney Road by the collector roads of Cimberwood Drive, Medway Road and Kingswood Drive. Hanson Road is regarded by Ms Dunstan as significant because it is the only north / south road (other than Sydney Road) within the residential precinct which crosses Malcolm Creek and therefore permits access to the north, beyond, Grand Boulevard which it intersects. It is noted that Windrock Avenue presently runs between Grand Boulevard and Malcolm Creek but its southern extension, which will provide access to the Craigieburn Town Centre is currently under construction. Access to Kingswood Drive as described above is now only possible by the Cimberwood Drive, Medway Road and Kingswood Drive route for persons travelling from the west.
24. Ms Dunstan was reassured of her opinion of Cimberwood Drive, Medway Road, Hanson Road and Kingswood Drive being collector roads because 5,000 vehicles per day travelling on Kingswood Drive would not emerge from the streets immediately surrounding the precinct of the proposed pharmacy. It was her opinion that those vehicles were largely intending to access Sydney Road which would give those vehicles immediate access to the shopping strip in which the proposed pharmacy would be located. Vehicles travelling north / south in Hanson Road also have ease of access to the proposed site because the intersection of Hanson Road and Kingswood Drive is only 400 metres from it.
25. Public transport is locally available being a bus and rail service. The railway station is 1.2kms south of the proposed site and 600 metres walking distance from the Craigieburn Plaza Shopping Centre. It is used principally as a park and ride car park only. A Metlink bus service travels along Hanson Road within approximately 400 metres of the proposed premises. It continues to travel south to the Craigieburn Plaza Shopping Centre but stops in Craigieburn Road. In these circumstances it was considered by Ms Dunstan that most persons in the district would use a motor car because of the limitations upon availability of public transport, the limited number of roads that are accessed by the bus service and most households in the district being two car families (also permitting one vehicle to be parked during the day at the railway station for persons who use the train to travel elsewhere).
26. In terms of defining the catchment area, Ms Dunstan recorded in her report (paragraph 6.5) that relevant considerations would be the natural flow of population and any natural barriers influencing the flow, distribution and characteristics of the population, the services and attractions in the area which would target the population and access to existing pharmacies and to the proposed premises having regard to road networks and public transport. Ms Dunstan noted that the applicant in his initial application to the respondent identified a trade area being census collection districts in five areas. In evidence Ms Dunstan said that in ascertaining the main trade area she had regard to the area to the north of Craigieburn Road and the importance of Amaroo Road servicing the district to the immediate west of Sydney Road. She thought there had been an over emphasis on attendance at pharmacies only being linked with trips to a shopping centre or as part of a main or weekly shopping trip. She said that in her experience persons in residential dwellings make between 8 and 10 vehicle trips per day to travel to school, work, sports, shopping and other purposes. She acknowledged that persons might use the existing pharmacy at the Craigieburn Plaza as part of a main shopping trip however it was her experience that many retail premises exist in residential type environments outside a shopping centre context and persons use shops of that type because of convenience. She gave examples of smaller milk bars, convenience stores or bakeries. The location of those premises are also used in her experience by persons who travel in their motor vehicle for other purposes that is to say, the trip is linked with shopping at a smaller and more conveniently located shop in a residential environment. In those circumstances she thought that persons would find the proposed pharmacy as being of convenience and would be likely to use it.
27. Ms Dunstan excluded CCD's 007 and 008 from the main trade area (the catchment area) which were initially submitted to the respondent by the applicant. She adopted CCD's 501 to 510 as being the catchment area. (This evidence was the reason the applicant modified its catchment area. Refer paragraph 7 earlier). She retained 506, 507 and 508 because those districts via Cimberwood Drive, Medway Road and Hanson Road gave access to both Kingswood Drive (and therefore immediate access to the proposed site) and to Amaroo Road from which traffic also flowed when leaving the Hume Freeway.
28. Ms Dunstan was aware of the report submitted by Mr Kusznirczuk (a witness for the respondent) and it was her opinion that he had underestimated the role of a shopping strip. The proposed premises are within CCD 505 and she thought that some of the shops were significant. For example, she thought that the bottle shop and the fitness centre would attract significant vehicle movement and it was her opinion – having observed the site – that the bottle shop, although new, was operating fairly well and was able to exist despite another bottle shop being located at the Craigieburn Plaza. She was aware that the Curves Fitness Centre has over 500 members and at least 100 people per day visiting. It was her expectation that those persons would link that visit to shop in the shopping strip. Having regard to her experience in town planning applications for fitness centres, Ms Dunstan was aware that members of a gymnasium or a fitness club tend to use such a facility on two or three occasions per week. It was also her experience that female only fitness clubs are busiest at about 9.30am each morning after children are dropped off at local schools. That is to say the travel to or from a local school would be linked to attending at a local gymnasium or fitness club and with shopping in a smaller residential shopping strip.
29. Ms Dunstan said that she is often engaged by prospective business proprietors to advise on traffic data. Having regard to that experience, it was her evidence that the opinion of Mr Kusznirczuk (that the catchment area was confined to 350 metres from the subject site) was unreasonable. She said that if she was engaged by the proposed pharmacy site proprietor directly, she would have advised him of more than 5,000 vehicles per day travelling in Kingswood Drive, the movement of traffic along Sydney Road, the existing road network and the relevance of take away food premises, the bottle shop and other businesses in the shopping strip.
30. Ms Dunstan acknowledged that CCD's 501 and 510 were to the north and north east of the proposed site but the proposed pharmacy would be closer to persons in those CCD's than the pharmacy at the Craigieburn Plaza by access to the Kingswood Drive precinct via Amaroo Road or Sydney Road (for CCD 501) and via Hanson Road (for CCD 510). Additionally, persons in CCD 501 and 510 who were not intending to travel to Craigieburn Plaza to access a major supermarket would be likely to use the strip of shops located in Hamilton Street / Kingswood Drive.
