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Lloyds Pharmacy Limited for Judicial Review of the decision of Lanarkshire Health Board of 17 December 2009 [2010] CSOH 86


Petition for Judicial Review:- The petitioners, Lloyds Pharmacy Ltd, averred that Lanarkshire Health Board's decision to refuse their application for a minor relocation of their pharmacy under Regulation 5(1) of National Health Service (Pharmaceutical Services) (Scotland) Regulations 2009, was unlawful and unreasonable. They additionally sought reduction of that decision.

Following a proposed relocation of general practitioner medical practices in Carluke, the petitioner, and a nearby competitor – Boots UK Limited – sought to relocate their premises to be closer to the new facility. In December 2008, the respondent granted Boots' application for minor relocation of their premises.

The petitioner applied for minor relocation in August 2009. In December 2009, the respondent refused this application, stating that they were not satisfied that the relocation was minor. Further reasons for this refusal were provided in a letter sent to the petitioner's solicitors in February 2010.

The petitioners advanced three grounds of challenge. First, the petitioner averred the respondent applied the wrong legal test in considering their application, applying a test of “neutral effect” instead of a test of “no appreciable effect”. This was significant as these tests could result in different outcomes. The court rejected this ground of challenge; taking together the initial refusal of the petitioner's application, and the expanded reasoning offered in the respondent's letter in February 2010, it was clear from the context that they had applied the correct legal test.

Secondly, the petititoner averred that the respondent had erred in law in failing to have regard to relevant and material considerations e.g. the actual distance of the pharmacies from the proposed new medical centre, instead merely directing themselves to rankings of proximity. Had they directed themselves correctly, the petitioner averred, it would have been appropriate to note that the proposed relocation brought the petitioner only one unit apart from Boots. However, the court found that the respondent was entitled to take the view that an alteration to rankings of proximity would have an appreciable effect on the petitioner and other contractors, with a resulting effect on trade.

Thirdly, the petitioner averred that the respondent had treated Boots' application for minor relocation more favourably, in ignoring the proposed relocation of the new medical centre at the time the Boots application was considered. The court once again rejected this ground of challenge, as from an examination of correspondence, it was clear the Board had considered the medical centre's relocation in relation to the Boots application, and accordingly, there was no difference in treatment.

Petition for judicial review dismissed.