Wesley Williams and Australian Community Pharmacy Authority
[2012] AATA 173
•19 March 2012
[2012] AATA 173
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2245
Re
Wesley Williams
APPLICANT
And
Australian Community Pharmacy Authority
RESPONDENT
DECISION
Tribunal Senior Member John Handley
Date 19 March 2012 Place Melbourne The Tribunal affirms the reviewable decision dated 3 June 2011.
(sgd) John Handley
Senior Member
AUSTRALIAN COMMUNITY PHARMACY AUTHORITY – application for approval to supply pharmaceutical benefits – identification of catchment area – whether there is a population of at least 3000 persons in the catchment area of the proposed premises – whether persons may gravitate or flow to the proposed premises and whether a reasonable and practical option is presented – is a prescribing medical practitioner practising in the catchment area.
LEGISLATION
National Health Act 1953
National Health (Australian Community Pharmacy Authority Rules) Determination 2006
CASES
Re Hargraves and Australian Community Pharmacy Authority (N° 2) (1995) 41 ALD 147
Re Newman and Australian Community Pharmacy Authority (2010) 119 ALD 227
Re Dunsdon and Australian Community Pharmacy Authority (2011) 119 ALD 696REASONS FOR DECISION
Senior Member John Handley
Wesley Williams, the applicant in these proceedings, is a pharmacist. He has a lease over premises at 8-10 Hazelwood Road Traralgon in Gippsland, Victoria. He intends to operate a pharmacy at that location. However, in order to do so, he must be approved, pursuant to s 90 of the National Health Act1953 (the Act), for the purpose of supplying pharmaceutical benefits at those premises.
On 3 June 2011 a delegate of the respondent, the Australian Community Pharmacy Authority, decided to recommend refusal of an application for approval to establish a new pharmacy made by the applicant on 21 March 2011 (T9, page 147). The applicant has sought review of that decision.
The basis for refusal was the failure to satisfy Item 113 of the National Health (Australian Community Pharmacy Authority Rules) Determination 2006 (the Rules) which is reproduced as follows:
Item
Kind of application
Requirements
113
New pharmacy (urban locality)
1. The proposed premises are not in a rural locality.
2. The proposed premises are at least 1.5 km, in a straight line, from the nearest approved premises.
3. The Authority is satisfied that:
(a) the resident population of the catchment area for the proposed premises is, for most of the year, at least 3 000; and
(b) the number of prescribing medical practitioners practising in the catchment area for the proposed premises is equivalent to at least 1 full‑time prescribing medical practitioner.
ISSUES
The respondent concedes that paragraphs 1 and 2 of Item 113 are satisfied. Accordingly, the issues in dispute in this review are whether there is:
·a resident population of at least 3000 persons for most of the year in the catchment area for the proposed premises; and
·at least one full-time prescribing medical practitioner practising in the catchment area for the proposed premises.
Catchment area
A catchment area for the purposes of Item 113 is not defined in the Act or the Rules. It has been the subject of discussion in a number of Tribunal decisions commencing with the decision of Deputy President Forgie in Re Hargraves and Australian Community Pharmacy Authority (N° 2) (1995) 41 ALD 147 where the catchment area was that area from which people may flow or gravitate (at [101]).
In Re Newman and Australian Community Pharmacy Authority (2010) 119 ALD 227 Senior Member McCabe said at [12]:
… the decision-maker should have regard to evidence about the area and its occupants that might shed light on whether the residents were likely to regard the proposed pharmacy as a reasonable and practical option, so that they could be expected to gravitate towards it. Evidence about the size and distribution of the population and traffic networks and other physical features of the area may well be relevant. But the decision-maker might also derive some assistance in particular cases from the results of surveys of residents and other information that might also be gathered the purpose of defining a market.
Recently, Deputy President Hack in Re Dunsdon and Australian Community Pharmacy Authority (2011) 119 ALD 696 decided at [11] that:
….a catchment area, in the present context, must mean the area from which pharmacy users, either actual or potential, come, or will come, to a pharmacy, and they will come to a pharmacy if doing so is a reasonable and practical option.