31. The opinion of Ms Dunstan that the conclusions of Mr Kusznirczuk were unreasonable (that the catchment area was confined to a walking distance of 350 metres from the proposed premises) were strengthened by regard to the membership of the fitness centre and the number of vehicles travelling along Kingswood Drive each day. A membership of 500 persons of the fitness centre would represent 500 households and which would represent approximately 1500 persons. 5,000 vehicles travelling in Kingswood Drive would emanate from several thousand households and confining the catchment area to a walking distance of 350 metres was not logical.
32. In cross-examination Ms Dunstan said that between 20 and 30,000 vehicles per day would leave the Hume Freeway. It was her estimate that about 10,000 vehicles per day travelled along Craigieburn Road (which she acknowledged therefore as being twice as busy, in terms of vehicle traffic, than Kingswood Drive) and about 7,000 vehicles per day would use the Grand Boulevard / Amaroo Road intersection.
33. In addition to her evidence concerning traffic volumes, she had regard to the catchment area as providing convenience shopping. She acknowledged that persons travelling to or from work or to or from some other location would not necessarily stop at the proposed premises but neither would they necessarily stop at the Craigieburn Plaza. It was her evidence that the proposed shop was located within a shopping strip that provided a level of convenience for persons. Convenience extended also to ease of parking, especially at peak times when a car parking space in a shopping centre may either be difficult to locate or be found some (walking) distance from entry to the retail building.
34. Ms Dunstan said that the 500 members attending the Curves Fitness Centre would more than likely be drawn from the local area. She acknowledged that there may be some members who travel from outside the catchment area proposed in this application but reference to the Curves website indicated to her that there were 50 other such premises in metropolitan Melbourne which would likely be serviced by persons in the locality of each of those centre. It was also her experience that female persons are more likely – as a member of a household – to attend a pharmacy to have a prescription filled out. Ms Dunstan acknowledged that the shopping strip did not have a anchor tenant being either a supermarket, a newsagency, a convenience store or a medical centre that might draw people from a particular area, but she again emphasised that the shopping strip in Hamilton Street / Kingswood Drive is a small residential shopping strip, serviced by a large road network which obviously does draw people especially by the presence of the fish and chip shop and the bottle shop, the real estate agent and the fitness centre. She said that those premises are of convenience to persons and they are obviously patronised. She noted that the only vacant shop was the premises acquired by the applicant that he intends to use as a pharmacy. It was previously occupied. She noted that the Curves Fitness Centre was recently new to the district and was drawing people to it. She also acknowledged that a medical centre was not located in this area, yet there were five medical centres in the immediate precinct of the Craigieburn Plaza. She acknowledged that some persons who use those medical centres would have prescriptions filled at the pharmacy in the Craigieburn Plaza however in her experience, once persons use their motor cars, it would only then be a short distance to travel to Kingswood Drive and then use the proposed pharmacy. Ms Dunstan acknowledged that the Craigieburn Plaza does have more car parking spaces than at Hamilton Street but she said that in peak times car parking at Craigieburn Plaza may be difficult and if found may be at a distance of a few hundred metres from the entrance to the shopping precinct.
35. Ms Dunstan was then asked a number of questions concerning the CCD's within the catchment area defined by her. It was her understanding that CCD 501 was wholly to the eastern side of the Hume Freeway, however a more contemporary CCD map obtained by Mr Dillon showed CCD 501 extending west across Sydney Road and was further north of CCD 510. Having regard to that information, Ms Dunstan said that she acknowledged that CCD 501 did not contain persons who would only use the Amaroo Road / Grand Boulevard intersection of Sydney Road and then travel south to Kingswood Drive. Nonetheless it was her evidence that persons in the northern part of CCD 501 would continue to travel south (along Hanson Road). It was also noted that during the years in issue in these proceedings, the southern end of Windrock Avenue was not completed and access along it out of CCD 501 to Craigieburn Road would not have been possible.
36. Ms Dunstan said that persons in CCD 502 which was to the immediate west of CCD 505 could comfortably access the proposed pharmacy by travel into Kingswood Drive, and then if they chose, continue to be given access to either Sydney Road or the Hume Freeway via the Grand Boulevard / Amaroo Road junction. Similarly, persons in CCD 503 and 504 could access Kingswood Drive via the local suburban road networks (and she acknowledged that they could also access Craigieburn Plaza by using suburban road networks to the south). CCD 506 which has its southern boundary on Craigieburn Road and is adjacent to CCD 507 and 508 might be thought as being conveniently located in the immediate catchment of Craigieburn Plaza, however Ms Dunstan said that persons might access those three districts from the Amaroo Road intersection and might prefer to use the proposed pharmacy in Hamilton Street rather than travel south along Hanson Road, use the Craigieburn Plaza and then travel west into their residence within those zones. Nonetheless she acknowledged that there can be and – in the context of this application – a sharing of use of either pharmacy.
37. Ms Dunstan said that persons in CCD 509 are likely to travel west along Medway Road and bring them in proximity of the Hanson Road / Kingswood Drive precinct thereby giving them close access to the proposed pharmacy if they were intending to travel north to the Amaroo Road intersection or travel south to Craigieburn Road. She said that persons from CCD 509 are unlikely to continue to travel further north than Medway Road and use Creekwood Drive to travel east because it is a narrow winding road whereas Medway Road would be more direct and more convenient.
38. When Ms Dunstan learnt that the respondent conceded that CCD 505 is within the proposed catchment area she said that CCD 510 should equally be included because the proposed pharmacy was the most proximate to persons in both districts. She acknowledged that CCD 510 was located north of CCD 505 but in the context of convenience shopping, ability to park close to the intended retail premises and the only other pharmacy to the north of CCD 510 being in Wallan (being a considerable distance away) it was her opinion that persons in CCD 510 would be likely to travel to Hamilton Street. CCD's 507 and 508 were equally advantaged in her opinion by access to and therefore use of Medway Road which would permit east west travel.
