Pharmacies are evolving to keep pace with technological innovation, changing customer preferences and regulatory requirements. According to NHS Information Centre Figures, there are approximately 200 distance-selling (mail order or internet based) pharmacies in England. This may seem a modest number compared with the total of 11,500 pharmacies in the country, but represents a fourfold increase from 2009.
One of the reasons for this increase is that distance-selling is exempt from market entry regulations, whereby new operators are required to demonstrate patient need in order to obtain permission from NHS England to provide pharmaceutical services.
Approval from NHS England does not, of course, automatically translate into a new pharmacy opening. The planning system also presents hurdles, which an operator must jump before it can start trading.
Land use classification
The Town and Country Planning (Use Classes) Order 1987 separates uses of land and buildings into various categories known as 'use classes'. Each use is considered individually, with reference to its scale and operational reality, to determine its use class. A conventional community pharmacy may, if it functions in a principally retail capacity with a high proportion of turnover associated with non NHS sales, fall within class A1 (shop). Conversely, if the pharmacy operates principally as a dispensary ancillary to a GP’s surgery, it may fall within class D1 (non-residential institutions).
The operational permutations of distance-selling pharmacies are equally varied. Larger mail order units with significant warehousing capacity may necessitate class B8 (storage and distribution) user rights. It is also possible for a pharmacy to not fall within any of the standard use classes. This kind of use is known as a sui generis use. Home based internet pharmacies are more likely to be considered a sui generis use. This is the classification adopted by Bradford Metropolitan Borough Council, which recently determined an application for a change of use of the ground and first floor of a terraced house, from C3 (residential) to an internet pharmacy (sui generis) (reference 13/02766/FUL).
Planning impacts of home based internet pharmacies
Underpinning land use classification is an assessment of environmental impact. The Bradford case illustrates the planning issues most likely to preoccupy local planning authorities. The local authority was concerned that the proposal would, in virtue of the external signage and internal layout proposed, attract passing trade, which, in addition to increased traffic to and from the business by staff, suppliers and delivery vehicles, would cause an adverse effect on residential amenity through noise, general disturbance and increased pressure on limited on-street parking. Because of these concerns, planning permission was refused.
Securing planning permission
Pre-application discussions with the local authority are advisable, to ascertain the local authority’s assessment of the relevant use class and the suitability of the proposed use to a particular area. As it happens, the Bradford authority’s concerns were in some cases unfounded, as it is a condition of the NHS permission that distance-selling pharmacies must not provide face to face services to patients (except in very limited circumstances). Nevertheless, any new non-residential use is likely to be met with some resistance, if in a predominantly residential area. For this reason, it is important to be clear about the likely impacts of the proposed use.
The local authority is likely to ask the following questions:
At appeal, the Bradford pharmacist successfully argued that: signage and counter layout could be adequately controlled by planning condition; fundamentally, its proposal would not include provision for any visiting members of the public (a matter controlled by its NHS permission in any event), and was purely for small scale internet dispensing service, which would operate with two short stay deliveries per day, outside peak hours. On this basis, the Planning Inspector granted a temporary 12 month permission, in line with the operator’s 12 month NHS permission, to allow delivery and parking issues to be monitored by the local authority.
While each case must be considered on its own merits, the Bradford case sets a pragmatic precedent for grant of temporary consent to new home based internet pharmacies, to allow the local authority time to monitor impacts and assess the suitability of the proposed use. It is also consistent with the new Planning Practice Guidance: Use of Planning Conditions, which suggests that circumstances where temporary permission may be appropriate, include where a trial run is needed to assess the effect of the development on the area.
Provided set-up costs can be kept to a minimum, temporary permission may be an attractive fallback position for new operators where permanent consent is not forthcoming from the local authority.
About the authors
Rachel Warren is a Senior Associate and 
Hanna Virta is an Associate, both at Charles Russell LLP
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