3 April 2014 REF: SHA/17482
APPEAL AGAINST LONDON AREA TEAM, NHS COMMISSIONING BOARD “NHS ENGLAND” DECISION
TO REFUSE MEDICX PHARMACY LIMITED
APPLICATION FOR AN EXTENSION OF FULL
CONSENT FOR INCLUSION IN THE
PHARMACEUTICAL LIST FOR A 100 HOUR
PHARMACY AT OAK LODGE MEDICAL CENTRE, 234 BURNT OAK BROADWAY, EDGWARE, MIDDLESEX, HA8 0HP
1 Background
By application dated 7 December 2011 Medicx Pharmacy Ltd applied to Barnet PCT for preliminary consent for inclusion in the pharmaceutical list for a 100 hour pharmacy in the vicinity of North Road/Burnt Oak Broadway, Edgware, Middlesex. Preliminary consent was granted by Barnet PCT on 5th October 2012.
By application dated 19 March 2013 Medicx Pharmacy Ltd applied to convert the preliminary consent to full consent for a 100 hour pharmacy contract at Oak Lodge Medical centre, 234 Burnt Oak Broadway, Edgware, HA8 0HP. This was granted by the London Region Pharmaceutical Services Regulations Committee on 10 July 2013.
In their letter dated 31 July 2013, Medicx Pharmacy Limited ("the applicant") applied to NHS England for an extension to the current full consent to open a new 100 hour pharmacy at the above address. The application for an extension of time states:
1.1 On 10 July 2013 the North West London Area Team granted Medicx full consent to open a 100 hour pharmacy at Oak Lodge Medical Centre, Burnt Oak Broadway, Edgware, HA8 0HP.
1.2 The applicant stated that unfortunately it is very unlikely that they will be able to open this pharmacy by the 10 January 2013 [sic] due to circumstances that are out of their control. As such Medicx Pharmacy is writing to request a 3 month extension to the consent period, and to provide evidence of why they require the additional time. 1.3 The new pharmacy is part of the wider development of Oak Lodge Medical Centre.
The scheme, which is being carried out jointly between the surgery and Medicx Pharmacy, involves extending the GP practice over three storeys as well as creating a new pharmacy shell. Please see the plan attached at Appendix A for more information, which shows the extent of the development and proposed pharmacy shell.
1.4 The planning approval for this scheme was received in late June 2013, however Medicx Pharmacy have just been informed that a Judicial Review is being sought against that planning approval (documents attached at Appendix B for information). Whilst this Judicial Review is in progress, Medicx Pharmacy are legally unable to commence on site with the building work, and so cannot progress the pharmacy unit during this time.
1.5 Medicx Pharmacy state that they have received legal advice already and they are very confident that the Judicial Review will be aborted within the next 8 weeks and the planning approval will stand.
1 Trevelyan Square Boar Lane Leeds LS1 6AE Tel: 0113 86 65500 Fax: 0207 821 0029 Email: [email protected]
1.6 In the meantime Medicx Pharmacy state that they will continue to draw up contracts and tentatively appoint builders so that they are able to begin work on site as soon as the Judicial Review is dismissed. The build period for the development is 20 weeks and it will then take an additional 4 weeks to fit out the pharmacy shell to the required standard.
1.7 Based on the above timescales Medicx Pharmacy anticipate being able to open on 1 April 2014, and so would ask the North West London Area team to grant a 3 month extension.
1.8 Medicx Pharmacy are committed to opening and operating a pharmacy at this site which will provide extended hours to the local community and will complement the opening hours of the Edgware Community Hospital. This pharmacy will also increase access to clinical service provision out-of-hours and will allow integrated working with the GPs at Oak Lodge Medical Centre.
1.9 Medicx Pharmacy would reiterate to the North West London Area Team that the reason they cannot open in the initial 6 month period is completely out of their control, and they would urge the LAT to grant them the additional 3 months.
2 The Decision
NHS England considered and decided to refuse the application. The decision letter dated 27 November 2013 states:
2.1 The request for an extension to the application by Medicx Pharmacy for a 100 hour pharmacy at Oak Lodge Medical Centre was considered by the London Region Pharmaceutical Regulations Committee on 19th November 2013.
2.2 The Committee considered the application under the Pharmaceutical Regulations 2005, Regulation 39. The Committee agreed not to approve the extension request. Extract from the Decision Report
Details of request for extension
2.3 Due to unforeseen circumstances the applicant reports that the site would not be completed by the time of the expiry of the approval. There have been some complications with the planning permission and this has lead to a judicial review for which they are currently waiting for the outcome. The Committee understand that there is a decision due from the JR in January.
2.4 The applicant is therefore requesting a further 3 months as per the regulations. 2.5 Proposed revised date for expiry is 10 April 2014
Relevant regulations and guidance
2.6 Pharmaceutical Regulations 2005,
2.7 Regulation 39. NHS England Market Entry Policy and procedure for dealing with applications received before 1st April 2013.
Committee Decision/
2.8 That the committee does not approve this extension on the basis that there is not good cause to approve an extension.
In a letter to the Family Health Services Appeal Unit of the NHS Litigation Authority (“the Appeal Unit”), dated 18 December 2013, the applicant appealed against NHS England’s decision. The grounds of appeal are:
3.1 The grounds for appeal are that NHS England has not properly considered the evidence provided when making the decision.
History of the Application
3.2 On 10th July 2013 NHS England granted Medicx Pharmacy full consent to open a 100 hour contract at Oak lodge Medical Centre, Burnt Oak Broadway, Edgware, Middlesex, HA8 OAP.
3.3 The proposed pharmacy is to be part of the wider development of Oak lodge Medical Centre involving a 3-storey extension and a new, integral, purpose built pharmacy (plans at Appendix 1). The scheme is being developed jointly between Medicx Pharmacy and Oak lodge Medical Centre.
3.4 Prior to the approval of the 100 hour full consent Medicx Pharmacy had received planning approval for the scheme. Medicx Pharmacy had planned to create the pharmacy shell first, so that they could open within the initial 6 month consent period, however, on the 25th July Medicx Pharmacy received a Judicial Review from 4 of the local pharmacies against the planning approval (Appendix 2), and consequently they were legally unable to commence works on site.
3.5 The local competitors have been very clever in launching a JR on the planning decision because whilst Medicx Pharmacy are immobilised from progressing the physical building, the clock continues to tick on the pharmacy contract. It was clear, as a result of the JR, that Medicx Pharmacy would be unable to open within the planned unit by the 10th January 2013 so on the 31st July 2013 Medicx Pharmacy wrote to NHS England to request a 3 month extension (Appendix 3).
3.6 Medicx Pharmacy had no acknowledgement that this request was received from NHS England and so after 4 weeks Medicx Pharmacy began to make regular email contact with NHS England to establish when a decision on the request was likely. Medicx Pharmacy were told a decision would be forthcoming in the 1st week of October. In early October Medicx Pharmacy were advised that the committee had decided it was too early to make a decision on the extension request, as they still had 3 months of the grant remaining however Medicx Pharmacy did not receive a formal letter confirming this.