Location of the proposed premises
The premises are located at 8 – 10 Hazelwood Road, Traralgon. Mr Robert Milner, a town planner with 10 Consulting Group, prepared a report at the request of the respondent (Exhibit R3). He described the township of Traralgon as one of the major urban centres of the Latrobe Valley with a population estimated at 30,200 persons in 2009. It is regarded as a centre of industry and employment. Mr Milner holds qualifications in urban and regional planning and has practiced in that discipline for 37 years.
The Princes Highway bypasses a number of major towns in Gippsland to the east and west of Traralgon. Traralgon is not bypassed. The Princes Highway runs in an East/West direction through Traralgon, parallel also to the Gippsland rail line which operates between Melbourne and Bairnsdale (to the east of Traralgon). The location of the highway and the railway line appears to have been a significant feature or influence in the development of the township. Almost the entirety of the commercial, professional and retail premises, together with the overwhelming majority of domestic housing, is located to the north of the highway. There are five pharmacies located within the central business district (CBD) and four medical clinics of general practice. There are also four specialist clinics on the corner of Lafayette Street (a short distance to the west of the CBD) which is also located on the north side of the highway. The proposed premises are located on the south side of the highway.
Before the commencement of the hearing in Morwell, the parties and I viewed the proposed premises in Hazelwood Road and then in a convoy of three cars, drove a predetermined route through a number of streets and roads in Traralgon. The applicant and his brother participated together with the representatives of the respondent with Mr Milner.
A number of maps of the Traralgon district are found within the T-documents. Hazelwood Road commences at Bank Street, which is located on the south side of, and runs parallel to the railway line. The proposed premises are within a cluster of four shops at the intersection of Hazelwood Road and Heather Grove, being a short distance from Bank Street. The view indicated that the proposed premises were closed and vacant. An adjacent shop was closed and shutters covered its front windows. The remaining premises were a combined milk bar/fish and chip shop/sub newsagency. Parking for 11 motor vehicles was reserved at the front of the cluster. Hazelwood Road provides a connection between Traralgon and the town of Churchill approximately 19 km to the south-west.
The proposed premises are located to the south-west of the CBD of Traralgon. As recorded in the report of Mr Milner and consistent with observations during the view, the area immediately surrounding the proposed premises is comprised of conventional detached housing and new housing subdivisions, some of which have recently constructed private dwellings. There is a large conservation reserve, headquarters for the Gippsland Water and some parks. Open farmland and some wetland exist a short distance beyond the existing housing. The new housing subdivisions appear to be located on land which was previously zoned as rural.
Entry to Bank Street from the north side of the Princes Highway (when departing the CBD) is gained at the intersection of Whitakers Road and the intersection of Breed Street. Both roads pass under the railway line and each intersection is controlled by traffic lights. Entry can also be gained at the western end of Bank Street which turns into a northerly direction and intersects with the Princes Highway. The rail line must therefore, be crossed. An underpass has not been constructed. The distance between that point and Hazelwood Road is 1 km. The distance from the Breed Street intersection and Hazelwood Road is 1.3 km and the distance between the Whitakers Road intersection and Hazelwood Road is 1.7 km. A pedestrian overpass, located a short distance east of the intersection with Lafayette Street, and on the south side of the highway, crosses the railway line. Persons walking from the north to enter into south Traralgon would be required to cross two of the inbound lanes of the Princes Highway. Only the two outbound lanes have pedestrian traffic lights immediately opposite the entrance to the overpass. Persons who take that route, would have to walk east, in Bank Street after departing the crossing and then walk south along Hazelwood Road to access the proposed pharmacy.
Persons travelling from the south side of the railway line can enter Bank Street at a number of locations. If travelling along Whitakers Road or Hickox Street (which is the southern continuation of Breed Street), entry is permissible into Bank Street without crossing the railway line and without being affected by the traffic lights (which are on the corner of the highway). The railway line must be crossed if departing or entering the western end of Bank Street onto or from the Princes Highway. A train timetable was obtained during the currency of the hearing which indicates that there are 36 trains crossing that intersection daily.
