Sha/23365 Appeal Against Nhs England South East

11 December 2020 Arena Point Merrion Way

Leeds REF: SHA/23365 LS2 8PA

APPEAL AGAINST NHS ENGLAND SOUTH EAST (KENT Tel: 0203 928 2000 ET AL) AREA TEAM, NHS COMMISSIONING BOARD Fax: 0207 821 0029 ("NHS ENGLAND") DECISION TO REFUSE AN Email: [email protected] APPLICATION BY DELMERGATE LIMITED FOR INCLUSION IN THE PHARMACEUTICAL LIST OFFERING UNFORESEEN BENEFITS UNDER REGULATION 18 AT THE NEW RETAIL DEVELOPMENT, CASTLE HILL LOCAL CENTRE, EBBSFLEET GARDEN CITY, KENT

1 Outcome

1.1 The Pharmacy Appeals Committee (“Committee”), appointed by NHS Resolution, quashes the decision of NHS England and redetermines the application.

1.2 The Committee determined that the application should be granted.

NHS Resolution is the operating name of NHS Litigation Authority – we were established in 1995 as a Special Health Authority and are a not-for-profit part of the NHS. Our purpose is to provide expertise to the NHS on resolving concerns fairly, share learning for improvement and preserve resources for patient care. To find out how we use personal information, please read our privacy statement at https://resolution.nhs.uk/privacy-cookies/primary-care- appeals/

Arena Point REF: SHA/23365 Merrion Way Leeds LS2 8PA APPEAL AGAINST NHS ENGLAND SOUTH EAST (KENT ET AL) AREA TEAM, NHS COMMISSIONING BOARD Tel: 0203 928 2000 ("NHS ENGLAND") DECISION TO REFUSE AN Fax: 0207 821 0029 APPLICATION BY DELMERGATE LIMITED FOR Email: [email protected] INCLUSION IN THE PHARMACEUTICAL LIST OFFERING UNFORESEEN BENEFITS UNDER REGULATION 18 AT THE NEW RETAIL DEVELOPMENT, CASTLE HILL LOCAL CENTRE, EBBSFLEET GARDEN CITY, KENT

1 A summary of the application, decision, appeal, representations and observations are attached at Annex A.

2 The Chair of the Committee set-out the documents it had received.

3 Site Visit

3.1 Owing to the Covid 19 Pandemic the Committee was unable to attend the site as a Committee (together) however, following a detailed discussion on its approach each of the Committee members attended the site and conducted their own assessment. Each attended on different days, at different times and in different weather giving a wider understanding of the geography and areas within this application. The experiences were discussed via email including the exchange of photographs and short videos.

3.2 One member attended on Sunday 18th October with a view to seeing Ebbsfleet Garden City with residents at home. Another member attended on Tuesday 20th and the third member attended on 29th when it rained all day.

Observations on Sunday 18th October

3.3 The entry to the Ebbsfleet Garden City has conspicuous signage. I turned onto Castle Hill Drive noting the almost complete Redrow development called Ebbsfleet Green. After about 1km I noted the Cherry Orchard Primary Academy, Co-Op store and the Community Centre set round a large car park. The car park was about half full and there were activities at the community centre, organised children’s activities on the play area and a steady stream of customers to the Co-Op. The turnover of cars in the park was constant. Parking is free but limited to 3 hours. From outside, the Co-Op appeared large and attractively stocked. It had an ATM on the external wall and occupied a prominent corner site. There were six other retail units (three on each side) – none occupied but all with shopfronts in place. In contrast to the Redrow development this area being constructed by Taylor Wimpey was of a much higher density with apartment blocks rising to 5 storeys including those above the shops.

3.4 I sought directions for the footpath to Swanscombe but was advised by two dogwalkers not to do so and to follow the road instead. This advice is the same as on the NHS Choices website. Walking up Cherry Orchard Road was a steady incline then turning right onto Whitecliffe it was a steady descent down through attractive and completed new housing on an excellent pavement to Southfleet Road, conspicuous by huge model elephants, to turn left into Swanscombe.

3.5 Swanscombe was totally overwhelmed by parked cars and with no apparent centre. I turned left into Swanscombe Street and located Swan Valley Pharmacy at the bottom

of Coopers Road behind locked gates. There was no signposting to either the pharmacy or the adjacent surgery. Car parking appeared challenging.

3.6 I continued along Swanscombe Street and took the second turn on the right up Church Road. Walking was extremely difficult since the pavements were obstructed by parked cars and the roads very narrow as well as being uphill. Ackers Chemists is about 250m up Church Road. It is the only shop in the immediate area and is surrounded by double yellow lines except for just two parking spaces outside.

3.7 Walking time from the application site to Swan Pharmacy was 28 minutes and to Ackers Pharmacy was 35 minutes. The distance measured on the return by car was 1 mile.

3.8 I looked for a possible short cut through or around the grounds of Ebbsfleet Academy but both access gates were locked.

3.9 I visited the Asda Pharmacy which offers late and Sunday opening. It is shown on NHS Choices as 3.5 miles away from the application site but was 5 miles by car. The pharmacy is at the entrance to the main store and accessible. At the time of my visit it was busy with a queue.

Observations on Tuesday 20th October

3.10 There were a large number of trucks lining the access road. There were only eleven cars parked in the Castle Hill carpark. Bus-stop noted but no buses seen at all save one later in Swanscombe heading toward Bluewater. Every house at Castle Hill looked occupied with cars outside on the road or on the drive. There appeared to be a lot of items such as BBQs, toys and buggies suggestive of young families.

