Bronger v Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy - [2022] NSWLEC 91 - NSWLEC 2021 case summary — Zoe

NSWNSWLEC

Bronger v Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy

[2022] NSWLEC 91

Land and Environment Court (NSW)|2021-11-24|Before: Pain J

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-11-24

Before

Pain J

Catchwords

[2011] NSWCA 107 Alcan NT Alumina v Commissioner of Territory Revenue (2009) 239 CLR 27
[2021] NSWLEC 43 Burwood Council v Ralan Burwood Pty Ltd [2014] NSWCA 404 Chamwell Pty Ltd v Strathfield Municipal Council (2007) 151 LGERA 400
[2007] NSWLEC 114 Chu v Inner West Council (2022) 251 LGERA 211
[2022] NSWLEC 14 Commonwealth v Baume (1905) 2 CLR 405

Source

Original judgment source is linked above.

Catchwords

[2011] NSWCA 107 Alcan NT Alumina v Commissioner of Territory Revenue (2009) 239 CLR 27[2021] NSWLEC 43 Burwood Council v Ralan Burwood Pty Ltd [2014] NSWCA 404 Chamwell Pty Ltd v Strathfield Municipal Council (2007) 151 LGERA 400[2007] NSWLEC 114 Chu v Inner West Council (2022) 251 LGERA 211[2022] NSWLEC 14 Commonwealth v Baume (1905) 2 CLR 405[2021] NSWLEC 23 Jojeni Investments v Mosman Municipal Council (2015) 89 NSWLR 760[2004] NSWCCA 77 Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (2021) 247 LGERA 62[2021] NSWCA 2 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355[1998] HCA 28 Scott's Provision Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191 Settlers Estate v Penrith City Council (2021) 247 LGERA 84[2021] NSWCA 13 Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1

Judgment (65 paragraphs)

[1]

[3]

Judgment Amended summons Planning legislation Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) Former EPA Act Environmental Planning and Assessment Regulation 2000 (NSW) (repealed) Interpretation Act 1987 (NSW) Statute Law (Miscellaneous Provisions) Act 2020 Fairfield Local Environmental Plan 2013 (NSW) Building Code of Australia 2019 Regulation of pharmacists/pharmacies and the dispensing of medicines Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) Health Practitioner Regulation National Law 2009 (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) National Health Act 1953 (Cth) Preliminary issue: does the former EPA Act or current EPA Act apply to the Respondent's CDC? Applicants' submissions Respondent's submissions Consideration of preliminary issue Evidence in substantive proceedings Terms of CDC and OC Applicants' evidence Ms Cole's evidence Ms Johnston's evidence Ms Quinon's evidence Ms Adam's evidence Mr Di Perta's evidence Ms Melodia's evidence Respondent's evidence Mr Yousef's evidence Mr Alpeto's evidence Ms Toma's evidence Applicants' submissions on prayers 1 and 2 Prayer 1 - Shop use not ancillary except insofar as medicines sold to patients of medical centre Prayer 1 - Even if ancillary, still independent and prohibited use Prayer 1 - Sale of goods not ancillary to health advice, health advice ancillary to sale of goods Prayer 2 - The effect of the OC Prayer 2 - Terms of CDC and OC need to be given work to do Prayer 2 - BCA supports Applicants' construction of CDC Applicants' submissions on prayer 3 Contrary to s 6.9(1)(a) and s 6.3(2) of the EPA Act Respondent's submissions on prayers 1 and 2 Prayer 1 - Internal inconsistencies in Applicants' amended summons Prayers 1 and 2 - Respondent's use is consistent with that of a medical centre Prayer 2 - Effect of an OC Prayer 2 - BCA does not assist Respondent's submissions on prayer 3 Sections 6.9(1)(a) and 6.3(2) of the EPA Act not breached Consideration Prayers 1 and 2 - shop use Breach of CDC plans not established by the Applicant Pharmacy not a shop Effect of BCA classification Retail pharmacy vs medical pharmacy Restrictions on pharmacy use or occupation not warranted Conclusion Orders

[5]

Amended summons

The amended summons annexed to a notice of motion dated 16 November 2021 which the Court granted leave to rely on during the hearing, states: The Applicants seek the following declarations: 1 A declaration that the Respondent is carrying out development being the use of part of the premises known as Tenancy 7 Greenway Medical Centre, Greenway Plaza at Suite 1, Level 1 Greenway Plaza, 1183-1187 The Horsley Drive, Wetherill Park, New South Wales for the purpose of a retail pharmacy in breach of section 4.3 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). Particulars The building in which the premises are situated is zoned B5 - Business Development ("B5"). Development for the purpose of a shop is prohibited in the B5 zone. 2 A declaration that the Respondent is carrying out development being the use of part of the premises known as Tenancy 7 Greenway Medical Centre, Greenway Plaza at Suite 1, Level 1 Greenway Plaza, 1183-1187 The Horsley Drive, Wetherill Park, New South Wales for the purpose of a retail pharmacy in breach of Complying Development Certificate NW19/4387 granted on 30 September 2019 ("CDC NW19/4387) by NW Building Certification ("NWBC") acting as principal certifying authority in accordance with the EPA Act. Particulars CDC NW19/4387 was granted for the fit-out of existing Tenancy 7 of the Greenway Plaza "for medical centre". CDC NW19/4387 identifies the classification of the medical centre as Class "5" under the Building Code of Australia. Class 5 buildings are buildings used for professional or commercial purposes. A Class 5 building excludes buildings within Class 6, including a "shop". 3 A declaration that the Respondent is occupying the premises known as Tenancy 7 Greenway Plaza without an occupation certificate authorising that occupation, contrary to section 6.9(1)(a) of the EPA Act. Particulars OC NW19/438 authorises the occupation of existing Tenancy 7 for a new medical centre at Greenway Plaza but excludes the occupation of the premises for the purposes of a "Retail Pharmacy (not including Medical Pharmacy)". In breach of OC NW19/438 the Respondent is conducting a retail pharmacy from the premises. 4 A declaration that any pharmacy or dispensary conducted by the Respondent from the Greenway Medical Centre must be restricted in its operation to dispensing medications to patients of medical practitioners practising at the Greenway Medical Centre or clients of allied health professionals practicing at the Greenway Medical Centre. The Applicants seek the following orders: 5 The Respondent, its servants, agents, or contractors is hereby restrained from continuing the use of the premises for the purpose of conducting a retail pharmacy. 6 The Respondent is to cease all use of the premises for the purpose of a retail pharmacy, dispensing medication to any persons who are not patients of medical practitioners working in the Greenway Medical Centre or clients of allied health professionals working in the Greenway Medical Centre. 7 Such further orders as the Court sees fit. 8 The Respondent pay the Applicants' costs of the proceedings.
Further amendments to the above declarations and orders were proposed in the course of the proceedings by the Applicants as will be discussed below. Additional amendments were proposed by the Applicants after a further hearing on 9 March 2022, including the relief in prayer 3 that: The Respondent is occupying the premises known as Tenancy 7 Greenway Plaza without an Occupation Certificate authorising that occupation as a shop or retail pharmacy, and contrary to the terms of OC NW 19/438, contrary to both s 6.9(1)(a) and s 6.3(2) of the EPA Act.
Prayer 4 was sought as an order and as a declaration in the alternative.
The terms of any relief if granted also depends on the answer to the preliminary issue of statutory construction which arose as to what version of the EPA Act applies to the occupation certificate: see below in [9], [27]-[75].
The issues in the substantive proceedings required a fundamental consideration of the nature of a pharmacy business. In addition to planning legislation the regulatory regime for pharmaceutical practice and the sale of medicines was raised in the parties' argument, which requires reference to the Commonwealth laws which regulate such activities in addition to NSW laws.

[6]

Environmental Planning and Assessment Act 1979 (NSW)

Relevant sections of the current EPA Act state: Part 1 Preliminary … 1.4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires - … development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate. … Part 4 Development assessment and consent Division 4.1 Carrying out of development - with consent, without consent and prohibited … 4.2 Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless - (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. Maximum penalty - Tier 1 monetary penalty. (2) For the purposes of subsection (1), development consent may be obtained - (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate. … (5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development. … 4.3 Development that is prohibited If an environmental planning instrument provides that - (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land. Maximum penalty - Tier 1 monetary penalty. … Division 4.3 Development that needs consent (except complying development) … 4.9 Application of Division This Division - (a) applies to development that may not be carried out except with development consent, but (b) does not apply to complying development. … 4.16 Determination (1) General A consent authority is to determine a development application by - (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. … (12) Effect of issuing construction certificate If a consent authority or a registered certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55). … 4.19 Consent for erection of building authorises use of building A development consent that authorises the erection of a building (but not the use of the building once erected) is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose was specified in the application for development consent. This section does not authorise the occupation of such a building if Part 6 requires an occupation certificate to be issued. … Division 4.5 Complying Development … 4.26 Carrying out of complying development (1) A person may carry out complying development on land if - (a) the person has been issued with a complying development certificate for the development, and (b) the development is carried out in accordance with - (i) the complying development certificate, and (ii) any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued. … 4.27 What is a "complying development certificate"? (1) Terms of complying development certificate A complying development certificate is a certificate - (a) that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and (b) in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia. … (3) Erection of buildings A complying development certificate that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate, subject to section 6.9. … (5) Other requirements for complying development certificates The regulations - (a) may impose other requirements concerning the issue of complying development certificates, and (b) may provide for the form in which a complying development certificate is to be issued. … 4.28 Process for obtaining complying development certificates … (6) Determination The council or a registered certifier may determine an application - (a) by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or (b) by refusing to issue a complying development certificate. … Division 4.9 Post-consent provisions … 4.55 Modification of consents - generally (1) Modifications involving minor error, misdescription or miscalculation A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5) and (6) and Part 8 do not apply to such a modification. … 4.56 Modification by consent authorities of consents granted by the Court … (1C) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. … 4.57 Revocation or modification of development consent … (2) This section applies to complying development for which a complying development certificate has been issued in the same way as it applies to development for which development consent has been granted and so applies to enable a council to revoke or modify a complying development certificate whether the certificate was issued by the council or by a registered certifier. … Part 6 Building and subdivision certification … Division 6.2 Certificates required under this Part … 6.3 Work or activity that requires certificate under this Part … (2) A person must not, in carrying out any such work or activity, contravene a certificate under this Part that applies to the carrying out of the work or activity. … Maximum penalty - Tier 1 monetary penalty. … 6.4 Kinds of certificates under this Part There are the following kinds of certificates under this Part - … (c) occupation certificate - a certificate that authorises - (i) the occupation and use of a new building in accordance with a development consent, or (ii) a change of building use for an existing building in accordance with a development consent. When issued, an occupation certificate is taken to be part of the development consent to which it relates. … Division 6.3 Building work and certificates relating to building … 6.7 Requirement for construction certificate (1) A construction certificate is required for the erection of a building in accordance with a development consent. (2) However, a construction certificate is not required for the following - (a) the erection of a building in accordance with a complying development certificate, (b) Crown building work that is certified under this Part to comply with the Building Code of Australia. … 6.9 Requirement for occupation certificate (1) An occupation certificate is required for - (a) the commencement of the occupation or use of the whole or any part of a new building, or (b) the commencement of a change of building use for the whole or any part of an existing building. … 6.10 Restrictions on issue of occupation certificates (1) An occupation certificate must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent have been complied with. … Division 6.4 Subdivision work and certificates relating to subdivision … 6.13 Requirement for subdivision works certificate (1) A subdivision works certificate is required for the carrying out of subdivision work in accordance with a development consent. (2) However, a subdivision works certificate is not required for the following - (a) subdivision work carried out in accordance with a complying development certificate, (b) Crown building work that comprises subdivision work and that is certified under this Part to comply with the Building Code of Australia. … Part 8 Review and appeals … Division 8.4 Appeals - building and subdivision certification 8.16 Appeals against failure or refusal to issue certificate under Part 6 (1) An appeal may be made to the Court against the following decisions of a council under Part 6 - (a) a decision to refuse to issue a construction certificate, occupation certificate, subdivision works certificate or subdivision certificate, (b) a decision to issue any such certificate subject to conditions. … Part 9 Implementation and enforcement … Division 9.5 Civil enforcement proceedings 9.44 Definitions In this Division - (a) a reference to a breach of this Act is a reference to - (i) a contravention of or failure to comply with this Act, and … 9.45 Restraint etc of breaches of this Act (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. …
A key issue underpinning the Applicants' case is that the CDC (NW19/4387) granted by Newland Wood Building Certification Pty Ltd (NWBC) on 30 September 2019 permits the operation of a medical centre. The occupation certificate NW19/438 issued on 25 June 2020 states "a Retail Pharmacy (not including a Medical Pharmacy)". Under s 6.4(c) of the current EPA Act an OC is taken to be part of the development consent to which it relates. The EPA Act was amended by the Environmental Planning and Assessment Amendment Act 2017 (NSW) (2017 Amending Act) which largely came into force on 1 March 2018 subject to some provisions affected by the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) (the Savings Regulation). The Savings Regulation was further amended by the Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019 (NSW) (Building and Subdivision Regulation) which inserted cl 18A into the Savings Regulation, commencing 1 December 2019. In light of the 2017 Amending Act and the Savings Regulation as amended, the dates of issue of the CDC and then the OC give rise to a statutory construction question which requires consideration of the Savings Regulation. Depending on the application of the Savings Regulation the former EPA Act provisions could apply to the OC which did not include provisions equivalent to s 6.3 or the tailpiece to s 6.4(c) concerning an OC. If the former provisions apply parts of the amended summons need to be amended and/or not pressed. For the parties' submissions on this issue and my consideration, see below in [27]-[75].

[7]

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW)

Relevant provisions of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) (Savings Regulation) state: Part 2 Provisions consequent on the enactment of the Environmental Planning and Assessment Amendment Act 2017 4 Definitions - Part 2 In this Part - amending Act means the Environmental Planning and Assessment Amendment Act 2017. … former building and subdivision provisions means - (a) sections 81A(2)-(6) and 86 of the Act, as in force immediately before the substitution of those provisions by the amending Act, and (b) Part 4A of the Act, as in force immediately before the repeal of that Part by the amending Act, and the regulations made under that Part as so in force. … 18 Postponement of revised building and subdivision certification provisions … (2) Until 1 December 2019, Part 6 of the Act (as inserted by the amending Act), other than Division 6.7, does not apply and the former building and subdivision provisions continue to apply in respect of a matter (whether or not the matter was pending on the repeal of those provisions). (3) For the avoidance of doubt, the following provisions as in force immediately before 1 March 2018 continue to apply to and in respect of a breach, occurring on or after that day, of a former building and subdivision provision - (a) Division 4 of Part 6 of the Act, (b) any other provision of the Act, or a regulation made under the Act, that provides for the prosecution of an offence in relation to the breach, including by way of issuing a penalty notice. 18A Continuation of matters arising under former building and subdivision certification provisions The former building and subdivision provisions continue to apply, despite their repeal, to or in respect of the following - (a) an interim occupation certificate or final occupation certificate in force under those provisions immediately before 1 December 2019, (b) a development consent granted before that date.

