One of the first considerations in opening a new pharmacy is whether a pharmacy has planning permission allowing it to be opened as a pharmacy and authorising any changes required to it (for example changes to the shop front or to erect the pharmacy signage). Failure to have the correct planning permissions can prevent the pharmacy from trading...

Permitted use – retail or dispensing pharmacy?

Planning permission is usually required to allow property to be used for a given purpose. It is normally obtained by the grant of planning permission by the local planning authority. The continuous uninterrupted use of a property without objection by the local planning authority for a period of 10 years or more for a given purpose also has the effect of giving implied consent to that use for planning purposes as the local authority are usually unable to enforce a breach of planning after that time.

Most pharmacies sell ancillary products as well as medicines for example, cosmetics, toiletries and foods. These pharmacies are usually described as retail pharmacies. Their use falls within Class A1 of the Town and Country Planning (Use Classes) Order 1987 (the “1987 Order”).

Many doctors’ surgeries and health centre developments are usually granted planning permission authorising use as a medical centre within Class D1 of the 1987 Order.

The question often arises on a new health centre development as to whether the pharmacy use is authorised if a D1 planning use has been allowed and the pharmacy use is not referred to on the planning permission. The answer to this question is not always clear.

Often, a health centre planning permission will not specifically refer to the pharmacy use at all. Whether the pharmacy is authorised will depend on whether the original planning application included reference to the pharmacy on the application and supporting drawings. If it was included in those drawings then it is likely that the pharmacy has been authorised. Use as a retail or dispensing pharmacy, though, will depend on the following factors.

Usually, a purely dispensing and not retail pharmacy in a health centre will be allowed where a D1 planning permission has been granted as the use is construed as ancillary to the main health centre use for planning purposes.

A retail pharmacy may not be considered as ancillary to the main health centre use depending on the nature and extent of the retail use. This will be a question of fact and degree in each case. To assess this, the extent of retail use as part of the pharmacy’s business will need to be quantified. If such use is more than very minor then it is likely that the pharmacy will not be construed as ancillary to the medical centre use and a specific planning permission authorising A1 retail use will be needed.

If the use is allowed are there are any other concerns?

Some planning permissions contain conditions that limit the use of the property. These need to be checked carefully as such conditions can make the use of the property personal to a particular entity (thus restricting the future disposal of the pharmacy) or limit the hours of trade. Where there is a restriction limiting trading to certain hours this can cause problems if it conflicts with the trading hours required by the terms of the NHS contract.

Other considerations

Changes that affect the external appearance of a property usually require planning permission. Alterations to a shop front or to erect pharmacy related and other fascia signage are examples of external works which may require specific planning permission and advertisement consent from the local authority.

Special rules apply if the property is listed and additional permissions will be required from the local planning authority if any works are proposed. This is because there are onerous restrictions which apply to listed buildings which require the local authority to provide listed buildings consent to authorise any alterations regardless of whether they effect the interior or exterior of the pharmacy in addition to any planning consents which may be required for external alterations. Failure to obtain listed buildings consent is a criminal offence.

Why this matters

Failure to have the correct planning permissions can result in the local authority taking action to prevent a breach of planning (whether it is a breach of the permitted use or unauthorised alterations). In a worse case scenario this could result in the pharmacy having to close.

The above is a general overview and we recommend that independent legal advice is sought for your specific concerns. Please contact Claire Timmings on Claire.Timmings@charlesrussell.co.uk. Claire is an Associate in the Pharmacy Real Estate Team at Charles Russell LLP.