ACPA to reconsider s90 application
THE Australian Community Pharmacy Authority (ACPA) is being compelled to reconsider its decision to reject an application of section 90 (s90) approval for a new pharmacy, following a Federal Court ruling.
Under the ACPA’s Rules, s90 approval can be given if the Authority is satisfied that “at all relevant times there is within 500m, in a straight line, from the proposed premises, either: both the equivalent of at least one full-time prescribing medical practitioner and a supermarket that has a gross leasable area of at least 1,000m2; or a supermarket that has a gross leasable area of at least 2,500m2”.
ZAA Ventures Pty Ltd lodged an “approval to establish a new pharmacy” at Shop 3, 8-12 Wild Mint Drive, Flagstone, Queensland, on 19 Mar, which was within a 500 metre radius of a new Coles supermarket with a gross leasable area of 3,655m2 that opened on 21 Mar.
The ACPA rejected the application on the evidence that “the Coles supermarket was not trading on the day the application was made”, saying it was “therefore not satisfied that, at all relevant times, there is within 500m, in a straight line, from the proposed premises”, with its recommendation issued on 26 Jun.
Issuing the Federal Court’s ruling, Justice Sarah Derrington, said, “in the face of the evidence of the commercial activities that the Coles Supermarket was clearly already undertaking, it would have been surprising for the Authority to have found, in an unqualified sense, that the Coles Supermarket ‘was not trading’”.
Justice Derrington ordered that the ACPA’s recommendation that ZAA’s application for approval to supply pharmaceutical benefits under s90, should not be approved, be quashed.
Justice Derrington added that the ZAA application be remitted for the ACPA to consider again, and that the Authority make a recommendation according to law and a writ of mandamus be issued compelling the ACPA to consider the application and make a recommendation according to law.
ACPA has been ordered to pay costs of and incidental to ZAA’s application.
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