3.11 The whole development is large and attractive and there looked to be a substantial number of completed homes with many more near completion. The pavements are wide, pedestrian friendly and there are many speed-calming chicanes on site. This is in complete contrast to Swanscombe where walking appears unpleasant. I did not attempt to use the footpaths.

3.12 Cherry Orchard Academy was closed (believed to be half-term) as was the community centre. There was no-one on the playground. I noted three mothers with babies who might have been to a toddler-group, one elderly man with a walking stick and one older woman (possibly a grandparent) with a small child otherwise I only saw young families. There is a lot of construction continuing beyond the Co-Op site.

3.13 The walk along Whitecliffe Road and Castle Hill to Swanscombe was clearly signposted. It looked like a good 15 minute walk to the Swan Pharmacy from Co-Op. The walk to Ackers Pharmacy was too far and unpleasant. The pavements felt hemmed in by parked cars. There was no available parking at Ackers and I was unable to stop. I could park near the church and near Swanscombe Park and walk from there but there was no reason to do so. I missed the Swan Pharmacy twice but finally found it behind the academy. There did not appear to be any signs to say it existed. I considered walking from Castle Hill but there was nowhere to park and teenagers in the woods were a deterrent. Anyone with mobility issues would probably find this impractical.

Observations on Thursday 29 October

3.14 I turned off the A2 onto the A2260 and look at the development on Ackers Drive. This is a circular route with completed homes within the circle of the road. The homes appear to be reasonably high quality and of varying size. The route around is quite hilly. Whilst the housing has been completed none of the school or community facilities shown on the charts to the west of the housing appear to have been built and there are wide open spaces set aside for further development. Work had commenced on some of these areas. There were a couple of people on foot including a mum with young children

otherwise it was very quiet. It is clearly a ‘car community’. This development is separate to the main development relevant to this application.

3.15 I drove up the hill to enter the site via Castle Hill Drive and travelled down to Flint Rise, Ovens Road and Eyres Drive. Castle Hill Drive is lined by flats and then houses. All the houses in the three above-named roads appear to have been completed, many if not all appear to be inhabited. I drove up to the Castle Hill community centre carpark. The centre and school were not in use today (believed to be half-term). The carpark was nearly empty. The Co-Op looked well stocked with groceries and there is a cashpoint outside but there were few people around other than development workers. Building works above and alongside the store continue. There were no other shops.

3.16 I walked up Cherry Orchard over the Castle Hill Drive interchange past the ‘Village Green’ and the open space to the east used for building equipment. Many homes to the east are in the form of flats and appear to be completed or near completion. (On my return journey I noted a good number to be occupied.) I continued up the hill to Whitecliffe Road. All homes to the right and left up the hill looked to be completed, many were occupied. There were many signs of family occupation such as toys and Halloween decorations. This area of the development looked well designed, completed or near completion and either occupied or ready/almost ready for occupation. There was a great deal of emphasis on car ownership.

3.17 I turned west and walked to the end of Castle Hill Road to take the footpath to Swanscombe. All the land to the west of this is un-developed albeit the road itself is being extended ready for the next phase. The footpath up to Leonard Avenue (the southern flank of Swanscombe) was wide and split to either a reasonably easy gradient or a series of long wide steps with slippery wet sleepers. The whole path consisted of wet grit. Swanscombe has an entirely different character. Leonard Road and Keary Road are dreary, old fashioned and unkempt. There were some attempts to tend gardens but the whole character was poor and downbeat. Many cars lined the streets. I continued down to and over Swanscombe Street into Church Road which was narrow and depressing. It was car lined and has a semi-derelict garage on the eastern side. The housing appeared old (1893 sign on a typical house) and in poor to middling condition. Two parking spaces were available outside the chemist, but no-one was about save for a man on a bike with a large dog roaming free. Signs regarding dog- mess rather typified the area. It was dreary and I was by now rather wet. The walk took 25 mins. The first half is up hill including a path that is apt to become dirty. It is not a walk I would choose to undertake nor would I expect patients to make.

3.18 I walked down Herbert Road, Stanhope Road and Southfleet Road to the Academy. A sign said there was a pharmacy but there were no signs as to where it was and it was not evident. I asked a man who came out of one of the buildings and was directed round the back of the academy. I walked through car park to see the building (colleagues approached from the other direction down Coopers Road). There was no signage until right outside the pharmacy. There was very little available parking and people were stopping in the roadway to pick-up or drop-off others attending what looked like adult classes. It took 10 minutes to walk between the pharmacies.

3.19 I tried to use the reported shortcut by the Children’s Centre and School to make the return journey but the gates were closed so I retraced my steps to the Southfleet Road and walked downhill to re-enter the development at Whitecliffe Road. Southfleet Road was busy, and I noted the signs regarding ‘flooding’. These were borne out by a lot of surface water. The majority of drivers made no attempt to avoid these so I had to dodge the either uncaring or deliberate attempts to spray me with water.

3.20 I walked up Whitecliffe Road (past the elephants) and considered three possible entries to the footpath that runs alongside the road the north. Two entrances were steep, wet and slippery. The path is old and deeply sunken. Whilst it may be quite nice as an old country path in the summer it was muddy wet and slippery. To reach Swanscombe requires one to walk up a steep incline, climb over a large stile, and negotiate a litter-

strewn muddy/puddled path and a second stile. It is not an appropriate route for patients to access pharmaceutical services. The third entrance, opposite the top of Motte Lane misses the steep incline and first stile but one still has to walk the short and dismal path to Keary Road. It was all mud and puddles, strewn with litter and drinking cans and there is the stile at the Keary Road end. I retraced my steps and walked back down Motte Lane and the side streets to the carpark. Again many of the properties appeared to be occupied. It took between 15 and 20mins to walk from Swan Valley Pharmacy to the Co-Op. I was by now very wet indeed.