39. In concluding her cross‑examination, Ms Dunstan said in her experience persons would prefer not to use main arterial roads (Craigieburn Road) if there is a convenient and easily accessible road within a residential area that will draw them in a particular direction and lead them to their intended destination without being exposed to high volumes of traffic.
anthony dimasi
40. Mr Dimasi is a consultant retail market analyst frequently engaged by retailers, retail developers and shopping centre owners and managers. He holds a Master of Arts majoring in economics and statistics from Melbourne University. He said he has an expertise in determining catchment areas as part of his consultancy either with major retail corporations (e.g. Chadstone Shopping Centre) or smaller retail complexes in neighbourhood districts. He said that defining a catchment area had been his stock and trade for 26 years. A comprehensive report was prepared by him and received as Exhibit B.
41. In evidence Mr Dimasi said that he visited the proposed pharmacy site on a number of occasions and appraised the surrounding neighbourhood. He said the strip of shops in Kingswood Drive / Hamilton Street were not particularly well presented at the moment but thought that the role of the shops in the neighbourhood was underestimated. It was his opinion that the shopping strip served a significant role having regard to the nature of the use of the shops which included a bottle shop, a bicycle shop and a female gymnasium which, in his experience, all required a quite significant catchment in order to trade successfully. He noted that a podiatrist practiced out of one of the shops which in his experience would not normally be found in a neighbourhood retail centre but which would only be viable by drawing on clients from a wide area. He therefore concluded that there is a lot more substance to that centre in terms of the catchment that is likely to be servicing than one might appear from a cursory look at the physical collection of shops that are there. He also noted from planning maps made available to him by the City of Hume that outside the Craigieburn market place there were only two other locations in the district which were zoned business (north / western intersection of Pines Way and Riversdale Street and on the western side of Bank Street midway between Medway Road and Wattleglen Street) and by the size of that zoning would accommodate only small corner shop type facilities, which would not draw people or provide a level of access from a broader area compared to the Kingswood Drive / Hamilton Street shops.
42. Mr Dimasi was aware, but did not attach much significance, to the location of five medical clinics on or near Craigieburn Road and in close proximity to the Craigieburn Plaza. He thought that it was relevant that persons might leave a medical clinic and attend a pharmacy to have a prescription filled but said that phenomena would not necessarily determine the catchment area for the proposed pharmacy in issue by these proceedings. He said, and he drew on personal experience, that another reason for attending a pharmacy is to have a repeat prescription filled which might be done in conjunction with other shopping or on the way home from attending some other place or when travelling to or from work. The location of medical clinics did not therefore determine the catchment area of a pharmacy. In his experience, he attends a pharmacy near his home where he can park his car with ease and because it is open outside normal trading hours. It was also his experience, having regard to his retailing expertise, that persons are not aligned to one particular pharmacy and tend to use five or six different pharmacies depending on where they are at a particular time or where they are travelling.
43. In terms of defining the catchment area for the proposed pharmacy (refer also paragraph 2.3 of his report), Mr Dimasi said there were a number of factors namely, the attraction or the strength of the facility determined by the precinct, the ease of access to it, the extent of available car parking, the proximity and attraction of other retail outlets including their weaknesses and their strengths, access to the facility by regard to networks of roads and public transport and whether there were any geographical or physical barriers for example, rivers, railways or freeways. In providing this analysis, Mr Dimasi said that he was also aware of a concept of overlapping catchments which was a phenomena recognized by the respondent in its policy documents. In his experience, retail catchments are not regarded as being exclusive.
44. Having regard to the above analysis, Mr Dimasi said that the attraction of travelling to the proposed pharmacy – despite it overlapping the catchment of the existing pharmacy at the Craigieburn Plaza – would be the retail and professional facilities already existing. For example, the female gymnasium has 500 women members and the bicycle shop and the bottle shop also have good clientele. Persons using those and the other shops would, by convenience, use a pharmacy, if located, as would other persons in the immediate residential vicinity. It was his opinion that there was good access from the north to Hamilton Street with parking located outside the front door of each of the shops. He noted that whilst car parking was available at Craigieburn Plaza, it was frequently crowded, car parking was often difficult to locate and the pharmacy within that complex was at its eastern end and may cause people to walk a considerable distance after they have parked their car. In terms of retail habits it was also his experience that persons do not use one only retail facility for the purposes of all domestic type purchases.
45. Mr Dimasi drove through the district on a number of occasions and found that the Kingswood Drive / Hamilton Street shops were easily accessed from Sydney Road either by turning into Grand Boulevard and travelling south or turning off Sydney Road directly into Kingswood Drive. He thought that the presence of the Hume Freeway was of no consequence because few persons in the CCD's lived to the east of it.
46. Additional to the above considerations, Mr Dimasi reported (refer report paragraph 2.5) that the definition of the catchment area should have regard to the convenience of a linkage to Sydney Road by Kingswood Drive ensuring access to the proposed pharmacy site. Access to the proposed site is also achieved by northern residents by using Grand Boulevard and Hanson Road and an east west connection also existed by a combination of Cimberwood Drive giving access to Medway Road.
47. Despite his evidence with respect to the catchment area, it was the opinion of Mr Dimasi that CCD 506 should be excluded because the residential streets within that district would tend to orient more to Craigieburn Road and therefore be less inclined to use the proposed pharmacy. He also excluded CCD's 507 and 508 but having regard to the evidence of Ms Dunstan with respect to the east / west connection via Medway Road, Mr Dimasi said my case is probably weaker with respect to CCD's 507 and 508 being excluded. He said that he was at pains to ensure that he did not overstate the catchment area.
48. At page 8 of his report Mr Dimasi compiled a table of statistics with respect to population growth and was satisfied by those statistics that the rate of growth in this catchment has been very high. He noted that at June 2006 the resident population was 10,971 and at June 2007 it was his estimate that it would have increased to 12,221. On the analysis undertaken by him, most of the growth had been in CCD's 501 and 510 which are both located north of Kingswood Drive.