The catchment area – evidence
Identification of the catchment is of course critical to this review in order to determine whether there is a resident population for most of the year of at least 3000 persons and whether there is at least one full-time prescribing medical practitioner.
In previous reviews of decisions made by the respondent, the evidence before the Tribunal of population has been obtained from census data in Census Collection Districts (CCDs). In my view that is a useful and satisfactory basis to determine population and I propose to continue that practice in this review. Each census district is identified by a number. The CCDs existing relevantly in Traralgon are portrayed on a map (T18.3, page 207).
In its initial decision, the respondent determined that the CCDs comprising the catchment area of the proposed premises were 2181001, 2181002 and 2181011 which it determined aggregated to a population of 1441 persons. In its Statement of Facts Contentions lodged prior to the commencement of the hearing, the respondent adopted Mr Milner’s conclusions about the catchment area. He determined that the catchment area comprised 5 CCDs, namely the 3 initially determined by the respondent and CCDs 2181003 and part of 2181905. Mr Milner estimated a population of 2792 persons. (In conducting this review I am obliged to determine the correct or preferable decision on the material before me at the date of the hearing. I am not obliged, as a matter of law, to review only the material that was available to the decision-maker when the decision under review was made or determine whether the decision then made was the correct or preferable decision on the material before the original decision-maker).
The applicant presented three methods of calculating the catchment area and therefore, he contended, there were three potential catchment areas, each of which would aggregate to a population greater than 3000. The three alternatives are found within his application at T9.3 commencing at page 168.
Initially, he contended that the whole of the Traralgon statistical local area (SLA) should be adopted as the catchment area. In evidence he explained that this method is described as the SLA average and is regarded by him as the primary method which would determine a catchment population of 6041 persons. That figure was achieved by adopting an SLA population of 30206 persons and dividing it by 5 (the number of existing pharmacies and his proposed pharmacy).
The applicant’s second method for calculating the catchment area is described as the proximity method, classified as a secondary method, which would achieve a population of 4772 persons (T9.3, page 168). This catchment area is defined by identifying the nearest existing pharmacy (the Amcal chemist in Seymour Street) to the location of his proposed pharmacy. The distance between the two pharmacies is 1.6 km. He then drew a circle with a 0.8 radius halfway between both locations and the CCDs within that circle (in whole or part) comprised the catchment area.
In relation to the second method of calculation, the applicant acknowledged that he did not discount the population from the CCDs which were partially excluded by the catchment area comprised by the circle which he said had a 0.8 radius and which is depicted in a map at T9.3, page 178. That is, he aggregated the population of the CCDs which were in whole or part embraced by the catchment area depicted in that map. It was also drawn to his attention that the scale of the map is inconsistent with the radius of the circle drawn by him. The radius of the circle depicted in his map is 2.25 km. The applicant said that there is an error in the map and I'm confident in the distances used to verify them (Transcript, page 37).
The third basis for establishing a catchment area was described by the applicant as the natural barriers + proximity calculation method and which he described as the tertiary classification method which resulted in a catchment population of 3079. The location of this catchment area is depicted in a map found at T 9.3, page 181. It comprises four of the CCDs adopted by Mr Milner in his calculation, being 2181001, 2181011, 2181002 and 2181003. The applicant has also included within this catchment area CCDs 2181004 and 2180309.
Although the applicant acknowledged in his initial application that the railway line was a natural barrier, he included CCD 2180309 in this proposed catchment area (located on the north side of the railway line and Princes Highway and to the north west of the proposed pharmacy) because it was in proximity to the proposed pharmacy. Equally he included CCD 2181004, located to the east of the proposed pharmacy, because the Traralgon Creek (being the eastern boundary of this CCD) was also a natural barrier and the CCD was in proximity. In response to a suggestion put to him in cross-examination that adopting these CCDs was inconsistent with his previous methodology of adopting a 0.8 radius in calculating his second proposed catchment area, the applicant acknowledged that CCDs 2180309 and 2181004 were between 2 and 3 km away from the proposed pharmacy, (Transcript, page 40-42).