3.21 Throughout all of this I noticed one bus. The bus-stops I passed either had no timetable on them or had a timetable to destinations other than the development. I saw a bus in Swanscombe, I did not see a bus on the development nor did I see anyone waiting for public transport.

3.22 The drive to the Swan Pharmacy took me 5 minutes from the Co-Op but parking was very limited on the academy side of the pharmacy. I did not go along Coopers Road but I noted that there are parking spaces there and colleagues did see this route. Ackers Chemist was a further 5 minutes drive up the road and, although parking was available, I can see that it may be difficult. The road had cars parked on both sides and is likely to become congested.

Overall impression from all three visits.

3.23 The development is light, bright and clearly designed for car-usage. The site is sloped North-South it is flatter East-West albeit Whitecliffe Road rises to Motte Lane and Castle Hill Drive splits and descends to the South-West. Pavements and green spaces are wide and well made. There appears to be good design to move around on foot. The development between the Southfleet Road and the Co-Op appears to be completed or near completion. Many of the properties appear to be occupied by families.

3.24 The two footpaths into Swanscombe may be acceptable for recreational use by individuals who are fit and mobile. They are not suitable as access to pharmaceutical services. Whilst the walking distances to either pharmacy are not in themselves preventative for someone who is fit or mobile, all routes are open to the elements and include some quite long inclines. The paths are gritty/messy, depressing and one has two stiles. The walk along the road includes roads that are busy, with narrow pavements and obstructions and areas which are not safe for pedestrians. A round-trip walking to access pharmaceutical services from the Co-Op could take around 1 - 1.5hrs for some patients. It would not be suitable for the elderly, less mobile or for a parent with a young child. The Committee’s overall impression was that patients would not choose to walk to either pharmacy. Patients may drive but that would involve an element of chance as regards parking. Whilst public transport may be available as per the papers, little or none was observed on the visits.

4 The above observations were read to those in attendance. They were invited to comment upon them.

4.1 The Committee was asked if any members visited any other pharmacies shown on the map or in the papers. Other than the Asda store mentioned above, it did not.

5 From the papers, the Committee was aware of general healthcare provision in the area including those pharmacies set out in Mr Loughrey’s report at pp89-90 and repeated at pp136- 137 of the bundle. Whilst he describes these as serving their own local communities and ‘irrelevant’ to the residents of Castle Hill such matters are for this Committee to determine based upon all the evidence.

6 To assist the parties in the presentation of their cases and, for them to assist the Committee in its decision, the Committee indicated that it had seen no evidence of innovation in the

application. In addition, whilst it may be reasonable to assume that within any moderate to large group of persons there may be some with particular protected characteristics, it had seen little evidence upon this issue or upon the related issue of a specific pharmaceutical need and difficulty. It indicated that it was most likely to be assisted by hearing representations on the issues of access and choice to current residents and/or to those who would be moving into the area in the near future.

7 Oral Hearing Submissions

Mr Daly on behalf of the Applicant, Delmergate Ltd

7.1 Mr Daly commenced his address by thanking the Committee for the above indication but asserting that we all share protected characteristics whether it be age, sex, gender, a degree of infirmity and as such this remained an important issue. However he stated that much of the application was based upon the issues of improvements, better access, reasonable choice and the ultimate question of significant benefits. He said he would call Mr Loughrey a planning expert and Ms Rouse who is employed by the Ebbsfleet Development Corporation (EDC) to look at health issues within the development. He observed that the relevant PNA which is intended to expire in March 2021 states that the provision of pharmaceutical services in Kent is mainly good except in Ebbsfleet. He said that Ackers Chemist who objected to this application/appeal had themselves identified a need but their application had not met the requirements of the Regulations. As such an application under Regulation 18 (of the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013) was the appropriate way forward. Ackers had twice attempted to open a pharmacy on the site once by way of a ‘future need’ application and once by way of an application to relocate their pharmacy from Church Road. He said that Ackers owned both the pharmacies in Swanscombe. He said that the previous refusals were not determinative and that the EDC working with local communities and authorities had formed its own independent view as to needs of the residents. This was not a ‘developer led’ application.

7.2 In respect of the issue of futurity Mr Daly said that the Regulations did not refer to timing and when reviewing similar Regulations in Lloyds Pharmacy v National Appeal Panel & Others [11 June 2004] the Court of Session in Scotland had expressed the view that it was appropriate to consider probable future development. He also referred to R v FHSA & Boots the Chemist, ex parte E Moss [11 March 1999] [QBCOF/98/0967/4] in which he said the Court of Appeal had similarly observed that future expectations of demand via development should be taken into account. He asserted that the Committee could and should take account of future development that was likely to occur, as opposed to speculation which he accepted was not appropriate.

7.3 Mr Loughrey spoke to the contents of his reports and the maps therein. He pointed to the principle areas of development as being castle Hill, Ashmere, Alkerden and Weldon encircled by landscaping separating them from Swanscombe. He said the intention behind the development was of a walkable local community with all services designed to be in walking distance. It was to be community focused upon a central hub. It was attractive, with new communities and stakeholders wanting to build a community spirit around the areas of the hub, this being a school, shops and community centre and open spaces.

