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The potential planning pitfalls in “subsuming” a pharmacy into a doctors’ surgery

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Posted by John Gregory on 19 October 2016

John Gregory Head of Planning

To many minds, the annexing of a pharmacy onto a doctors’ surgery seems a sensible proposition given that, in many respect they are complementary services: one’s doctor prescribes one a certain type of medicine via a prescription and one takes this to the pharmacy and obtains the medicine. One cannot argue against why this might be viewed as logical.

This is especially true in the current environment of budget cuts: there are government plans afoot to find efficiencies in the NHS and, last week (w/c 10 October 2016) an announcement confirming that pharmacists will lose £113m of funding this financial year and £208m next financial year was widely anticipated. This has, inevitably, led to fears that such scything will be the death-knell for pharmacies in smaller towns and villages. One estimate is that up to 1,600 rural pharmacies will face the threat of closure. In order to cheat such a knell, pharmacy operators might well look to try to secure the future of their businesses by bolting on their practices to doctors’ surgeries. Indeed, the Department for Health has stated that it will be investing £112m to put 1,500 pharmacies in doctors’ surgeries which might be easier said than done.

Pharmacists and doctors need to be aware of the potential planning pitfalls in “subsuming” a pharmacy into a doctors’ surgery. There are planning appeal decisions which have decided differently these sorts of issues, with near identical facts. Pharmacies are taken to be Class A1 (under the provisions of the Town and Country Planning (Use Classes) Order 1987 (as amended)) because, as confirmed by the case R v Maldon District Council (ex parte Pattani), the supply of prescription or non-prescription medicines amount to the sale of goods and, therefore, they are viewed, in planning terms, as retail operations. Doctors’ surgeries are Class D1(a).

The issue of the acceptability of a pharmacy being “bolted on to a doctors’ surgery is acceptable in planning terms comes down to whether or not a material change of use is viewed as having occurred or whether the use of part of the building as a pharmacy is viewed as being incidental or ancillary to the primary use. The incidental / ancillary nature of the pharmacy will depend on the nature and extent of the retail use which, in each case, will be a question of fact and degree. Often, pharmacies are run under a 100 hours per week contract which provides a service well in excess of the hours of opening of doctors’ surgeries. This will, inevitably, attract questions of intensification of use and will (in a lot of cases) trigger a permission for a mixed D1 and A1 use. An appeal decision from May 2015 had a local authority arguing (as per the Pattani case above), both dispensing and retail pharmacies are Class A1 as they are retail operations and, therefore, the pharmacy was not linked to the doctors’ practice in a functional sense. However, the appellant argued that the pharmacy did not have its own entrance and it was not advertised as being an operator independent of the surgery. Whilst, the pharmacy did have consent to operate from 100 hours per week, the Inspector found that the vast majority of the pharmacy’s customers had already visited a GP within the practice.

In May 2015, a Planning Inspector issued a Lawful Development Certificate which confirmed that a pharmacy at a doctors’ surgery would not involve a material change of use. The Council argued that the pharmacy would fall within A1 use and, therefore, the proposed scheme would have been a mixed use rather than a D1 use given, the Council asserted, the pharmacy was not linked, per se, to the patient list at the doctors’ surgery. The Appellant stated that the pharmacy operated independently of the surgery and, although the pharmacy was operated under a 100 hours per week contract (well beyond the opening hours of the doctors’ surgery), the vast majority of the pharmacy’s customers had been to see a doctor within the surgery. The Inspector’s view was that the pharmacy was inextricably linked to the surgery even though it only occupied less than 7% of the total floor space of the building and only 2.2% was devoted to selling retail goods over the counter. 97% of the turnover came from prescription medicines and less than 1% of all sales occurred outside of the doctors’ surgery’s opening hours. The Inspector accepted that the use was not de minimis but, nevertheless, concluded that this did not trigger a material change.

However, there will be many cases where such development will trigger a material change and planning permission will be required. Although tempting in the current environment of cuts to go ahead and do what is required to save pharmacies from going under, it is important to seek professional planning advice prior to carrying out such work. It may be that the Government look to amend planning law (in particular the General Permitted Development Order) to allow the 1,500 pharmacies to be made a part of doctors’ surgeries but, until then, it pays to be prudent.

About the author

John Gregory

Head of Planning

John is a specialist planning lawyer with extensive experience of advising on all aspects of the planning and highways law.

John Gregory

John is a specialist planning lawyer with extensive experience of advising on all aspects of the planning and highways law.

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