The applicant acknowledged that there were no prescribing medical practitioners practising in any of the CCDs within his third alternative catchment area. He acknowledged that if I were to find that there was merit in that catchment area, it would have to be dismissed because paragraph 3(b) of Item 113 was not satisfied (Transcript, page 45).
After the applicant made his initial application and before the respondent made its decision (which is under review in these proceedings), the respondent gave the applicant the opportunity to provide any additional information. The applicant submitted a fourth proposed catchment area which he said would aggregate to a population greater than 3000 persons. That catchment area is depicted on a map at T18.3, page 207 which identifies the CCDs within bold lines (representing the boundaries). An expanded version of that catchment area, without identifying the CCDs, is found at page 208.
The applicant acknowledged that his fourth alternative catchment area abandoned CCD 2181004 (and adopted Hickox Street as the eastern boundary); it absorbed CCD 21810306 (which was excluded in the 2nd proposed catchment area) and also absorbed CCD 2182006 (a part of it was within the second proposed catchment area but wholly excluded in the third proposed catchment area) (Transcript, page 47-48).
The fourth proposal embraces the Breed Street Clinic, which can safely be assumed as having at least one full-time prescribing medical practitioner. The Breed Street Clinic would have been in the applicant's first proposed catchment area as would all other prescribing medical practitioners. In fairness to the applicant, there are consulting medical practitioners (who I will assume are also prescribing) located to the immediate north of the proposed premises, on the south side of the Princes Highway on the corner of Lafayette Street, which would have also been within the first and second proposed catchment areas.
Survey results
The applicant relied on three survey results. The first was a traffic survey involving a count of motor vehicles on Bank Street and Hazelwood Road. The source of the information was a conversation with John Zalesiak of Latrobe Shire Council on 17 March 2011. The counting of motor vehicles in Bank Street occurred opposite Oak Avenue over a 2 week period in May 2010. The survey recorded that 3532 vehicles travelled per day, on average, along Bank Street. The survey of traffic along Hazelwood Road was measured from 30 Hazelwood Road over one day in September 2002. That survey recorded 3830 vehicles travelled on that day (T9.3, page 185).
In evidence the applicant said that his brother, Thurstan Williams, had the conversation with Mr Zalesiak. He said that he and his brother were not involved in any of the traffic count, he was not aware whether his brother had ever been provided with raw data arising out of the traffic count nor was he aware whether there was any analysis of the direction of the motor vehicles travelling on Bank Street or Hazelwood Road on the occasions that they were counted.
Thurstan Williams agreed in evidence that he had the conversation with Mr Zalisiak but could not recall whether the information recorded at page 185 was obtained by telephone discussion only or whether he received any documentation. He was not aware of the methodology adopted in counting the vehicles but he assumed that a traffic counter was used. He agreed that the survey does not give any indication of the direction of the vehicles that were counted.
The applicant also relied on a survey that he conducted with his brother on the morning of 11 June 2011 of persons in CCD 2182006. The survey was conducted by them knocking on the doors of 235 occupied private dwellings and asking persons (who responded) two predetermined questions, namely:
a)would you regard the new pharmacy at 8 Hazelwood Road as a realistic and accessible alternative to the existing pharmacies in Traralgon? and
b)if this new pharmacy were to meet your needs in terms of service, price, opening hours and products, would you consider using it? (Exhibit A1, pages 14-15)
The applicant said that 18 of the 235 households responded. He agreed that amounted to a 15 per cent of households responding, which meant that 85 per cent of households did not respond. The reasons for not responding, he said, were because persons were not at home or did not answer the door or were not prepared to participate in the survey.
The applicant said that there were 15 positive responses to the first question asked and 3 negative responses. An analysis of the second question revealed a positive response by 7 persons, 5 persons responded negatively and said they preferred to use existing pharmacies and 6 persons responded that they would not use the proposed pharmacy because of its location.
