Petition of Burns Pharmacy LTD for Judicial Review (Court of Session)

Factual and Procedural Background

The Petitioner, Company A, operates several pharmacies in the vicinity of Monkton, a village currently without a pharmacy. The Appellee, a registered pharmacist, sought to open a pharmacy in Monkton, which Company A opposed, fearing adverse effects on its business and service quality. The opening of a pharmacy is highly regulated, and the Appellee's application process spanned several years involving multiple hearings, appeals, and judicial reviews. Initially, the Appellee applied in 2017 for inclusion on the provisional pharmaceutical list for premises at 21 Main Street, Monkton, which was granted but later overturned on appeal. A fresh application in 2021 for premises at Old Monkton Primary School was eventually granted after appeals and judicial review proceedings, with Company A challenging various decisions along the way.

The present petition concerns the lawfulness of an extension of time granted by the Health Board to the Appellee for submitting a required Form B, part of the application process to move from the provisional pharmaceutical list to the substantive list. The Petitioner contends that the Board unlawfully extended the deadline beyond what was stipulated in the Appellee’s original Form A application, and that this extension and a subsequent further extension were ultra vires and unlawful. The matter was heard substantively before the court.

Legal Issues Presented

1. Whether the Health Board had the legal power to extend the time period for submission of Form B beyond the date stated by the applicant in Form A.
2. Whether the extension granted on 9 October 2023, allowing six months instead of the originally stated three to four months for submission of Form B, was lawful.
3. Whether the further extension granted on 21 February 2024, based on an application made after the statutory deadline, was lawful.
4. Whether failure to submit Form B within the prescribed time necessitated removal of the applicant’s name from the provisional pharmaceutical list under Regulation 8(6).
5. The scope of the Board’s discretion or implied powers to amend application details or grant extensions beyond those explicitly provided in the regulations.
6. The practical consequences of declaring the Board’s decisions unlawful, including the effect on the application process and the provision of pharmaceutical services in Monkton.

Arguments of the Parties

Petitioner's Arguments

• The Board had no statutory power to extend the initial period for lodging Form B beyond the date stated in the applicant’s Form A.
• The initial extension to six months granted on 9 October 2023 was ultra vires and unlawful, as Regulation 8(4) fixed the period for submission of Form B.
• The further extension granted on 21 February 2024 was unlawful because the application for extension was made out of time, breaching the 28-day advance requirement in Regulation 8(5).
• The Board had no express or implied power to amend the provisional date stated by the applicant in Form A or to accept late applications for extension.
• Failure to submit Form B within the prescribed time required mandatory removal from the provisional pharmaceutical list under Regulation 8(6), with no discretion to the Board or the court to excuse non-compliance.
• Granting the relief sought would have practical consequences by requiring the Appellee to submit a fresh application, including a new consultation and possible appeals, thus affecting the application process.