7.4 He observed that a pharmacy can be an important part of that spirit since it will improve choice and bring significant benefit to a significant population. He said the volume of people in the area was already significant and it was growing daily particularly the number of young families and children. He said he understood that there were agreements to lease a coffee shop, estate agent’s premises and the applicant’s pharmacy. He said the school was open and the vibrant community centre provided a vast range of community activity for young and old alike. Regarding the issues of futurity and certainty or speculation he said that this was a large development with eight developers and as such it or they were unlikely to be affected in the same way that a

single developer might be. There were eight stand-alone companies. Castle Hill was completed. Alkerden was the next phase of development and its residents were likely to access the area of Alkerden via the proposed location. How the new Alkerden residents accessed their homes may affect the consideration of future development since Whitecliffe Road and the central ‘Fastrack’ were likely to be the main routes of access.

7.5 Mr Loughrey referred to the plans of the whole site and to the parcels of land upon which development had been completed or was in progress and was to complete in the next two years. In consultation with the EDC he said that by the end of the current financial year in March 2021 he expected 1,111 homes to be completed with a probable population of about 2,800 residents. He corrected he estimate of 5,000 residents in his report. Alkerden would increase the estimate by 66 houses in 2021 and by 215 in 2022. The main building in Castle Hill would begin to tail off in 2023 and the final total in this area would be around 1,600 by 2025 by which time Alkerden would be increasing further. He thought there would be an additional 607 dwellings with an estimate of around 1,500 residents in the 2021 phases of Castle Hill and Alkerden. In the round he expected a global population of 4,300 by the end of 2022.

7.6 In response to a question from the Committee Mr Loughrey considered it more likely that residents of Weldon/Ebbsfleet Green would be more likely to attend shops in Castle Hill than in Swanscombe. He considered the similar character and likely social characteristics of Weldon and Castle Hill, the new communities working together and felt that the route to Swanscombe along a narrow B-class road with a narrow footpath and lack of cycle path made this more likely.

7.7 When questioned by Ms Hunneyball on behalf of the respondents Mr Loughrey said that 935 houses were currently completed with 176 due for completion by March giving the total of 1,111. He had used a ratio of 2.5 residents per household, higher than the general Ebbsfleet figure of 2.3 residents since the occupiers of the new houses comprised mainly of families. He agreed that the intention was to extend the Fastrack to Bluewater shopping centre via a tunnel. He rejected the suggestion that future residents would be unlikely to access a pharmacy at the proposed location observing that the general East-West schedule of development supported Castle Hill being a through-route to residents of Alkerden. He agreed that for Weldon/Ebbsfleet Green residents it may be quicker to go to Swan Valley pharmacy rather than Castle Hill. He said he recalled Lloyds pharmacy in Springhead had a carpark. He said he was aware of the Health & Wellbeing centre in Ebbsfleet Central but accessing that required crossing the main road and finding the location. He said he was not suggesting a pharmacy was needed in all locations being developed but was looking at this application on its merits. He was referred to walkable distances as set out in his report and said he was attempting to suggest a reasonable distance but this was not an upper limit. I was a matter for the Committee what it considered to be reasonable in the circumstances of the case.

7.8 When asked about the number of houses being built Mr Loughrey said that there were 602 houses to be completed in Weldon by March 2021. He could not give an exact figure now but this was the annual projection by the EDC and building works were continuing following a delay occasioned by the first lockdown.

7.9 In answer to questions from the Committee Mr Loughrey agreed that a pharmacy was a commercial enterprise and would look to fulfil a need. As such it was too proscriptive to suggest it would only serve residents in the Castle Hill area. He was unable to pinpoint the location of the Ebbsfleet Health Centre.

7.10 In response to a question from Ms Sorensen-Bentham, attending on behalf of the PSRC, Mr Loughrey agreed that completed housing was not to be confused with occupied housing but, demand was high and this was a successful development with a high level of occupation.

7.11 At the conclusion of Mr Loughrey’s evidence Mr Daly commented that the objectors appeared to want to ignore what was probable and reasonable in assessing future house-numbers but to rely upon future developments such as the Fastrack service to Bluewater.

7.12 Ms Rouse gave evidence from her perspective as the project manager for Health and Wellbeing at the EDC. She provided a prepared slide-presentation and spoke as to the health strategy of the EDC. The development was viewed as a ‘garden city’ intended to provide 15,000 new homes and the EDC had strategic oversight of transport, links and facilities. It was accountable to government. She did not support any particular application or pharmacy company but, her team worked alongside local people who had strongly and repeatedly asked for a pharmacy. She gave varying figures as to the number of dwellings built or to be built suggesting that by 2025 there may be 7,500 homes housing 18,000 people. Castle Hill is the first of seven village centres. By March 2020 there were 914 built approximating to 2,196 residents and a further 233 being built this year. The pandemic put a stop to building work but the target had been met. In Ebbsfleet Green 496 homes had been completed and they were only 48 off the target of 106 for the year which was a good indicator of being back on track. The development had attracted young families and commuters as well as elderly relatives who wished to be near to their families. A number of local groups and events had been established and the aspiration of a healthy garden city was met by a network of parks, walks and cycle routes. The intention was to have centres to the developed areas with facilities accessible in 5 – 10 minutes and this had brought people into the area.