49. In cross‑examination Mr Dimasi acknowledged that the shops in the Kingswood Drive / Hamilton Street strip do not comprise a supermarket, a bank, a newsagency or a milk bar which were suggested as convenient to the neighbourhood. Nonetheless he reaffirmed his earlier evidence that persons do visit the existing shops because of the nature of retailing presently existing and in his experience persons do not necessarily travel to a pharmacy only when they are attending a supermarket or a milk bar. He acknowledged that attending a pharmacy could be linked to the convenience of attending another shop. However, he was satisfied that use of the gymnasium or attending the bottle shop or the podiatrist would provide sufficient linkage to attending a pharmacy. In his experience persons would use the pharmacy although they may not necessarily reside in the catchment area because everybody's needs are different. He acknowledged that the Craigieburn Plaza was a stronger retail destination however the only pharmacy at that destination is at its eastern end which in his experience is frequently congested and it was not reasonable for persons to travel only to the Craigieburn Plaza to access a pharmacy, when it may not be convenient to do so, when the opportunity existed for a pharmacy being located in a more convenient residential location providing relative ease of access and parking.
50. From enquiries made by him, Mr Dimasi was satisfied that the 500 members of the gymnasium were spread throughout a region mainly comprising the north around the Mount Ridley area and further to Wallan. Despite a view prevailing in some of the evidence that Hamilton Street was not an attractive shopping venue, Mr Dimasi said that the strip of shops was drawing people from a wide area and opinions concerning viability should not be influenced by the physical characteristics of the shops or the location. He was aware of evidence of more than 5,000 vehicles per day using Kingswood Drive which, having regard to average household membership could convert to about 15,000 people. However, he had not undertaken an analysis of what percentage of those vehicles do stop at the Hamilton Street shops, because he is not qualified as a traffic analyst, nor had he undertaken an economic analysis of the viability of the shops in Kingswood Drive / Hamilton Street.
william kusznirczuk
51. Mr Kusznirczuk is an urban planner who was called on behalf of the respondent. He holds academic qualifications in urban planning being a Bachelor of Arts and Graduate Diploma and has held appointments or consultancies in Local Government in Victoria and Tasmania, in Victorian State Government and with two Federal Agencies. He has also consulted with private corporations.
52. Mr Kusznirczuk provided a report dated 19 March 2008. In evidence he said that his task in preparing the report was to identify the catchment area of the proposed premises and in so doing he was required to determine boundaries, have regard to resident population and assess growth in the two years preceding the date of application. He described his methodology for the task to have regard to vehicle and pedestrian access to the proposed site, its attractiveness, its performance as a retail centre, the range of goods and services sold and provided and neighbourhood characteristics.
53. Mr Kusznirczuk said that the Hamilton Street shopping strip had been developed over approximately 30 years and previously served passing motorists in what was the Hume Highway but which is now entitled Sydney Road. Access to the shops was possible by exiting the highway. He said Hamiliton Street was 120 metres in length, was a dead end and pedestrian and vehicle access to it was from Kingswood Drive only. He described the shopping strip as lower order uses because retail outlets found normally in shopping strips comprising newsagents, banks, post office and bakeries were not present. Having regard to the characteristics of the strip and access to it, he estimated that there would not be in excess of 500 vehicles movements into and out of the shopping strip on a daily basis. However, it was his opinion that the Craigieburn Plaza is more likely to be the key retail area and provide the strongest magnet in terms of retail trading patterns. He said the Craigieburn Plaza was serviced by local public transport and the curvilinear design of collector roads in the district (Grand Boulevard, Kingswood Drive, Cimberwood Road) service smaller roads and streets and which also provide access to major roads or highways offer a collector path which all feed out towards the Hume Freeway. It was his opinion that there was also a strong possibility of a significant flow of vehicles travelling south out of Craigieburn through Mickleham Road, Somerton Road, Pascoe Vale Road and through Roxborough Park, Broadmeadows and Tullamarine for persons employed in the motor vehicle manufacturing and road transport industries. On balance, it was his opinion that Hamilton Road was not attractive to vehicle users nor was it attractive by its retail characteristics. Being a dead end street was also in his opinion an impediment because it prohibited flow through traffic.
54. Mr Kusznirczuk was aware that Ms Dunstan had given evidence of approximately 5,000 vehicles travelling along Kingswood Drive on a daily basis. He was also aware of 60 houses in Kingwood Drive. With those figures, it was his opinion – based on an average of 3.08 persons per household and an average of 2 cars per household that 812 households undertaking an average of 5 to 8 vehicle trips per day would convert to a catchment of about 2,500 persons. He said Craigieburn was a car dependent suburb but he could give no evidence concerning traffic flow throughout the local road network in the absence of any evidence of the origin or destination of vehicles.
55. In his report Mr Kusznirczuk recorded a number of factors which influenced or determined the catchment area being poor public realm, site access, the shops not being inviting or secure, absence of passing bus and rail service, through road connection to the north, poor pedestrian integration, the location being on a fringe without direct access to the Hume Freeway and difficult vehicle access with Kingswood Drive, limited parking availability, poor urban design, and the absence of major anchor tenants such as a post office or bank or milk bar. He concluded, having regard to earlier parts of his report, that the shopping strip would be confined to pedestrian traffic from neighbouring residents within 350 metres.
56. In evidence Mr Kusznirczuk referred to the above features and said that the nearest public bus service travelled along Hanson Road and whilst it stopped at the intersection of Kingswood Drive it was 400 metres west of the shopping strip. He noted that the bus service provided public transport to the Craigieburn Plaza. He thought it was unlikely that persons would alight the bus for the purposes of attending a pharmacy in Hamilton Street and in terms of convenient shopping, he noted that there was a garage on the corner of Hanson Road and Kingswood Drive which had a convenience shop. He thought the absence of a milk bar or a major anchor tenant prohibited people being drawn to Hamilton Street and influenced the trading performance of the shopping strip. He thought the buildings and the general amenity of the shopping strip was a pretty shabby environment. He said that a gymnasium and a podiatrist could never be anchor residents in a retail centre and could never have the status as anchor tenants such as newsagents, banks, convenience stores or bakeries. Mr Kusznirczuk did not do an economic analysis of whether the shops in Hamilton Street were operating successfully but thought the only convenience function in the shopping strip would be purchase of a six pack at the bottle shop or purchase of hamburgers at the fish and chip shop. He said that the other shops would be trading average to poor and in his opinion there would be no doubt that those businesses would be doing it tough.