3.7 The whole project hinged on being granted the 3 month extension request but because NHS England would not make a decision Medicx Pharmacy were in limbo, unable to progress the pharmacy opening any further and at the risk of having to abort both the new pharmacy opening and medical centre development. In trying to get this across to the contracts team at NHS England Medicx Pharmacy were asked to provide further information by email, to go to the committee to help them make their decision. On 22nd October Medicx Pharmacy sent an email (Appendix 4). explaining why a timely decision was vital to the progressing of the new pharmacy opening.
3.8 In the meantime Medicx Pharmacy were aware that the JR proceedings were a blocking tactic by the local competitors to try and stop them applying prior to the contract expiry and after taking legal advice Medicx Pharmacy were assured that the JR was likely to be dismissed and that final planning approval would be granted. However, the JR hearing was set for February which meant that even if Medicx Pharmacy did receive final planning approval, and a 3 month extension was granted, they would still be unable to open by April 10th 2013.
3.9 So Medicx Pharmacy began to come up with a temporary alternative proposal, which involved the pharmacy opening within the existing surgery building (Plan at appendix 5), allowing Medicx Pharmacy to open should the extension be granted. There is plenty of space to create an internal temporary pharmacy at the Oak Lodge Medical Centre without affecting the patient journey and this has received full support of the GP Partners as can be seen in the attached letter (Appendix 6).
3.10 Initially Medicx Pharmacy applied for a Certificate of Lawful Development to allow them to open in the temporary premises. This was refused however Medicx Pharmacy were strongly advised by the planning office to apply for a change of use from D1 to A1, which would then allow Medicx Pharmacy to open in the temporary pharmacy premises. The application for a change of use will be processed in February and Medicx Pharmacy are confident this will be approved on the advice they have been given.
3.11 On the 26th November, four months after submission, Medicx Pharmacy finally received a decision from NHS England confirming that the extension request was refused, despite the information Medicx Pharmacy provided to support their case. Grounds for Appeal
3.12 Medicx Pharmacy would like to appeal this decision on the following grounds.
3.13 NHS England failed to properly consider the extension request in line with Regulation 39 of The NHS (Pharmaceutical Services) Regulations 2005.
3.14 Regulation 39 states that "the period of six months may be extended by the Primary Care Trust for up to another three months if there is good cause". 'Good cause' is a relative concept which requires a body to determine whether or not there are substantial grounds or reason to take a certain action, in this case to approve on extension.
3.15 The decision letter from NHS England sets out "That the committee does not approve this extension on the basis that there is not good cause to approve an extension". The very definition of 'good cause' requires deliberation and reasoning to come to a fair decision, yet the decision letter issued by NHS England provides no explanation of how the decision was reached and does not confirm that any real deliberation took place.
3.16 In the extension request Medicx Pharmacy clearly set out strong intentions to open a pharmacy at this location, and explained how through external forces they have been prevented from opening this pharmacy within the initial consent period. Yet NHS England have not even considered the impact of the JR in their decision letter. 3.17 Medicx Pharmacy state that their commitment to opening this pharmacy can be seen
in the fact that at every hurdle they have tried to came up with a new solution to get the pharmacy open. Medicx Pharmacy have the support of the local Surgery and their Patients, as demonstrated in the attached letter, and will be providing a much needed out of hours service, adjacent to the Edgware Community Hospital Walk in Centre which also operates out of hours. Medicx Pharmacy have also financially committed to this project by having numerous plans drown up for both the permanent and temporary accommodation, instructing legal representation for the JR and they have now recruited a Pharmacy Manager.
3.18 The commitment that Medicx Pharmacy have shown to this project, coupled with the events out of their control which have delayed the opening of the pharmacy, constitute good cause to grant a 3 month extension. As a consequence of the work and investment Medicx Pharmacy have put into this pharmacy they will be in a position to open the pharmacy within 3 months, should the change of use application be granted and this appeal upheld.
3.19 Based on the above Medicx Pharmacy would ask the FHSAU to uphold the appeal and grant a 3 month extension to their 100 hour contract. Finally, Medicx Pharmacy are happy to provide any additional evidence as requested by the FHSAU, and will keep the FHSAU updated of any changes to the planning status of the pharmacy as this appeal progresses.
4 Summary of Representations
This is a summary of representations received on the appeal. A summary of those representations made to NHS England are only included in so far as they are relevant and add to those received on the appeal.
4.1 NHS ENGLAND
4.1.1 This application for an extension was discussed at great length at the committee meeting; the notes and decision letter only record the decision and not the detailed deliberation that took place at the meeting.
4.1.2 The committee discussed the merits of allowing the extension and whether the details provided by the applicant in support of their extension were sufficient and of a good cause to approve the extension. The committee were concerned that whilst there had been numerous plans for the opening of the pharmacy, there appeared to be nothing concrete that had been started in terms of the pharmacy opening. It appeared that the JR had stopped the progress of the application. In fact the applicant had stated that they would not commit to any more expense until they had been given an extension to their application as the abortive costs were too high.
4.1.3 Had the applicant been able to provide some evidence of progress at the time of the extension application and several months later to demonstrate good cause, the decision made may have been different. Unfortunately all the applicant could demonstrate were their plans. NHS England note that since that time a pharmacy manager has been appointed.
4.1.4 At the time of making the decision the outcome of the JR was expected in January and it was not clear what this would be. NHS England are not sure even now in February if the JR has reached a conclusion.
4.1.5 A number of the reasons given by the applicant for the extension relate to business decisions and are not determined as “good cause”. i.e. recruitment of staff.
4.1.6 Since the original request for the extension the applicant is now considering a temporary alternative proposal within the existing surgery building rather than the extension that was originally applied for. This is dependant on the relevant planning change of use being approved. If the planning is not approved, then the pharmacy will be unable to open. There appears to be too many variables within this appeal.
4.1.7 The London Region Pharmaceutical Services Regulations Committee (PSRC) were of the opinion that the reasons given by the applicant did not amount to “good cause” and rejected the extension application. In the opinion of the PSRC, the applicant still has not provided sufficient information to approve an extension under “good cause”, the application should therefore be refused.
4.2.1 The preliminary consent was granted by NHS England’s predecessor in September 2012 and came into effect as a final grant in October 2012, pursuant to Regulation 40(5).
History of the application
4.2.2 DAC Beachcroft understand that the original application of the Applicant was submitted in May 2012 under Regulation 40, seeking preliminary consent to provide pharmaceutical services from the Oak Lodge Medical Centre for 100 hours per week (pursuant to Regulation 13(1)(b)).