7.13 Ms Rouse said there was a focus on health promotion, preventing ill health and the EDC was working with residents. This included a survey, email communication, Facebook groups and organised events/gatherings including with health providers in 2017 and 2018. There was a repeated concern over a lack of health services including doctors, dentists and pharmacists. There were complaints about closed lists at surgeries and that promises to deliver a GP surgery and a pharmacy had not been met. She was of the view that a local pharmacy would be able to assist in triaging patients and observed that research on healthy new towns found a pharmacy to be crucial. She commented that over-demand at Swanscombe pharmacies had let to tension and hostility and between Swanscombe and Castle Hill residents the latter being viewed as incomers creating a problem. She thought a pharmacy on the development would bring significant wider benefits and said that many residents did not consider Swanscombe to be an acceptable option. She reported comments by residents including a resident who required access to long-term medication; residents prevented or dissuaded from going to Swanscombe because it was too far, too hilly or the road was unsafe with narrow pavements and speeding cars; a concern about having to make two journeys one for prescriptions and one for medication. She said that the development was intended not to emphasise the use of cars. Better connected neighbourhoods and better services meant a reduction in car use and many had moved for this purpose and in this expectation. Occupiers had asked for greater access to a range of healthcare services without the need for car-journeys. She said it was not a matter of convenience. If residents did not have a car and could not walk or, if they did have a car but could not park at Swanscombe or elsewhere then they had real difficulties. She said the EDC had received overwhelming support from residents regarding a pharmacy at Castle Hill who said it would become their main pharmacy. She said that with 5,000 residents a pharmacy at Castle Hill was very much part of the EDC vision.

7.14 In answer to questions Ms Rouse said that she lived in Bexley and did not access pharmaceutical services locally. She said the EDC was created to get the development going. It was a motivational body whose role was to support civic infrastructure. She agreed that they could not insist on services such as healthcare since that was the responsibility of the NHS. Regarding the numbers of homes she said that the director of planning had said that 2095 homes were completed. She acknowledged that this was different to the 2127 number cited but said this was a small discrepancy. She said that she had spoken to various healthcare PCNs and three clinical directors in Ebbsfleet. She spoke to five PCNs regularly. She said residents were free to choose

their GP and there are there are five PCNs that these GP practices sit within. She said she had not spoken to a PCN for pharmacy since she had no reason to speak to her, pharmacy was not her responsibility. She had spoken to residents and other stakeholders including at events in 2017 and 2018.

7.15 When asked about neighbourhoods and community she observed that this intended to involve a five to ten minute walk to essential amenities. It wasn’t defined but residents said this is essential to them and included shops, medical, dental and pharmaceutical services. She confirmed that there were good commuting links to London and, whilst she did not have the numbers to hand she thought that most people drove to the station. Anecdotally she said that there was a problem with GP lists being closed. Whilst they were not officially closed residents had been told they could not join.

7.16 In answer to Ms Sorensen-Bentham she said that the EDC had not raised awareness of online pharmacies but that was a good idea and would be put on the EDC website. She agreed that the promise by developers that pharmaceutical services would be available was a problem. Her team worked to try and make this happen but she agreed they have no power over it.

7.17 In answer to questions from the Committee Ms Rouse said she could not say which GP surgeries had declined to register patients but was reporting this as the experience of patients. She confirmed that the development was being occupied by people moving away from London. Alkerden was to have a ‘village centre’ but this did not include a commercial centre. Whilst planning gain in the form of Section 106 notices had been a part of the development, the NHS declined to be involved with regard to pharmacies. She did not have a population breakdown. Car-ownership and the 2011 census numbers were discussed. The EDC wanted to create a sustainable strategy. She felt that individuals had accessed pharmaceutical services at Bluewater or Asda due to lack of local parking however some had criticised the parking at Bluewater too. She was unclear as to the use or availability of online prescriptions owing to the comment that patients referred to two journeys, one to the doctor and one to the chemist. Ms Rouse said she had tried to engage with Ms Shah and get the Kent PNA updated because she was aware of the local demand both now and for the future. In answer to further questions from Ms Hunneyball she said that 60 of the 100 houses intended at Craylands Lane should be built this year. She was not aware of the ‘POD’ system for dropping-off prescriptions in Swanscombe nor the usage of e-prescriptions as outlined by Mr Sullivan who said that 90% of prescriptions from the Swan Valley pharmacy were e-prescriptions so the days of drop-off and pick-up were no more.

7.18 Following the above evidence Mr Daly asserted that Protected Characteristics does mean everybody but it did refer to children and the elderly and that there had been specific evidence concerning these groups and access issues. Regarding closed lists he said it was not the first time that this issue had cropped up, many CCGs refuse applications to close lists because that put the onus on the CCGs to do something. However, that did not stop GP practices from putting patients off. Mr Daly highlighted the letter from the Gareth Johnson MP. He had visited residents and they had clearly raised the difficulties experienced in travelling to various locations. Rather than hear from hundreds of residents the committee had their representative speaking on their behalf.

7.19 Mr Daly suggested that the critical issue in the case was access and choice. It was not enough to say that people with cars could get to a pharmacy, the issue was difficulty on arrival. Attendees at both pharmacies in Swanscombe had difficult parking and they had reported these problems. In addition, it was only going to get worse as the development grows since there is no new parking provision at either. He submitted that Bluewater was not an appropriate alternative. It was a considerable distance and the traffic was difficult. It was a destination shopping centre for about 27m visitors per year but the pharmacy only dispensed about 7000 items per month (this had halved during lockdown) which showed it was not a go-to community facility. He said it was not an issue that some people did not have access to a car at times. This minority was an

important focus. Walking was not an option and, the stark reality of the buses was that they provided an infrequent and lengthy journey some of which went via Ebbsfleet Station where one had to change buses. Others went way beyond the pharmacies and were of little use. He asserted (but later retracted) that none went to Asda. He said that none of the stops had shelters and, the services only ran from 9.30 – 4.30 which left periods of time without transport. This all impacted on choice. Another issue of limited choice was that the only options was for a pharmacy run by the same company, Ackers. Furthermore, the Swan Valley pharmacy was closed on Saturdays and the Church Rd pharmacy was only open until 1pm. The application offered core hours on a Saturday from 9am to 5.30pm and would provide a choice regarding services to people who did not have their own transport.