The third survey relied on by the applicant involved measuring the time taken to drive from defined locations in Traralgon to a number of pharmacies also in Traralgon. The starting point of each survey was the Breed Street clinic in Breed Street, a Foodworks supermarket in Henry Street, the intersection of Marie Street and Francis streets and another Foodworks supermarket in Hyland Street. The destinations from the Breed Street clinic were each of the pharmacies existing in Traralgon and the proposed pharmacy in Hazelwood Road. The destinations from the other 3 starting points were the Findlay and Weymouth pharmacy in Seymour Street and the proposed pharmacy in Hazelwood Road.
The survey was conducted by Lynette Gartner and Malcolm Sparks who are both acquaintances of the applicant and his brother, Thurston. The survey was conducted on Friday, 10 June 2011 between approximately 10:50 am and 1:40 pm. Mr Sparkes drove a motor vehicle commencing at each of the 4 starting points. Ms Gardener was the passenger. The data arising out of their survey was recorded on a document entitled Traralgon Pharmacies – accessibility test (Exhibit A1, Annexure A). It records the starting time from each starting point, the time that the vehicle was then parked at or near each destination and the time that Ms Gardener recorded that she arrived at the front door of each destination.
REASONS FOR DECISION
As recorded earlier, regard should be given to the local area and its population to determine whether persons would regard the proposed pharmacy as a reasonable and practical option. That type of enquiry will assist in the determination of whether persons may flow or gravitate to the proposed pharmacy. Evidence concerning the size and distribution of the population, the traffic networks operating within the district, any physical features of the landscape and the results of surveys would also be useful in the decision which I will ultimately have to be make (Re Hargraves; Re Newman).
A striking feature of the Traralgon township is the divide between the areas north and south of the Princes Highway and the railway line. It is impossible not to be observant of and influenced by the development north of the railway line. There is some domestic housing south of the railway line but it is sparse and residents do need to travel north – and therefore, out of their domestic environment – in order to have their commercial, professional, and retail needs satisfied.
The applicant relied on the results from the traffic survey to support his argument that people may flow or gravitate to the proposed pharmacy. I am not prepared to accept the traffic survey results as credible evidence or as having any influence in determining whether persons would gravitate to the proposed pharmacy.
Neither the applicant nor his brother was able to give any reliable information concerning the direction of the traffic on the occasions the vehicles were counted. It is not known whether any of the vehicles counted in Bank Street turned into Hazelwood Road. Oak Street is a considerable distance to the east of Hazelwood Road and the credibility of the statistics advanced by the applicant are further diminished by the counting of vehicles in Bank Street at that location as opposed to the vehicles being counted at the intersection of Bank Street and Hazelwood Road. A survey conducted on one day in September 2002, more than 9 years ago, cannot be accepted as an accurate reflection of the traffic presently along Hazelwood Road. Therefore, the results in my view, in the absence of a current survey serve no purpose in this application.
I concede that there is probably more traffic now on Hazelwood Road then there was in 2002, having regard to residential subdivisions south of the proposed site, entry to which is gained from Hazelwood Road. But that assumption does nothing in my view to advance the applicant's case other than to raise the probability of vehicles travelling along Hazelwood Road in a north-south direction either to enter those residential areas south of the proposed site or, if travelling north, past the proposed site. It may equally be assumed that vehicles travelling on Hazelwood Road, either north or south, are intending to travel into or out of the Traralgon CBD.
The movement, numbers and direction of traffic on the statistics of the applicant, is, as recorded earlier, very unreliable. Nothing points to any feature of the immediate precinct of 8-10 Hazelwood Road that would cause persons to gravitate to the proposed premises. Whilst there is reserved parking opportunities immediately outside the proposed premises, only persons in the area immediately proximate to the premises might use the pharmacy if established. This is an issue of course relevant to defining the catchment area which I will deal with later.
Having regard to the pharmacies and medical practitioners existing in the CBD, the opportunities to conveniently attend to retail, professional and commercial needs, the availability of on and off street parking, and the overwhelming numbers of persons who reside at or near the CBD, I cannot accept that persons would gravitate to the proposed premises. It would not be a reasonable and practical option.