57. The witness disputed evidence given by Ms Dunstan and Mr Dimasi that persons would travel to Hamilton Street to use the pharmacy only. He said it was his experience that persons did not travel by car for one retail purchase only. In his experience people engage in a multipurpose trip involving attending a number of different shops for example to collect dry cleaning, buy milk and then petrol.
58. It was the opinion of Mr Kusznirczuk that the catchment area falls within two CCD's being 505 and 512 but not the whole of those districts. It was his opinion as he expressed in his report that the catchment area was confined to a walking distance of 350 metres from the proposed site.
59. In cross‑examination Mr Kusznirczuk acknowledged that he was not a traffic engineer nor was a retail economist. He agreed that persons having the same qualifications as Mr Dimasi in retail economics, retail planning and retail behaviour would more likely have an input into defining a catchment area when developing a retail precinct. He said as an urban planner, he would be required to interpret that information.
60. Mr Kusznirczuk was asked to comment on four business 1 zones under the Hume Planning Scheme which permitted operation of a shop. He was asked to disregard one of the zones because it was occupied by the Craigieburn Plaza. Another zone covered the Hamilton Street / Kingswood Drive strip of shops. The other two zones were single block locations in the residential district to the west of Hanson Road. Mr Kusznirczuk tended to focus – despite persistent attempts in cross‑examination – on existing and proposed development in the Hume Shire with respect to the construction of the Craigieburn Town Centre, the establishment of a comprehensive development zone and some information he had received from Council of approval (recently granted) to operate a Chemists Warehouse. When he eventually dismissed all of those issues and concentrated on the period of two years before the date of application – and despite not having seen the other two business 1 zones – he did agree, by reference to the maps received into evidence, that they would not support the location of a pharmacy. He agreed – having regard to paragraph 108 of the respondent's policy document – that if the current application was not approved there would be one pharmacy only servicing the existing residential population without any other pharmacy being able to be located within the catchment area (as submitted by the applicant).
61. Mr Kusznirczuk was then challenged concerning his earlier evidence of vehicle traffic in Kingswood Drive and agreed that the shopping strip in issue turned into Hamilton Street. He agreed that passing traffic in Kingswood Drive and in Sydney Road would observe the Hamilton Street shops, which would constitute exposure to passing traffic. Nonetheless he thought the shopping strip was a scrabby shopping centre. He had said in evidence that he had travelled past the shopping strip on many occasions when he previously lived in Shepparton and whilst from his observations the tenants had changed, he did not have any list of tenancies at the site of the shops 12 months previously. He did acknowledge that one shop only was presently vacant, which could be a determinant of viability, but said the limited number of shops might also indicate that space was not available for any other shop to be constructed or operate. Other than a discussion with the proprietor of the bottle shop, Mr Kusznirczuk said he did not have any discussion with the occupiers of any of the other shops to form an opinion as to trading viability other than the conclusions he drew from observing the shops in their current location.
62. Having defined the boundaries of the catchment area as Craigieburn Road in the south, the Hume Highway to the east, Mount Ridley Road to the north and the Malcolm Creek to the west, and having also acknowledged that persons within those perimeters may gravitate to the proposed pharmacy, Mr Kusznirczuk said the main catchment area would be within 350 metres of Hamilton Street which he also described as a sub catchment area. He also said that the sub catchment area would be confined to persons who would travel to the pharmacy by foot. He agreed that persons could gravitate to the shop by motor car along Kingswood Drive but said that there was no through access because Hamilton Street was a dead end. He agreed that persons cannot drive through Craigieburn Plaza and would have to drive around it but other than Swanston Street in Melbourne, Mr Kusznirczuk said that he did not know of any shopping strip in Metropolitan Melbourne where vehicles cannot drive through. After Mr Cicero persisted with respect to vehicle movements, Mr Kusznirczuk agreed that access by vehicles to Hamilton Street can be achieved from Sydney Road by turning into Kingswood Drive (despite his reservations about the ease of a right hand turn) and by travel along Mount Ridley Road, Grand Boulevard and Hanson Road. Mr Kusznirczuk agreed with the evidence of Ms Dunstan that the 5,000 vehicles travelling along Kingswood Drive are likely to have originated to the west of Hanson Road and may also have travelled from the north (in a southerly direction on Hanson Road).
63. In concluding his cross‑examination, Mr Kusznirczuk agreed that the Craigieburn Plaza provided strong retail attraction but the Hamilton Street group of shops had survived for 30 years with one current vacancy only.
conclusion and reasons for decision
64. The policy intent with respect to Rule 108 (found within the ACPA Handbook and T‑documents p111) has a number of key features and is recorded as follows:
This rule aims to address community need for additional pharmacy services in single pharmacy urban areas which have demonstrated consistently high population growth, while promoting a level of competition between the pharmacies.
65. It is not in dispute that another pharmacy exists (at the Craigieburn Plaza), in the catchment area submitted by the applicant, that is, the catchment area as proposed is presently a single pharmacy urban area. The remaining issues in so far as satisfying the policy intent would appear to be:
· Whether there is a community need for an additional pharmacy;
· Has the proposed catchment area demonstrated consistently high population growth; and
· Would approval to operate another pharmacy in the catchment area promote a level of competition between the pharmacies.
66. The Tribunal is obliged to apply lawful ministerial policy in the absence of cogent reasons to the contrary or unless the policy is unlawful or tends to produce an unjust result (refer Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1980) 2 ALD 634 at 645). Both representatives referred to the ACPA Policy in their submissions. Cogent reasons against applying the policy were not advanced nor were there any submissions that adoption of the policy would be unlawful or likely to produce an unjust result. The absence of such submissions in my view was appropriate because I am of the view that application of the policy is appropriate and consistent with Rule 108 because:
(a)demonstration of consistently high population growth is consistent with Rule 108 (3) (a) (i) and (ii) namely, a resident population of at least 8,000 persons for most of the year and a resident population growth of at least 5 per cent for each of two years before the date of application;
(b)community need for an additional pharmacy – in catchment areas where one only pharmacy exists – is achieved by authorising another pharmacy thereby meeting community need for the provision of pharmaceutical services; and
(c)promoting level of competition between pharmacies is achieved only if more than one pharmacy is authorised to operate in a catchment area.
