Pharmacy seeking to prevent new pharmacist operating in South Ayrshire village refused judicial review of appeal refusal decision

About this case:

• Citation:
  [2023] CSOH 60
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Harrower

Burns Pharmacy Ltd, which serviced Monkton from a location in Prestwick, argued that the National Appeal Panel had failed to provide adequate reasons for its decision to uphold the Board’s decision to add third respondent Sean Manson to the pharmaceutical list. While Mr Manson nor the Panel made appearances, the Board opposed the petition.

The petition was heard by Lord Harrower. Lindsay KC appeared for the petitioners and James, advocate, for the Health Board as second respondent.

Clear to anyone familiar

Monkton was served by eight pharmacies, four to the south in Prestwick and four in Troon and Dundonald in the north. In 2017 Mr Manson, who wished to provide pharmaceutical services from premises in the village itself at 21 Main Street, applied to the Board to be included on the pharmaceutical list. That application was refused, but a later 2021 application in respect of different premises at Old Monkton Primary School was granted.

In his application, Mr Manson had stated that existing services to Monkton were inadequate, referring to poor availability of parking spaces, heavy congestion, unreliable public transport and lack of safety in travelling to existing pharmacies on foot. Consultation Analysis Reports prepared for both applications indicated that an overwhelming majority residents of Monkton wanted an in-village pharmacy, noting also that there were plans for additional housing developments.

In the appeal to the Panel by the petitioner and two other pharmacies, it was argued that the Board’s Pharmacy Practices Committee had failed to set out adequate reasons for concluding that the existing service was inadequate, in particular insofar as it related to the inadequacy of parking at existing pharmacies, and had not demonstrated that the proposed pharmacy would be viable. The Panel considered that the former ground was reasonably clear to anyone familiar with the underlying facts and circumstances and the latter ground was misconceived.

For the petitioner it was submitted that the panel had erred by failing to recognise errors in the PCC’s decision. No change in parking circumstances had occurred since the previous application in 2017, at which time it was not an issue. Too much weight had been given to the CAR, which was not in the nature of a planning report or an expert report. Further, the necessity or desirability of a proposed pharmacy did not automatically follow from a finding that existing services were inadequate.

Not a cosmetic exercise

In his decision, Lord Harrower noted: “It is quite true that the panel went on to say that, ‘in light of the proximity and similarities’ between the two applications, ‘it is incumbent on the PPC to provide sufficiently clear reasoning as to why it has reached a different conclusion from its earlier decision’. However, the panel immediately qualified that by saying, ‘This does not necessarily require it to address its earlier decision directly but does require its reasoning to be clearly understood’.”

On the differing opinions taken to the CAR, he said: “It was clear that the PPC that considered the first application harboured significant reservations regarding the CAR results. Respondents’ complaints were about mere inconvenience rather than inadequacy, and were not based directly on their own first-hand experience. However, this tendency to relegate the evidential status of the CAR to mere hearsay (reflected also in senior counsel’s dismissal of the CAR responses as being ‘anecdotal’) was not shared by the PPC that considered the second application.”

He went on to say: “This may have been due in part to the obvious fact that the CARs for each application were entirely separate documents based on entirely separate surveys. Be that as it may, it would have been reasonably clear to anyone familiar with the underlying facts and circumstances that the PPC considering the second application placed weight on the comments in the CAR regarding both parking difficulties at and public transport to the existing pharmacies.”

Lord Harrower concluded on this ground of challenge: “Certainly, in its refreshed decision, the PPC appear to have made quite a point of drawing the panel’s attention to reasoning that had already been set out in its original decision. However, even if there had been nothing substantively new in its refreshed decision, I would have been slow to dismiss its refreshed decision as merely a cosmetic exercise.”

He then briefly addressed the issue of necessity, saying: “Had there been anything of substance in this ground of review, then I would have rejected the argument as incompetent, the petitioner not having raised the allegedly speculative nature of specific developments in its grounds of appeal to the panel.”

Lord Harrower therefore refused to grant the petitioner’s craves for declarator and reduction of the panel’s decision.