4.2.3 The Authority will be aware that, once preliminary consent had been finally granted, the Applicant was obliged to apply for a grant under Regulation 5(1) within 6 months (pursuant to Regulation 41(1)(a)). This the Applicant did in March 2013.
4.2.4 NHS England determined that the application should be granted under Regulation 41(1) in July 2013 and we understand that this decision was notified to the Applicant on 10 July 2013. At that stage, the Applicant was obliged to open within 6 months (i.e. on or before 10 January 2014), having given not less than 14 days’ notice that it would be doing so (pursuant to Regulation 39(2)(a)).
4.2.5 Where it has good cause, an Applicant may ask for an extension of the time for opening (pursuant to Regulation 39(2)(b)) and the Applicant made such a request on 31 July 2013 and this was later supplemented with reasons on 22 October 2013.
4.2.6 The request was refused by NHS England on or around 27 November 2013. 4.2.7 DAC Beachcroft acknowledge that Regulation 29(4) provides that the
Applicant with a right of appeal to the Authority against NHS England’s decision and this has been exercised by letter dated 18 December 2013 (“the Appeal Letter’).
4.2.8 If the extension had been granted (or if the Authority grants it now). the latest that such opening could occur would be 10 April 2014 (almost 2 years after the original application), being the accumulation of periods “not in all exceeding nine months from the date of notification of the grant”.
4.2.9 The Regulations do not allow any extension beyond this date either by NHS England or by the Authority. If the Applicant were unable to open by 10 April 2014, the grant (made on 10 July2013) would lapse,
4.2.10 The Applicant would nevertheless still be entitled to make a further application for a grant under the provisions of the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013,
Previous consideration of the request by NHS England
4.2.11 The Applicant’s criticism of NHS England’s refusal of the request is unfair, 4.2.12 The decision to refuse the extension request was clearly considered by the
relevant Committee which shows that some deliberation took place. The Applicant should be able to discern that none of the reasons put forward by it were accepted as “good cause” by the Committee.
4.2.13 Whether or not NHS England has to explain its view on each and every aspect suggested by the Applicant as contributing to the question of “good cause, is a moot point which DAC Beachcroft submit the Authority does not need to determine given that the role of the Authority is to consider the extension request afresh.
4.2.14 On that basis, DAC Beachcroft have addressed the substance of the extension request rather than the way in which it was handled by NHS England.
4.2.15 DAC Beachcroft invite the Authority to reject the notion put forward by the Applicant that the 4 parties who acted as Claimants in the Judicial Review proceedings did so as a “blocking tactic”.
4.2.16 All parties have recently signed a consent order in those Judicial Review proceedings which quashes the decision that was being challenged (the Planning Inspectors planning approval of 18 June 2013).
4.2.17 Although it is not central to Fairview Pharmacy's representations regarding the extension request, the Authority will note that the Applicant was plainly wrong to have sought (in its original extension request at Appendix 3 to the Appeal Letter) to persuade NHS England that the Judicial Review was likely to be aborted within the ensuing 8 weeks.
4.2.18 The Authority should note that at no stage did the Judicial Review proceedings render the Applicant “legally unable to commence works on site” (see paragraph 4, page 1 of the Appeal Letter). There is simply no basis on which to make such a claim. An injunction or other interim remedy granted by the Court could have stopped such works, but there was no intervention of that kind by the Court in this case.
4.2.19 Contrary to the assertion of the Applicant, there was no prohibition against the Applicant continuing to rely on the planning approval which had been given (although the Applicant would have carried the commercial risk of doing so)
4.2.20 The Applicant states that “through external forces we have been prevented from opening this pharmacy within the initial consent period”. If this is a reference to the Judicial Review proceedings, that is not the case. The Judicial Review proceedings related solely to the question of the development of the Oak Lodge Medical Centre,
4.2.21 As will be seen in the next section of representations, the Judicial Review proceedings did not prevent the Applicant from commencing service provision in accordance with NHS England’s July 2013 grant on the basis of the “temporary” arrangements.
Commencement of pharmaceutical services provision and “temporary” arrangements 4.2.22 The plan at Appendix 5 to the Appeal Letter is dated 13 September 2013
(already 6 months after the Applicant had made its application for ‘full’ consent). It shows that the “temporary” arrangements made by the Applicant would lie within the footprint of the current premises.
4.2.23 The Applicant could have taken steps towards the commencement of pharmaceutical services from the current Oak Lodge Medical Centre - properly allowed under the grant - within the appropriate 6 month period prior to January 2014 (even if at that stage it was not ready to do so from an extension to the current building).
4.2.24 Knowing the time requirements for opening set out in the Regulations, the true cause of the inability to open within the primary 6 month period is the Applicant’s decision not to attempt at an earlier stage to commence services in the way shown in Appendix 5.
4.2.25 If it had taken appropriate steps from the date of its preliminary consent in late 2012, it is unlikely that it would have placed itself in the position of having to request an extension.
4.2.26 The circumstances of this case therefore do not present a good cause for allowing an extension,
Intentions of the Applicant/Commitment to open a pharmacy
4.2.27 The Applicant refers to its “strong intentions” to open a pharmacy. It is unclear what this means. Clearly, the Applicant appears to want to open a pharmacy on the basis of its application. DAC Beachcroft cannot discern any
particular commitment in this case, however, other than the taking of steps which any pharmacy in possession of a grant should be taking.
4.2.28 The NHS England grant in this case was for 100 hour per week of pharmaceutical services provision, pursuant to Regulation 13(1)(b). The Authority will note, of course, that this means the question of need - or expediency - has never been (nor would it be) considered in dealing with the application
4.2.29 Accordingly, DAC Beachcroft invite the Authority to disregard any observations regarding need as unsupported and, indeed, irrelevant to the extension request. As pointed out earlier, if the Applicant wished to make a further application on the basis of need it would be entitled to do so under the current Regulations.
4.2.30 The Applicant indicates that there is support from patients for the new pharmacy although no direct evidence in support of that submission appears in the appeal papers. DAC Beachcroft are informed that several hundred objections were received by the Council (in connection with the various planning applications relating to Oak Lodge Medical Centre - H/02917/12, 1-4/04320/13 and H/05463/13).
4.2.31 As DAC Beachcroft do not consider that the responses to the Council will assist in determining whether the Applicant has acted expeditiously/ whether it has good cause for an extension, DAC Beachcroft have not provided further detail here. If the Authority takes a different view, however, DAC Beachcroft understand that the responses may be viewed via the Council’s online planning ‘portal’ (under the above references) at the following address http://acolaidpublicbarnet.gov.uk/online-applications/.
4.2.32 The Applicant provides (at Appendix 6) a letter apparently sent on behalf of the partnership at Oak Lodge Medical Centre, in which the partnership appears to echo the Applicant’s misplaced confidence in relation to the Judicial Review. Again, the matters raised do not assist the Authority in determining the existence or otherwise of “good cause”.