67. In defining the catchment area, the ACPA Handbook at Part 4.1 (T‑documents, p134) largely adopts the key features of Hargreaves which I am satisfied it was appropriate to do in the absence of the Act or the Regulations defining catchment area. Those key features include the natural and reasonable gravitation towards the proposed pharmacy by the population, consideration of traffic networks, natural barriers and other services or attractions which may promote or impede reasonable gravitation. The policy recognises that the catchment area of a proposed pharmacy is likely to overlap with the catchment area of another pharmacy.
68. In making application for approval of a another pharmacy under Rule 108, paragraph 4.1 recommends consideration of:
• the natural flow of the population and whether there are any natural barriers influencing the flow;
• the distribution and any unique characteristics of the population;
• whether there are there other services and attractions which might target the population from a larger area; and
• access to existing pharmacies and to the proposed premises, including road networks and public transport.
69. I was impressed by the evidence given by Ms Dunstan and Mr Dimasi on behalf of the applicant. Ms Dunstan holds specialist qualifications with respect to traffic and transport and she was of valuable assistance in the interpretation of the local district and the road networks. Her written report and her evidence was sound and well reasoned. I also regard her as being impartial noting particularly that her defining the catchment area considerably reduced the catchment area proposed by the applicant in his initial application. It was Ms Dunstan by her report at page 22 that confined the catchment area (which she also referred to as the main trade area) as being CCD's 501 – 510 inclusive. Mr Dimasi also gave a well balanced and reasoned report which was evident also by his evidence. He holds the specialist qualification with respect to retailing and retail economics and was of considerable assistance by his analysis of the shops existing in the neighbourhood strip, the role and impact of those shops on the local community and his acknowledgement of the absence of a anchor tenant. He also was impartial to the extent that he discounted CCD 506 from the catchment area. When he learnt of the evidence of Ms Dunstan with respect to east west road networks, he indicated that he would review the opinions expressed in his report excluding CCD's 507 and 508. He said that he attempted by his report not to overstate the catchment area. I was disappointed with the evidence given by Mr Kusznirczuk. Rather than be of assistance in this review I thought that there were times when he attempted to prosecute the respondent's application. His assessment of the catchment area in my view was narrow and negative.
70. For reasons which follow I am satisfied that the CCD's advanced by the applicant except 506 comprise the catchment area of the proposed pharmacy. I have reached that conclusion by regard to Hargreaves where at paragraph 101 (the catchment area) is the area serviced or to be serviced by a pharmacy is the area populated by those people who may be serviced by the pharmacy. Additionally, it was found that the catchment area is that area from which people may flow or gravitate to the pharmacy. The ACPA Handbook at Part 4.1 records that the catchment area of a pharmacy is generally considered to be one in which the population would naturally and reasonably gravitate towards the pharmacy. That analysis is consistent with the findings made in Hargreaves.
71. Defining the catchment area does not require a finding of the precise numbers of persons who are likely to use the pharmacy but rather it is concerned with the reasonable gravitation of persons from a populated area who chose to avail themselves of a particular service (Hargreaves at paragraph 103). To this extent the resident population (refer later) and the road networks and extent of road traffic are particularly relevant.
72. The evidence indicates that approximately 5,000 vehicles per day travel along Kingswood Drive, 11,000 vehicles travel along Sydney Road and 7,000 vehicles use the Amaroo Road / Grand Boulevard intersection. Of course all of the occupants of those vehicles will not stop at the proposed pharmacy but the numbers of vehicles indicates a high volume – daily – of passing or near proximate movement of persons who would be reasonably expected to gravitate towards the pharmacy. Mr Dillon correctly submitted that there was no evidence of the origin or destination of these vehicles. It followed that there was nothing pointing to a gravitational pull to the Hamilton Street shops. That is true, but the issue is the gravitation to the proposed premises, which do not yet exist.
73. Additionally, the road networks especially in my view are of significance. The construction of the Hume Freeway has caused a reduction in the volume of traffic in Sydney Road which is likely to exit at the Kingswood Drive or Grand Boulevard intersections, each of which are in close proximity to the proposed premises. If the Hume Freeway had not been constructed I think the relevance of Sydney Road and the considerably increased volumes of traffic on it would have caused considerable difficulty in forming an opinion as to the likely volumes of traffic that would exit to the west into the catchment area nominated by the applicant.
74. Within the catchment area that was nominated by the applicant is a network of roadways described as either collector roads or arterial roads which have a significant role in traffic movement and destination. Traffic from the north would reasonably be expected to travel along Grand Boulevard and then turn into Hanson Road which gives immediate access to Kingswood Drive. Traffic to the immediate west would be expected to travel along Medway Road which but for a short dog leg in Hanson Road would also give good access into Kingswood Drive. Traffic from the south west of the proposed site would reasonably be expected either to travel directly along Craigieburn Road in an easterly direction to access the Craigieburn Plaza or (for reasons which will follow) will travel north and then turn into Medway Road and attend the proposed site via Kingswood Drive. The importance of those roads and their ability to feed traffic tends to support a reasonable gravitation towards the proposed site. The importance of having regard also to volumes of vehicle traffic I think cannot be overstated, no less than because of the evidence of Mr Kusznirczuk who was of the opinion that poor public transport facilities in the district caused persons to use their motor cars and, in his experience, most of the district was a two car family.
75. Mr Dillon was correct to identify that some of the residential streets are cul-de-sacs which run in a north / south direction and have a southern entrance. For example, in the area bordered by Bank Street, Wattleglen Street, Spurr Street and Medway Road, the streets are identified in Annexure 2 as being a Court where persons exiting would mainly travel south onto Wattleglen Street. Travel in that direction does bring persons in closer proximity to the Craigieburn Plaza than the proposed premises in Hamilton Street but residents from those streets would then have to negotiate other road networks to enter into Craigieburn Road and then travel to the Plaza. Persons in those streets could equally travel along Spurr Street to Medway Road and then link with Kingswood Drive.