7.20 Regarding protected characteristics and difficulty Mr Daly said there was evidence. There was difficulty in access, no choice of provider and no option on a Saturday afternoon. He agreed that the nations was changing its habits including using online or electronic medical and prescription services but the application was intended to secure improvements to pharmaceutical services.

7.21 In answer to a question from the Committee regarding potential numbers, Mr Daly said that by the end of 2021/22 financial year the EDC expected there to be 282 houses in Alkerden and 211 in Ashmere. There were already 500 homes in Springhead Park but perhaps only half of them would use the new store. There were already 1200-1300 of the expected 1606 homes in castle Hill. Weldon/Ebbsfleet Green had 700 homes. He did not rely upon Ebbsfleet Central. He said the Committee should use a multiplier of 2.4 to work out patient numbers.

Ms Hunneyball on behalf of Ackers Chemists

7.22 Ms Hunneyball said that she would revisit the numbers but on the subject of futurity, the cases relied upon were under an old regulatory regime. The new regulations included provision for future-based applications and as such reliance on futurity in a Regulation 18 application should be viewed more restrictively. Overall she submitted that the Committee should not go too far into the future.

7.23 As a general point Ms Hunneyball submitted that the application was opposed because currently and in the immediate future it did not meet the test set down in Regulation 18. She stated that the burden of proof is on the application and that speculating about numbers or reducing inconvenience for a minority did not meet the burden. She said that expense to the public purse was an important consideration, it is not feasible to have a pharmacy five minutes’ walk from every house. She said that not much had changed since the failed application in January 2019. Whilst the Committee was not bound by that decision the number of houses actually built was less than expected. All the other healthcare facilities were the same as in 2019. The history was well known with planning in 2007 resulting in some building works taking place in 2018 and 2019 as shown in the photographs provided. Regarding specific areas she said that Ebbsfleet Green is divided by a ridge of land and it is easier for residents to go to Swan Valley in a car rather than Castle Hill; there is already a pharmacy at Springhead Park and residents at Alkerden would be closer to Bluewater or Asda to the north so the application provided no real benefit to these surrounding areas. Development was slow and the future was speculative.

7.24 Ms Hunneyball suggested a better approach would be to wait for the PNA next year when this will all be covered and all stakeholders can contribute to what is really needed. She submitted that there will be a need but it is not now and not in the current circumstances with for example opening-times not tailored to those of the GP surgeries. She said that stakeholders should be permitted to contribute to the PNA.

7.25 Regarding choice, Ms Hunneyball reminded the Committee that this was across the entire HWB area and not just the small exclusive area of Castle Hill. She said that whilst Swanscombe may be regarded as a deprived area as set out in the previous failed relocation application, Castle Hill was quite different and its residents were catered for by existing provision. She said that Castle Hill did not have a community centre in the sense of shops, places of worship etc and, other than a few people pushing prams it was absolutely empty when she visited. In contrast Swanscombe had two schools a library, GP, health centre and other community assets at which residents of both Swanscombe and Castle Hill met. She said that the PNA referred to over forty pharmacies including those at Asda and Bluewater which were accessible on foot, by bike of by car as well as Hill, Lloyds and Pendon Pharmacy. She said there was already choice in provision, provider, hours and locations including late nights, high street, GP surgery or shopping centres. She said there was significant capacity within these pharmacies to cope with the additional residents of Castle Hill albeit she suggested there was not much demand from them in any event.

7.26 Turning to the issue of transport she said that the options were set out in the papers but there were bus-stops all around Castle Hill and, the facilities for people to move around were a work in progress including the upgrade of pedestrian routes. She specifically referred to the 484 which runs from Castle Hill to Asda costing £1.89 per day and mentioned concessions scholars, children, pensioners or those with a disability. Many other bus routes went to many other pharmacies. She also referred to the Kent Carrier on-demand service which can be called out by anyone with a disability priced at £5 per annum then £2.80 plus 90p per mile. She said that the Fastrack route to Bluewater had a specific condition that it must be in place before the 3000th home is built in 2023/24. She referred to car-ownership in the bundle and said that only a tiny minority did not have access to a vehicle. All housing had been built with a view to car ownership and it was clear that ownership was high. In addition, there was a great deal of marketing over the commute to St Pancras which only took 20 minutes and there was a Boots Pharmacy at the station open all hours. She thought it most likely that commuters would leave their car at home. She returned to the suggestion that Castle Hill is not a hub having no services and as such residents would go out of the area. Parking is available in the side-streets around Church Road and Swan Valley pharmacy has a dedicated surgery car park and places in the Ebbsfleet Academy area of which there were many when she visited. Lloyds and Asda both have big car parks.

7.27 Turning to the issue of protected characteristics she said ‘we all have those’ but what was missing was any direct evidence from any patients saying they had tried to get services but could not do so. There was ‘no smoking gun’ saying they were stuck or needed help. There may be letters from people who would like a new pharmacy but any significant benefit must be to the HWB area and not just people in the 900 or so houses in Castle Hill. In any event these residents had access to a range of non- pharmacy medicinal items at the Co-Op.

7.28 Ms Hunneyball introduced Ms Waghorn and Mr O’Sullivan from Ackers Chemist. Ms Waghorn was the general manager. She was born and raised in the area and had worked in a competing pharmacy and now worked at the Church Road site. Mr O’Sullivan was the branch superintendent and associate director for 111 & 999 in Kent & Medway and had been chair of the Kent Local Pharmacy Committee. Regarding the services provided by Ackers they said that Church Road was a community led pharmacy with staff in place for 15 years. It was the pharmacy hub to the area and they knew their patients. Swan Valley was patient and community focused and had reached out to Castle Hill residents. They provided a great number of services and continued to ensure that patients were looked after even when a local GP surgery closed. They provided a free unlimited delivery service, now amounting to about 100 deliveries per day from the two pharmacies and the delivery personnel carried a mobile phone for patients to use to speak to a pharmacist if they wished to do so. They had adjusted to providing remote MURs and NMSs and kept in touch with patients they knew to be vulnerable.

