Consideration and determination
30 It is convenient to deal seriatim with the grounds of review set out in the further amended originating application for judicial review, noting that most are directed to the actions of the Authority, however, a challenge is also brought to the validity of the delegate's approval.
31 The first ground claims that the Authority acted contrary to the Rules by effectively deferring consideration of St Moses' application on 26 August 2016, when it was first considered by the Authority, rather than determining at that time that the Authority recommend that the application not be approved. The judicial review applicants relied upon a record produced by the Authority of its meeting held on 26 August 2016. The record appears to have been prepared by someone in the Authority's secretariat. Handwritten annotations on the record which appear alongside the entry "Premises: Unit 110, 227 Flemington Road, Franklin, Act, 2913" record that the premises are "part of as per hatched plan". There are other handwritten annotations alongside the relevant items, particularly items 211, 212 and 130. Under a heading "Reasons for deferral (if applicable)", there are various handwritten annotations which indicate that the view was apparently taken that further information was required in relation to various relevant items. They include, for example, the reference alongside item 211(c) to "clarification that Council breach has been rectified & that pharmacy and Dr able to operate".
32 The minutes of the Authority's meeting held on 26 August 2016 (the Minutes) contain information relating to St Moses' application. The Minutes record the Authority having considered "information provided by an interested third party". That information is described in the Minutes as including advice which indicated that a controlled activity was being conducted at the proposed premises and that directions had been issued by the Council to the lessee of the proposed premises requiring it to take steps to rectify the breach. The Minutes then record that the Authority was unable to determine whether this breach impacted on the ability of a pharmacy to operate at the proposed premises. The Minutes state that the Authority was unable to determine, based on information provided by the third party, whether the Council's directions required that the activity being conducted at the proposed premises, namely the operation of the medical practice, should cease until the breach was rectified. Finally, the Minutes record that the Authority requested St Moses to provide various relevant information relating to its application.
33 The judicial review applicants did not draw the Court's attention to any provision in the legislative scheme which obliged the Authority to consider and determine an application under s 90 without seeking any relevant additional information from anybody, including the applicants for approval.
34 It is notable that the Authority was not obliged by the Act, Regulations or Rules to notify any other approved pharmacy of an application for approval under s 90 of the Act. Nevertheless, it was open to the Authority to proceed as it did in this case when, in July 2016, it wrote to three different approved pharmacies, including the judicial review applicants, advising them of St Moses' application and inviting comments or submissions. The judicial review applicants availed themselves of this opportunity and had their solicitor provide a detailed submission objecting to St Moses' application under cover of a letter dated 19 August 2016. It may be assumed that this response was included in the third party material which is described in the Minutes of the Authority's meeting held on 26 August 2016 (i.e. shortly after the submission by the judicial review applicants' solicitor was made).
35 In my view, the Authority acted lawfully in deferring a final determination of St Moses' application until St Moses was afforded an opportunity to comment on the third party material. Considerations of procedural fairness required no less. There is nothing in the legislative scheme to indicate that basic procedural fairness requirements did not apply.
36 In his oral submissions, Mr Woods (who appeared for the judicial review applicants) seemed to contend that this ground of challenge was also predicated on the judicial review applicants' assertion that the deferral related to the difficulties presented by St Moses' application being in respect of the whole of Unit 110. It emerged during discussions with the Court that this assertion was based upon the information contained in responses to questions 13 to 15 of the prescribed form (it should be noted that the judicial review applicants did not contest that the form used by St Moses was the prescribed form). In particular, heavy reliance was placed by the judicial review applicants upon the fact that alongside question 14 (which, as noted at [38] below, required the applicant to give the address of the proposed pharmacy premises), St Moses had written "UNIT 110/227 FLEMINGTON RD".
37 The judicial review applicants' submissions on this matter are unpersuasive and are rejected. They effectively invite the Court to focus only on the answers to questions 13 to 15 in identifying the premises which were the proposed premises. This approach is artificial and unsupported by the legislative scheme. Indeed, it is inconsistent with the legislative scheme in the sense that, as noted above, the applicants for approval were in substance obliged by reg 8 to submit an application which was in accordance with the approved form. There was no dispute that they did so. The information contained in the prescribed form, when viewed as a whole, included material which left no doubt that St Moses' application related to only part of Unit 110. This is reflected in Appendix 4 to the application and is also highlighted in the covering letter dated 29 July 2016 to which the formal application was attached. The Authority plainly understood at its meeting on 26 August 2016 that the application related to only part of Unit 110, as is reflected in the handwritten annotations on the record which it appears was prepared by the Authority's secretariat at that meeting. The Authority's statement of reasons, which was tendered by the judicial review applicants, also unambiguously confirms that the Authority was aware that the proposed premises were located at part of Unit 110. This is confirmed, for example, in paragraph 20 of that document and, as noted above, the Authority's letter of recommendation to the Secretary expressly stated that the address the subject of the application was part of Unit 110.