76. I will refer later to the evidence with respect to convenience shopping but in my view and having regard to the evidence heard and read in these proceedings, travel to a particular destination by motor car also has an association with convenience both as to traffic volumes, safety, negotiation of intersections and ease of parking. It was thought by Mr Kusznirczuk that Hamilton Street, being a dead end, was a negative feature. I am not prepared to make that finding. It will prohibit through traffic but equally it will be a quieter precinct that may be attractive to persons who would otherwise have to travel to and attend Craigieburn Plaza for pharmacy purchases. The whole of the catchment area proposed by the applicant and as defined by Ms Dunstan is within three kilometres of the proposed premises. That is a relatively small distance when using a motor car and – of course – the closer persons reside to the proposed premises or who are likely to pass the proposed premises, that distance is considerably reduced. Few would disagree that persons prefer to park close to a shop that they attend. Convenience is readily available at the proposed premises and throughout the Hamilton Street / Kingswood Drive shopping strip. Parking of course also exists at the Craigieburn Plaza but as was heard in these proceedings, it is frequently crowded and difficult to locate. The location of the pharmacy at the eastern end of the Plaza also can cause persons to walk considerable distances after they have parked their vehicles. In concluding this part, the intersection of Craigieburn Road and Sydney Road deserve special attention. The manner in which that intersection is constructed, the traffic volumes particularly at peak hour and the circuitous passage from the eastern side of Sydney Road to the western side, particularly in the absence of traffic signals is likely – and I am influenced by the evidence of Ms Dunstan in the findings which follow – that persons are likely to either remain on the Hume Freeway and exist at Amaroo Road and enter the precinct on the western side of Sydney Road or turn left at Amaroo Road, travel south along Sydney Road and enter the western precinct via Kingswood Drive.
77. Another feature suggesting a gravitational pull towards the proposed premises is the nature of the shops comprising the shopping strip in Hamilton Street / Kingswood Drive. Mr Dimasi said in evidence that they were not particularly well presented at the moment. Mr Kusznirczuk said that the area was shabby. But that strip of shops has existed for approximately 30 years and does obviously serve a community need. Additionally, it was learnt that the area is well patronized. Evidence was heard of the Curves Fitness Centre having 500 members and it was the evidence of Ms Dunstan that in her experience, persons use fitness centres on two or three occasions per week. A bottle shop is now operating from that shopping strip and whilst there was no evidence of the numbers of patrons or profitability of that or the other shops, the evidence of Mr Kusznirczuk that the bottle shop is likely to service persons who would be interested only in buying a six pack was absent any analysis of trading patterns or customer habits. If that was an accurate reflection of its customer support, it surely would have ceased trading. The shopping strip does not have a major anchor tenant but it does provide a broad retail opportunity for persons having regard to the products sold and the services available. Whilst persons are more than likely to travel to Craigieburn Plaza for weekly grocery purchases – where they would also find another pharmacy – they are likely also to link travel and therefore use the proposed pharmacy because of their attendance either at the Curves gym or at the bottle shop or purchase of food items from the three food outlets within the shopping strip or to attend the job recruitment business or the podiatrist or the bicycle shop or the clothing store. Perhaps persons would not travel for single purchase of a pharmacy item only but travel to the Hamilton Street shops to have other retail or service needs met could be allied to attending the pharmacy either to have a prescription filled or purchase other items found at pharmacies. It was learnt that a garage is located on the corner of Hanson Road and Kingswood Drive and attending the proposed pharmacy could also be linked to the purchase of petrol. In concluding this part, there was considerable evidence with respect to the relevance of five medical clinics being located at or near Craigieburn Road. The suggestion was put that persons would travel from those medical clinics to the pharmacy within the Craigieburn Plaza to have prescriptions filled. Perhaps they would. But prescriptions often have repeats and as was learnt by Mr Dimasi, persons tend to use a number of different pharmacies and it would be my view that persons who attended one of the clinics on Craigieburn Road but who live north of that location are likely – if not to have the initial prescription filled to have the repeats filled more conveniently to them if a pharmacy was located in Hamilton Street. There was I think, an over emphasis in this application on pharmacies only having the role of dispensing pharmaceutical medication. In my experience pharmacies have a much broader role in providing a retail opportunity for the purchase of many non-pharmacy medical items, for example, provision of advice with respect to suitability of providing non‑prescription medicines, purchase or hire of medical aids and equipment (e.g. walking sticks, crutches, asthma pumps) and the purchase of cosmetics.
the decision under review
78. The Authority concluded that only some people from CCD 505 are likely to use the proposed premises. In fairness, the Authority did not have the benefit of the three reports which were received into evidence from the witnesses in these proceedings but its conclusion I think is narrow (refer paragraph 24 at p8 of the T‑documents). At paragraph 25, only CCD 506 is now relevant and for the reasons advanced by Mr Dimasi and noting that district to be adjacent to and immediately to the west of Craigieburn Plaza I would exclude it from the catchment area. I particularly take issue with the conclusions at paragraphs 25, 26 and 27. The persons who reside in the CCD's identified at paragraph 26 probably are also provided with reasonably direct access to the proposed premises as they are to the Craigieburn Plaza. It was also not in dispute that the Craigieburn Plaza does have a broader range of retail services but the shopping habits of persons, the ability to link attending a pharmacy with other motor car travel (e.g. dropping children at school, attending the gymnasium, purchase of single items or travel elsewhere) were not considered. Rather, there tended to be a focus on persons attending the Craigieburn Plaza for satisfying retail need only and in those circumstances it was assumed that persons would attend the pharmacy at the Plaza. The Authority was correct to identify the collector roads of Cimberwood Drive and Hanson Road but it did not identify Medway Road and there was therefore an absence of any emphasis on the importance of those roads in feeding traffic to the eastern side of the catchment area. Instead the emphasis was on having those roads feed traffic to the south towards Craigieburn Plaza. There was also an absence of the relevance of ease of parking at the proposed premises compared to the difficulty sometimes experienced in locating convenient parking at the Plaza. At paragraph 27 the Authority noted that CCD 510 was north of Grand Boulevard and traffic would be likely to be fed into Hanson Road and then travel south to the Craigieburn Plaza but it did not consider that traffic could conveniently turn into Kingswood Drive and access the proposed pharmacy in Hamilton Street thereby having a shorter distance to travel and be given the opportunity of convenient parking.