[8]

Former EPA Act

The relevant provisions of the former EPA Act which applied prior to the commencement of the provisions introduced by the 2017 Amending Act state: Part 1 Preliminary … 4 Definitions … (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: … development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate. … Part 4 Development assessment … 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. (2) For the purposes of subsection (1), development consent may be obtained: (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate. … (5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development. … Division 2 The procedures for development that needs consent 77 Application of Division This Division: (a) applies to development that may not be carried out except with development consent, but (b) does not apply to complying development. … 80 Determination (1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. … Division 3 Special Procedure for complying development 84A Carrying out of complying development (1) A person may carry out complying development on land if: (a) the person has been issued with a complying development certificate for the development, and (b) the development is carried out in accordance with: (i) the complying development certificate, and (ii) any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued. … 85A Process for obtaining complying development certificates … (6) Determination The council or an accredited certifier may determine an application: (a) by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or (b) by refusing to issue a complying development certificate. … Division 7 Post-consent provisions … 96 Modification of consents - generally (1) Modifications involving minor error, misdescription or miscalculation A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5) and (6), section 96AB and Division 8 do not apply to such a modification. (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and … (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. … 96A Revocation or modification of development consent … (2) This section applies to complying development for which a complying development certificate has been issued in the same way as it applies to development for which development consent has been granted and so applies to enable a council to revoke or modify a complying development certificate whether the certificate was issued by the council or by an accredited certifier. … Part 4A Certification of development Division 1 Certification of work and other matters 109C Part 4A certificates (1) The following certificates (known collectively as Part 4A certificates) may be issued for the purposes of this Part: … (b) a construction certificate, being a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A (5), (c) an occupation certificate, being a certificate that authorises: (i) the occupation and use of a new building, or (ii) a change of building use for an existing building, (d) a subdivision certificate, being a certificate that authorises the registration of a plan of subdivision under Division 3 of Part 23 of the Conveyancing Act 1919. … (2) An occupation certificate: (a) may be an interim certificate or a final certificate, and (b) may be issued for the whole or any part of a building. (3) If the regulations so provide, a construction certificate may be issued subject to conditions. (4) In this section: new building includes an altered portion of, or an extension to, an existing building. … 109N Change of building use of existing building requires occupation certificate (1) A person must not effect a change of building use for the whole or any part of an existing building unless an occupation certificate has been issued in relation to the building or part. … 109K Appeals against failure or refusal to issue Part 4A certificates (1) An applicant for: (a) a construction certificate, or (b) a final occupation certificate, or (c) a subdivision certificate, may appeal to the Court against a consent authority's (or, in the case of a subdivision certificate for subdivision that is not the subject of development consent, a council's) decision to refuse to issue such a certificate or to issue a construction certificate subject to conditions. (2) An appeal under this section is to be made within 12 months after the date on which the decision was made. …

[9]

Environmental Planning and Assessment Regulation 2000 (NSW) (repealed)

The Respondent referred to the following clauses in the now repealed Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation 2000): Part 8 Certification of development … Division 2 Construction Certificates … 145 Compliance with Development Consent And Building Code Of Australia (1) A certifier must not issue a construction certificate for building work unless - (a1) the plans and specifications for the building include such matters as each relevant BASIX certificate requires, and (a) the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifier under clause 140) is consistent with the development consent, and (b) the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made). … (3) Subclause (1)(b) does not apply to the extent to which an exemption is in force under clause 164B, 187 or 188, subject to the terms of any condition or requirement referred to in clause 164B(4), 187(6) or 188(4). … Division 3 Occupation Certificates … 151 Procedure for determining application for occupation certificate (1) The determination of an application for an occupation certificate must be in writing and must contain the following information: (a) the date on which the application was determined, and (b) whether the application has been determined: (i) by approval, or (ii) by refusal, and (c) if the application has been determined by refusal: (i) the reasons for the refusal, and (ii) if the certifying authority is a consent authority and the application relates to a final occupation certificate, of the applicant's right of appeal under the Act against the refusal. (2) The certifying authority must notify the consent authority and the council of the determination by forwarding the following documents to the council within 7 days after the date of the determination: (a) a copy of the determination, (b) copies of any documents that were lodged with the application for the certificate, (c) if an occupation certificate was issued, a copy of the certificate. … 155 Form of occupation certificate (1) An occupation certificate must contain the following information: (a) the identity of the certifying authority by which it is granted, (b) if the certifying authority is an accredited certifier: (i) his or her accreditation number, and (ii) the name of the accreditation body by which he or she is accredited, (c) the date of the certificate, (d) indicate the type of certificate being issued (that is, interim or final), (e) a statement to the effect that: (i) the health and safety of the occupants of the building have been taken into consideration where an interim occupation certificate is being issued, and (ii) a current development consent or complying development certificate is in force for the building, and (iii) if any building work has been carried out, a current construction certificate (or complying development certificate) has been issued with respect to the plans and specifications for the building, and (iv) the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and (v) a fire safety certificate has been issued for the building, and (vi) a report from the Fire Commissioner has been considered (if required). (2) The certificate must be accompanied by a fire safety certificate and fire safety schedule for the building …

[10]

Interpretation Act 1987 (NSW)

Sections 6, 11 and 34 of the Interpretation Act 1987 (NSW) (Interpretation Act) are relevant to the preliminary question in these proceedings, and state: Part 2 Words and Expressions 6 Definitions to be read in context Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject-matter otherwise indicates or requires. … 11 Words etc in instruments under an Act have same meanings as in the Act Words and expressions that occur in an instrument have the same meanings as they have in the Act, or in the relevant provisions of the Act, under which the instrument is made. … Part 5 Construction of Acts and Instruments … 34 Use of extrinsic material in the interpretation of Acts and statutory rules (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material - (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision - (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable. (2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes - (a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer, (b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made, (c) any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made, (d) any treaty or other international agreement that is referred to in the Act, (e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made, (f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House, (g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and (h) any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament. (3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to - (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and (b) the need to avoid prolonging legal or other proceedings without compensating advantage.

[12]

Fairfield Local Environmental Plan 2013 (NSW)

Greenway Plaza is on land zoned B5 business development of the Fairfield Local Environmental Plan 2013 (FLEP). Relevant parts of the FLEP state: Part 1 Preliminary … 1.4 Definitions The Dictionary at the end of this Plan defines words and expressions for the purposes of this Plan. … Part 2 Permitted or prohibited development … 2.3 Zone objectives and Land Use Table (1) The Land Use Table at the end of this Part specifies for each zone - (a) the objectives for development, and (b) development that may be carried out without development consent, and (c) development that may be carried out only with development consent, and (d) development that is prohibited. (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. (3) In the Land Use Table at the end of this Part - (a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and (b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone. (4) This clause is subject to the other provisions of this Plan. … Land Use Table … Zone B5 Business Development 1 Objectives of zone • To enable a mix of business and warehouse uses, and specialised retail premises that require a large floor area, in locations that are close to, and that support the viability of, centres. • To encourage the establishment of light industrial uses that are compatible with nearby residential areas, generate employment and contribute to the economic development of Fairfield. 2 Permitted without consent Environmental protection works 3 Permitted with consent Centre-based child care facilities; Funeral homes; Garden centres; Hardware and building supplies; Kiosks; Landscaping material supplies; Light industries; Oyster aquaculture; Passenger transport facilities; Plant nurseries; Respite day care centres; Roads; Specialised retail premises; Take away food and drink premises; Tank-based aquaculture; Timber yards; Vehicle sales or hire premises; Warehouse or distribution centres; Any other development not specified in item 2 or 4 4 Prohibited Agriculture; Air transport facilities; Airstrips; Amusement centres; Animal boarding or training establishments; Biosolids treatment facilities; Boat building and repair facilities; Boat launching ramps; Boat sheds; Camping grounds; Caravan parks; Cemeteries; Charter and tourism boating facilities; Commercial premises; Correctional centres; Crematoria; Depots; Eco-tourist facilities; Entertainment facilities; Environmental facilities; Exhibition homes; Exhibition villages; Extractive industries; Farm buildings; Forestry; Freight transport facilities; Function centres; Heavy industrial storage establishments; Helipads; Home-based child care; Home businesses; Home industries; Home occupations; Home occupations (sex services); Industries; Jetties; Marinas; Mooring pens; Moorings; Open cut mining; Pond-based aquaculture; Recreation facilities (major); Research stations; Residential accommodation; Resource recovery facilities; Restricted premises; Rural industries; Sewage treatment plants; Sex services premises; Tourist and visitor accommodation; Transport depots; Truck depots; Vehicle body repair workshops; Waste disposal facilities; Water recreation structures; Water recycling facilities; Water supply systems; Wharf or boating facilities … Dictionary … business premises means a building or place at or on which - (a) an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis, or (b) a service is provided directly to members of the public on a regular basis, and includes a funeral home and, without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, internet access facilities, betting agencies and the like, but does not include an entertainment facility, home business, home occupation, home occupation (sex services), medical centre, restricted premises, sex services premises or veterinary hospital. … commercial premises means any of the following - (a) business premises, (b) office premises, (c) retail premises. … health care professional means any person registered under an Act for the purpose of providing health care. … health services facility means a building or place used to provide medical or other services relating to the maintenance or improvement of the health, or the restoration to health, of persons or the prevention of disease in or treatment of injury to persons, and includes any of the following - (a) a medical centre, (b) community health service facilities, (c) health consulting rooms, (d) patient transport facilities, including helipads and ambulance facilities, (e) hospital. … medical centre means premises that are used for the purpose of providing health services (including preventative care, diagnosis, medical or surgical treatment, counselling or alternative therapies) to out-patients only, where such services are principally provided by health care professionals. It may include the ancillary provision of other health services. … retail premises means a building or place used for the purpose of selling items by retail, or hiring or displaying items for the purpose of selling them or hiring them out, whether the items are goods or materials (or whether also sold by wholesale), and includes any of the following - … (l) shops, …but does not include highway service centres, service stations, industrial retail outlets or restricted premises. … shop means premises that sell merchandise such as groceries, personal care products, clothing, music, homewares, stationery, electrical goods or the like or that hire any such merchandise, and includes a neighbourhood shop and neighbourhood supermarket, but does not include food and drink premises or restricted premises. … specialised retail premises means a building or place the principal purpose of which is the sale, hire or display of goods that are of a size, weight or quantity, that requires - (a) a large area for handling, display or storage, or (b) direct vehicular access to the site of the building or place by members of the public for the purpose of loading or unloading such goods into or from their vehicles after purchase or hire, but does not include a building or place used for the sale of foodstuffs or clothing unless their sale is ancillary to the sale, hire or display of other goods referred to in this definition.
The Greenway Plaza contains 'specialised retail premises' within the definition in the FLEP that are permitted with development consent under the B5 zoning table. Commercial premises are prohibited in land zoned B5 business development. Commercial premises as defined in the FLEP include 'business premises' and 'retail premises', which are each defined in the terms. A 'shop', as defined, is a retail premises under paragraph (l) of the definition of retail premises and is prohibited in the B5 zone. Under the definition of business premises, a medical centre, also defined, is not a business premises. The CDC permitted a medical centre, a use permitted with consent under the zoning table by virtue of the expression 'any other development not specified in item 2 or 4' in item 3 of the zoning table.

[16]

Health Practitioner Regulation National Law 2009 (NSW)

Relevant provisions of the Health Practitioner Regulation National Law 2009 (NSW) (HP Law) state: … 5 Definitions In this Law - health practitioner means an individual who practises a health profession. … health profession means the following professions, and includes a recognised specialty in any of the following professions - … (k) pharmacy; … health service includes the following services, whether provided as public or private services - (a) services provided by registered health practitioners; … (d) pharmaceutical services; … health service provider means a person who provides a health service. … registered health practitioner means an individual who - (a) is registered under this Law to practise a health profession, other than as a student; or (b) holds non-practising registration under this Law in a health profession. … Part 5 National Boards … Division 3 Registration standards and codes and guidelines … 39 Codes and guidelines A National Board may develop and approve codes and guidelines - (a) to provide guidance to the health practitioners it registers; and (b) about other matters relevant to the exercise of its functions. … Part 7 Regulation of health practitioners Division 1 General regulation 52 Eligibility for general registration (1) An individual is eligible for general registration in a health profession if - (a) the individual is qualified for general registration in the health profession; and (b) the individual has successfully completed - (i) any period of supervised practice in the health profession required by an approved registration standard for the health profession; or (ii) any examination or assessment required by an approved registration standard for the health profession to assess the individual's ability to competently and safely practise the profession; and (c) the individual is a suitable person to hold general registration in the health profession; and (d) the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession; and (e) the individual meets any other requirements for registration stated in an approved registration standard for the health profession. (2) Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for general registration in the profession by imposing conditions on the registration under section 83. 53 Qualifications for general registration An individual is qualified for general registration in a health profession if - (a) the individual holds an approved qualification for the health profession; or (b) the individual holds a qualification the National Board established for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification; or (c) the individual holds a qualification, not referred to in paragraph (a) or (b), relevant to the health profession and has successfully completed an examination or other assessment required by the National Board for the purpose of general registration in the health profession; or (d) the individual - (i) holds a qualification, not referred to in paragraph (a) or (b), that under this Law or a corresponding prior Act qualified the individual for general registration (however described) in the health profession; and (ii) was previously registered under this Law or the corresponding prior Act on the basis of holding that qualification. … Schedule 5F Pharmacies Part 1 Preliminary 1 Definitions In this Schedule - … pharmacy means premises in or on which a person carries on a pharmacy business and includes - (a) the portion (if any) of the premises in or on which the person sells or offers for sale goods of any kind; and (b) a professional services room; but does not include premises located in a public hospital controlled by a public health organisation (within the meaning of the Health Services Act 1997). … Part 3 Approval of premises and registration of financial interests … 14 Council to keep register (1) The Council must keep a register (a Register of Pharmacies) containing particulars of - (a) approved premises; and (b) registered holders of financial interests. …

[17]

Poisons and Therapeutic Goods Act 1966 (NSW)

Section 8 of the Poisons and Therapeutic Goods Act 1966 (NSW) (PTG Act) states: Part 2 Poisons Advisory Committee and Poisons List … Division 2 Poisons List 8 Poisons List (1) The proclamation of the Poisons List in force under this section immediately before the commencement of Schedule 2 to the Poisons (Amendment) Act 1987 continues in force at the commencement as the proclamation of the Poisons List for the purposes of this Act. (2) The Poisons List shall contain 9 Schedules and the substances included in the list shall be classified as follows: Schedule One Substances which are of such extreme danger to life as to warrant their being supplied only by medical practitioners, nurse practitioners authorised under section 17A, midwife practitioners authorised under that section, pharmacists, dentists, veterinary practitioners or persons licensed under Part 3. Schedule Two Substances which are dangerous to life if misused or carelessly handled, but which should be available to the public for therapeutic use or other purposes without undue restriction. Schedule Three Substances which are for therapeutic use and: (i) about which personal advice may be required by the user in respect of their dosage, frequency of administration and general toxicity, (ii) with which excessive unsupervised medication is unlikely, or (iii) which may be required for use urgently so that their supply only on the prescription of a medical practitioner or veterinary practitioner would be likely to cause hardship. Schedule Four Substances which in the public interest should be supplied only upon the written prescription of a medical practitioner, nurse practitioner authorised to prescribe the substance under section 17A, midwife practitioner authorised to prescribe the substance under that section, dentist, optometrist authorised to prescribe the substance under section 17B, podiatrist authorised to prescribe the substance under section17C or veterinary practitioner. Schedule Five Poisonous substances of a dangerous nature commonly used for domestic purposes which should be readily available to the public but which require caution in their handling, use and storage. Schedule Six Substances which should be readily available to the public for agricultural, pastoral, horticultural, veterinary, photographic or industrial purposes or for the destruction of pests. Schedule Seven Substances of exceptional danger which require special precautions in their manufacture or use. Schedule Eight Substances which are addiction producing or potentially addiction producing. Schedule Nine Substances which are specified in Schedule 9 of the current Poisons Standard (within the meaning of Part 6-3 of the Commonwealth Act). … (6) The Poisons List may be amended or replaced by proclamation made on the recommendation of the Minister and published on the NSW legislation website. (7) An amendment of the Poisons List may be made by applying, adopting or incorporating, with or without modification, provisions of the current Poisons Standard (within the meaning of Part 6-3 of the Commonwealth Act) or any other published standard, as in force at a particular time or as in force from time to time.

