Pharmacies affected by planning laws
In a recent decision, the Federal Court examined and clarified the relationship between an approval under Section 90(1) of the National Health Act (“Act”) for the supply of pharmaceutical benefits from premises and an approval for use of premises as a pharmacy under State and Territory planning laws.
In this case, approval for the premises was granted by the Secretary of the Department of Health and Ageing under Section 90(1) of the Act.
However, the premises could not be used as retail premises under Queensland planning legislation unless the premises had the use of 25 car spaces or a permit for the relevant use of the premises. These planning conditions had not been satisfied.
The Federal Court decided that:
- despite the lack of approval under the planning laws, the approval under Section 90(1) of the Act was valid
- in granting approval under Section 90(1) of the Act, the Secretary is not required to take into account any State or Territory planning laws
- approval under Section 90(1) of the Act, does not override State or Territory planning laws nor the requirement to obtain approval under those planning laws to use the premises as a pharmacy.
The decision serves as a significant reminder that approval for a pharmacy is a 2 stage process and that pharmacists must obtain both:
- approval under Section 90(1) of the Act and
- approval under the relevant State and Territory planning laws
to validly use any premises as a pharmacy
MST has a dedicated group of lawyers who can advise on all aspects of law relating to pharmacies.
Author: Mark Kemp