79. But of considerable significance is the absence in the Reasons For Decision of the Authority of consideration of one of its own policy objectives namely, promotion of a level of competition between pharmacies. The Decision tends to focus on the benefit to persons of conveniently having their shopping needs met by all of the facilities available at the Craigieburn Plaza and in so doing access the approved premises that are located within that shopping complex. The absence of the benefit of another pharmacy and the likelihood of persons using it – matters not considered when this application was refused – ignores the competition that the proposed pharmacy would provide. Competition offers people choices, differences in prices and variation in product range. Depending also on the trading hours it may also provide extended opportunities for the provision of pharmaceutical services and purchase of other products found in pharmacies. It was learnt during the hearing, that the City of Hume had two other business zones in the proposed catchment area which would not have been suitable for location of a pharmacy. By denial of the application made to locate a pharmacy at Hamilton Street, the Authority in effect was denying competition in the catchment area. In fairness, the Authority appears not to have been aware of this zoning issue when it made its decision.
ccd's and population
80. During the closing submissions there was considerable discussion with both representatives concerning identification of the CCD's, the resident population and whether there had been five per cent growth in the two years preceding the date of application (refer Trans. p91 – 92, 98 and 102 – 104).
81. Mr Dillon submitted that the catchment area should comprise part of CCD 505 and 512 only. Quite properly in my view he submitted that the catchment area was beyond 350 metre walking distance from the Hamilton Street shops as was the evidence of Mr Kusznirczuk. He submitted that CCD's 501 and 510 did not have a sufficient gravitational pull to cause persons to use the proposed pharmacy in Hamilton Street. Additionally, it was his submission that CCD's 501, 510, 503 and 504 did not satisfy the findings in Fraser Coast with respect to numbers of customers.
82. On a worst case basis, Mr Dillon submitted that even if the whole of CCD's 502, 511, 505, 512 and 509 and half of 503 and 504 were included, it would aggregate at 4,897 persons only being considerably less than the minimum requirement of at least 8,000 (refer Rule 108 (3) (a) (i)). Further he submitted that even if the whole of CCD 503 and 504 were included, it would amount to a resident population of 5,623 which would again be less than the minimum requirement.
83. Mr Cicero submitted that all of the catchment areas identified by Ms Dunstan satisfy the requirement with respect to minimum resident population and population growth. He relied on the evidence of Mr Dimasi who provided a Table at page 8 of his report with respect to population growth and which he did not alter in evidence when he learnt of amendments to the CCD's that he had previously considered (refer paragraphs 9 and 10 earlier).
84. Mr Dillon submitted that if CCD 510 was removed, growth of five per cent in both of the two preceding years would not be achieved. For reasons expressed earlier it is my view that all of the CCD's proposed by the applicant except for CCD 506 should be found to comprise the catchment area. I am satisfied that by including CCD 510 and by reference to the report of Mr Dimasi that five per cent growth (consistently high population growth) in each of the two preceding years is achieved. Equally, minimum resident population of 8,000 is also achieved. On the arithmetic those conclusions remain possible in the absence of CCD 506.
fraser coast decision
85. Mr Dillon submitted that CCD's 501, 503, 504 and 510 should be excluded from the catchment area because they do not satisfy the standard of identification of the catchment area namely, is it likely that a significant number of customers from within the area in dispute will naturally and reasonably gravitate or flow to the proposed premises. Mr Dillon relied on that passage particularly from Fraser Coast and submitted that it should be adopted in these proceedings.
86. Mr Cicero submitted that the word significant does not appear at all in the Hargreaves decision (which he adopted). Additionally he submitted that references to customers were in error when Rule 108 refers to resident population.
87. The use of the word significant in Fraser Coast is, I think, unfortunate because in context it is a description of the numbers of customers within the catchment area that are likely to gravitate to proposed premises. Rule 108 is concerned with the resident population of the catchment area who may gravitate to the pharmacy. Residents are not necessarily customers.
88. In my view the requirement to have a minimum resident population for most of the year and a prescribed rate of growth of the resident population of five per cent for two years preceding the date of application, is a requirement of ensuring or being satisfied of a population base of residents who may use approved pharmaceutical premises. By adopting minimum resident population numbers and rate of growth of resident population, the Authority can be satisfied that in the event that it approves premises, its Policy objective of competition will also be satisfied. All persons who are resident have the potential to be a customer but it is likely that not every person who resides in a catchment area would use a pharmacy. Only those persons who require pharmaceutical service or are likely to purchase items at a pharmacy would become a customer. If the Rule intended that the catchment area comprised customers it would have said so. It does not.
89. The word significant does not appear at all in Hargreaves nor does it appear in the respondent's policy document at 4.1, 4.2 and 4.3 where reference is made only to the population of the catchment area. Hargreaves (paragraph 103) refers to the catchment area being concerned with area populated by those who may come to the pharmacy. That finding is consistent with the views that I have expressed above namely; the catchment area comprises a population who may use a pharmacy. The catchment area is not comprised of persons who are the customers of a pharmacy.
90. For all of the above reasons I am satisfied that the decision under review should be set aside, that the catchment area should comprise all of the CCD's advanced by the applicant except CCD 506 and that the catchment area has, for most of the year, a resident population of at least 8,000 persons and has grown at least five per cent in each of the two years before the date of application. In those circumstances the application to supply pharmaceutical benefits at premises at 77 Hamilton Street, Craigieburn should be approved.
I certify that the 90 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: Grace Carney, Personal Assistant
Date of Hearing 7 and 8 April 2008
Date of Decision 6 June 2008
Counsel for the Applicant Mr J Cicero
Solicitor for the Applicant Ms A MihulkaSolicitor for the Respondent Mr A Dillon, Australian Government Solicitor
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