Summary
4.2.33 DAC Beachcroft invite the Authority to confirm the decision of NHS England pursuant to Regulation 29(18)(d), on the basis that the Applicant has not demonstrated good cause for extension of the period for commencing the provision of pharmaceutical services as described in Regulation 39(2)(b). 4.2.34 The cause of the Applicant’s inability to open at the premises within the
period described in Regulation 39(2)(a) is a result of its own actions rather than the operation of external forces,
4.3 CHARLES RUSSELL ON BEHALF OF EMPIRE LTD
4.3.1 By way of background, the chronology of this application is as follows:
Date Action
May 2012 Application for preliminary consent prior to inclusion in the pharmaceutical list for the Premises submitted by the Company pursuant to regulation 13(1)(b) of the National Health Service (Pharmaceutical Services) Regulations 2005 (100 hour pharmacy)
30 July 2012 The Company submits a planning application to Barnet Borough Council for an extension to the Premises 1 September 2012 The National Health Service (Pharmaceutical Services)
Regulations 2005 are repealed.
13 November 2012 Planning application refused
December 2012 The Company appeals the planning decision to the Secretary of State
March 2013 The Company submits an application for full consent pursuant to the preliminary consent grant
1 April 2013 The National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 transfer responsibility for the preparation and maintenance of pharmaceutical lists to NHS England from the Primary Care Trust
10 July 2013 NHS England grants a full consent application
25 July 2013 Judicial review proceedings commence in relation to the planning decision
31 July 2013 The Company submits an application to NHS England for an extension of time to commence the provision of pharmaceutical services pursuant to regulation 39(2)(b) of the 2005 Regulations.
20 September 2013 The Company submits a further planning application for a Certificate of Lawful Development.
21 October 2013 NHS England requests further information from the Company regarding its request for an extension of time 22 October 2013 The Company provides additional information to NHS England in relation to its application for an extension of time to commence services
14 November 2013 The Company is advised by Barnet Borough Council that the Certificate of Lawful Development application will be refused. The Company withdraws the application
20 November 2013 Further planning application submitted by the Company for "temporary change of use".
27 November 2013 NHS England refuses the application for an extension of time
December 2013 Barnet Borough Council defers determination of the "temporary change of use" application pending the outcome of the judicial review proceedings.
18 December 2013 December 2013 The Company appeals NHS England's decision to refuse the Company's application for an extension of time
10 January 2014 Full consent grant lapses
29 January 2014 Secretary of State concedes judicial review proceedings and agrees to an order quashing the decision of the planning inspectorate. The planning application is therefore refused
4.3.2 As the Authority will be aware, NHS England has a discretion to agree an extension of time for the commencement of the provision of pharmaceutical services pursuant to regulation 39(2)(b) where the applicant has demonstrated "good cause".
4.3.3 In relation to the current application, it was incumbent upon the Company to demonstrate that there was good cause for NHS England to agree an extension of time for the provision of pharmaceutical services.
4.3.4 The Company's reasons for seeking an extension of time are set out in its letter of 31st July 2013 to NHS England. In general terms, the Company indicated that an extension of time was required because:
4.3.4.1 the proposed pharmacy was part of the redevelopment of the Oak Lodge Medical Centre;
4.3.4.2 the planning decision granting planning consent for the redevelopment was being challenged;
4.3.4.3 whilst the Company was confident that the planning decision would be upheld "within the next 8 weeks" of that letter (i.e. by end-September 2013), the Company would not be in a position to commence the provision of services by 10th January 2014;
4.3.4.4 the build period for the development would take 20 weeks, with 4 weeks to fit out the new pharmacy;
4.3.4.5 the Company would be in a position to commence services by 1st April 2014.
4.3.5 NHS England requested further information from the Company by a telephone conversation on 21st October 2013. The Company responded by email of 22nd October. In that response, the Company noted that:
4.3.5.1 the proposed redevelopment of the premises was reliant on a pharmacy opening within the premises;
4.3.5.2 Unless the 3-month extension was confirmed "within the next few weeks" (i.e. from 22nd October 2013), the Company would be unable to start the process of recruiting a pharmacist and team, appointing builders and ordering materials;
4.3.5.3 Most pharmacists are on 3 months notice with their current employer. The Company always provides a 2 week induction prior to the pharmacy opening, so that "interviews of potential pharmacists has to
take place at least 4 months before the opening date. Therefore the positions have to be advertised circa 4-5 months before the opening date... Based on these timescales we need to be able to instruct our Head Hunters in November, and can only do this if we have the security of knowing we don't have to open until April."
4.3.5.4 The redevelopment project "hinges on getting a timely decision ... " in relation to the extension of time application.
4.3.6 NHS England carefully considered the Company's application and additional information and concluded that "the committee does not approve this
extension on the basis that there is not good cause to approve an extension" .
4.3.7 The Company seeks to appeal that decision. In determining this appeal it is for the Company to satisfy the Authority that there is good cause, not for other pharmacies to satisfy the Authority that there is no good cause.
4.3.8 Taking each ground of appeal in turn, Empire Ltd comment as follows: Planning application and judicial review
4.3.9 It is evident from the Company's appeal and the submissions that it made to NHS England that the proposed pharmacy is inextricably linked to the planning application to extend the Premises.
4.3.10 The Local Authority refused the planning application. Whilst the Company successfully appealed that decision, Empire Ltd and other interested parties
pursued judicial review proceedings against the Secretary of State in relation to the appeal decision.
4.3.11 The Company implies that the judicial review proceedings have been a cynical attempt to delay the planning process until the full consent for inclusion in the pharmaceutical list has lapsed.
4.3.12 In fact, since the Secretary of State has now consented to an order quashing the appeal decision and upholding the Local Authority's decision to refuse the planning application, Empire Ltd's actions in relation to pursuing judicial review proceedings have been vindicated.
4.3.13 In the absence of planning consent for the provision of pharmaceutical services at the Premises, there is no reasonable prospect that the Company will be in a position to commence the provision of pharmaceutical services pursuant to its grant.
4.3.14 Whilst the Company refers to a further (third) application for "temporary change of use" planning consent and states that this will be considered in February 2014, no evidence is provided in support of this statement. Empire Ltd understands that the "temporary change of use" application has been put on hold pending the outcome of the judicial review proceedings. Those proceedings have not yet formally concluded (since the Court has not yet sealed the consent order). It is unlikely that they will be concluded by February 2014 and, therefore, it is unlikely that the "temporary change of use" application will be considered in February. It is also unlikely that "temporary" change of use would be granted in the circumstances of this case (because the change would not be "temporary" in the absence either of full planning consent for the redevelopment or for permanent change of use).
4.3.15 In the absence of appropriate planning consent, the Company will not be in a position to commence the provision of pharmaceutical services by 14th April 2014.
4.3.16 Even if the temporary change of use planning application were to be granted this month, the Company would not be in a position to commence the provision of pharmaceutical services by 14th April 2014.