[19]

National Health Act 1953 (Cth)

Relevant extracts of the National Health Act 1953 (Cth) (NH Act) state: Part VII - Pharmaceutical benefits Division 1 - Preliminary … 84 Interpretation (1) In this Part, unless the contrary intention appears: … pharmaceutical benefit means the following: (a) if a declaration under subsection 85(2) is in force in relation to a drug or medicinal preparation (the drug) and paragraph (b), (c) and (d) do not apply the drug; (b) if a determination under subsection 85(3) is in force in relation to a form of the drug and paragraph (c) and (d) do not apply the drug in that form; (c) if a determination under subsection 85(5) is in force in relation to a manner of administration of that form of the drug and paragraph (d) does not apply the drug in that form with that manner of administration; (d) if a determination under subsection 85(6) is in force in relation to a brand of a pharmaceutical item that is the drug in that form with that manner of administration that brand of the drug in that form with that manner of administration. … Division 2 - Supply of pharmaceutical benefits … 90 Approved pharmacists (1) Subject to this section, the Secretary may, upon application by a pharmacist for approval to supply pharmaceutical benefits at particular premises, approve that pharmacist for the purpose of supplying pharmaceutical benefits at those premises. (2) Where a pharmacist desires to supply pharmaceutical benefits at more than 1 premises, a separate application shall be made in respect of each of the premises and, where approval is granted in respect of 2 or more premises, a separate approval shall be granted in respect of each of the premises. … (3D) The Secretary must not grant approval under this section to a pharmacist in respect of particular premises if the Secretary is satisfied that on or after the day the approval would otherwise be granted: (a) the pharmacist would be unable to supply pharmaceutical benefits at the premises; or (b) the premises would not be accessible by members of the public for the purpose of receiving pharmaceutical benefits at times that, in the opinion of the Secretary, are reasonable. (4) Nothing in this section authorizes the Secretary to grant approval to a pharmacist in respect of premises at which that pharmacist is not permitted, under the law of the State or Territory in which the premises are situated, to carry on business. …

[21]

Applicants' submissions

Four arguments are made by the Applicants in support of their contention that Part 6 of the current EPA Act applies to the CDC and OC so that the OC is taken to be part of the development consent, defined to include a CDC, as provided by s 6.4(c).
Firstly, cl 18A(b) of the Savings Regulation refers to a "development consent granted before that date" (emphasis added), the date being 1 December 2019 from which time Part 6 was applicable. Section 1.4 of the EPA Act defines development consent as a "consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate". The use of the word granted in cl 18A(b) is deliberate and must be given effect to. A development consent "granted" cannot be a CDC. Where expressly excluded or where context provides a relevant contraindication, a development consent does not include a CDC. The drafter of the Savings Regulation has adverted to the distinction between the two kinds of development consent namely a development consent granted pursuant to a development application and a CDC. The terminology of the EPA Act is consistent in respect of development consents granted pursuant to Division 4.3 in the use of the word "granted". The following references to the provisions of the EPA Act demonstrate this: s 4.26(1)(a); s 4.28(6) (ss 84A, 85A in the former EPA Act). Contrast s 4.28(6)/s 85A(6) providing that the determination of a CDC occurs by the certificate's "issue" with the provision in s 4.16(1)/s 80(1) referring to the "grant" of the other kind of development consent by the consent authority. This specific terminology is used throughout the Act to apply to the grant of development consent: see for example s 4.55/ss 96(1), 2(1A), (2), (4). This terminology is distinguished from the issue of a CDC by the Act, see s 4.57/s 96A(2) as an example of the way the Act refers to the grant of a development consent (other than a CDC) and the issue of a CDC and distinguishes between the two concepts. Other examples include ss 4.16, 4.27(5), 4.55, 4.56(1C), 4.57(2). Terms used in the Savings Regulation take the meaning given to them in the EPA Act: Interpretation Act s 11.
The choice to use the term "granted" is an express exclusion of CDCs from the definition of development consent under s 1.4 of the EPA Act, or in the alternative, a contextual contraindication that development consent in cl 18A(b) does not include a CDC. The word "grant" can only ever apply to a development consent granted pursuant to a DA, not a CDC that is only ever "issued".
The text of cl 18A is the surest guide to the legislative intention and extrinsic material cannot displace the clear meaning of the text: Alcan NT Alumina v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]. The text is to be construed in the light of the context and purpose of the Savings Regulation: Chu v Inner West Council (2022) 251 LGERA 211; [2022] NSWLEC 14 (Chu) at [48]-[49]; Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 (Sydney Seaplanes) at [26]-[30], Bell P with whom Leeming JA and Emmett AJA agreed. The context and purpose also support the drawing of this distinction as it would require the smaller and less impactful types of development that the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) makes complying development to switch over to the new Part 6, preserving Part 4A only in relation to more significant kinds of development. The new Part 6 provision for subdivision works certificates, a new form of certificate, does not apply at all to CDCs: s 6.13(2)(a). Neither does the requirement for a construction certificate (CC): s 6.7(2)(a). The non-application of the Savings Regulation after 1 December 2019 to CDCs is therefore entirely consistent with the purpose of the Savings Regulation, as significantly less adaptation and inconvenience is required for complying development as compared to non-complying development upon the coming into operation of the new Part 6.
If reliance is to be placed on extrinsic material, and this is not a case to do so under s 34 of the Interpretation Act, the planning circular issued by the Department of Planning, Industry and Environment on 30 August 2019 is consistent with the Applicants' interpretation as it distinguishes between development consents in the traditional sense and CDCs.
The case for contextual contraindication under s 1.4 of the EPA Act in this matter is even stronger than in Chu. In Chu the COVID-19 Legislation Amendment (Emergency Measures - Miscellaneous) Act 2020 (NSW) was found not to extend the lapsing period of CDCs under s 4.29 of the EPA Act in doing so for "development consents", due to relevant contextual contraindications as to the applicability of the provisions to CDCs: at [55]. Here, there is an express exclusion.
Secondly, cl 18A(a) would be redundant if the Respondent's construction is correct. There would be no need for cl 18A(a) to provide that the repealed Part 4A applied to OCs granted or issued prior to that date, as the operation of cl 18A(b) and the existence of a prior development consent would be enough to achieve this result. Clause 18A distinguishes between OCs and development consents. If the intention had been to apply the repealed Part 4A to the exclusion of Part 6 in relation to an occupation certificate granted after 1 December 2019, this could easily have been provided for by express words. The Court's task is to ascertain the objective intention of the Governor promulgating the regulation.
Thirdly, cl 18A must be read with cl 18. Clause 18(2) provides that until 1 December 2019 Part 6 does not apply and the repealed Part 4A provisions continue to apply to any matter. Clause 18A, on the other hand, is a narrower savings provision, only providing that the repealed Part 4A continues to apply in two specific respects, namely, to or in respect of pre-existing OCs in force before 1 December 2019 and to or in respect of a development consent granted before that date. Importantly, cl 18A does not provide that Part 6 does not apply after December 2019, in contrast to cl 18 which does so provide with effect up to 1 December 2019. As the continuation of those provisions affected by cl 18A is much more specific and targeted, there is no corresponding exclusion of the operation of Part 6 generally in cl 18A. Both Part 4A and Part 6 can apply simultaneously. There is no inconsistency between the application of the former building and subdivision provisions to the CDC and the OC being deemed to be part of it; those former provisions are not worded in the same way and do not address that matter at all and neither do they provide for any inconsistent result.
Fourthly, the Respondent's suggested construction of clause 18A has impractical and surprising consequences. If the Respondent is right that the whole of the former Part 4A continues to apply to the exclusion of Part 6 in relation to OCs granted after 1 December 2019, then this would have the effect that s 109K, the appeal provision, is the only appeal provision applicable. However, s 17(d) of the LEC Act has now been amended to only refer to s 8.16 of Part 6 of the current EPA Act, rather than s 109K, by the 2020 Miscellaneous Amendment. If the Respondent's construction of clause 18A is correct, there would be no appeal right from a decision not to grant or a delayed decision in relation to an OC application after 1 December 2019. The 2020 Miscellaneous Amendment does not cure this problem because Sch 6 cl 2 only saves the effect of acts done or decisions made under the LEC Act, not the EPA Act, and the making of an OC or the appeal under s 109K are acts done under the EPA Act. The amendments were made to the LEC Act after the introduction of the Savings Regulation. The Applicants submitted that the amendments to the LEC Act were nevertheless relevant to the construction of the Savings Regulation. If the legislature had intended the Savings Regulation to operate in the way contended for by the Respondent, it would not have eliminated the appeal rights of a person under Part 4A.
The Applicants also referred to the OC in evidence, which refers to the provisions of Part 6 of the EPA Act, as supporting its construction.
In relation to Omaya (see the Respondent below in [45]), the Applicants submitted that that case has no relevance because it was not considering s 6.4 and in any case the parties agreed on the applicable provisions in Omaya.
In reply to the Respondent's submission below in [50], the Applicants submitted that cl 18A of the Savings Regulation was inserted by the Building and Subdivision Regulation and was as a result made under the EPA Act as then in force, meaning the definition of development consent was to be found in s 1.4 of the EPA Act rather than s 4, the definitions provision in the former EPA Act. In either case, both definitions contain the same caveat to the application of the definition of development consent.

[22]

Respondent's submissions

The CDC was issued before 1 December 2019. Consequently, and by operation of cl 18A(b) of the Savings Regulation, the former Part 4A applies to the development consent, here a CDC. The former Part 4A includes the provision for, requirements of and the effect of occupation certificates to development consents under the EPA Act before the commencement of the 2017 Amending Act. The OC was issued after 1 December 2019. It follows that cl 18A(a) of the Savings Regulation does not apply to the OC. It is trite to say that the current EPA Act Part 6 and former EPA Act Part 4A cannot both apply.
If contrary rights and obligations were intended to be created, the Savings Regulation would have specifically stated as such; that is clause 18A(b) would have provided an "exclusion" that, despite the application of Part 4A to the development consent, it does not include sections 109C(1)(c), 109(2), 109D(1)(c), 109D(2), 109E(3)(d), 109E(3)(e), 109H, 109I, 109K(1)(b), 109K(3)(b), 109K(4), 109M, 109N, 109Q(1)(f) (the provisions relating to OCs). There is no such exclusion. The aim and effect of the Savings Regulation is clear. Part 4A applies to the development consent and the Court would construe the provision so that it is consistent with the language and purpose of all the provisions of the statute on the prima facie basis that its provisions are intended to give effect to harmonious goals and give meaning to every word of the provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[71] (Project Blue Sky).
An example of the inconsistency that would arise is that for a development consent issued before 1 December 2019, the former Part 4A applies, which means that pursuant to s 109M(2)(b) of the former EPA Act, an occupation certificate is not required if a building is occupied or used for 12 months. No similar provision is found in Part 6 of the current EPA Act.
The position taken above is consistent with the NSW Department of Planning, Industry and Environments' own publications and information/resources including: 1. Planning circular PS 19-004 made on 20 August 2019; and 2. Information published on their website as a "Guide to the Updated Environmental Planning and Assessment Act 1979" in respect of Part 6.
In Omaya, it was common ground in the court below and the Court of Appeal that the former EPA Act continued to operate by virtue of cl 18A(b) because the development consents considered in that case were granted before 1 December 2019. The Respondent acknowledged that the facts of Omaya were different and the issue being considered now was not disputed between the parties.
On the question whether cl 18A(b) of the Savings Regulation extends to CDCs or only development consents, the Respondent accepted that a development consent is generally "granted", and an OC "issued" under the EPA Act.
First, the use of the term "granted" in clause 18A(b) of the Savings Regulation is not restrictive in the manner suggested. The definition of development consent in s 1.4 of the EPA Act expressly includes a CDC, which definition was the same in s 4(1) of the former EPA Act. Clause 18A(b) of the Savings Regulation applies the definition of development consent in the EPA Act prior to the Amending Act, the former EPA Act. Consent is not defined in the current or former EPA Act. Section 11 of the Interpretation Act strengthens this approach to construction.
Second, cl 18A does not alter the essential meaning of development consent which includes a CDC unless expressly excluded. Clause 18A(b) does not expressly oust the definition, unlike Division 4.3 of Part 4 of the current EPA Act (or Division 2, Part 4 of the former EPA Act) or s 4.9 (former EPA Act s 77). The Savings Regulation cannot alter the definition of 'development consent'.
Third, the use of the term 'grant' in cl 18A(b) of the Savings Regulation cannot oust the expanded definition of 'development consent' that includes complying development certificates. Consistent with the definition in the former EPA Act, cl 18A(b) does not expressly exclude a complying development certificate. This approach is consistent with Project Blue Sky.
Fourth, the Applicants misuse the opening chapeau in s 1.4 of the current EPA Act to ascertain the meaning of the Savings Regulation. The definition of 'development consent' in the Savings Regulation applies the definition in the former EPA Act so that is relevant to its interpretation. Examining selected provisions in the current EPA Act to ascertain the meaning of development consent in the Savings Regulation is an incorrect approach.
The chapeau in s 1.4 of the EPA Act provides the limitation "in this Act, except in so far as the context or subject-matter otherwise indicates or requires". The former EPA Act s 76A (and similarly s 4.2 of the current EPA Act) did not draw a distinction between CDCs and development consents.
Chu does not assist the Applicants because Chu at [55] is directed at the application of definitions and the chapeau in s 1.4 of the same version of the EPA Act, not a different statutory instrument.
The statutory provisions must be given an harmonious meaning. Use of the term "granted" in the manner suggested by the Applicants would cause mischief to the full and proper defined term of development consent and to do so would be against the imperative to give the Savings Regulation a harmonious reading with the defined term in the former EPA Act.
The Applicants' submission (above in [32]) that the context and purpose supports the distinction between development consents granted and CDCs issued in the Savings Regulation is mere conjecture and actually supports the Respondent's approach in any case because if the Applicants are right about the intended purpose, then CDCs would have been expressly excluded.
As for the fact that the certifier who authored the OC in evidence considered that they were making an OC under Part 6 of the current EPA Act, the certifier has no power to determine the applicable law to the OC; merely because the OC says something does not make it so.
In relation to the Applicants' submission concerning the impracticality attending the Respondent's construction caused by amendments to s 17(d) of the LEC Act, the Respondent submitted that Sch 6, cl 2 of the 2020 Miscellaneous Amendment means that the Court's jurisdiction to hear appeals under s 109K would be preserved. The right of appeal is still preserved by the continued operation of s 109K as saved by cl 18A(b) of the Savings Regulation and picked up by s 17 of the LEC Act in any case. The Applicants conceded that the amendments to the LEC Act were propounded after the Savings Regulation.
The effect of the preservation of the former 'building and subdivision provisions' on the CDC is that the OC is not rendered part of that development consent. The Applicants' reliance on and application of s 6.4(c) of Part 6 of the current EPA Act to the CDC and OC is misplaced. The impact on the Applicants' case is that the OC cannot be read as part of the development consent and that must cause the Applicants' case to fail at prayer 2 and 3, as the Applicants rely on the exclusionary term 'retail pharmacy' in the OC under these discreet prayers for relief. This must also carry through to prayer 1 (and to the Order for relief sought at prayer 5) because the Applicants rely on the same basis, that is 'retail pharmacy'. In our submission, that only leaves prayer 4 (and order 6) of the Applicants' substantive case.
It may be possible for the Applicants to maintain prayer 1 by disavowing any reliance on the OC under its prayer for relief at 1 of the Summons, however the Applicants do not make that concession.

