Approximately 480sqm of the premises will be open to the public. Non-medicinal and non prescription pharmacy items, including invalid aids will be offered for sale. The Home Medication Review service will also be available to the public.

The proposed hours of operation are 9.00am to 5.30pm Monday to Saturday. It is estimated that 19 staff would be employed in the business. Staff numbers comprise two full time pharmacists, one clinical pharmacist, 2 dispensing technicians, a pharmacy assistant, a supervisor for Samples Plus and 12 support staff for the e-pharmacy and Samples Plus.

6 The Wyndham Planning Scheme contains definitions of various land uses of relevance to this application. They are as follows:

Land used to store or display goods. It may include the distribution and the wholesale selling of the goods.

a) sell goods by retail, or by retail and wholesale;

And includes: Food and drink premises; gambling premises; landscape garden supplies; manufacturing sales; market; motor vehicle, boat or caravan sales; postal agency; primary produce sales; shop and trade supplies.

Land used to sell both retail and wholesale, or to hire, materials, tools, equipment, machinery or other goods for use in

Land used to sell goods or services, or to hire goods. It includes the selling of bread, pastries, cakes or other products baked on the premises. It does not include ... trade supplies.

7 The permit applicant contends the primary business is the storage and distribution of goods for the epharmacy business as well as the dispensing and distribution of medicines in sachets to aged care facilities, hospitals and other providers of services to patients on multiple prescription medication. A further activity is the distribution of pharmaceutical samples from pharmaceutical companies to medical practitioners. This is said to fall within the defined planning terms of warehouse which includes distribution of goods and the retail sale of trade supplies, goods for use in the medical profession.

8 Mr Gordon indicated that as a consequence of Pharmacy Board of Victoria requirements[1], any approved pharmacy premises dispensing pharmaceutical products must allow access to members of the public. The area of 480m² containing the goods to fulfil the epharmacy internet orders is also to be open to the public for sales. On Mr Gordon's evidence this aspect of the business to be conducted on the site, that is sales to the public, will generate a small fraction of the turnover, volume of trade, number of customers and staffing requirements of the overall operation.

9 Mr Dreyfus submitted that were it not for this regulation, there would be no need for the distribution centre to be open to the public at all. It was submitted that the small proportion of goods that would also be sold to the public that could not be considered to be goods for use in the medical profession was ancillary to the sale of trade supplies.

10 The applicants for review contend the primary business is as a shop selling to the public. In this respect the applicants for review relied upon photographs of My Chemist Warehouses in a number of locations, showing the way the premises were set up with goods on shelving and in aisles allowing the public free access to the goods. They submitted the 480m² area for the proposed storage of goods on every aspect was to function as a shop. The area in which the goods are to be located and displayed is at least 40% of the total of the building, with an area for a dispensary which it was submitted should also be included within the area of the shop and offices. Reliance was further placed on advertising brochures indicating the type of goods for sale and highlighting that a number of the advertised goods are not related to use in the medical profession.

11 Whilst the applicants for review acknowledged that land could be used for more than one use and also could be used for more than one activity it was submitted that in this case the primary use on the site was to be a shop and whilst goods were to be stored on the premises and distributed to customers who had placed orders on the internet the primary use was that of a shop, a prohibited use within this Industrial zoned area.

12 It is a question of fact and degree[2] as to what is the designated purpose being served by the use of the premises. The question to be asked is 'what in ordinary terminology is the appropriate designation of the purpose being served by the use of the premises at the material date'[3].

13 The premises are to be used for the storage of pharmaceutical goods, assistance as to what this may include is obtained by reference to the Pharmacy Board of Victoria Guidelines[4] which requires that approved premises in the case of a pharmacy are to be designed internally so that they have a professional service area; a general trading area; and other areas of a pharmacy business including an unpacking and/or storage area. Each pharmacy is required to have a professional service area which must include a dispensary, an area for prescription reception and counselling and a professional trading area[5]. This area must be separated from the remainder of the premises[6].