4.3.17 The Company has already gone to great lengths (in its original application letter dated 31st July 2013 and its further submissions dated 22nd October 2013) to explain that an urgent grant of its extension of time application was required to enable the Company to be in a position to commence services. The Company highlighted, for example, that:
4.3.17.1The company would need to recruit a pharmacist, and most pharmacists have a 3-month notice period;
4.3.17.2Other staff would also have to be recruited;
4.3.17.3The Company has a 2-week mandatory induction period for all new staff;
4.3.17.4Building works would have to take place. Whilst it is appreciated that the Premises would not be extended as initially envisaged, it is anticipated that some building works would be required to house the proposed temporary pharmacy premises;
4.3.18 In addition, the Premises must be registered with the General Pharmaceutical Council, which includes an inspection of the premises. The GPhC indicates on the relevant premises registration form that the premises registration process "will take up to 3 months" and that an inspection must be arranged at least 3 weeks before the premises are scheduled to open.
4.3.19 There is insufficient time for the Company to carry out the above before the requested extension of time would lapse in any event.
4.3.20 It should also be noted that the original preliminary consent grant lapsed on 5th April 2013. Had NHS England not taken 3 months to determine the full consent application, and had it granted the full consent application on or around 5th April 2013, the Company's full consent grant would have lapsed on or around 5th October 2013. Even if NHS England had then granted a three month extension of time, that extension would have lapsed on 5th January 2014. By reason of the delay by NHS England in the determination of the full consent application, the Company has already effectively had an additional 3 months to commence the provision of pharmaceutical services pursuant to its grant. The fact that the Company has been unable to commence service provision despite this additional time suggests that the Company is unlikely to be in a position to do so within the next 2 months. 4.3.21 In all the circumstances of this case, there is no reasonable likelihood that the
Company will be in a position to commence the provision of pharmaceutical services by 14th April 2014. There is therefore no "good cause" to grant the requested extension of time.
"Commitment" to the project
4.3.22 The Company states that it has demonstrated commitment to the project. Whilst it is accepted that the Company has submitted repeated, unsuccessful, planning applications to extend the premises and for change of use, it is evident that the extension would only have taken place (assuming appropriate planning consent had been granted) if the Company could open a pharmacy at the Premises. There is no evidence of commitment beyond the planning applications. Even if there were evidence of commitment, this would not demonstrate "good cause" to allow the grant.
4.3.23 Submitting repeated, unsuccessful planning applications does not demonstrate "good cause" for the grant of an extension of time.
A failure by NHS England to consider the information provided by the Company and to give sufficient reasons for its refusal
4.3.24 It is evident from the correspondence which has passed between NHS England and the Company that NHS England did carefully consider the application for an extension of time. For example:
4.3.24.1NHS England initially advised the Company that its request for an extension of time was premature (having been made only 3 weeks after the full consent application was granted);
4.3.24.2NHS England discussed the application for an extension of time with the Company on 21st October and requested further information. 4.3.24.3NHS England considered the application for an extension in
Committee;
4.3.24.4The Committee concluded that the Company had failed to demonstrate "good cause". It was unnecessary for NHS England to
provide detailed reasons for its decision since it is self-evident from the decision that NHS England did not consider that the information provided by the Company amounted to "good cause".
4.3.25 For the reasons given above Empire Ltd invite the Authority to conclude that the Company has failed to demonstrate good cause to allow an extension of time. Empire Ltd therefore request that the Authority upholds NHS England's decision and refuses the Company's application for an extension of time to commence the provision of pharmaceutical services.
4.4 BLAKE LAPTHORN LLP ON BEHALF OF FAIRVIEW PHARMACY LTD In a letter dated 17 February Blake Lapthorn stated:
4.4.1 We act for Fairview Pharmacy Ltd, Empire Healthcare Ltd, Dhanani Ltd, and Radiant Medicare Ltd and are writing in support of our clients’ letters to you against the appeal for an extension for an approved 100 Hour Contract at Oak Lodge Medical Centre 234, Burnt Oak Broadway, Edgware HA8 0HP ("Oak Lodge") by MedicX Pharmacy Ltd ("MedicX").
4.4.2 We have been advising our clients on planning relating to the various attempts by MedicX to secure consent for opening a pharmacy within Oak Lodge.
Planning Background 4.4.3 Summary Timeline
4.4.3.1 27 July 2012:Application H/02917/12 lodged by MedicX for Planning permission for construction works including a new pharmacy
4.4.3.2 13 November 2012: Application refused under delegated powers by Barnet Council
4.4.3.3 5 December 2012: Appeal submitted by Medicx
4.4.3.4 18 June 2013: Planning Inspector allows appeal with conditions 4.4.3.5 25 July 2013: S288 claim made
4.4.3.6 27 September 2013: MedicX make application (Ref: 04320/13) for a certificate of lawful development for temporary use
4.4.3.7 November 2013: MedicX withdraw application otherwise would be rejected
4.4.3.8 20 November 2013: MedicX make third application (Ref: H/05463/13) for temporary change of use
4.4.3.9 20 February 2014: S288 hearing set
4.4.3.10 Council suspend determination of third application due to ongoing proceedings
4.4.3.11 30 January 2014: Consent Order signed for quashing of appeal decision
4.4.3.12 Third planning application (temporary) likely to be withdrawn or rejected
4.4.4 The four pharmacies are located close to Oak Lodge Medical Centre of 234 Burnt Oak Broadway HA8 0AP ("the Centre") and submitted a letter of objection on 24 August 2012 to a planning application made by Medicx Pharmacy to construct a three storey-extension to the side of the Centre to create new consulting rooms, sluice room and pharmacy on the ground floor ("the Application" - Ref: H/02917/12).
4.4.5 The Application was decided under delegated powers and refused on 13 November 2012 on the basis that the development was "unacceptable in terms of the potential of the proposed new pharmacy to attract footfall and shopping activity away from the nearby Burnt Oak and other defined local shopping centres.... An integral element of the pharmacy proposal is late opening hours, also unacceptable in terms of its effect on nearby centres and general noise and disturbance in the locality." A copy of the decision is annexed – Appendix 1.
4.4.6 An appeal was submitted by MedicX on 5 December 2012 (Ref: APP/N5090/A/12/2188949) and the Inspector allowed the appeal on 18 June 2013 subject to a number of conditions. A copy of this appeal decision is attached – Appendix 2.
4.4.7 The pharmacies as listed above, challenged this decision by way of a claim under section 288 of the Town and Country Planning Act 1990. They sought an order to quash the Inspector’s appeal decision on the basis that the decision was not within the powers of the 1990 Act. It was the view that the Inspector failed to apply the ‘sequential test’ to the proposal, contrary to the retail planning policies in both the Development Plan and the NPPF. Furthermore, her reasoning for granting permission in lieu of a sequential test discloses a misinterpretation of both local and national planning policy. The pharmacies also believed that the Inspector’s positive conclusion that the proposal would cause ‘no material harm to the health of Burnt Oak town centre and other nearby local centres’ was irrational, being unsupported by any objective evidence as to the current vitality and viability of Burnt Oak town centre or the impact of the proposal on the town centre.