[23]

Consideration of preliminary issue

The preliminary issue of statutory construction to arise is whether Part 6 of the current EPA Act or Part 4A of the former EPA Act applies to the CDC and hence what are the applicable provisions relating to the OC. If Part 6 of the current EPA Act applies to the OC it is 'taken to be part of' the CDC under s 6.4. No such provision existed in the former Part 4A. Construction of cl 18A of the Savings Regulations to determine whether the former building and construction provisions (which include Part 4A) continue to apply to a development consent granted before 1 December 2019, so that the OC issued after 1 December 2019 is not subject to the provisions of Part 6 in the current EPA Act, arises. This has not proved a straightforward exercise.
Well known statutory construction principles were articulated recently by the Court of Appeal in Sydney Seaplanes at [25]-[41], as identified by the Applicant. While that case is subject to appeal to the High Court of Australia the statement of principles is not the subject of appeal. The ordinary meaning of words viewed in their context and mindful of the purpose of the statute must be considered. One principle of construction relevant to the task at hand is that all words in a statutory provision ought to be given meaning and effect, see Pearce and Geddes, Statutory Interpretation in Australia (9th ed, 2019) at [2.26] citing Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11 at [414] per Griffith CJ inter alia. Also relevant is Project Blue Sky at [70] stating that: 70 A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Omaya is not definitive of the issue before the Court in that the precise issue I am considering did not require determination in that case, and the facts differed. The reasoning of the Court of Appeal at [40]-[52] highlights the complexity of the transitional provisions and identified that the regulation-making powers provided in s 109Q and s 81A of the former EPA Act appeared to be duplicative.
The Savings Regulation is made pursuant to s 10.16 of the current EPA Act. No express purpose is provided in s 10.16 or in the Savings Regulation, no doubt because these are 'machinery' provisions intended to facilitate the development control system moving from the former EPA Act to the current EPA Act. I agree with the Respondent that the purpose contended for by the Applicants in [32] in contrasting development consents and CDCs on the basis of the types of development they authorise is speculative in that no statutory basis for assuming such a purpose exists in the context of the Savings Regulation.
The Applicants' primary argument was the 'counter indicative' argument, relying on the chapeau of the definition section in s 1.4 of the current EPA Act which states that "In this Act, except in so far as the context or subject matter otherwise indicates or requires…", to argue that "development consent" in cl 18A(b) of the Savings Regulation excluded a CDC. The definition of development consent in s 1.4 states that development consent means consent under Part 4 to carry out development, and includes, unless expressly excluded, a CDC. The definition of development consent in s 1.4 is the same as in s 4 of the former EPA Act. Under s 11 of the Interpretation Act the same definition applies in the Savings Regulation.
Firstly, the Respondent makes the valid point that the Applicants are impermissibly endeavouring to apply the definition of development consent in the current EPA Act construed in the context of that Act to the construction of the Savings Regulation, a separate instrument. For the reasons set out above in [47], [50] that is not a harmonious approach to statutory construction in this context. Secondly, the Applicants argue that because the word 'granted' appears in cl 18A(b) which word is only used in relation to development consents in various sections of the current EPA Act as outlined above in [30], CDCs are excluded from the application of cl 18A(b). It was submitted this was an express exclusion. It is clearly not. There is no statement to the effect that CDCs are excluded in any of the EPA Act sections referred to. Nor is there any express exclusion in the Savings Regulation. Thirdly, the various examples given by the Applicants to the effect that development consents are 'granted' while CDCs are 'issued' throughout the EPA Act can be accepted. Such an approach if accepted would mean that any reference to development consent in the EPA Act is likely to mean that CDCs are excluded, despite their inclusion unless expressly excluded in the definition of development consent in the EPA Act. Such an approach is too 'broad brush' and is likely to have unintended consequences. Fourthly, while Chu at [55] was relied on as supporting the Applicants' approach, the nature of the statutory construction issue considered in that case was quite different to this matter and can be of little assistance. Chu was not considering the Savings Regulation. Fifthly, I accept the Respondent's submissions above in [50] that the chapeau to s 1.4 of the current EPA Act is misappropriated in its application to the Savings Regulation. I do not uphold this submission of the Applicants.
Returning to other submissions about construction, clause 18A provides for the continuation of former building and subdivision certification provisions despite their repeal in relation to, separately, occupation certificates (interim and final) in subs (a) and development consents in subs (b). Clause 18A commenced on 1 December 2019. On its face cl 18A(b) provides that the former building and subdivision provisions as defined, which includes former Part 4A, apply to the CDC. A consequence is that the provisions concerning occupation certificates in the current EPA Act (Pt 6) do not apply, the provisions in the former EPA Act (Pt 4A) apply.
A further consideration in determining the construction of cl 18A(b) is the effect of cl 18A(a), about which the parties made conflicting submissions. The Respondent correctly submits that cl 18A(a) does not apply to the OC issued on 26 July 2020, a date after 1 December 2019, because it is not an interim or final occupation certificate in force immediately before 1 December 2019.
As submitted by the Applicants the operation of cl 18A(b) applying to a development consent granted before 1 December 2019 would be sufficient to achieve the result the Respondent argues for, namely that former Part 4A applies to the OC dated 25 June 2020. This makes the inclusion of cl 18A(a) difficult to fathom. The matter is finely balanced.
The Applicants' submission above in [35] that cl 18A(a) is redundant if the Respondent's construction is accepted is on one view correct. The Applicants' construction however does not give subcl (b) of cl 18A much or any work to do, an outcome to be avoided as identified in Project Blue Sky. The Applicants do not address how subcl (b) is to apply if the plain terms of the subclause and the definition of 'former building and subdivision provisions' in the Savings Regulation are not to be applied.
As the Respondent submitted (above in [42]) had the legislative intention been to exclude the application of Part 4A in relation to say occupation certificates in the context of cl 18A(b) given the provision of subcl (a) the subclause could have so stated by specifying what parts of Part 4A did not apply. No statutory basis for not applying cl 18A(b) in its terms is demonstrated by the existence of cl 18A(a).
The Applicants relied on the drafting of cl 18 above in [36] in an attempt to construe the drafting in cl 18A. Clause 18 which applied from 1 March 2018 with effect until 1 December 2019 is drafted differently to cl 18A. It is wider in its terms in identifying the circumstances for the continued application of former building and subdivision provisions until 1 December 2019. The manner in which the Applicants sought to rely on it does not assist in construing cl 18A(b) which can be applied on its clear terms. I agree with the Respondent that the former Part 4A and the current Part 6 are not intended to both be applicable under the Savings Regulation. Indeed the purpose is very likely to be to identify which of these applies. I also do not accept that there is no inconsistency between the former Part 4A provisions and Part 6 provisions applying, contrary to the Applicants' submissions above in [36], as this case demonstrates.
Both parties referred to the Department of Planning circular PS-004 and information on the departmental website. Reference to such material for the purposes of statutory construction is governed by s 34 of the Interpretation Act which provides that material not forming part of an Act which is capable of assisting in determining its meaning may be considered to confirm a meaning, to determine a meaning if a provision is ambiguous or if the ordinary meaning of text leads to an absurd result. Subsection (2) identifies material that may be considered, without limiting the effect of ss (1). The departmental material is not within the categories of extrinsic materials identified in subs (2). Departmental material of this kind prepared after the enactment of legislation prepared by way of explanation is to be contrasted with the material in s 34(2) which would generally arise within an Act, are reports prepared before an enactment or documents and material prepared as part of the process of enactment such as a second reading speech. I do not therefore have regard to it.
One area of difficulty in construction potentially arises in relation to appeal rights if Part 4A continues to apply. While s 109K continues in force by virtue of cl 18A(b) how that interacts with changes to the LEC Act as identified by the Applicants is unclear in my view and further argument is required.
As I conclude below in [248] that the Applicants have not proved that a retail pharmacy is being conducted, whether Part 4A of the former EPA Act or Part 6 of the current EPA Act applies does not ultimately need to be determined. My preliminary conclusion is that former Part 4A continues to apply to the CDC and consequently to the OC issued after 1 December 2019.
I will refer briefly to issues related to potential relief depending on whether Part 4A of the former EPA Act or Part 6 of the current EPA Act applies below in [242].
I will now deal with the substantive part of the proceedings.

[26]

Ms Cole's evidence

Ms Cole, solicitor, deposed in her first affidavit dated 15 February 2021 that she went to the Greenway Plaza on 9 February 2021. She went into the Baby Bunting store and made a purchase before walking towards the entrance to the Greenway Plaza. She walked through the automatic glass sliding doors and proceeded up the escalator. She arrived at the top of the escalator, turned left and entered the Greenway Medical Hub through sliding glass doors. She saw the pharmacy section located towards the back of the Greenway Medical Hub and a green neon sign, 'PHARMACY' on the rear wall. She walked to the left of the counter island located behind the COVID-19 check-in sign and saw that the counter island displayed small merchandise items such as chewing gum and hand sanitiser. She continued to the left of the counter island and walked through a wide doorway into the pharmacy section, which triggered a motion sensor bell. There were a number of isles created by display shelving which did not fill the entire space. She asked to have a prescription filled and identified that she was not a patient of the medical centre, to which the pharmacist's assistant responded, "that's fine'". The pharmacist's assistant left to get the pharmacist who was next door in the medical centre. Ms Cole picked up a number of items including toothpaste, a hairbrush, some hair ties, a lip gloss and some Telfast (antihistamine). The pharmacist returned with her medicine and gave her some information on dosage and advised that she take the medicine with food. She purchased the medicine with the other items. She walked back through the aisles to the entry/exit and noticed 10-15 walking aides displayed stacked against the rear wall as well as a carousel of sunglasses near the entry/exit. She left the Greenway Medical Hub through the entry/exit, went down the escalators and back into the open-air section of the Greenway Plaza. Ms Cole took photos at several stages throughout her visit and annexed them to her affidavit. Annexure F contained a photograph of the medicine she purchased with the receipt and dosage instructions attached and separately the receipt for the purchases issued by Greenway Plaza Pharmacy. The receipt showed that Ms Cole purchased the items mentioned above as well as some chewing gum.
In her second affidavit dated 13 September 2021, Ms Cole responded to parts of Mr Yousef's affidavit dated 13 August 2021. Ms Cole deposed that Mr Yousef's claim that to get to the dispensary you must walk past and through the reception area of the medical practice (below in [107]) does not accord with her experience described above. She entered the premises through glass entry doors, behind which she came across a 'counter island', which was not staffed. The medical practice was located to the left of the counter island. She walked through to the pharmacy area by walking through an aisle to the left of the counter island between the medical practice and the counter island and entered the pharmacy through a wide doorway without doors. She also corrected her earlier statement that the green neon writing above the dispensary said 'PHARMACY'. It actually said 'PRESCRIPTIONS'. There was a smaller sign that said 'Pharmacy'. Ms Cole notes that her observations about the layout of the pharmacy were different to those of Mr Yousef. In contrast to Mr Yousef, Ms Cole observed that when she went to the pharmacy the shelving in front of the dispensary displayed non-pharmaceutical goods as well as pharmaceutical goods and the items that she would describe as 'bulky goods type products' were not located on the shelves but against a wall near the customer entry/exit. In reference to Mr Yousef's evidence that the pharmacy does not carry perfume, fragrances, cosmetics, beauty products and food and drink, Ms Cole observed that amongst the items she purchased were a hairbrush, hair elastics and chewing gum. There were other accessory-type items on sale including other hair accessories. The hair accessory section was approximately 90cm wide by 120cm tall. There were food items at the service counter including jellybeans, eucalyptus drops, mints and chewing gum. Other items on the shelves included baby formula and baby wipes.
Ms Cole was cross-examined by counsel for the Respondent. Ms Cole is a solicitor for the Applicants' firm of solicitor's McPhee Kelshaw. When asked whether she had carriage of the matter the subject of these proceedings for McPhee Kelshaw, she responded that she was not the instructing solicitor, but has had some involvement. She believed she was involved in drafting one or two of the affidavits of the deponents in these proceedings and providing the affirmations, but she could not be 100% sure. She was also involved in typing up the affidavits for those deponents she was involved with. Ms Cole had read the affidavits before they were signed. She did not correct any of the words in the affidavits.
When asked whether prior to going to Greenway Medical Hub on 9 February 2021, she had any conversations with the Applicants, she responded that she did not. She went there to get a script filled and also because she knew the Applicants were interested in what was going on at the Greenway Medical Hub.
Counsel for the Respondent asked Ms Cole about the counter island referred to in her second affidavit dated 13 September 2021. Ms Cole essentially repeated her description of the location of the counter island and the manner in which she accessed the pharmacy from her second affidavit dated 13 September 2021. Ms Cole saw the word "PRESCRIPTIONS" at the rear of the pharmacy space and went to the counters underneath that sign to be served. It looked like there was one counter for pharmacists only and another retail counter. Ms Cole could not recall if there were wheelchairs. There were walkers and other mobility aids sold.
In re-examination counsel for the Applicants tendered Ex B, a photograph taken by Ms Cole from the Greenway Plaza walkway described above in [83(2)]. Ms Cole was asked about and confirmed what the photograph showed in terms of the location of the 'PRESCRIPTION' sign, counter islands and gondola shelving.

[28]

Ms Quinon's evidence

Ms Quinon deposed that on 18 November 2020 she attended the Greenway Plaza and went to the Respondent's tenancy. She entered the Greenway Plaza and took the escalators from the lower to the upper level. She walked into the Respondent's tenancy to the left of the escalator, which presented as a pharmacy. There was a display counter separating two aisles at the entrance. There were two sales service points on that counter. She moved left along the main body of the pharmacy. There were two staff behind the counter located under the signage "DISPENSARY", who appeared to be a pharmacist and sales assistant. She requested that the pharmacist behind the counter fill a prescription for her. When the pharmacist found that they did not have stock of the medicine requested, they called another pharmacy identified as "our other pharmacy" to check whether they had the medicine. The pharmacist subsequently confirmed that the other pharmacy has placed the medicine on hold for an hour if Ms Quinon decides to go there and wrote the address down for Ms Quinon. Before leaving, Ms Quinon inquired about whether the pharmacy had a certain brand of vitamin C in stock and probiotics. The products were not in stock. Ms Quinon also inquired about Naprogesic which was in stock, and she purchased Naprogesic. Annexure B to her affidavit contained a photograph of the receipt of her purchases, issued by 'Greenway Pharmacy'.
Ms Quinon was cross-examined by counsel for the Respondent. She is a human resources manager at Chemistworks, the chain of pharmacies owned by the Applicants. When asked whether she went to the Greenway Plaza specifically for the purpose of attending the Greenway Medical Hub on 18 November 2020, she answered that she was at the Greenway Medical Hub for personal reasons and had to stop by the pharmacy. She needed to get a prescription filled. She was asked by the Applicants to make observations about what was happening at Greenway Medical Hub. Before she went to the pharmacy on 18 November 2020, she spoke with Ms Bronger who asked her to observe the pharmacy and make some observations. She took notes in relation to her attendance afterwards. When asked whether she prepared her affidavit with Ms Cole, she responded that she created her own affidavit, then there was some editing involved, and then she confirmed that the editing was correct. She did not recall whether she did the editing with Ms Cole. From time-to-time Ms Quinon would go to a Chemistworks premises as part of her occupation.