14 The professional trading area must be located adjacent to the dispensary and must be of such a size that it may adhere to a stocking policy[7] that allows for separation between the professional trading area and the general trade area. The guidelines provide an indication of the type of stock one would expect in the professional trade area being 'all medicines, first aid and sick room supplies, surgical goods, animal health supplies, health information books and cards' and the type of stock to be found in the general area 'non-health related goods, such as confectionary, cosmetics, toiletries'.

15 The area to be used for the storage of the pharmaceutical goods is to contain open shelving displaying the goods similar it is believed to what was shown to us in the photographs of My Chemist Warehouses, although Mr Dreyfus did highlight differences which included the size and configuration of the premises, the storage and retrieval of goods, the focus of staff duties and tasks and the look of the store, including the ceiling, flooring, high bay lighting, shelving, layout and location of goods. We understand the photos were of several pharmacies and it appears that the way of storing and displaying goods appears to accord with the requirements set out in the guidelines of the Pharmacy Board of Victoria.

16 It is therefore expected that whether the premises are located in an industrial area or some other zone that an approved pharmacy would be set out in a similar fashion given the requirements of the Pharmacy Board. This is further borne out by the photographs presented to us, although we were not advised as to the zones or if there were any zone restriction in the areas in which the photographed premises were located.

17 In terms of size this pharmacy will be large[8] but if as we were advised it is to be used to store pharmaceutical goods for distribution to internet customers as well as samples to the medical profession and medication for the aged no doubt a large area is required to allow for the storage of sufficient stock to meet the needs of the customers with respect to these services.

18 It would appear from the figures presented by Mr Gordon in relation to the existing epharmacy operation in Queensland that this is a growing aspect of the pharmacy business, tending to outstrip what is termed 'walk in public sales'. Mr Gordon also indicated there was an expectation that sales by way of the epharmacy would increase considerably over the next 3 to 5 years whereas his estimation of 'walk in public sales' would only marginally increase.

19 Mr Gordon's figures also indicated the services Samples Plus, the ordering system of samples offered to the medical profession and Blue Cross, the picking and packing of medication for aged care and nursing homes also generated a large proportion of the business with similar expectations that over the next 3 to 5 years both these services would increase.

20 It is accepted that the primary purpose of this site is to be used for the storage and distribution of pharmaceutical goods this is based on the actual size of the premises, the goods to be stored and distributed with the ability to easily retrieve stored items to fulfil customer orders.

21 Whilst the premises are made accessible to the public, this is accepted as a requirement of the Pharmacy Board of Victoria for the premises to be approved premises. It is understood that approved pharmacies are eligible for rebates or benefits in relation to prescription medicine which in the circumstances of supplying to internet customers as well as to aged care and nursing homes would be an essential requirement.

22 Mr Dreyfus contended and it is agreed that were it not for the requirements of the Pharmacy Board to provide access to the public the distribution activities to take place on the site could be readily carried out. It was further contended that this aspect, that is the accessibility to the public with consequential retailing to the public should be considered to be an ancillary part of the distribution activities occurring on the site.

23 Mr Dreyfus characterised the activities of sample supply (Sample Plus) and bulk pharmaceutical dispensing (Blue Cross) as trade supplies, namely the sale of goods for use in the medical profession. He acknowledged that some goods that were available to internet customers as well as to the public may not fall within the description of 'goods for use in the medical profession' but that such goods were limited and the sale of such goods should be regarded as ancillary.

24 The Pharmacy Board guidelines certainly acknowledge that there is an aspect of and type of goods that would not fall within what they term 'professional trading' but are accepted as part and parcel of a pharmacy in the term 'general trade'. It is considered that these goods form but a small proportion of the overall pharmaceutical goods to be provided and classed as for use in the medical profession and can readily fall within what would be considered to be ancillary to the proposed activities to be conducted on the site. As Mr Justice Ashley stated:

The ascertainment of purpose of a proposed use may yield the result that more than one separate and distinct purpose is revealed. In that event the question initially arises whether one is dominant. The further question that may arise is whether the lesser purpose or purposes are ancillary to the dominant purpose. If the answer to both questions is "yes" and the dominant purpose is available as of right or is permitted, the lesser purpose or purposes are legitimised. Then in planning terms there is but one purpose[9].