38 That is sufficient to dispose of the judicial review applicants' primary contention. There are, however, other reasons why that contention should be rejected. As noted above, the contention relied heavily on the information contained in responses to questions 13, 14 and 15 under the heading "Proposed premises". Question 14 required an applicant to provide an address of the proposed pharmacy premises. St Moses completed that question by giving the address of the proposed premises as Unit 110/227 Flemington Road, Franklin. That information is correct. That is in fact the address of the proposed premises. There is nothing inaccurate or misleading about that answer. Reading the application as a whole, St Moses made it clear that, while that was the address of the proposed premises, the proposed premises were only part of the premises at that address. As noted above, St Moses was obliged by reg 8(a) to ensure that its application for approval of a pharmacist was in accordance with the prescribed form. In my respectful view, St Moses fulfilled that obligation.
39 The central flaw in this aspect of the judicial review applicants' case is that it is based on an inappropriate and unduly narrow approach to reading St Moses' application, which requires the answers to questions 13, 14 and 15 in the prescribed form to be read in isolation from the rest of the application. I see no warrant for that approach and I reject it.
40 The second ground raised in the further amended originating application for judicial review is to the effect that the Authority misconstrued the Rules by considering whether only a part of the proposed premises met the relevant requirements specified in the Rules. This challenge is predicated on the proposition that the proposed premises involved the whole of Unit 110 and not simply a part thereof. For reasons given above in respect of ground 1, this contention is rejected.
41 The third ground was said to be in the alternative to grounds 1 and 2. It is to the effect that, if the Authority did consider the Rules as against the whole of Unit 110, it failed to take into account mandatory relevant considerations, namely that the medical practice was also located there and there was no material before the Authority to suggest that the medical practice had ceased or was intending to cease to occupy Unit 110, when considering the requirements of items 211(b) and 212(a) of the Rules. This ground is predicated on a false assumption, namely that St Moses sought approval in respect of the whole of Unit 110. For reasons given above, that is not the case. The application was in respect of part of Unit 110, at which the proposed pharmacy would operate. The judicial review applicants were unable to point to any relevant legal constraint upon the co-location of the medical practice and the proposed pharmacy. Nor was there any evidence which contradicted the fact that St Moses was the sub-tenant of the whole of Unit 110 and had the legal right to occupy all of it.
42 In the alternative to the first three grounds of judicial review, all of which have been rejected, the judicial review applicants claim that the Authority misconstrued the Rules and improperly exercised its power in concluding that cl 10(b)(i) in Pt 2 of the Rules (which relates to item 130) was satisfied. They argued that the requirement that there be one full-time medical practitioner practising within 500m in a straight line from the proposed premises, required that the proposed premises be separate or distinct from the relevant medical practice. As St Moses pointed out, the submission assumes that s 8 of the Rules, which sets out a methodology for measuring the distance between two "premises", has some relevance to this requirement. That assumption is flawed. Section 8 has no application because the relevant requirement is expressed by reference to there being the "equivalent of one full-time prescribing medical practitioner" and not by reference to the expression "premises".
43 The next ground raised by the judicial review applicants is predicated on the claim that the Authority misconstrued the Rules and improperly exercised its power if it considered whether part of the proposed premises met the relevant requirements but then recommended that the application be approved in respect of the whole of Unit 110. As Mr Woods frankly acknowledged in oral address, this contention is unsustainable when regard is had to the terms of the Authority's recommendation, which expressly state that the application related to only part of Unit 110.
44 Finally, the judicial review applicants challenged the validity of the delegate's approval on the basis that the Authority's recommendation, upon which the approval was based, was invalid for any one of the reasons given above. In circumstances where all the grounds challenging the validity of the Authority's recommendation have been rejected, this ground of challenge necessarily fails.
45 As noted above, the delegate's formal approval is not expressed in terms of "part" of Unit 110. Rather, it refers to "at the premises situated at Unit 110 etc". But nothing of significance turns on that. The formal approval is issued to St Moses and plainly relates to its application having regard to the relevant legislative scheme. St Moses would fully understand that the approval relates only to part of the premises as described in its application. Different considerations might arise if there was a legal obligation to publish the formal approval more widely. It is unnecessary to consider that hypothetical.