4.4.8 The matter was listed for a hearing on 20 February 2014 in the High Court but the pharmacies were notified by the Treasury Solicitor, acting for the Secretary of State as Defendant in the proceedings, on the 29 January that the Secretary of State had decided that it no longer wished to defend the claim and a Consent Order was duly signed by all parties, including MedicX, to have the appeal decision quashed and the hearing vacated. A copy of the Consent Order is attached – Appendix 3.
4.4.9 In Medicx's letter of 18 December to the NHS Appeal Unit they refer to the above S288 proceedings (incorrectly referred to as judicial review proceedings) and make the unfounded suggestion that this action was a "blocking tactic" by "local competitors" and that they had been advised that the claim would be "dismissed". The decision by the Secretary of State to not even defend the Inspector's decision clearly shows that the claim, far from being spurious, was based on serious concerns that were entirely justified. 4.4.10 MedicX also made an application for a Certificate of Lawfulness (Ref
H/04320/13) for a temporary pharmacy within Oak Lodge whilst the S288 proceedings were pending. This application was withdrawn on advice received from the Council and in response a third application was submitted (Ref: H/05463/13) to allow a change of use within the Oak Lodge for the temporary pharmacy to allow the pharmacy to be opened pending determination of the first application S288 proceedings. The Council decided to suspend deciding the third application until after the s288 hearing on 20 February. Given that all parties have now agreed to the quashing of the
appeal decision, this third application for a temporary change of use is no longer meaningful and will need to be withdrawn.
4.4.11 Given that the first application will have to be sent back to the Secretary of State for re-determination which will, conservatively, take several months to be re-listed the pharmacies cannot see that there is "good cause" for any further extension or that any viable timescale could be given. Quite simply, MedicX have failed to secure planning permission notwithstanding having tried every avenue open and do not have any hope of opening by April 10th 2014. Accordingly, the pharmacies do not believe Medicx Pharmacy's case is justified from a planning perspective.
In a subsequent letter dated 20 February, Blake Lapthorn stated:
4.4.12 The purpose in writing is to oppose an application by MedicX Pharmacy Ltd ("the Applicant") for an extension to the period within which it must commence the provision of pharmaceutical services at Oak Lodge Medical Centre, 234 Burnt Oak Broadway, Edgware, HA8 0HP ("Oak Lodge"). The application has been made pursuant to Regulation 39(2)(b) of the National Health Service (Pharmaceutical Services) Regulations 2005. The Applicant is required to demonstrate that there is "good cause" for the 6 month time limit set out in the above Regulations to be extended. The Authority will appreciate that it is for the Applicant to demonstrate that there is "good cause" and not for Dhanani Limited (nor indeed any other party) to satisfy the Authority that there is no good cause.
Grounds of Appeal
4.4.13 The Applicant has set out its position in a letter dated 18th January 2013. Its Grounds of Appeal are as follows:
4.4.14 NHS England failed to properly consider the extension request in line with Regulation 39 of the NHS Pharmaceutical Regulations 2005;
4.4.15 The Applicant is "committed" to open a 100 hour pharmacy at this location; 4.4.16 Through "external forces" the Applicant has been prevented from opening
this pharmacy within the time limit;
4.4.17 The Applicant will be in a position to open the pharmacy within 3 months should its application for an extension be granted.
Ground 1 - NHS England failed to properly consider the extension request in line with Regulation 39 of the NHS Pharmaceutical Regulations 2005
4.4.18 The Applicant alleges that "the decision letter from NHS England states "that
the Committee does not approve this extension on the basis that there is not good cause to approve an extension". The very definition of good cause requires deliberation and reasoning to come to a fair decision, yet the decision letter issued by NHS England provides no explanation of how the decision was reached and does not confirm that any real deliberation took place."
4.4.19 The Applicant has not adduced any evidence to support its contention that NHS England failed to properly consider the issue.
4.4.20 The evidence would suggest that, on the contrary, NHS England did give the matter proper consideration.
4.4.21 Dhanani Limited have seen an e mail from the Applicant's Alison Potter to an Annette Kimber dated 22nd October making reference to there having been a conversation between them the previous day. During this conversation a request was made for further information regarding the application. This would tend to rebut the contention that the matter was not considered properly.
4.4.22 The application was then considered in Committee, which shows that some deliberation must have taken place. The Committee had the benefit of having before it all of the evidence and information the Applicant had wanted to put. Ground 2 - The Applicant's "commitment" to open a 100 hour pharmacy at this location
4.4.23 Dhanani Limited, who the Authority should be aware, operates a standard hours pharmacy in the vicinity of Oak Lodge was surprised to read in the Applicant's letter of 18th December 2013 that the Applicant is committed to opening a 100 hour pharmacy at Oak Lodge with provision for a "much needed out of hours service".
4.4.24 There is reference to the Applicant's commitment to opening "this pharmacy". Dhanani Limited would take issue with this contention and could provide further details if required.
4.4.25 Furthermore, the Applicant has not actually sought to adduce any evidence of this "strong intention" to open a 100 hour pharmacy at this location.
4.4.26 The Authority might have expected that if the Applicant was of the view that such intentions to open a 100 hour pharmacy with a "much needed out of hours" provision were relevant to the determination of the issue then it would have adduced such evidence of its commitment to provide that extent of services.
4.4.27 Our position is that strong intentions are irrelevant to the question of whether or not there is "good cause" for the time period to be extended in any event. 4.4.28 In fact the Applicant argues that the extension is required precisely because it
has not carried out any building works to ensure that it is in a position to provide pharmaceutical services.
4.4.29 The Authority might conclude that if the Applicant so committed to the project as suggested then they would have taken rather more steps to ensure that they were actually in a position to offer pharmaceutical services pursuant to the grant.
4.4.30 For the reasons set out below, there was no legal barrier to it carrying out such works should it have wished to.
Ground 3 - Through "external forces" the Applicant has been prevented from opening this pharmacy within the time limit
4.4.31 Fairview Ltd and others lodged an application under Section 288 of the Town & Country Planning Act (1990) (not a Judicial Review) in July 2013.
4.4.32 The pharmacies sought an order to quash the Inspector's appeal decision on the basis that the decision was not within the powers of the 1990 Act. The matter was listed for a hearing on 20 February 2014 in the High Court but they were notified by the Treasury Solicitor, acting for the Secretary of State as defendant in the proceedings, on 29 January 2014 that the Secretary of State had decided that they no longer wished to defend the claim. A Consent
Order was duly signed by all parties (including MedicX) to have the appeal decision quashed and the hearing vacated.