[33]

Affidavit of 13 August 2021

Mr Yousef's swore an affidavit dated 13 August 2021. He is a director of the Respondent. He is a qualified pharmacist and a registered health practitioner under the HP Law. He has worked and practiced as a pharmacist and provided health services to the public for 12 years. He has approval from the Pharmacy Council of New South Wales dated 17 February 2020 to operate a pharmacy at the Greenway Plaza. On or about 1 April 2020 the Respondent entered into a lease to occupy Unit 101 of the Greenway Plaza and on or about 14 June 2019 Mr Yousef applied for a CDC for a fit out of a medical centre. This was received on 30 September 2019. An OC relating to the premises was received on 25 June 2020.
Mr Yousef deposed that the current use of Unit 101 is as provided for in the CDC, being a medical centre. The medical centre, known as the Greenway Medical Hub, is a one stop shop that includes doctors, X-Ray, ultrasound, CT scanning and MRI facilities, a pharmacy and dispensary, speciality sleep study and observation room, pathology rooms, dentistry rooms, allied health including a gymnasium and assessment room and reception areas for patients and staff. Mr Yousef described the staff working at the Greenway Medical Hub. The health services offered at the Greenway Medical Hub are general medical services, dental, sleep assessments, pathology, radiology, pharmacy, sports medicine, physiotherapy, exercise physiology, podiatry, dietetics, NDIS, and counselling services.
Mr Yousef deposed that the "essential and central element of the pharmacy is the dispensary". In front of the screened counter is 'gondola' shelving which is used to display pharmaceutical products and bulky type goods sold by the allied health professionals, the occupational therapist and the physiotherapist. Any of these products can be taken to and purchased at the cashier either at the dispensary or at the front of the entryway into the medical centre. The management of the dispensary includes: 1. preparing or supervising the dispensing of prescription or over the counter (OTC) medicines, ointments and tablets; 2. advising patients on how to use their medicines in the safest and most effective way; 3. advising members of the public and other health professionals including those working within the Greenway Medical Hub about medicines, including in relation to selection of drugs, dosage and drug interactions, side effects and therapeutic effects; and 4. selecting and providing advice on non-prescription medicines and other products.
Upon dispensing medicines, the registered pharmacist on duty provides advice to patients or persons responsible for administering medicine for the patient. Mr Yousef deposed that he and his staff, like all pharmacists, act in a supervisory capacity or as a safety net when dispensing medicines to the public in making sure that medicines prescribed are appropriate.
The dispensary cannot be seen from outside the premises. To get to it requires walking past and through the reception area of the Greenway Medical Hub, which has only one door.
Mr Yousef deposed that patients and clients who use the pharmacy are users of the medical centre and he and his staff give them the best care and advice they can. He and his staff do not and would not restrict access to any prescription medicines or other medicines on the basis that the person had not seen a doctor of the Greenway Medical Hub. They would only deny medicines where they considered it would be misused or if it was unsatisfactory for its purpose. Those are the only reasons they would deny any customer any product carried and occur infrequently. The essential purpose and function of the dispensary and pharmacy being located within the Greenway Medical Hub is that it provides all health care services within one facility. As well as providing products for patients and customers of the Greenway Medical Hub the pharmacy assists in providing advice to doctors and other professionals in the Greenway Medical Hub about products and medicines. The pharmacy also provides and supplies products and medicines to the doctors and health care service providers for the day-to-day treatment of patients and customers attending the medical centre.
The pharmacy dispenses medicines on the PBS (Sch 4 medicines, see above in [24]), controlled medicines (Sch 8 drugs, see above in [24]), pharmacist-only medicines (Sch 3 drugs, see above in [24]), pharmacist-only medicine (Sch 2 drugs, see above in [24]), and other therapeutic goods and complementary and alternative medicine such as vitamins, supplements, herbal medicines, lozenges, tissues, face masks and hand sanitisers. It also sells occupational therapy, mobility and walking aides and physiotherapy products. It sells everyday complementary items such as toothpaste, chewing gum, lip gloss and razors. According to Mr Yousef the last category of goods sold is related to use as a medical centre as those products are commonly sought for the personal health of the patient. Lip gloss is sought by patients taking dehydrating medicines, razors are used for shaving when applying bandages, and chewing gum is requested by doctors or dentists for gum problems.
Mr Yousef provided a percentage breakdown of items sold at the dispensary in July 2021. The sale of Schedule 4, Schedule 8, Schedule 3 and Schedule 2 medicines made up 76% of sales through the dispensary; the sale of therapeutic goods, complementary and alternative medicines made up 11%; the occupational therapy, physiotherapy and mobility goods made up 9%; and the everyday complementary items made up 4%. The pharmacy does not carry perfumes, fragrances, makeup, cosmetics or beauty products or food and drink.
The pharmacy carries a general range of items common to all medical centres and regularly required by doctors and medical practitioners. Age, diversity and ethnic background of the patients of the medical centre will change, impacting the type of medicines and products that the Greenway Medical Hub should carry. Mr Yousef also listens to patrons of the pharmacy including via feedback from staff for the purpose of determining what products to stock. Staff of the allied health areas and other medical practitioners will come and select items from gondolas as they are not restricted to dispensary or pharmacy staff.
Mr Yousef deposed in response to Ms Cole's first affidavit that the sunglasses stand referred to has since been removed. He did not accept sunglasses or reading glasses are not a product that a doctor may recommend.

[37]

Guidelines for dispensing medicines

The Pharmacy Board of Australia's (PBA) 'Guidelines for Dispensing Medicines' published in September 2015 (the Guidelines) were also annexed to Mr Yousef's second affidavit (Annexure A1). The guidelines were developed under s 39 of the HP Law (see above in [23]) to provide guidelines to pharmacists in relation to the dispensing of medicines. Non-compliance with the guidelines may be notified to the PBA for appropriate action under the relevant disciplinary provisions of the HP Law. Dispensing is defined as: The review of a prescription and the preparation, packaging, labelling, record keeping and transfer of the prescribed medicine including counselling to a patient, their agent, or another person who is responsible for the administration of the medicine to that patient.
The process of dispensing is described as follows: The process of dispensing includes: a) receiving a prescription b) ascertaining the authority of the prescriber to prescribe c) obtaining any supplementary information to enable: i. the patient to be properly identified so the medicine is dispensed to the person for whom it is intended, and ii. the medicine to be dispensed safely d) determining the prescriber's intentions as to the patient's medicine, including the dosing instructions e) reviewing the medication history and other relevant patient information, to ensure that the medicine is safe and proper for the patient to use and that where possible, all other relevant considerations of the patient's health, including the use of any other prescription and non-prescription medicine such as complementary and alternative medicine, are taken into account f) entering the prescription details on the pharmacy computer and recording any other aspect of the dispensing according to the requirements of the law g) generating a label for the dispensed medicine and a repeat authorisation where required h) selecting or preparing the product intended by the prescriber i) clearly labelling the container of the medicine with the directions for its use as intended by the prescriber along with any other information that facilitates its proper, safe and effective use (Note: Cautionary/advisory labels and instructions of the 'Australian Pharmaceutical Formulary and Handbook' should always be used unless in a particular case there is good reason not to. Where a cautionary/advisory label is required by law for a particular medicine, this must always be used) j) using a barcode scanner (where packaging includes a barcode) to verify the selection of the correct product for the patient (Note: 1. Scanning of the product barcode towards the end of the dispensing process may be more effective in minimising selection errors 2. The scanning of the product barcode is a separate step in the dispensing process to the scanning of a barcode on a prescription or repeat authorisation) k) carefully checking and re-checking all dispensing for accuracy and completeness l) counselling the patient, or the patient's agent, sufficiently to allow a proper understanding of all the information required by the patient to use the medicine safely and effectively and to motivate the patient to comply with that advice (which may include provision of printed supplementary information when required), and to allow for a final check of the dispensed medicine, and m) ensuring that the entire dispensing process has been carried out according to good pharmacy practice, and accepting that responsibility by placing his or her initials or signature in the prescription records of the pharmacy and any other place according to relevant legislation. …

[38]

List of items sold and not sold

Mr Yousef annexed to his second affidavit (Annexure B) a list of items that the Respondent does not sell and does not intend to sell. Items 1(a)-(f) in the list are those that the Greenway Medical Hub distributes and dispenses. To the extent that the items in 2(a)-(z) do not fall within category 1(f), the Respondent does not carry or intend to carry, sell, dispense or distribute.
Annexure B states: 1. Items and products that fall within the following categories: (a) Prescription or controlled medicines. These are both PBS medicines (Schedule 4) and controlled medicines or poisons most commonly known as Schedule 8 drugs. (b) Pharmacist only substances (medicines and poisons), known Schedule 3 drugs. These products require the professional advice for their safe use but do not need a prescription. An example of these type would be a decongestant that contains Pseudoephedrine. (c) Over the counter pharmaceuticals. (d) Therapeutic goods, complementary or alternative medicines (that are shown to have evidence based beneficial health effects). (e) Occupational therapy, mobility and physiotherapy products. (f) Items that are complementary and ancillary to the maintenance, improvement of human health (or the restoration of human health) or the prevention of disease in (or treatment of injury to) humans. 2. To the extent that the following items and products do not fall within Category 1(f) above, we do not carry and we do not intend to carry, sell, dispense or distribute: (a) Sunglasses, umbrellas, hats. (b) Toys. (c) Hair accessories and products. (d) Cosmetics and cosmetic accessories. (e) Perfumes, fragrances and fragrance creams. (f) Soft drinks, juices, flavoured milk. (g) Confectionary. (h) Gifts. (i) Stationery, including cards, gift wrapping, magazines and newspapers. (j) Books. (k) Toilet paper, napkins, and paper products (excluding tissues). (I) Household cleaning products. (m) Torches. (n) Electrical goods (non-therapeutic). (o) Electrical razors. (p) Tanning products and skin lightening products. (q) Luxury items. (r) Non medicinal or non-therapeutic health food and drinks. (s) Candles (scented or otherwise). (t) Hair colour, hair accessories, non-therapeutic hair products. (u) Toiletries that are not of a medical nature. (v) Clothing, and fashion items. (w) Non therapeutic footwear. (x) Nail polish and nail accessories. (y) Animal or vet products. (z) Milk and bread (not including baby formula).

[39]

Oral evidence of Mr Yousef

In examination-in-chief Mr Yousef confirmed that he has contact with various health practitioners working in the Greenway Medical Hub in the course of his role working as a pharmacist at the Greenway Medical Hub. For example, the occupational therapists, dentists and other health professionals may ask for a variety of products from the pharmacy for their patients. Mr Yousef gives advice to practitioners at the Greenway Medical Hub in his role as a pharmacist. The advice can range from a simple thing to advice on a specific item. Mr Yousef gave an example of when he had given advice to doctors from the Greenway Medical Hub in respect of medicine for a specific patient. He had to outsource the medicine requested. He testified that he had daily interactions, at a minimum, with other health professionals at the Greenway Medical Hub, both over the phone and in person. There are times that the practitioners will come into the gondolas with clients and patients to ascertain the best products for their patients. Mr Yousef provided examples of such occasions. Mr Yousef testified that there were regular meetings between staff working at the Greenway Medical Hub, where the stock held by the pharmacy is discussed. Mr Yousef has been asked to obtain products or medicines by the medical practitioners and he gave an example of such an occasion.
Mr Yousef was cross-examined by counsel for the Applicants. He has been a director of the Respondent since 26 June 2017. Mr Yousef was asked whether the term medical pharmacy in the OC describes the kind of pharmacy that operates in a hospital servicing the patients of the hospital but not customers generally, and he answered that hospital pharmacies are not so restricted.
Mr Yousef agreed that you can see part of the dispensary, including the green PRESCRIPTION sign, from outside the glass doors leading into the pharmacy. Mr Yousef also agreed that it is not true that those coming into the pharmacy from outside the Greenway Plaza need to go through the waiting room of the general practitioners or other health professionals to access the pharmacy. There is an option to open folding doors from the doctors' surgery into the pharmacy, which are usually open, however these doors were shut during Sydney's 2021 COVID-19 induced lockdown to minimise transmission. Mr Yousef testified that the pathway into the pharmacy via the medical centre is the busiest pathway. He agreed he did not say that in his affidavit. He also agreed that he should have corrected his affidavit to make clear that when he said only one pharmacist worked at the pharmacy, he meant only one on duty at any one time.
When asked whether the practice of selling to the public generally could be stopped in a straightforward way by instructing the pharmacists not to do so, Mr Yousef agreed. The customers could be redirected to another nearby pharmacy. Mr Yousef agreed that in cases where the pharmacy is out of stock, this is already what is done. Mr Yousef agreed that redirecting customers is one way his ethical duty could be fulfilled.
Mr Yousef agreed that the pharmacy sells limited personal care products. In terms of sunscreen, he has carefully selected them so that they are SPF rated. The pharmacy sells after-sun cream and toothpaste. They sell toothpaste and Listerine requested by dentists. The pharmacy sells razors, shaving cream, and dental floss. It sells carefully selected soap and shampoo for dermatitis and similar conditions. It sells skin creams, band aids, antiseptics, chewing gum, jellybeans and glucose lollies. Sunglasses where formerly sold on a large sunglasses carousel.
Mr Yousef was taken to Ex B and Ex C (see above in [83]) and agreed that the front set of bifold doors between the general practitioner's area and the pharmacy were shut in both, and no other set of bifold doors were visible.
In re-examination, Mr Yousef identified on the CDC plans the second set of bifold doors to which he was referring in cross-examination. It was during re-examination that he marked up the CDC plan which became Ex 1, as described above in [102].

[40]

Mr Alpeto's evidence

Mr Alpeto is a qualified pharmacist and registered health practitioner under the HP Law who works at the Greenway Medical Hub as a pharmacist. On 13 March 2021 he was working with a pharmacist's assistant named Crystal. He saw Crystal receive a phone call on that day and heard her say words to the effect of "someone from the Chemistworks at Stockland is on the phone and wants to speak to our pharmacist." Mr Alpeto picked up the phone and spoke to a male who identified himself as a pharmacist who worked at Chemistworks, Stockland. The man asked if a particular type of eyedrops were in stock at the Respondent's premises as he needed to send a patient to get the medicine. Mr Alpeto responded to the effect that this was fine as long as the patient had a valid script and stated that the patient was to be sent as fast as possible as he could not hold the product for him. Mr Alpeto knows that the Applicants own Chemistworks. Soon after the call a patient came to the Greenway premises and identified himself as the man sent from Chemistworks. Mr Alpeto told the man that the pharmacy was not a PBS pharmacy and the product would be full price, the patient proceeded and the medicine was issued.
Mr Alpeto deposed that it was part of his duty to oversee dispensing of medicines and provision of advice to customers of the medical centre and allied health professionals at the medical centre. It was part of his role to organise and arrange the placement of stock and products on the gondolas. He also recounted that from time to time he is asked by the health professionals in the Greenway Medical Hub to make room for certain products on the gondolas and provided two recent examples of that occurring, including when he was asked to display Nurofen in the display gondolas. Due to the limited size of the pharmacy and dispensary it does not carry an extensive range of products.
As a registered pharmacist, Mr Alpeto could not deny a request to dispense medicines from any person without a "reasonable reason". He does not and would not deny such a request because the person had not seen a doctor or other health services provider in Greenway Medical Hub. He would only deny such a request if he considered the medicines would be misused or were unsatisfactory for their purpose.
Mr Alpeto was cross-examined by counsel for the Applicants. Mr Alpeto agreed that he sells medicines and other items to any customer who walks into the pharmacy. Mr Alpeto testified that he sells medicines and other items to any customer who walks into the pharmacy unless there is a reason to decline to do so. This is an aspect of his duty of care as a pharmacist. When asked whether he would comply with a written direction from his employer to only dispense medicine on prescriptions from doctors at the Greenway Medical Hub, Mr Alpeto answered that it would be part of what he would do as a part of his employment but stated that he cannot reject prescriptions without a "reasonable reason" as part of his duty of care. He could not give a yes or no answer. When asked whether he would comply with a court order to limit sales to patients of the medical centre only, he answered that he would. He agreed each prescription reveals the name of the prescribing doctor, meaning such a court direction was capable of being followed.
When asked whether, if he were asked to limit dispensing of medicines in that way, he could satisfy his ethical responsibilities by arranging for the patient to obtain their medicines from another pharmacy, Mr Alpeto answered "no". Ethically, professionally and practically this would not work as medicines may be out of stock in many pharmacies. He gets calls from other pharmacies asking for medicines from his pharmacy which they lack. Mr Alpeto agreed that he could tell such a patient that he was forced to turn them away because of a court order. He agreed that he has arranged with other pharmacies to obtain medicines for a patient and that this could be done, but not in an emergency case. He gave a hypothetical example of a person experiencing a hypoglycaemic attack; he could not, consistent with his duty of care, simply refuse to sell a product that may help the person. He gave a further purportedly true example of a patient in need of eye drops to treat inflammation following surgery, who endeavoured to fill their prescription four days post-operation. The medicine was only available locally in the Greenway Medical Hub pharmacy and other pharmacies in the area called him about access to it.
When asked whether denying medicines to a patient of doctors other than those working at the Greenway Medical Hub was akin to denying medicines because the pharmacy was out of stock, Mr Alpeto responded by reiterating his concerns about his duty of care. Mr Alpeto agreed that a court order would provide a reasonable justification for a decision to refuse to fill a script for someone who was not a patient of a doctor at the Greenway Medical Hub. Mr Alpeto agreed that one of his duties was to ensure that the pharmacy profession is maintained in high repute. When asked whether that would include complying with relevant laws, including planning laws, Mr Alpeto reiterated his view that were he to refuse to sell medicines to persons who were not patients of the practitioners in the Greenway Medical Hub he would be breaching his duty of care and not maintaining best health outcomes for his patients.
It was asserted to Mr Alpeto that there are pharmacies in hospitals that only serve patients of the hospital. Mr Alpeto did not accept this assertion, relying on his experience with Liverpool Hospital. He had no experience with St Vincent's Hospital pharmacy.
Mr Alpeto was asked about whether the dentist asked him to display Nurofen on the gondolas as he deposed in his affidavit and it was suggested to him that this did not occur as he described, a suggestion Mr Alpeto denied. He could not remember precisely when that exchange occurred.
When asked whether what he does in the process of dispensing medicines was preparing a label and attaching it to the box of medicine, Mr Alpeto responded that there is a long process he was required to follow according to law in accordance with the guidelines (see above in [120]). Labelling is one of the last processes to follow, before counselling the patient, however there are a range of processes to follow. Mr Alpeto usually then provides counselling in relation to consumer medicine information. The pharmacy does not charge for the provision of this advice. He also testified that the number of prescriptions issued at the pharmacy was much lower than at others at which he works. The pharmacy is not on the PB scheme and can do basic but not complex compounding. Mr Alpeto generally stands where the word "Dispensary" appears on the CDC plans.
The majority of prescriptions filled by the pharmacy are likely written by doctors in the Greenway Medical Hub, although it depends on the day.