The applicant also relied on the survey he and his brother conducted on a Saturday morning. The second question in the survey introduces market forces, namely service, products, price and opening hours. While such factors are relevant in determining the market and are likely to influence people’s actual choices, they are not relevant in determining the catchment area which is a broader concept concerning the area populated by those who may come to the proposed pharmacy (Re Hargreaves at [103]). In any event, for reasons which follow, I do not accept the survey results as credible or reliable.
The responses to the second question alone do not offer any comfort to the applicant. More than half of the 18 households surveyed said that they would not use the proposed pharmacy. Significantly, I am of the view that the methodology employed is flawed and therefore, the conclusions questionable.
The first obvious feature of the survey is the sample size. Eighteen of the 235 households responded. This does not, in my view, permit translating those responses to other occupants in Traralgon. No consideration was given, in the interpretation of the data, to the reasons why persons refused to participate. A control group in a different location was not established nor surveyed for comparison purposes. No consideration was given to achieving a level of confidence before commencing the survey to identify the sample size or the validity of the responses. That the survey was conducted on a Saturday morning in winter may have influenced the number of responses. For example, a survey conducted mid-week, during the evening may have produced different results or, at least, a different number of responses.
In concluding this part, I am also satisfied that the results are unreliable because of the location of the residents surveyed. It was limited to the residents in CCD 2182006 which embraces Breed Street and consequently the Breed Street Clinic and the Amcal pharmacy. Many persons residing in that CCD are within walking distance of those premises and it is hardly surprising that there would be a negative response to the second question asked.
I asked Thurston Williams what weight could be given to the results achieved by the survey in CCD 2181006 to the whole of the proposed catchment area. He said:
… I don't think you can. I think you can only apply it to that one collection district that we surveyed. I think as you – you move around the town based on their proximity and other factors they'll have a different – different response (Transcript, page 76-77).
The survey conducted by Mr Sparkes and Ms Gardener was well intended but it also lacks credibility. They agreed that they each used an analogue wristwatch without a moving hand. No other (more precise) timing device was used. One journey only was undertaken from each starting point to each destination on a Friday morning. The survey was not duplicated on other occasions at different times and on different days of the week. Therefore, no useful comparison exists. The time recorded when the motor vehicle was parked does not take account of any features associated with the journey (for example any delay or interruption). The time recorded as arriving at the front door of the destination premises does not take account of the location of the parked vehicle, the distance between it and the front door and any features associated with the footpath (for example any obstruction or pedestrian traffic) which may have influenced the arrival time.
I cannot conclude that any one of the 4 catchment areas nominated by the applicant have merit.
The first is constructed by embracing the whole of the population of Traralgon and dividing it by the number of pharmacies (5), resulting in a resident population exceeding 3000 (the SLA average method). This proposal does not define a specific catchment area or the CCDs constituting it. If this methodology were ignored and the whole of Traralgon were substituted as the catchment area, nothing indicates why persons living on the north side, would gravitate to the south.
The second proposal using the proximity method is deficient because of obvious errors. The scale recorded on the map is inconsistent with the radius of the circle drawn and intended to be the catchment area. The population of the CCDs wholly and partially within the perimeter of the circle have been counted without reduction to take into account the numbers of persons within CCDs which were partially excluded.
The applicant agreed his third catchment proposal which is based on the natural barrier + proximity method, cannot be accepted because there is no prescribing medical practitioner in any of the CCDs he nominated.
The fourth proposal embraces a number of CCDs north of the highway where the population would be expected to gravitate to any of the 5 existing pharmacies. The road networks and parking opportunities or the convenience of walking ‑ because of the proximity of residential accommodation to the retail district ‑ readily indicates that it would not be a reasonable or practical option for residents in the north to gravitate to the proposed premises. I am satisfied for reasons which follow that the catchment area is confined to CCDs south of the highway. Accordingly, when the CCDs north of the highway in the applicant’s fourth proposal are excluded, the catchment area would comprise the CCDs he nominated in the south. Based on the estimates of Mr Milner, the population of the CCDs south of the highway must be less than 3000. There are no prescribing medical practitioners south of the highway in the CCDs remaining in this proposal. Therefore, paragraph 3(b) of Item 13 of the Rules cannot be satisfied.