4.4.33 Dhanani Limited note that in its letter of 18 December 2013 the Applicant states "We were aware that JR proceedings were a blocking tactic by the local competitors to try and stop us opening prior to our contract expiry and after taking legal advice we were assured that the JR was likely to be dismissed and that final planning approval would be granted".
4.4.34 The Applicant's letter implies that this action was without merit and therefore a somewhat cynical manoeuvre on Dhanani Limited's part. This is clearly not the case. This was a legitimate challenge to the decision of an officer which was ultimately not even defended by the Secretary of State.
4.4.35 If the Applicant was of the view that the [Judicial Review] proceedings would be likely to be "dismissed" so quickly then Dhanani Limited would question why they failed to take more positive steps to put themselves in a position whereby they could begin to offer pharmaceutical services.
4.4.36 In any event, as a matter of law, the existence of the Section 288 proceedings did not prevent the Applicant from engaging building contractors or taking appropriate steps to pave the way for the provision of pharmaceutical services. It is wrong to say they were precluded from doing so because of the above proceedings.
4.4.37 The fact remains that the Applicant is not in a position to proceed because of decisions it has taken for its own commercial reasons. It is plainly entitled to conduct its business in accordance with commercial considerations but its inaction in this case carried with it a risk that it would not be in a position to offer the required services within 6 months; yet that is a risk the Applicant has been willing to take.
4.4.38 The Authority will also note that the Applicant had applied for full consent in March 2013. The plan showing the "temporary" arrangements is dated 13th September. The Authority may consider that it was incumbent on the Applicant to take such steps rather sooner than 6 months after seeking consent.
Ground 4-The Applicant will be in a position to open the pharmacy within 3 months should an application for a temporary change of use to permit a pharmacy to operate from an area currently used as a waiting area for patients of GP's using Oak Lodge (which application is due to be considered in February 2014).
4.4.39 Dhanani Limited refer to the points made in the previous letter from Blake Lapthorn of 17th February regarding the "temporary" application for planning consent which is scheduled to be determined by Barnet Borough Council in February.
4.4.40 This application must now be withdrawn because the resolution of the Section 288 proceedings means that any temporary licence can no longer be considered temporary. In the absence of planning consent for the provision of pharmaceutical services at the premises, there is no reasonable prospect that the Applicant will be in a position to commence the provision of pharmaceutical services pursuant to its grant by 10 April 2014 in any event. 4.4.41 The original preliminary consent grant lapsed on 5 April 2013. Dhanani
Limited note that it took some three months to determine the full consent application so that it was not communicated to the Applicant until 10 July 2013. If the preliminary consent grant had been dealt with so that full consent
was granted shortly after 5 April 2013, then the Applicant's full consent grant would have lapsed far sooner. Even if NHS England had then granted a three month extension of time, that extension would have lapsed before now. 4.4.42 The point is that the Applicant has in fact had longer than many organisations
granted preliminary consent yet has still not been able to ensure in it is in a position to commence pharmaceutical services pursuant to its grant.
4.4.43 Dhanani Limited would therefore invite the Authority to reject the application. 4.5 MICHAEL GREENWOOD ON BEHALF OF RADIANT MEDICARE
4.5.1 The essence of Radiant Medicare's submission is that the appeal in question should be dismissed on the grounds that the appellants have failed to demonstrate "good cause" as to why the extension they seek should be granted. In addition, Radiant Medicare say that the appellants have already had more time in which to open their proposed pharmacy than was originally intended (for applications of this type) when the regulations were drafted. 4.5.2 As Radiant Medicare are sure the Authority is aware, the onus of proof rests,
solely, with the appellants. It is not for Radiant Medicare to prove anything. 4.5.3 Radiant Medicare are somewhat perplexed by the many references in the
letter of appeal (and accompanying documentation) to the appellants' strong "commitment" to opening a pharmacy. Radiant Medicare would have thought that any applicant who goes through the due process of application/appeal etc. would be fully "committed" to open a pharmacy. Were this not to be the case, Radiant Medicare wonder why anyone would bother to apply in the first place.
4.5.4 Radiant Medicare are conscious of the fact that the Pharmacy Appeals Committee of the Authority will consider the application for a three month extension de novo, rather than by way of a review of the decision taken by NHS England. With this in mind, it is not their intention to dwell on the earlier decision making process. Notwithstanding this, it appears to them that the London Region Pharmaceutical Services Regulations Committee has been diligent in reaching its decision to refuse the application.
4.5.5 It is with some amusement that Radiant Medicare note the appellants' comments that Radiant Medicare (et al) action in seeking Judicial Review of a planning decision was a "blocking tactic". The Authority may be aware that Radiant Medicare have been successful in this legal challenge. Plainly, the defendant in those proceedings (The Secretary of State for Communities and Local Government) would not have conceded had the action been a mere blocking tactic.
4.5.6 By way of background, Radiant Medicare believe the Authority will be aware of the chronology of events surrounding this matter. However, there is one issue to which they would respectfully draw attention to. The original application for preliminary consent was granted with effect from 5 October 2012. Had that preliminary consent been converted to full consent with effect from six months thereafter i.e. 5 April 2013 (as Radiant Medicare believe would have been customary) the six months full consent would have expired on 5 October 2013 and, crucially, had the three month extension been sought and granted, the full consent would have expired on 5 January 2014. Radiant Medicare do not know why this matter was not processed in the way described (and Radiant Medicare make no comment by way of speculation). However, the fact remains that, in the event, the full consent was granted with effect from 10 July 2013 and, even if this appeal were allowed, the time period would expire on 10 April 2014 (in accordance with regulation 39(2)(b)
of The National Health Service (Pharmaceutical Services) Regulations 2005). With this in mind, and having regard to the various logistical and preparatory considerations raised by the appellants, Radiant Medicare say that there is not a reasonable prospect that the pharmacy could open by the aforementioned deadline date.
4.5.7 May Radiant Medicare respectfully draw the Authority's attention to the fact that, contrary to the impression given by the appellants, Radiant Medicare's actions throughout this whole matter have been open, transparent and entirely honourable. They have acted within both the letter and the spirit of the regulations.
4.5.8 In conclusion, Radiant Medicare would respectfully request the Pharmacy Appeals Committee of the Authority to dismiss the appeal from Medicx Pharmacy Ltd for an extension of three months from the expiry of their full consent on 10 January 2014. Radiant Medicare say that the appellants have, manifestly, failed to demonstrate "good cause" as to why the extension they seek should be granted. Radiant Medicare further say that they see no reasonable prospect of the appellants being in a position to commence the provision of pharmaceutical services from the premises named in the application by 10 April 2014.
4.6 DAY LEWIS PHARMACY
4.6.1 It would appear that the original application by Medicx Pharmacy for inclusion in the pharmaceutical list was premature, no doubt driven by the impeding removal of the 100 hour 'exempt ion' in September 2012. Whilst not stated explicitly by Medicx in their appeal letter, the document relating to the Judicial Review makes it clear that the original planning permission application was actually refused by the London Borough of Barnet and was only subsequently granted on appeal. Regardless of the subsequent Judicial Review proceedings, it would appear that the delay to the opening of t he pharmacy came about initially as a result of the refusal by the local planners .