[42]

Applicants' submissions on prayers 1 and 2

The Applicants accepted that they bore the onus of demonstrating that a retail pharmacy use is prohibited, independent and not ancillary to the approved use. The premises have approval by way of the CDC to operate as a "medical centre". Contrary to this approval, the Applicants argued that the Respondent is operating a shop being a retail pharmacy. That retail use is prohibited in the zone.
A "medical centre" is defined in the applicable FLEP as a facility providing services, not selling goods. The subject land is zoned B5 - Business Development. "Commercial premises" are prohibited in the zone. This defined term includes "retail premises", which is a building or place used for the purpose of selling items by retail, and which expressly includes shops. There is a carve out from the definition of "business premises" (also a type of commercial premises under the tripartite definition of that term) for "medical centres". The present use of the pharmacy for the retail sale of goods, that is as a shop, is contrary to s 4.3 of the EPA Act being within the third limb of the definition of the prohibited use of "commercial premises" in the zone. It sells goods, being personal care products or the like.
In the alternative, the Applicants submit that even if there are dual uses of the pharmacy, as a medical centre and shop, the use is nevertheless prohibited as it is a shop, a species of "retail premises" within the defined term "commercial premises". The CDC does not purport to approve a prohibited use, being a shop.
The Applicants relied on the evidence of Ms Cole, Ms Quinon, Ms Adam, Mr Di Perta and Ms Melodia summarised above in [84]-[100] to demonstrate that any member of the public, not just patients of the health practitioners at the Greenway Medical Hub, can access the pharmacy without walking through any other part of the Greenway Medical Hub and purchase items, including what the Applicants term personal care items or merchandise. When purchased a receipt was issued by Greenway Plaza pharmacy for the items. It followed that the pharmacy was operating as a 'retail pharmacy' (using the terminology of the OC) or shop and not a 'medical pharmacy', meaning the use could not fall within the medical centre use approved by the CDC or was prohibited under the FLEP (see above in [15], [77]).

[43]

Prayer 1 - Shop use not ancillary except insofar as medicines sold to patients of medical centre

The shop use carried on in the pharmacy is not ancillary to the medical centre use of Tenancy 7 because the shop sells goods not only to patients of the medical centre but to customers generally. Members of the public may come into the pharmacy and purchase items. The Applicants maintained their submission throughout the proceedings that the dispensing of prescription medicines alone to persons not patients of the medical practitioners at the Greenway Medical Hub would be enough to bring the use within the definition of "shop" in the FLEP.
The Applicants' contention that the selling of drugs can amount to the selling of merchandise within the definition of shop is supported by Altz Pty Limited v Shellharbour City Council [2014] NSWLEC 1228 (Altz). Brown C noted the definition of the word 'merchandise', which is contained within the definition of 'shop' in the relevant LEP (and in the FLEP), in the Macquarie Dictionary: "good; commodities; especially manufactured goods" or "the stock of a store". Brown C was dealing with the same definition of "shop" as relevant here. At [43] Brown C states: 43 The approach of the council to distinguish goods that could be described as goods normally associated with a pharmacy from other goods is not supported by the definition. The definition speaks only of "general merchandise" and specifically identifies examples; the relevant example being "personal care products". Again, "personal care products" are not defined but I accept Ms Duggan's submission that pharmaceutical goods (including prescription drugs) are goods that can reasonably fall within the meaning of "personal care products" as they can maintain and enhance a person's well-being and health.
In any case the evidence is that the pharmacy sells a range of "personal care products" or "merchandise" within the definition of shop. This retail sale is not ancillary to the medical centre use as it does not serve the provision of medical services (such as treatment or advice) by the doctors or other allied health professionals in the medical centre.
The filling of scripts or the sale of medicinal items to those who are already patients of the medical centre (that is, of the doctors or other allied health professionals) arguably serves, and is incidental to, the provision of medical services by the doctors or other health professionals. A sale of goods to a customer with no such relationship to the medical centre is not. This brings what is occurring in the latter sale outside the approved use of "medical centre". The "medical centre" use, as defined in the FLEP, is the provision of health services, not the sale of goods, including medicines.
Even if a pharmacist is considered to be a health practitioner, the sale of goods to such customers is not a use which is ancillary to the provision of services by the medical centre, or by the pharmacist.
The relief sought by the Applicants is proportionate and reflects this. If order 6 of the summons is granted, it would specifically allow the pharmacy to continue to provide medicinal goods to patients of the medical centre.

[44]

Prayer 1 - Even if ancillary, still independent and prohibited use

Even if the shop use is, contrary to what is maintained by the Applicants, considered to be ancillary to the "medical centre" use of the whole of Tenancy 7, or the pharmacy component of it, it is nevertheless also an independent use within the meaning of Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 (Baulkham Hills) at [409]-[410]. As such, it remains prohibited in the B5 zone. An independent use will be caught by a prohibition on that use: Abret Pty Limited v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 (Abret) at [68] (Beazley JA, Campbell JA and Handley AJA agreeing). Even if the use as a pharmacy has a dual characterisation as a "medical centre", that only takes it outside the definition of "business premises", not "retail premises", the third limb of "commercial premises" prohibited in the B5 zone.
There is a spatial distinction between the retail area of the pharmacy and the medical area, as shown on the plans and evidence (see above in [79]). In oral closing submissions the Applicants submitted that the photographs taken by Ms Cole (Annex A) and Ex B (see above in [83(2)]) show use of gondolas beyond the dispensary area in the main central area being used to display pharmacy items. The traffic and parking report incorporated into the CDC describes the pharmacy as having an internal area of 245 square metres. That area is separated by a zigzag line from the large central area where gondolas are located designated as for easy care, mobility products and bulky goods. The pharmacy is a much more limited area directly surrounding the dispensary at the rear of the premises. The pharmacy has expanded into the central area through displaying pharmacy goods throughout that area.
Justice Glass in FoodBarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 (Glass JA, Samuels and Hutley JJA agreeing) (Foodbarn) at 161 expounded reasoning relevant to these facts, where his Honour states: Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. The ordinance is nonetheless being disobeyed.
There is a prohibition of retail premises and shop usage use of the premises for the purposes of a shop in the ordinance that is being disobeyed by the carrying out of this retail pharmacy within the medical centre and it matters not that it is part of a larger or overarching medical centre, it matters not that it contributes to the income of the medical centre and the Respondent through its sales, the ordinance is being disobeyed.
In Chamwell Pty Ltd v Strathfield Municipal Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (Preston CJ) (Chamwell), his Honour held that use of a car park in a mixed-use building containing a supermarket and residential units was subordinate to the purpose of a supermarket and was insusceptible of characterisation as an independent use, a road. In contrast to the facts in Chamwell, selling goods to the public generally from the pharmacy is an activity that is easily severable from the selling of goods to the patients of the medical centre. The two activities can easily be conceived of as being carried out separately, by the simple means of the pharmacy only selling to patients. The two activities are not indivisible: Chamwell at [38]-[40]. The terms of the CDC and OC require this distinction to be drawn.
In Goodwins (Sydney) Pty Ltd v Sydney City Council (1960) 5 LGRA 346 (Hardie J) (Goodwins), applying an earlier case of Scott's Provision Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191, at [353]-[354] Hardie J found that the test to be applied in determining whether a use is severable from another was whether the: incidental activities are so comingled in time, place and circumstances with the [other use] that in a practical sense one cannot conceive of the one being carried on without the other.
The retail pharmacy use here is severable from the rest of the medical centre and medical pharmacy operation.
This case is unlike Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218 (Stein JA, Mason P and Meagher JA agreeing) (Macquarie Clinic case). The Court of Appeal, at [222], held that the use of a premises as a hospital, teaching hospital and private medical facility was to be considered as one purpose, being a teaching hospital. The teaching hospital was a mixed purpose and the purposes of a hospital and teaching were inextricably linked. In this case, the retail pharmacy or shop use and the medical centre use are severable.
The Respondent contends that the sole or only use of the pharmacy is as a medical centre. The Respondent suggests that the use is "consistent with" a medical centre, and that the concurrent use as retail premises disappears. This approach of identifying consistency of the activities carried out on land with one purpose of use and simply ignoring other purposes of use has no basis in authority.
Bardsley-Smith v Penrith City Council (2013) 195 LGERA 34; [2013] NSWCA 200 (Bardsley-Smith No 1) supports the Applicants' submissions. The Court of Appeal (Sackville AJA, Barrett and McColl JJA agreeing) held that a retail pharmacy was an independent and severable use from the use of a premises as a distribution centre (at [118]-[119]). The retail pharmacy use was appropriately characterised as a "shop" within the meaning of the relevant LEP (employing the same definition of "shop" as in the present proceedings) and was therefore prohibited in the relevant zone (at [118]-[119]). At [127] the Court of Appeal expressed the view that the appellants were entitled to an injunction restraining the respondents from using the premises as a retail pharmacy except to the extent that the pharmacy was used to supply members of the public with 'pharmaceutical benefits' and OTC drugs. In Bardsley-Smith v Penrith City Council (No 2) [2013] NSWCA 284 the Court managed to formulate workable orders along those lines which would restrain the relevant party 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.

[46]

Prayer 2 - The effect of the OC

Section 6.4 of the EPA Act provides support for the construction of the CDC for which the Applicants contend. The OC is limited in terms to a non-retail pharmacy. To the extent that a shop or retail pharmacy is operating, other than as a pure dispensary serving patients of the medical centre, the OC does not authorise the present occupation. One reason for that is the s 6.4 definition of an OC. A retail or shop use, other than sales limited to patients of the medical centre, is both prohibited in the zone, not authorised by the CDC, and therefore not capable of being authorised by the OC. A further point can be made based on s 6.4, which provides that the terms of the OC are deemed to be incorporated into the development consent (here, the CDC). This is important, and assists in the relief sought in prayer 2, as it means that the express exclusion of "Retail Pharmacy (not including Medical Pharmacy)" is taken to be a part of the text of the CDC. This materially reinforces the construction of the CDC for which the Applicants contend.
Section 4.16(12) in relation to constructions certificates (CCs) provides similarly to 6.4(c).
The operation of s 4.16(12) and s 6.4(c) is in accordance with the ordinary meaning of the text - "taken to form part of". The terms of the CC, plans or specifications are added to the earlier development consent and in effect amend it: see Settlers Estate v Penrith City Council (2021) 247 LGERA 84; [2021] NSWCA 13 (Settler's Estate) at [16] (Preston CJ of LEC, with whom Gleeson and Payne JJA agreed). Burwood Council v Ralan Burwood Pty Ltd [2014] NSWCA 404 (Ralan) at [202] (Sackville AJA, with whom McColl and Barrett JJA agreed), referenced at [16] in Settlers Estate, also explains that the deeming of the plans and specifications issued with respect to the CC means that they prevail over anything in the development consent as granted.
Section 6.4(c) has been applied in Class 1 merits appeals (Gray, C) in this straightforward manner: Furia Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1409 at [14]-[15]; Liu v Ku-ring-gai Council [2021] NSWLEC 1094 at [61].
In the present case, the OC includes terms that restrict the use of the premises (as allowed by s 6.3 of the EPA Act) which are deemed to be part of the CDC (which is defined by s 1.4 to be a development consent, and not excluded expressly or by implication as regards s 6.4). The OC approves occupation and use of the premises as a Class 5 building under the BCA ("[t]he building is suitable for occupation or use in accordance with its classification under the Building Code of Australia") and excludes occupation and use as a "Retail Pharmacy (not including Medical Pharmacy)".
In reply to the Respondent's submissions below in [192]-[197], the Applicants submitted that the Respondent did not engage with the plain words of s 6.4(c). If the OC is deemed to be part of the CDC, and occupation is restricted, so must be use. Occupation is the first step in use and also a description of the possession thereafter which is part of use. The Respondent misconstrued s 4.19 (see below in [194]); the last sentence of s 4.19 simply says that before you occupy you need an OC and cannot obviate that requirement by relying on s 4.19. It is not to be construed as drawing a distinction of mutual exclusivity between occupation and use. "Occupation" is used in the Act as extending to occupation and use. In s 6.4(c)(i) an OC authorises occupation and use, similarly s 109C(1)(c)(i).
The limitation to medical pharmacy and office occupation (Class 5 BCA) and use required by the terms of the OC, read as part of the CDC, does not give rise to inconsistency with the surrounding text of the CDC. The limitation only repeats and reinforces restrictions on the development in the text of the CDC, which itself refers to Class 5 use and was issued in the B-5 Zone which prohibits shops and retail premises.

[52]