7.29 Regarding the suggestion of multiple trips to obtain prescription medicines Mr O’Sullivan said that prescription requests now all went through an online app or via a POD service. A prescription could be ordered and delivered to your house the same day or within 24 hours. They recognised the risk of isolation and were taking Castle Hill residents on walks and talks about medication, care, treatments and so on. They were fun walks but with serious intentions and included a patient in a wheelchair and it reduced the isolation of, for example, young mothers. They had 1200 Castle Hill patients who opted to obtain their pharmaceutical supplies from them and, other than one complaint about a communication issue they had had no difficulties nor had any complaints been made. Ms Waghorn said she was PCN lead for the development and any queries raised or points from the dedicated WhatsApp group would be discussed with clinical lead members. Mr O’Sullivan said that regarding urgent provision the predominant route of access was via 111 and the CPCS service although there had only been one CPCS related prescription in Ebbsfleet in September or October suggesting that access to healthcare was in fact good.

7.30 Mr Daly put to Ms Hunneyball that there were no banks, clothes shops, cinemas or other such facilities in Swanscombe. Ms Hunneyball said that her point was that there was a type of hub at the library and, resource centre in Swanscombe. When asked why they had tried to relocate in 2018 they said that the national guidance was now for fewer pharmacies so they sought to consolidate and optimise the resources both from a pharmaceutical perspective but also from a commercial perspective. The future needs application included other strategic reasons for the relocation. The need they identified had been turned down. Buses, cycling and Kent Carrier services were all available to patients.

7.31 In response to questions from the Committee they said that about 1200 people from Castle Hill had nominated Ackers to receive EPS prescriptions from their GP which was about half the population. They did not know where the other residents had chosen. Prescription usage suggested that patients were predominantly younger people in the 30-50 age bracket and children aged 5 and under). There were very few elderly patients.

7.32 When asked about prescription fluctuations in the papers Mr O’Sullivan said that there had been an increase in May 2020 as patients sought a longer supply for lockdown but this had dropped back over summer. It was suggested that the fact that there were less items dispensed in May 2020 as compared to May 2017 might support the conclusion that residents did not access pharmaceutical services in Swanscombe however Mr O’Sullivan rejected this and said it could be because of end-of-month figures. In addition all walk-in prescription services had been stopped in May 2020.

Closing Comments

Ms Hunneyball on behalf of Ackers

7.33 Ms Hunneyball submitted that this was a speculative application with two-thirds of the development not built. Ebbsfleet Green (Weldon) and Springhead had pharmacies closer than the proposed one. There was no evidence from patients that they could not access pharmaceutical services. There may be improved access for very few people but not for the general population within the HWB and not for most people who were already getting a good service from Ackers.

Mr Daly on behalf of the Applicant

7.34 Mr Daly asserted that the Committee can take account of the future development and reiterated reliance was placed upon the cases mentioned above. He said the objectors had suggested it was not the time to open a pharmacy on the site but that they had tried to do so 2½ years ago. He said that a mobility impaired patient would be able to access services other than obtaining prescriptions. He said that services were being ‘secured’ both now and for the future in respect of probable development. He said it

was rare to hear directly from residents but the Committee had heard from an MP and of comments on Facebook as related by Ms Rouse. He confirmed that the applicants had an agreement for a lease conditional upon this application being granted.

8 Consideration

8.1 The Pharmacy Appeals Committee (“Committee”) appointed by NHS Resolution had before it the papers considered by NHS England, together with a plan of the area showing existing pharmacies and doctors’ surgeries and the location of the proposed pharmacy.

8.2 It also had before it the responses to NHS Resolution’s own statutory consultations.

8.3 The Committee had regard to the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 (“the Regulations”).

Regulation 31

8.4 The Committee first considered Regulation 31 of the regulations which states:

(1) A routine or excepted application, other than a consolidation application, must be refused where paragraph (2) applies.

(2) This paragraph applies where -

(a) a person on the pharmaceutical list (which may or may not be the applicant) is providing or has undertaken to provide pharmaceutical services ("the existing services") from -

(i) the premises to which the application relates, or

(ii) adjacent premises; and

(b) the NHSCB is satisfied that it is reasonable to treat the services that the applicant proposes to provide as part of the same service as the existing services (and so the premises to which the application relates and the existing listed chemist premises should be treated as the same site).

8.5 The Committee noted that the Applicant had stated, in their application form, that there is no other pharmacy in the same or adjacent premises, so Regulation 31 is not applicable. The Committee noted that NHS England had concluded that Regulation 31 was not applicable and further that no party had sought to indicate in subsequent representations that Regulation 31 would require the refusal of this application. Given the information available to the Committee, it determined that it was not required to refuse the application under the provisions of Regulation 31.

8.6 The Committee noted that, if the application were granted, the successful applicant would - in due course - have to notify NHS England of the precise location of its premises (in accordance with paragraph 31 of Schedule 2). Such a notification would be invalid (and the applicant would not be able to commence provision of services) if the location then provided would (had it been known now) have led to the application being refused under Regulation 31.

