Bardsley-Smith v Penrith City Council

Judgment 1McCOLL JA: I agree with Sackville AJA. 2BARRETT JA: I agree with Sackville AJA. 3SACKVILLE AJA: This Court delivered judgment on 4 July 2013, allowing an appeal from the Land and Environment Court ("L&E Court"): Bardsley-Smith v Penrith City Council [2013] NSWCA 200. The appellants challenged the validity of a development consent ("Consent") permitting the use of premises located within the Penrith SupaCenta ("Premises") as a "Chemist Warehouse". The appellants also challenged the lawfulness of the continued use of the Premises insofar as it involved the conduct of a large-scale retail pharmacy. 4The Court reached the following conclusions:

• the Consent was to be construed as permitting the use of the Premises as a retail pharmacy only for the supply to members of the public of PBS items and OTC drugs (at [87]);
• so construed, the Consent was valid (at [94]);
• the current use of the Premises included use for a purpose prohibited under the relevant local environmental plan ("LEP"), namely a shop (at [118]); and
• the current use of the Premises as a large-scale retail pharmacy was prohibited under the LEP (at [123]). 5In considering the orders that should be made, the Court took a number of matters into account, including the following:
• the use of the Premises would not be unlawful if the retail pharmacy was confined to the supply of items covered by the Pharmaceutical Benefits Scheme ("PBS" items) and over-the-counter ("OTC") drugs (at [119]);
• in view of the conclusions reached on the appeal, it would be necessary for a discretionary defence pleaded by the Respondents, but not addressed by the primary Judge, to be dealt with by remitting the matter to the L&E Court (at [126]);
• the notice of appeal was deficient because it sought orders only on the basis that the Consent was void and did not seek orders reflecting the conclusions actually reached by the Court (and which had been fully argued) (at [124]); and
• subject to the Respondents' discretionary defence, the appellants were entitled to an injunction, but in order for the injunction to be framed with sufficient specificity it was necessary for the expression "OTC drugs" to be carefully defined (at [127]). 6The orders made by the Court were as follows: 1. Appeal allowed. 2. Set aside Orders 1 and 2 made by the primary Judge on 18 April 2012. 3. Direct the appellants to file an amended notice of appeal within seven days. 4. Direct the parties to file within 14 days an agreed draft of the proposed injunction referred to at [127] of this judgment. 5. In the absence of agreement, the appellants file within 14 days a draft of the injunction they propose, together with submissions in support not exceeding three pages in length. 6. The Respondents file within a further seven days a draft of the injunction they propose, together with submissions in support not exceeding three pages in length. 7. Subject to the parties' compliance with Orders 3 - 6 above and to any further order of this Court, the matter be remitted to the Land and Environment Court to deal with paragraph 4(h) of the Amended Points of Defence and otherwise the matter to be dealt with in conformity with this judgment. 8. The Respondents pay the appellants' costs of the appeal. 9. The costs of the proceedings in the Land and Environment Court be determined by that Court. 10. The Respondents, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951. 7After some delay, the parties filed the documents referred to in the Orders. The Respondents went beyond the terms of the Orders by filing an affidavit by a pharmacist which expresses opinions about the meaning of the expression "OTC drugs". 8The orders proposed by the appellants in lieu of the orders made by the primary Judge are as follows: 3. ... (a) Declaration that Development Consent DA 08/1288 ("the Consent") granted by the First Respondent to the Second Respondent on 20 February 2009 does not permit the retail sale and supply to members of the public, at the Premises, of items other than PBS items, Prescription drugs and OTC drugs. (b) Order that the Second Respondent, the Third Respondent and any agent, servant or employee of either the Second Respondent or Third Respondent be restrained from doing any act that constitutes the retail sale and supply to members of the public of items, other than PBS items, Prescription drugs and OTC drugs, to members of the public, at the Premises. 4. In these Orders, the following terms have meanings as defined: "Premises" means "Tenancy 230" (located within the "Penrith SupaCenta", Jamisontown) "PBS items" has the same meaning as the term "pharmaceutical benefits" as defined in s 84 of the National Health Act 1953 (Cth). "Prescription drugs" means drugs listed on Schedules 4, 5 and 8 of the Poisons and Therapeutic Goods Act 1966. "OTC drugs" means drugs listed on Schedule 2 and 3 of the Poisons and Therapeutic Goods Act 1966. 9In their written submissions, the appellants explain by reference to the legislation and evidence given at the trial that: