Bronger v Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy [2023] NSWCA 104

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bronger v Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy [2023] NSWCA 104 Hearing dates: 14 March 2023 Date of orders: 22 May 2023 Decision date: 22 May 2023 Before: Brereton JA at [1] Beech-Jones JA at [2] Mitchelmore JA at [77] Decision: (1) Appeal allowed; (2) The orders made by Pain J on 27 July 2022 be set aside, and in lieu thereof, order that: (a) Pursuant to s 9.45 of the Environmental Planning and Assessment Act 1979 (NSW), the respondent, its agents, servants or employees, be restrained from making, or offering to make, any retail sale of any item from 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, to any person who is not an out-patient of a health care professional of the Greenway Medical Centre located within Greenway Plaza, Wetherill Park, where: (i) "health care professional" means any person registered under an Act for the purpose of providing health care but not a pharmacist; and (ii) "retail sale" means sale to a member of the public but does not include any wholesale supply or any sale to any other pharmacy, wholesale supplier, medical practitioner or health practitioner; (b) The respondent pay the appellants' costs of proceedings 2021/00117816 in the Land and Environment Court; and (c) The appellants' amended summons dated 16 November 2021 filed in proceedings 2021/00117816 in the Land and Environment Court be otherwise dismissed. (3) The respondent pay the appellants' costs of the appeal. (4) Order 2(a) be stayed up to 5.00pm on 25 May 2023. Catchwords: ENVIRONMENT AND PLANNING — Land and Environment Court — injunctive relief sought by appellants to restrain respondent from conducting a "retail pharmacy" — pharmacy operated by respondent as part of a medical complex but where members of the public could purchase items — where occupation certificate specified "retail pharmacy" (not including a "medical pharmacy") as an excluded use and relevant planning instrument specified "retail premises" as a prohibited use — primary judge held no independent "shop" use or "retail pharmacy" use had been established — whether primary judge erred in concluding the respondent was not engaged in the prohibited use of a "shop" — pharmacy's operations answered the descriptions "retail premises" and "shop" — whether former or current provisions of Environmental Planning and Assessment Act 1979 (NSW) applied — reg 18A of Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) not engaged and thus former provisions did not apply — whether primary judge erred in not finding premises was being used as a "retail pharmacy" — distinction between "retail" and "medical" pharmacy is the sale of medicines and pharmaceutical items to the public and dispensing of such products to out-patients of the medical complex — primary judge's findings satisfy the former Legislation Cited: Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Amendment Act 2017 (NSW) Land and Environment Court Act 1979 (NSW) National Health Act 1953 (Cth) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Abret Pty Limited v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 Altz Pty Limited v Shellharbour City Council [2014] NSWLEC 1228 Bardsley-Smith v Penrith City Council (2013) 195 LGERA 34; [2013] NSWCA 200 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Bronger v Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy [2022] NSWLEC 91 Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15 Egan v Hawkesbury City Council (1993) 79 LGERA 321 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Hawkesbury City Council v Sammut (2002) 119 LGERA 171; [2002] NSWCA 18 North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 244 Category: Principal judgment Parties: Catherine Bronger (First Appellant) John Bronger (Second Appellant) Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy (Respondent) Representation: Counsel: Mr C Ireland (Appellants) Mr C Bolger; Mr M Fozzard (Respondent)