4.6.2 In the opinion of Day Lewis, Medicx Pharmacy Limited effectively took a gamble on the granting of planning permission at the time they made their original application for inclusion in the pharmaceutical list . Had they secured planning permission first or at least sought guidance from the local planners then they may have found that the process was rather more straightforward. Day Lewis submit that it was Medicx Pharmacy Limited's failure to make proper enquiries that has resulted in them running out of time.
4.6.3 Furthermore the e-mail correspondence from Alison Potter to NHS England makes several references to being unable to proceed with the project due to the risk of abortive costs.
4.6.4 Medicx clearly made a commercial decision not to continue with plans for the pharmacy opening whilst NHS England considered the extension request in part because there would be cost implications for them. The conclusion is that they have relied on the extension being granted so that costs can be avoided. In the opinion of Day Lewis that does not constitute 'good cause'. 4.6.5 It is also clear that, when under time pressure, Medicx have been able to
come up with an alternative plan to open a pharmacy elsewhere in the building. They became aware of the judicial review at the end of July, some five and a half months before the full consent permission would lapse. It would appear that if Medicx had sought an alternative location within the premises at that time rather than rely on the granting of an extension then there would have been plenty of time to open the pharmacy within the six
month period. Instead they do not appear to have sought an alternative solution until some months later .
4.6.6 NHS England has properly used its discretion in determining whether the applicant has demonstrated 'good cause' in explaining its failure to open the pharmacy with in the necessary timeframe. In the opinion of Day Lewis, whilst the applicant may well have found its plans frustrated by the lodging of a judicial review, it has, in fact, been its own decisions and its failure to plan this project properly which have resulted in its failure to open this pharmacy within the permitted timeframe. These decisions and failings were not out of its control.
4.6.7 In this situation Day Lewis believe that NHS England has made the correct decision and this appeal should be refused.
4.7 BARNET, ENFIELD AND HARINGEY LPC
4.7.1 As the FHSAU will know, one of the roles of the Local Pharmaceutical Committee is to help oversee the adequacy of pharmaceutical services locally so that patients have reasonable access to, and choice of, pharmacy for the dispensing of prescriptions and other pharmaceutical services.
4.7.2 The appellants' letter of appeal sets out their reasons for not proceeding with their plans to open the new pharmacy within the period of time set out in the regulations i.e. six months from the date of approval of full consent. An additional period had already been accrued inadvertently owing to the delay in processing the application for full consent. The appellants justify their request for additional time over and above that granted in the regulations on the basis that any delays occurred as a result of legal difficulties brought about by the existing pharmacies and that these prevented them from developing and opening the pharmacy on time. In the event, the judicial review of the Planning Inspectorate's decision was conceded and not contested. Notwithstanding the outcome of this planning application, it is hard to see why the appellants could not have developed and opened the pharmacy within the footprint of the building within the period set out in the regulations as details of such a development are now included in the letter of appeal.
4.7.3 The appellants also raise the issue of working with the Edgware Community Hospital Walk-in Centre in order to provide an out of hours pharmacy service. Whilst not strictly related to this appeal, it should be noted that although the Barnet Pharmaceutical Needs Assessment does refer in passing to a possible need for a pharmacy service during the evening and weekends for patients who use the Walk-In Centre, the PCT and LPC did make attempts in the past to work with the Walk-in Centre to develop an out of hours service. However, the LPC state that they were always advised that such a service was not required as the Walk-in Centre staff, mainly nurses, had access to pre-packed medicines which were given out under Patient Group Directions. The local community pharmacies had always expressed their readiness to enter into an arrangement whereby they would remain open for extended hours weekdays and weekends to provide a service to the patients at the Walk-in-Centre.
4.7.4 To conclude, the LPC is not convinced that the appellants were necessarily prevented from providing pharmacy services from within the Oak Lodge Medical Centre within the 66 week period available to them from the date preliminary consent was granted. In itself, this is more than the maximum 60 week period that applicants can usually expect to be given under the regulations and yet, the LPC understands, there are still a number of
potentially lengthy formal processes to be resolved before the pharmacy can open.
5 Additional Representations
5.1 BLAKE LAPTHORN LLP ON BEHALF OF FAIRVIEW PHARMACY LTD
5.1.1 Further to their letter of 17 February, Blake Lapthorn state that they have received notification from the Council that the application for temporary change of use has now been withdrawn as was anticipated in their letter. 6 Consideration
6.1 The Pharmacy Appeals Committee appointed by the Family Health Services Appeal Unit of the NHS Litigation Authority, (“the Committee”) had before it the papers considered by NHS England, together with a plan of the area showing existing pharmacies and doctors’ surgeries and the site of the proposed pharmacy.
6.2 By way of background the Committee was mindful that Part 2, Regulation 39(2) (Procedure after grant of application) of the NHS (Pharmaceutical Services) Regulations 2005 (as amended) states:
"Where an application is granted by the Primary Care Trust (or, on appeal by the Secretary of State or the FHSAA), the applicant shall be included in the Primary Care Trust's pharmaceutical list, or included in respect of different premises or services, only if, not less than 14 days before
(a) the expiry of six months after the date on which the grant was notified to him by the Primary Care Trust in accordance with regulation 27(1) or regulation 37(1); or
(b) the expiry of such further period or periods, not in all exceeding nine months from the date of notification of the grant, as it, or on appeal the Secretary of State, may for good cause allow,
he notifies the Primary Care Trust, in the form set out in Part 2 of Schedule 4, that he will within the next 14 days commence the provision of the services in respect of which the application was made at the premises to which the application related."
6.3 The Committee noted that the reason given by the applicant in their initial application to NHS England for an extension of time was due to the "judicial review" that was being brought which meant that they were unable to commence building works at the surgery. The applicant stated that they were drawing up contracts so that the build could start as soon as the judicial review is aborted, however they estimate a build time of 20 weeks plus 4 weeks to fit out the pharmacy and therefore this would not be completed within the time period of the full consent. The Committee noted however that the Judicial Review proceedings were not aborted and that parties agreed to a quashing order setting aside the decision of the Planning Inspectorate and as a result the original decision of Barnet Borough Council to refuse planning permission for the surgery now stands.
6.4 The Committee noted that the applicant now intended to open a pharmacy within the current footprint of the surgery and had applied to the Council for a change of use for the existing surgery so that a pharmacy could be opened within the surgery. The Committee noted the additional undisputed comments from Blake Lapthorn, which had been seen by all parties, that this application had now been withdrawn. The Committee noted the statements from the applicant that they are committed to opening a pharmacy at this site, however these statements have not been expanded upon.