Prayers 1 and 2 - Respondent's use is consistent with that of a medical centre

The Respondent's primary case is that the pharmacy use is a medical centre use, which is a type of health services facility within the definition in the FLEP. A medical centre is a premises used for the purpose of "providing health services…to out-patients only, where such services are principally provided by health care professionals. It may include the ancillary provision of other health services". 'Health care professionals' are defined in the FLEP as those registered under an Act for the purpose of providing health care.
Section 4 of the HP Adoption Law applies the Health Practitioner Regulation National Law Act 2009 (Qld) to NSW with some modifications, forming the HP Law. Under s 5 of the HP Law a 'registered health practitioner' is defined as an individual who is registered under the HP Law to practise a health profession, other than as a student. A 'health profession' under s 5 of the HP Law includes pharmacy in paragraph (k) of the definition. A pharmacist is therefore a 'health practitioner' within the definition in the HP Law. The HP Law in ss 52, 53 inter alia provide for a system of registration of pharmacists. A registered pharmacist is a 'registered health practitioner'. A 'health service provider' under the HP Law means a person who provides a health service, the definition of which includes pharmaceutical services under s 5(d) of the HP Law.
Given the pharmacists at the Greenway Medical Hub are registered health care practitioners and health service providers, the purpose of the use as a pharmacy is the operating of a medical centre within the definition of the FLEP. Pharmacists cannot be distinguished from allied health professionals or health care professionals. The services delivered and goods sold at the pharmacy are consistent with its use as a medical centre. Mr Yousef above in [105], [108], [115] and Mr Alpeto above in [132], [134], [139] make clear in their evidence the nature of the services in the form of advice they provide. When persons approach the pharmacists they become patients of a medical centre, regardless of where they are referred from or come from.
There are numerous decisions in the Occupational Division of the New South Wales Civil and Administrative Tribunal concerning the practice of pharmacy and contraventions of the HP Law. Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 (Kazeme) is particularly instructive as to the functions and duties of a pharmacist: at [76]-[77], [90] in respect of the allegations of conduct and [99], [104] in respect of the findings. In Attia v Health Care Complaints Commission [2017] NSWSC 1066 at [150]-[152] Walton J found that the ordinary meaning of the word "practice" in the context of the profession of pharmacy, is "the application of principles and practices of pharmacy or the application of its ideas or methods". As stated in Kazeme at [90], "the practice of pharmacy extends beyond direct clinical care such as the filling of prescriptions or giving advice, to direct non-clinical care that impacts on the safe delivery of health services".
The Code of Ethics (see above in [117]-[119]) makes clear that patients of pharmacists receive health care products and services. The evidence of Mr Yousef and Mr Alpeto also makes this clear. The Code of Ethics applies even when pharmacists are not supplying medicines or products. The guidelines also confirm that a pharmacist does not merely sell goods.
In relation to characterisation of the use or uses, the same planning purpose is served whether customers are patients of the medical centre or not. The term 'retail pharmacy' is not known at law. The CDC indicates what has been approved. A pharmacy is necessarily retail in nature and operation, as is a medical centre, but what is relevant is the purpose, being the end to which the use of the land can be seen to be put. The Applicants do not say that the pharmacy cannot be carried out, but rather that a retail pharmacy cannot be carried out. That distinction, in the Applicants' case, is important, because it renders Foodbarn otiose or narrows its application.
It is implausible that a retail pharmacy and medical pharmacy have a different purpose or level of generality. The purpose is providing health services. The Applicants' own evidence demonstrates that health advice is provided to clients who made purchases, including written direction. Such health advice and directions are not provided when persons attend a Coles or Woolworths for example. Examples of health advice provided is found in the affidavits of Ms Melodia and Ms Cole above in [99] and [84] respectively. Ms Adam also provided evidence of seeking advice before purchasing medicines (see above in [95]).
It is implausible that a retail pharmacy is an independent use, while a medical pharmacy is not. Put another way, and in line with Foodbarn and the Applicants' case, 'medical pharmacy' is accepted to be within the dominant use of the land as a medical centre, but a 'retail pharmacy' is an independent use. The Applicants must be suggesting that if clients and customers that use the dispensary are not also patients or customers of another allied health practitioner (from within the medical centre), then the dispensary part is independent. They also suggest that if clients and customers use the dispensary but are patients or customers of another allied health practitioner, then the dispensary use is within the dominant medical centre use. Such a result is absurd and creates two classes of clients, (i) one group of patients that convert the dispensary into an independent use, merely because of where they come from, and (ii) a group of patients that are within the dominant use as a medical centre.
The dispensary and retail area are approved (see floor plan above in [79]). No challenge is made to the CDC. The Respondent is entitled to continue its use in accordance with the approval. The dispensary is delivering health services, as does the medical centre, and that purpose does not change whether the customer sees doctors or allied health professional from within or outside the medical centre.
The nature of the building such as selected signage and the trading name of the business is to be disregarded and is not helpful to the Court's task of ascertaining the planning purpose. Abret does not arise because the purpose to which the land is being put is consistent with that of a medical centre in accordance with the CDC.
The marked-up plan (Ex 1) clearly demonstrates that there was access between the doctor's practice and the dispensary. There is evidence that other professionals would come into the area with gondolas and ask for advice and select products (see Mr Yousef above in [107] and Mr Alpeto above in [132]). This demonstrates that there is no independent use or dual purpose of the gondola shelving area as a retail area. The use of the pharmacy area is for the provision of health care services for which the pharmacy forms an integral component.
This case is unlike Altz (contra Applicants' submissions above in [116]) in which the premises concerned was a neighbourhood shop. Bardsley-Smith No 1 also has no application as the authorised use here is a medical centre not a distribution centre.
Even if items are sold that are outside of what a medical centre can sell (which is not conceded), the Court would disregard that aspect and treat the medical centre as the dominant use of the premises. The sale of these items is subordinate to the dispensary or medical centre use. The sale of these items is trivial, minor in fact and degree and would not have converted the lawful use into a shop use (or retail pharmacy).
The Respondent accepts that if it were selling the products listed in item 2 of Annexure B to Mr Yousef's affidavit dated 16 November (see above in [123]), the Applicants may make good their claim. Those items have not been sold since February 2021 and the Respondent does not intend to sell them. What products are sold is a significant matter because those sold at present are all consistent with the provision of health services. The Respondent does not sell perfumes and gift items for example.

[53]

Prayer 2 - Effect of an OC

An OC does not grant development consent, nor can it alter or modify a development consent. An OC only authorises occupation and use of a building. In so far as an OC could exclude anything by its terms, it could only do so if that which is excluded is authorised by the CDC to start with. The effect of a CC upon a development consent is not analogous to a CDC, and is entirely different in form, substance and 'effect' to that of an OC upon a consent.
First, if an OC operates upon a consent in the manner that is suggested by the Applicants, 'development' approved by a consent (including a CDC) is of a particular nature and purpose which is then changed by the OC. The Applicants' interpretation would mean that there are two approved developments, the first, a consent (including a CDC) approving the development, and then a second form of approved development upon the grant of the OC. This is nonsensical. An OC does not determine 'development', rather it authorises occupation.
The current EPA Act makes it clear that although the consent to the erection of a building permits the use "for the purposes for which it" was erected, this expressly does not allow occupation. Occupation is clearly distinct from use: see s 4.19 of the current EPA Act. Section 4.27 is the equivalent provision for CDCs, which also distinguishes between use and occupation as it specifically states that a CDC authorises use subject to s 6.9, which is the section requiring an OC to commence occupation. All that an OC does is authorise the commencement of occupation.
Secondly, an OC only authorises a change of building use for an existing building "in accordance with a development consent" (s 6.4 EPA). It follows that an OC must be consistent with the development consent. Thirdly, s 6.4(c) of the New EPA Act provides that "an occupation certificate is taken to be part of the development consent to which it relates" (emphasis added). This expression at the end of the passage clearly dictates that an OC must relate to the development consent, confirming that the OC cannot be granted in furtherance of another consent, but only to the consent it was granted for.
Fourthly, the wording of s 6.4(c) and 4.16(12) is not the same. Section 6.4(c) states that "an occupation certificate is taken to be part of the development consent". Section 4.16(12) states that CCs "are taken to form part of" the consent. That language demonstrates that incorporation of a CC is something else to incorporation of an OC. Fifthly, an OC is directed to satisfy the preconditions "specified in a development consent" and it is a condition that "a development consent is in force": s 6.10 of the EPA Act. An OC cannot therefore change the consent granted. Sixthly, a CC unlike an OC authorises development, there being no doubt that the CC and the approved plan specifications are taken to form part of the consent: Settlers Estate. This is in circumstances where the legislation envisages and embraces changes to the consent: cl 145 of the EPA Regulation 2000; Moy v Warringah Council (2004) 133 LGERA 49; [2004] NSWCCA 77; at [59]-[82]. Seventhly, an OC must satisfy the consent in respect of preconditions: s 6.10 of the EPA Act. There is no power to place terms on an OC, unlike a development consent. The Applicants rely on an exclusion in the OC as a term of the OC. If something does not form part of an instrument, in this case an OC, it cannot be enforced as a term or condition of that instrument.
The Applicants in prayers 1 and 2 and orders 5 and 6 rely on incorporation of the OC into the CDC. It follows that if the Applicants cannot import the term from the OC into the CDC, by reason of incorporation, the Applicants' case in so far as it relies on same must fail.

[57]

Prayers 1 and 2 - shop use

The Applicants seek several declarations in their summons. Prayer 1 alleges a breach of s 4.3 of the EPA Act arising from the alleged use as a retail pharmacy because a shop is prohibited in the B5 Business Development zone under the FLEP. It essentially uses the term 'shop' interchangeably with 'retail pharmacy'. Prayer 2 alleges unlawful development is being carried out, implicitly a breach of s 4.2 of the EPA Act, because a retail pharmacy is being conducted in breach of the CDC. The particulars for prayer 2 refer to the CDC granted for a medical centre, a Class 5 building under the BCA, which excludes a shop which is a Class 6 building under the BCA. Once again the terms 'shop' and 'retail pharmacy' are essentially used interchangeably.
The expression 'retail pharmacy' does not appear in the CDC. It does appear in the OC and the effect of this in terms of prayers 1 and 2 was addressed by the parties in conflicting submissions. I will first focus on whether there is a (prohibited) shop use in the context of prayers 1 and 2 and consider the issues concerning retail pharmacy use separately.
It is useful to identify prayer 4, to the effect that any pharmacy operated by the Respondent in the medical centre must be restricted to serving patients of health practitioners or allied health professionals practising at the medical centre (consequently not members of the public at large), the practical outcome sought by the Applicants. The consequential order in prayer 5 seeks to restrain use as a retail pharmacy, which is problematic given the absence of clarity about what that means, as I will discuss below.
I note that the Applicants sought to amend prayer 4 in the course of the hearing from seeking a declaration to an order, which amendment was opposed by the Respondent. I do not agree with the submission that this is a substantial amendment, and prayer 4 is more appropriately sought as a consequential order than a declaration in my view. Were it to become relevant I would allow the amendment. Prayers 4 and 6 overlap, as the Respondent also identified.
An alternative form of relief proposed by the Applicants in the course of the hearing was limiting the Respondent to dispensing pharmaceutical benefits in accordance with s 84 of the NH Act and Sch 4 drugs identified in the PTG Act. Such an order would not allow the sale to any person, including patients of the health care professionals at the medical centre, of OTC drugs and other categories identified by Mr Yousef's evidence.
The evidence of those who shopped at the pharmacy (Ms Cole above in [84], Ms Quinon above in [93], Ms Adam above in [95], Mr Di Perta above in [97], and Ms Melodia above in [99]) is uncontested and establishes that members of the public can visit the pharmacy and purchase prescription and non-prescription medicines and other general items. The shoppers' evidence was that they bought, in addition to prescription medicines, OTC pharmaceuticals (Naprogesic/Nurofen/Panadol/antihistamine medicine), chewing gum, toothpaste, a hairbrush, hair ties and lip gloss. Ms Cole saw hand sanitiser, baby formula and baby wipes, and other food items such as mints and jellybeans.
The CDC approves the 'fit out of an existing tenancy as a medical centre' and attaches plans, one of which is extracted above in [79]. The medical centre is located on the second floor of the Greenway Plaza. The CDC plans show a dispensary with a sign showing PRESCRIPTIONS on the wall behind it at the rear of the medical centre. The word "Dispensary" appears on the plans in the area at the back of the pharmacy. Five smaller gondolas are shown immediately in front of the dispensary area. Also depicted are a folding door and three longer gondolas beyond in a large central area close to the entrance where a carousel is located. The word 'Retail' appears next to the three longer gondolas. The medical centre is entered through wide doors which enable access to the large central area where the three large gondolas are located past the carousel and consulting rooms which can be accessed to the right. The doctors' general practice is to the left and can be entered from the common area outside the medical centre. No challenge is being made to the validity of the CDC.
The director of the Respondent Mr Yousef, pharmacist, gave evidence about the operation of the pharmacy within the medical centre, as did Mr Alpeto one of the employed pharmacists. Mr Yousef describes the operation of the medical centre which includes a number of doctors and allied health services such as physiotherapy, above in [104]. The essential role of the dispensary within the pharmacy is described above in [105]. The effect of the evidence of Mr Yousef above in [108], [111], [124], and Mr Alpeto above in [132] is that the pharmacists and the other health professionals at the Greenway Medical Centre work together and consult each other regularly. There are daily interactions between staff at the pharmacy and the other surrounding medical and allied health offices, regular meetings and other conversations at which pharmacy stock is discussed, advice is provided to doctors and other professionals in the Greenway Medical Hub about products and medicines, doctors occasionally request that the pharmacy stock certain items, and staff of other medical and allied health offices occasionally select items from the gondolas and give advice on those items. The larger gondola shelving is also used to display bulky products sold by the allied health professionals such as mobility items (see above in [105]).
The application of the planning instrument FLEP to the medical centre is summarised above in [16]. Considering the terms of the FLEP, 'shop' is defined in the FLEP as premises where merchandise such as personal care products or the like are sold. Shops are prohibited in the B5 Business Development zone. Pharmacy is not defined in the FLEP. The Macquarie Dictionary definition of pharmacy is "1. the art or practice of preparing and dispensing drugs and medicines. 2. The occupation of a chemist or pharmacist. 3. A dispensary or chemist's shop." Retail premises are defined as a building or place used to sell items by retail and include shops. Retail premises are not permitted in the B5 Business Development Zone because they are a species of commercial premises under the FLEP. Medical centre, an exception to the definition of "business premises" under the definition in the FLEP, which is also a species of commercial premises, is defined as premises where health services are provided to out-patients principally by healthcare professionals and can include the ancillary provision of other health services. 'Health care professional' means any person registered under an Act for the purpose of providing health care. Medical centres are health services facilities under the FLEP.
The Applicants argue that customers of the pharmacy should only be patients of the medical centre meaning patients of the health and allied health practitioners who practice in rooms in the medical centre, as that is said to be consistent with the description of medical centre in the CDC. The Applicants submitted that any sale of goods in a pharmacy including of prescription drugs is a sale of goods meaning a shop use. While that is prohibited such sales to a patient of a health practitioner in the medical centre is ancillary and therefore permissible despite being otherwise prohibited, the pharmacy operating in these circumstances as an in-house dispensary. A sale to an external customer, being a member of the public is not ancillary to the medical centre use and is therefore a prohibited shop use.
To the extent that any limitation on operations is necessary in order to comply with the CDC there is no guidance in the planning legislation or instruments before the Court of what is required. In contrast to the Applicant's case, according to the evidence of Mr Yousef the Respondent is operating as required by the CDC on the basis that the goods sold by the pharmacy are limited in the manner he identifies.

[58]

Breach of CDC plans not established by the Applicant

One further matter should be considered now in relation to the CDC and whether any breach of it is proved. In final oral submissions the Applicants argued that the use of the pharmacy did not accord with the plans which form part of the CDC, which includes those plans extracted above in [79], on the basis that pharmacy items which were non-medicinal were displayed on all or some of the larger gondolas shown on the CDC plan in the central area not only the five smaller gondolas shown in front of the dispensing area. The three large gondolas are intended for mobility products and bulky goods according to the traffic and parking report as incorporated into the CDC (attached to Ms Johnson's first affidavit, see above in [91]). The Applicants also submitted that the layout of the gondolas was not in conformity with the CDC plans.
The primary evidence that the Applicants relied on for this assertion was the photograph marked Ex B taken from outside the Greenway Medical Centre by Ms Cole summarised above in [83(2)]. The Applicants' counsel insisted that this showed gondolas being used not in conformity with the CDC plan. Ms Cole's evidence was also relied on to the effect that when she walked into the pharmacy space she saw gondolas, which I note did not fill the area. As identified to the Applicant's counsel during the hearing, Ex B does not allow any conclusion to be drawn about whether the layout of the gondolas and their use is different to the CDC plans as the photograph was taken from outside the medical centre. If anything, the layout to the extent it is shown in photograph Ex B and Ms Cole's oral evidence appears to be consistent with the CDC plans. Ms Cole's evidence did not include any detail of the floor layout of the pharmacy and did not identify precisely from which gondolas general non-medical items were taken by her for purchase.
The Applicants also relied on the amended traffic and parking report as this identified a pharmacy of 245 square metres and attached a plan. This report did not take matters further than the plans attached to the CDC. The Applicants have not established that the layout of the pharmacy and the location of pharmacy goods does not conform with the CDC plans.
I agree with the Respondent's submission that the location of goods on gondola shelves could have been put to the pharmacists when they gave oral evidence and was not. It should have been if this issue was to be seriously relied on rather than arising very late in the proceedings. It was not particularised by the Applicants in any written submissions.