25 The application for permit indicates that the real and substantial purpose of the use on this site is as a warehouse distribution centre for pharmaceutical goods. The activity of distribution to be undertaken on this site falls readily within the planning scheme definitions of warehouse and trade supplies. The small proportion of goods that would not be classed as falling within the term 'for use in the medical profession' classed by the Pharmacy Board as 'general trade' is limited and is properly regarded as ancillary. The analysis of Australian Pharmaceutical sales provided by Mr Cicero indicates that prescriptions were on average 30 to 40% more than other sales suggesting that no matter the size of the pharmacy it was this aspect of the pharmacy business that outstripped the supply of other goods[10]. 'Where a part of land is used for a purpose which is subordinate to the purpose for which another part is used, the whole of the land is regarded as being used for the dominant purpose'[11].

26 Whilst Mr Cicero was somewhat critical of the permit applicant not referring in its application to defined planning terms the applicant has succinctly in our view described exactly what is proposed to take place on this site. The Responsible Authority certainly was clear about the aspects of the proposal. That the proposed use falls within defined planning terms is of assistance but in our view is not absolutely necessary[12].

27 The proposed use is considered to be appropriately located in an area that provides suitable floor area to enable sufficient storage of pharmaceutical goods for distribution and will not adversely affect the viability of industry occurring in the area. The adjoining units are used for a range of purposes including retail sales, trade supplies and warehouses. As a warehouse and distribution centre the site is well located close to the Princess Freeway and Western Ring Road.

28 In terms of the site's ability to draw retail trade its location within an industrial and trade-sale complex is poor for a retail pharmacy. The site is remote from a retail shopping centre where custom could be derived from visitors to the general centre and does not appear to be conducive to generating retail trade as a primary or major function. It is expected that retail visitors to this site will have to make special purpose trips.

29 Proposed signage for the site requires a permit under Clause 52.05-8. The site falls within Category 2. There are three parts to the signage; one of the signs is to comprise a red house with a roof and chimney that protrudes above the height of the building. The sign is to be 10m by 3.3m and is not to be illuminated or floodlit. The Responsible Authority indicated that it did not consider this sign should extend above the roof line and have imposed a condition to that effect. We accept that signage is to define what is carried out on a property and that this may result in the public being able to find this distribution centre. We do not consider that the proposed signage is inappropriate within this location.

30 For the above reasons the three contentions proposed by the applicants for review are not supported and it is the view of the Tribunal that the decision of the Responsible Authority be affirmed. The proposed use is not a shop and is therefore not prohibited within the Industrial zone. Any retail sales to the public are likely to be minor and are considered ancillary to the proposed use. The use as a warehouse and distribution centre is appropriately located given the other surrounding activities and the sites proximity to major freeways.

[1] Pharmacy Board of Victoria - Guidelines 2004 (amended)

a in the case of a pharmacy or a Friendly Society pharmacy, at least one doorway opening from the premises to allow members of the public access to the premises from a street or public walkway;

[2] Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529; Pacific Seven Pty Ltd v City of Sandringham [1982] VicRp 14; [1982] VR 157; Mollica v Shire of Bulla & Anor (1992) 9 AATR 157; STY Building Supplies (Shepparton) Pty Ltd v Peps Plans Pty Ltd & Greater Shepparton City Council (2000) 5 VPR 264

[3] Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529, 534-5, Kitto J

[8] Table 6 Australian Pharmacies - Summary of Sales Volume in 2002-03

[9] Cascone and Vella v City of Whittlesea 11 AATR 175

[10] Table 6 Australian Pharmacies - Summary of Sales Volume in 2002-03

[11] Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 at 161

[12] Pioneer Concrete (QLD) Pty Ltd v Brisbane City Council (1980) 145 CLR at 508; Heda Nominees v City of Springvale (1982) 57 LGRA 287 at 295; Pacific Seven Pty Ltd v City of Sandringham [1982] VicRp 14; [1982] VR 157 at 163; St Kilda City Council v Perplat Investments Pty Ltd (1990) 72 LGRA 378 at 392; Cascone and Vella v City of Whittlesea (1993) 80 LGERA 367 at 381; Marock v Billjoy [1981] VicRp 41; [1981] VR 413 at 417-418