Respondent's Arguments

• The Board’s decisions to extend the time period were lawful and within its incidental powers to take steps consequential or incidental to the statutory scheme.
• The "provisional date" on the provisional pharmaceutical list is not rigidly tied to the date stated in Form A but reflects the date the applicant undertakes to provide services at the point of admission to the provisional list.
• The Board’s arrangement with the applicant in October 2023, reflecting a six-month period for submission of Form B, was lawful and did not constitute an unlawful unilateral amendment of Form A.
• Extensions granted under Regulation 8(5) were timely and lawful if the provisional date was six months from inclusion, making the February 2024 extension application in time.
• Minor amendments to applications that do not alter their substance are permissible and incidental to the Board’s powers, referencing authority on amendments in administrative contexts.
• Non-compliance with procedural time limits does not automatically invalidate decisions; the court should consider the consequences and whether Parliament intended such non-compliance to render decisions void.
• Reduction of the Board’s decisions would have no practical effect and could delay the provision of pharmaceutical services, which is contrary to public interest.
• The delays in the application process were largely due to the Petitioner’s own legal challenges, and the public interest demands facilitation of access to pharmaceutical services in Monkton.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shahid v Scottish Ministers [2015] UKSC 58	Plain and unambiguous legislation must be applied as written; no purposive interpretation can override clear statutory consequences.	The court relied on this to affirm that failure to comply with the time limits in the Regulations results in mandatory removal from the provisional list, with no equitable discretion to override.
R v Soneji [2005] UKHL 49	Where legislation is silent on consequences of failure to comply with time-limits, courts may infer intended consequences from legislative purpose.	The court distinguished this case, noting the Regulations explicitly provide consequences, so this precedent did not support excusing non-compliance.
R (Piffs Elm Ltd) v Commission for Local Administration in England [2023] EWCA Civ 486	Once a statutory function has been exercised, it cannot be redetermined or rescinded without express power.	The court applied this to conclude the Board could not redetermine the application after admission to the provisional list except through the prescribed process.
Walker v Aberdeen City Council 1998 SLT 427	Minor amendments not altering the substance of an application may be lawful even without express power.	The court used this as a test for whether the Board’s acceptance of amended timescales was incidental and lawful.
Attorney General v Great Eastern Railway Co (1880) 5 App Cas 473	Public bodies may do anything incidental or consequential to powers expressly granted by legislation.	Supported the Board’s argument that incidental powers allowed it to accept amended timescales.
Seal v Chief Constable of South Wales [2007] UKHL 31	Failure to comply with procedural requirements does not automatically invalidate decisions.	Used to argue that non-compliance with time limits should be assessed in context and not automatically invalidate the Board’s decisions.
King v East Ayrshire Council 1998 SC 182	Reduction of administrative decisions is discretionary and may be refused where no practical effect would follow.	Supported refusal to reduce the Board’s decisions when reduction would have no practical effect.
Walton v Scottish Ministers [2012] UKSC 44	In exercising discretion for judicial review remedies, public and private interests must be balanced.	Applied in weighing prejudice to the public and parties in deciding against reduction of decisions.
London & Clydeside Estates Ltd v Aberdeen District Council 1980 SC (HL) 1	Emphasis on consequences of non-compliance with statutory time limits and whether Parliament intended invalidity.	Used to argue that technical breaches of time limits should not necessarily invalidate decisions.
Glasgow City Council v Upper Tribunal [2025] CSIH 2	Nature and circumstances of irregularity determine whether it should be excused.	Supported the Board’s position that the irregularity was minor and excusable.
Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673	Court should not reduce decisions if error is immaterial and would not alter outcome.	Supported refusal to reduce decisions where the outcome would have been the same.
Greenpeace Ltd v Advocate General for Scotland [2025] CSOH 10	Discretion to refuse reduction where errors are immaterial or have no practical effect.	Applied to deny reduction of Board’s decisions.
Galbraith Trawlers Ltd v Advocate General for Scotland [2024] CSIH 1	Legal analysis governs consequences of administrative actions, not the understanding of officials.	Confirmed that what Board thought it was doing is less important than the legal effect of its actions.

Court's Reasoning and Analysis

The court analysed the relevant statutory scheme under the 2009 Regulations, focusing on the distinction between the applicant’s stated intentions in Form A and the binding commitment made at the point of admission to the provisional pharmaceutical list as expressed in Form D and the provisional list entry.

It found that the "provisional date" is the date from which the applicant undertakes to provide pharmaceutical services and is fixed at admission to the provisional list, not rigidly tied to the date stated in Form A, which only reflects the applicant’s intentions at the time of application. Therefore, the Board’s decision on 9 October 2023 to allow six months for submission of Form B, reflected in Form D, was lawful.

The court rejected the Petitioner’s argument that the Board had no power to extend the initial period or to amend the provisional date, holding that the Board had incidental powers to allow amendments that did not alter the substance of the application, consistent with administrative law principles.

Regarding the extension granted on 21 February 2024, the court held that since the provisional date was six months after inclusion, the extension application was timely and lawful.

The court acknowledged that strict compliance with time limits is required under the Regulations, and failure to submit Form B within the prescribed period mandates removal from the provisional list without discretion. However, as the Board’s decisions were lawful, this consequence did not arise.

Finally, the court considered the practical implications of granting the Petitioner’s relief, noting that reduction of the impugned decisions would have no practical effect and could delay the provision of needed pharmaceutical services in Monkton, contrary to public interest. The court emphasized that the Petitioner’s own delays through appeals and judicial review contributed to the timeline.

Holding and Implications

The court REFUSED the Petitioner’s prayer for relief, sustaining the Health Board’s pleas-in-law and repelling the Petitioner’s pleas.

The effect of the decision is that the Board’s extension of time for submission of Form B and the subsequent further extension were lawful. The Appellee remains on the provisional pharmaceutical list and may proceed with the application process without the need to start anew. No new legal precedent was established, and the decision primarily resolves the dispute between the parties without broader alteration of the regulatory scheme.