Mr Milner provided a comprehensive report and gave his evidence in a balanced and rational manner. He made appropriate concessions and the conclusions that he reached had regard to his expertise and access to and interpretation of relevant data. He defined a catchment area for the proposed premises and made calculations of the estimated population in 2011 of persons within each of the CCDs constituting the catchment area. I agree with his conclusions.
The isolation of Hazelwood Road from the CBD of Traralgon, the road networks, the limited access from the CBD by road into Hazelwood Road and the absence of any other retail, commercial or professional facility in the Hazelwood Road precinct (and largely south of the railway line and Princes Highway) has caused me to conclude that the catchment area for the proposed premises should be the CCDs south of the railway line and the Princes Highway and in the immediate vicinity only of the northern end of Hazelwood Road.
The proposed premises, if ever established, would be of benefit only to residents within its immediate proximity and then only on the occasion that persons would need to travel for the purposes of having a prescription filled and or purchasing items in the adjacent milk bar.
CCDs 2181001 and 2181011 are to the immediate west and south-west of Hazelwood Road within which there are a number of domestic premises. Within those CCDs, persons may gravitate to Hazelwood Road either by travelling in an east/west direction or north to Bank Street then travelling a short distance in an easterly direction before turning right into Hazelwood Road.
CCD 2181002 is to the immediate east of Hazelwood Road and according to relevant maps its area is approximately the equivalent of the two CCDs 2181001 and 2181011. The map indicates an absence of residential streets and the population recorded by Mr Milner in his report (Exhibit R3, page 10) bears testimony to a relative population imbalance between this CCD and the other two CCDs to the immediate west of Hazelwood Road. Persons in CCD 2181002 have immediate access to Hazelwood Road by travelling in an east/west direction or those closest to Bank Street might travel into it and then travel west for a short distance and turn left into Hazelwood Road.
CCD 2181003 is to the immediate east of CCD 2181002 and has Hyde Park Road as its western border and Hickox Street as its eastern border. Maps indicate that a greater part of this CCD is occupied by the Traralgon Railway Reservoir and Conservation Reserve in which, presumably, persons do not reside. The remaining part of it is occupied by domestic streets which, according to the map, have a lesser density than the residential housing in the adjoining CCD and have a lesser population (refer population estimate recorded by Mr Milner at page 10 of his report).
CCD 2181905 is to the immediate south of the above four CCDs and also extends to the east and occupies a greater part of the south of Traralgon. It is largely rural. Mr Milner has had regard only to the upper western corner of that CCD (abutting the southern boundary of 2181011 because of its proximity and ease of access to Hazelwood Road). He has disregarded the remaining part of it because prescriptions can be immediately obtained by travelling north into the Traralgon CBD which is a more reasonable and practical option. I regard his conclusions as being appropriate.
Mr Milner concluded that in 2011, the population in those 5 CCDs was 2792. Although an estimate, the figure is based on estimations of population growth since the last census in 2006 having regard to the growth in new residential dwellings and the respective occupancy rates. Mr Milner adopted his own methodology beyond that of the Australian Bureau of Statistics population estimates for 2010.
In the circumstances, I accept the evidence of Mr Milner. The catchment area for the proposed pharmacy comprises of CCDs 2181001, 2181002, 2181003, 2181011 and part of 2181905. The population in those 5 CCDs was 2792 in 2011. Therefore, paragraph 3(a) of Item 113 is not satisfied. I am also satisfied that there is not one prescribing medical practitioner practising in that catchment area. Consequently, paragraph 3(b) of Item 113 is also not satisfied. This alone would disqualify the applicant even if the population in the five CCDs was actually greater than 3000.
DECISION
For all of the above reasons, the decision under review recommending refusing the application to establish a new pharmacy is affirmed.
I certify that the preceding 63 (sixty three) paragraphs are a true copy of the reasons for the decision herein of Senior Member John Handley.
..............................[sgd]................................
Associate
Dated 19 March 2012
Date(s) of hearing
19-20 December 2011
Applicant
In person
Advocate for the Respondent
Mr A. Dillon
Solicitors for the Respondent
Australian Government Solicitor
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