[59]

Pharmacy not a shop

The Applicants submit that the characterisation of the use of the pharmacy in the medical centre must be undertaken in order to determine whether it is a prohibited shop use. The Respondent submitted that the appropriate characterisation of what was occurring at the pharmacy was use for a medical centre involving the provision of health services which complies with the definition in the FLEP.
Characterisation of use is a matter of fact and degree and is to be determined on the evidence. I discussed the principles of characterisation of land uses most recently in Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) (No 5) (2021) 248 LGERA 249; [2021] NSWLEC 43 at [74]-[77]. Relevant paragraphs state: 74 Principles for characterisation of use of land are identified in Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (Chamwell) and also in Dooralong [Dooralong Residents Action Group Pty Limited v Wyong Shire Council (2011) 186 LGERA 274; [2011] NSWLEC 251] at [121]. ln planning law, use must be for a purpose: Chamwell at [27]; Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37 at 534-5; and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106 at 121. The purpose is (or purposes are) the end to which land is seen to serve. It or they describe(s) the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe. 75 In approaching the question of characterisation of a use of land for planning purposes, what is required is the determination of the appropriate genus which best describes the activities in question: North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50 (North Sydney v Boyts) per Kirby P. It is appropriate to look at the entirety of the proposal for the purpose of characterisation: Woolworths Ltd v Pallas Newco (2004) 61 NSWLR 707; [2004] NSWCA 422 at [101] per Spiegelman CJ. … 77 A development may be for more than one purpose. In Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404, the Court of Appeal (per Meagher JA) held (at 409-10) that: ... it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is a question of fact and degree in all the circumstances of the case whether such a result ensues or not. ... But when one use of the land is by reason of its nature and extent is capable of being an independent use it is not deprived of that quality because it is "ancillary to", or related to, or interdependent with, another use.
In Jojeni Investments v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 (in the context of existing use rights) Leeming JA stated at [74]-[76] (Macfarlan and Gleeson JA agreeing): 74 I return to the question of characterisation, which is not free from difficulty. As Professors Twining and Miers have said in a different context, "There are no categorical rules to direct judges about the selection of appropriate levels of generality": W Twining and D Miers, How to Do Things with Rules, (5th ed, 2010, Cambridge University Press) at 309. The same is true here. 75 However, there are well-established principles to guide the exercise of judgment. The question is the appropriate characterisation of the purpose of the use: O'Keefe at 535. That question is not answered through a meticulous examination of the details of the activities undertaken on the land: O'Keefe at 535. It is necessary to have regard to the purpose served by those activities: Abret Pty Ltd v Wingecarribee Shire Council at [51]. That use is characterised liberally, having regard to the principle that provisions designed to protect and preserve existing use rights should be as liberally construed as the statutory language in its context allows: Dorrestijn v South Australian Planning Commission (1984) 59 ALJR 105 at 108. 76 In Royal Agricultural Society (NSW) v Sydney City Council at 310, McHugh JA (with whom Hope and Samuels JJA agreed) stated that the level of generality was "not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land". In determining the appropriate genus, "attention should be focused on the [town-planning] purpose for which the determination is being made ... because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided": Boyts at 59; Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359; 159 LGERA 57 at [69].
Goodwins considered whether a use was severable requiring consideration of whether a use was comingled with another use so that practically one use could not be conducted without the other.
The Applicants urged the Court not to adopt the reasoning in Macquarie Clinic where the use of various buildings for a hospital, a teaching hospital and a private hospital facility were held to be collectively a teaching hospital use.
Bardsley-Smith No 1 and Bardsley-Smith No 2 were relied on by the Applicant. In Bardsley-Smith No 2 the Court of Appeal formulated orders in broadly similar terms to those sought by the Applicants limiting a pharmacy to the sale of PBS drugs and OTC medicine only. The facts in Bardsley-Smith No 1 varied from this matter. The Court of Appeal was concerned with the operation of a development consent for a warehouse/distribution centre for pharmaceuticals which had a pharmacy in one corner where a wide range of products not just medicines were sold to members of the public. Having considered the size of the area used by the pharmacy and the amount of goods sold in the context of the other parts of the distribution business (Chemist Warehouse consented to) the pharmacy use was limited to the retail sale of pharmaceuticals identified in the statement of environmental effects as the development application had emphasised that limited retail sales restricted to these items were proposed.
In Altz whether a proposed development application for the fit out of an existing unit in a light industrial zone which included a pharmacy with a registered pharmacist was a prohibited shop use or was a permissible neighbourhood shop use arose. Medicines were accepted to be personal care products. The definition of shop in the relevant LEP included a neighbourhood shop which was defined as premises for the sale of general merchandise such as foodstuffs, personal care products, inter alia to provide for the day to day needs of people who live or work in the local area and may include ancillary services such as a post office, bank or dry cleaning the retail floor area of which must not exceed 80 sq metres. In finding that the proposal was a neighbourhood shop the commissioner accepted that goods normally associated with a pharmacy including pharmaceutical goods such as prescription drugs could be considered as personal care products and therefore general merchandise within the definition. In the alternative, at [45], if there is a doubt that prescription drugs do fall within the meaning of 'general merchandise' the area occupied was small in the context of the overall development.
Neither Altz nor Bardsley-Smith No 1 were considering the same facts and the precise facts of each case require careful consideration in determining characterisation. The outcome in those cases does not dictate an outcome on the different facts before me.
The functions of the pharmacist operating in this privately operated pharmacy should be considered as this informs the characterisation of the use being undertaken by the Respondent, as the Respondent submitted. Doing so will enable a determination of whether the FLEP definition of medical centre applies or whether the Applicants are correct to describe the pharmacy as a shop. The Applicants applied a dictionary definition of pharmacy to identify two components, the dispensary and separately the chemist's shop. The two components are not readily separable in this case, as I discuss below.
The functions of a pharmacist as a registered health practitioner are regulated extensively in the legislation summarised above in [21]-[23]. Pharmacists provide a health service as defined under HP Law. Pharmacists are health practitioners within the definition in the HP Law. The definition of health care professional under the FLEP includes a pharmacist as they satisfy the definition of any person registered under an Act for the purpose of providing health care.
In terms of dispensing medicines, the PTG Act in s 8 identifies nine classes of poisons, some of which must be obtained from a pharmacist being Sch 3, 4 and 8 substances.
The only evidence of what is sold in the pharmacy beyond the individual shoppers' evidence is of Mr Yousef summarised above in [122]-[123]. He identifies six categories of items sold in the pharmacy being 1(a) prescription or controlled medicines (Sch 4 and Sch 8 drugs), 1(b) pharmacist only substances (Sch 3 drugs), 1(c) OTC pharmaceuticals, 1(d) therapeutic goods, complementary or alternative medicines, 1(e) occupational therapy, mobility and physiotherapy products, and 1(f) items described as complementary and ancillary to the maintenance or improvement of human health or the prevention of disease in humans.
The ethical obligations of the pharmacy profession and their duty of care to the public is identified in the Code of Ethics for Pharmacists annexed to the affidavit of Mr Yousef summarised above in [117]-[119]. Mr Alpeto above in [133]-[137] attests to the ethical duties of pharmacists and the duty of care owed to patients. Pharmacists are required to provide professional advice at the time of dispensing medicine to members of the public under the Guidelines for dispensing medicine issued by the Pharmacy Board, summarised in Mr Yousef's evidence above in [120]-[121]. The provision of advice occurred on all of the occasions that medicine was dispensed according to the evidence of the three pharmacists. Ms Toma's evidence confirmed that she believed she gave advice to Ms Cole during Ms Cole's visit to the pharmacy. To the extent that pharmaceuticals are sold by pharmacists at a pharmacy they are conducting their professional activities as regulated by the relevant Commonwealth and NSW laws identified above in [21]-[26]. These obligations were emphasised in the Respondent's submissions summarised above in [180]-[182]. Reference is made above in [181] to cases in NCAT and the Supreme Court, particularly Kazeme, where the professional and ethical obligations of pharmacists are identified, and these submissions are accepted.
The activities of the pharmacy as a whole must be considered in their context in the medical centre. Categories (a) and (b) identified by Mr Yousef come within the items which pharmacists distribute under their professional obligations. OTC drugs can be purchased at pharmacies and other locations such as some shops.
The pharmacy is operating in a medical centre with other health care providers and the communications between the other providers and the pharmacists in the pharmacy is discussed by Mr Yousef in his written and oral evidence (above in [124]) in relation to consultation about medicines and requests to the pharmacy for items to be obtained for patients. Categories (d) and (e) reflect the categories of items intended to be sold as a result of those interactions. Their sale is pursuant to the medical centre use given these circumstances.
Pharmacists dispense medicines as required by the Guidelines: see above in [120]. The process for doing so including providing advice is described above in [121]. In doing so they sell medicine in a pharmacy. The dispensing of drugs by sale is not to be equated with a retail sale transaction for the purposes of selling personal care products in a shop. Given the legislative regime for pharmaceuticals considered above I am not inclined to find that all categories of medicine should be considered personal care products falling within the definition of shop. I do not apply Altz in this regard. If they are so classified all the items sold at the pharmacy including to patients of other practitioners at the medical centre would be personal care products. Essentially nothing could be sold by the pharmacy without falling into the definition of shop, as both parties submitted but with differing consequences. Such a finding does not reflect accurately the nature of this pharmacy use in the medical centre.
Given the professional obligations of pharmacists I do not agree with the Applicants' submission that a pharmacy is synonymous with a shop in relation to the sale of medicine as identified in categories (a)-(c) and reflecting the operation of the pharmacy in the medical centre in relation to categories (d) and (e).
Whether a shop use is occurring also depends on how the sixth category identified by Mr Yousef is to be characterised. That category is somewhat undefined in scope. Mr Yousef described this category as complementary or ancillary to the improvement or maintenance of human health, a broad description, and otherwise by omission, namely by reference to a reasonably lengthy list of items that would not be sold under category 1(f), as set out in category 2 above in [123].
The Applicants have adduced evidence of one occasion (Ms Cole above in [84]) when several items of what could be called personal care products were sold in addition to prescription and OTC medicines. The further issue therefore is to consider the extent of retail sales of non-medicinal items in the evidence to determine if this amounts to an independent use to be considered separately from the dispensary use.
Apart from the limited number of individual events referred to in the shoppers' affidavits, the only evidence of the extent to which category 1(f) items are sold by the Respondent is Mr Yousef's unchallenged evidence in his affidavit of sales figures for complementary products sold in July 2021 as constituting 4% of sales. Everyday complementary items were described as toothpaste, chewing gum, lip gloss and razors. In his opinion such items commonly have medical purposes. They can also be considered personal care products. His evidence is to the effect that the range of such products is very limited, as identified in the table annexed to his affidavit. The criteria by which items are limited is not stated. The only evidence available of the volume of the sale of 1(f) items some of which can be classified as personal care products confirms that it is minor in the overall operation of the pharmacy business. The volume of sales of other categories of items sold in July 2021 are set out above in [110] to the effect that the sale of Sch 4, Sch 8, Sch 3 and Sch 2 (PTG Act) medicines made up 76% of sales through the dispensary; sale of therapeutic goods, complementary and alternative medicines made up 11%; occupational therapy, physiotherapy and mobility goods sales made up 9%.
The 1(f) category sales are ancillary to the pharmacy operation in that they can be considered complementary to other categories, as well as being able to be described as personal care products. While small in volume compared to the overall trade evidence they are not de minimis or trivial as the Respondent submitted. Considering Baulkham Hills at [409]-[410] whereby an ancillary use may still be regarded as an independent use, an independent use as a shop is not established given that the sales of category 1(f) items are conducted within the footprint of the pharmacy identified on the CDC plans, are low in volume compared to the other categories of what is sold and are limited in range. No independent shop use is occurring at the pharmacy. No breach of s 4.3 of the EPA Act based on a shop use has been established.

[61]

Retail pharmacy vs medical pharmacy

While prayer 1 alleging a breach of s 4.3 of the EPA Act refers to the term 'retail pharmacy' as well as 'shop' that ground has been fully addressed in my findings above and no basis to grant it has been established.
Prayer 2 alleging a breach of the CDC refers to a retail pharmacy as well as shop in the particulars. Given that the CDC does not refer to a retail pharmacy the assumption underpinning prayer 2 must be that an OC can amend a CDC which relies on the application of s 6.4(c). I have found above in [73] on a preliminary basis that Part 6 of the current EPA Act does not apply. I will nevertheless determine whether a retail pharmacy is impermissibly operating having heard extensive argument on that issue.
Prayer 3 seeks a declaration that the Respondent is operating without an OC and therefore in breach of s 6.9 of the EPA Act, because a retail pharmacy is being conducted. The Applicants sought in the alternative relief pursuant to s 109N(1) of the former EPA Act if Part 4A of the former EPA Act applies, which is the equivalent provision to s 6.9(1)(b) of the current EPA Act. The Applicants also sought to amend prayer 3 by adding a breach of s 6.3 of the EPA Act in the course of the hearing, which the Respondent opposed as a substantial amendment which was made very late, as indeed it was. Such an amendment if allowed appears essential to establishing a breach of the EPA Act given that s 6.9(1) and s 109N(1) simply identify the requirement for an OC and do not provide for a breach of the EPA Act for contravening a term of an OC. As the Respondent identified, there was no failure to issue an OC. The appropriate breach provision would be s 6.3 of the EPA Act, of which there was no equivalent in Part 4A of the former EPA Act. Even if Part 6 of the current EPA Act had applied I would not have formally allowed the amendment given its lateness for the reasons given by the Respondent.
Given prayer 2 (assuming that s 6.4 of the current EPA Act applies and the OC is incorporated into the CDC), prayer 3 (assuming that s 6.3 of the current EPA Act can be relied on contrary to my finding immediately above) and the alternative pleading relying on s 109N(1) (assuming that breach of the terms of an OC can arise under that provision) all rise and fall on whether a retail pharmacy is being conducted at the Greenway Medical Hub, I will consider that issue by construing the terms of the OC.
The usual principles of statutory construction apply to the OC: JK Williams Staff Pty Ltd v Sydney Water Corporation (2021) 249 LGERA 109; [2021] NSWLEC 23 at [61]. These include that the plain and ordinary meaning of the words must be considered in their context, mindful of purpose: Sydney Seaplanes. While the Applicants have emphasised that work must be given to the terms 'retail pharmacy' and 'medical pharmacy', in the absence of any definitions in a planning context the correct construction is not immediately apparent in the circumstances of this case where there is no challenge to the CDC, no breach of the CDC plans is established, and no independent shop use is occurring. The only legislative reference to a retail pharmacy identified by the Applicants is the PTG Regulation which defines retail pharmacy as premises which are included in the Register of Pharmacies kept under Sch 5F of the HP Law. That schedule refers to pharmacy (not retail pharmacy) as premises where a pharmacy business is conducted and includes the portion of the premises on which sales of goods take place and a professional services room. Premises in a public hospital controlled by a public health organisation are distinguished. Those statutory references do not take the issue of construction as between the two terms in the OC any further.
As found above in [232] the dispensing of medicines in a pharmacy while also resulting in a sale of that medicine does not satisfy the description of shop which includes the sale of personal care products. Since that retail sale function is integral to the dispensing of medicine by pharmacists the distinction between a retail pharmacy and a medical pharmacy is not readily apparent in this context where the CDC does allow a dispensary to operate in the medical centre, which inherently involves a sale. In the absence of any legislative context to inform construction and giving the words 'medical' (meaning relating to the science and practice of medicine; curative; therapeutic according to the Macquarie Dictionary) and 'retail' (meaning selling to consumers according to the Macquarie Dictionary) some work to do, a medical pharmacy could be conceived of as one which largely, not necessarily exclusively, sells medicines to anyone, to be contrasted with a 'full service' retail pharmacy which could conceivably sell all the items identified by Mr Yousef as not being sold in the pharmacy.
The existing pharmacy operation is limited by the small size of the five gondolas immediately in front of the dispensary, its location at the rear of the medical centre and Mr Yousef's self-imposed limit on what can be sold under general category 1(f) by reference to those items in category 2 not sold in 1(f). No principle of statutory construction justifies a finding that this is a retail pharmacy not a medical pharmacy. Defining these terms by reference to who can be sold items does not serve any obvious planning purpose such that the permissible use can only be achieved by serving a limited group of people, the patients of the medical centre, and not any member of the public.
Photographs of the signage advertising the Greenway Plaza Pharmacy outside the Greenway Plaza were in evidence. Their existence does not assist in determining whether the pharmacy is a retail pharmacy or a medical pharmacy.
The Applicants have not established that the pharmacy is an impermissible retail pharmacy rather than a medical pharmacy and no breach of the OC has been proven.
I note that I heard extensive argument concerning the effect of an OC on a CDC in light of the addition of the words "taken to be part of the development consent to which it relates" in s 6.4(c) of the current EPA Act. I have found above that Part 6 of the EPA Act does not apply to the OC in these proceedings. I have also found that even if s 6.4(c) applied and had the effect contended for by the Applicants (that the OC is incorporated into the CDC) they would not be granted relief as no retail pharmacy rather than medical pharmacy use is being conducted. Given those findings I did not need to decide the proper interpretation and effect of the tailpiece to s 6.4(c).

Bronger v Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (65 paragraphs)

Parties

Legislation Cited (17)

Cases Cited (46)

Cited By (1)