Regulation 18

8.7 The Committee noted that this was an application for “unforeseen benefits” and fell to be considered under the provisions of Regulation 18 which states:

"(1) If—

(a) the NHSCB receives a routine application and is required to determine whether it is satisfied that granting the application, or granting it in respect of some only of the services specified in it, would secure improvements, or better access, to pharmaceutical services, or pharmaceutical services of a specified type, in the area of the relevant HWB; and

(b) the improvements or better access that would be secured were or was not included in the relevant pharmaceutical needs assessment in accordance with paragraph 4 of Schedule 1,

in determining whether it is satisfied as mentioned in section 129(2A) of the 2006 Act (regulations as to pharmaceutical services), the NHSCB must have regard to the matters set out in paragraph (2).

(2) Those matters are—

(a) whether it is satisfied that granting the application would cause significant detriment to—

(i) proper planning in respect of the provision of pharmaceutical services in the area of the relevant HWB, or

(ii) the arrangements the NHSCB has in place for the provision of pharmaceutical services in that area;

(b) whether, notwithstanding that the improvements or better access were not included in the relevant pharmaceutical needs assessment, it is satisfied that, having regard in particular to the desirability of—

(i) there being a reasonable choice with regard to obtaining pharmaceutical services in the area of the relevant HWB (taking into account also the NHSCB’s duties under sections 13I and 13P of the 2006 Act (duty as to patient choice and duty as respects variation in provision of health services)),

(ii) people who share a protected characteristic having access to services that meet specific needs for pharmaceutical services that, in the area of the relevant HWB, are difficult for them to access (taking into account also the NHSCB’s duties under section 13G of the 2006 Act (duty as to reducing inequalities)), or

(iii) there being innovative approaches taken with regard to the delivery of pharmaceutical services (taking into account also the NHSCB’s duties under section 13K of the 2006 Act (duty to promote innovation)),

granting the application would confer significant benefits on persons in the area of the relevant HWB which were not foreseen when the relevant pharmaceutical needs assessment was published;

(c) whether it is satisfied that it would be desirable to consider, at the same time as the applicant’s application, applications from other persons offering to secure the improvements or better access that the applicant is offering to secure;

(d) whether it is satisfied that another application offering to secure the improvements or better access has been submitted to it, and it would

be desirable to consider, at the same time as the applicant’s application, that other application;

(e) whether it is satisfied that an appeal relating to another application offering to secure the improvements or better access is pending, and it would be desirable to await the outcome of that appeal before considering the applicant’s application;

(f) whether the application needs to be deferred or refused by virtue of any provision of Part 5 to 7.

(g) whether it is satisfied that the application presupposes that a gap in pharmaceutical services provision has been or is to be created—

(i) by the removal of chemist premises from a pharmaceutical list as a consequence of the grant of a consolidation application, and

(ii) since the last revision of the relevant HWB's pharmaceutical needs assessment other than by way of a supplementary statement.

(3) The NHSCB need only consider whether it is satisfied in accordance with paragraphs (2)(c) to (e) if it has reached at least a preliminary view (although this may change) that it is satisfied in accordance with paragraph (2)(b)."

8.8 The Committee considered that Regulation 18(1)(a) was satisfied in that it was required to determine whether it was satisfied that granting the application, or granting it in respect of some only of the services specified in it, would secure improvements, or better access, to pharmaceutical services, or pharmaceutical services of a specified type, in the area of the relevant HWB

8.9 The Committee went on to consider whether Regulation 18(1)(b) was satisfied, i.e. whether the improvements or better access that would be secured if the application was granted were or was included in the PNA in accordance with paragraph 4 of Schedule 1 of the Regulations.

8.10 Paragraph 4 of Schedule 1 requires the PNA to include: “a statement of the pharmaceutical services that the HWB had identified (if it has) as services that are not provided in the area of the HWB but which the HWB is satisfied (a) would if they were provided….secure improvements or better access, to pharmaceutical services… (b) would if in specified future circumstances they were provided…secure future improvements or better access to pharmaceutical services…” (emphasis added).

8.11 The Committee considered the Kent HWB Pharmaceutical Needs Assessment for Kent (the “Overarching Document” dated March 2018) and the Kent PNA for Dartford, Gravesend, Swanley and surrounding areas (dated March 2018) ("the PNAs") prepared by Kent HWB and Dartford, Gravesend & Swanley CCG respectively, conscious that the documents provide an analysis of the situation as it was assessed at the date of publication. The Committee bears in mind that, under regulation 6(2), the body responsible for the PNAs must make a revised assessment as soon as reasonably practicable (after identifying changes that have occurred that are relevant to the granting of applications) unless to do so appears to be a disproportionate response to those changes. Where it appears disproportionate, the responsible body may, but is not obliged to, issue a Supplementary Statement under regulation 6(3). Such a statement then forms part of the PNAs. The Committee noted that the PNAs were dated March 2018 and that there are no supplementary statements.

8.12 The Committee noted that the Applicant seeks to provide unforeseen benefits to the patients of Ebbsfleet Garden City, Kent (referred to in the main as either “the development” or as Castle Hill including the surrounding developments).

8.13 The Committee noted that the improvements or better access that the Applicant was claiming would be secured by its application were not included in the relevant pharmaceutical needs assessment in accordance with paragraph 4 of Schedule 1.

8.14 In order to be satisfied in accordance with Regulation 18(1), regard is to be had to those matters set out at 18(2). The Committee's consideration of the issues is set out below.

Regulation 18(2)(a)(i)

8.15 The Committee had regard to

“(a) whether it is satisfied that granting the application would cause significant detriment to—

(i) proper planning in respect of the provision of pharmaceutical services in the area of the relevant HWB”

8.16 The Committee was not provided with any evidence regarding planning or detriment to planning in respect of pharmaceutical services.

8.17 On the basis of the information available, the Committee was not satisfied that, if the application were to be granted and the pharmacy to open, the ability of the NHS England thereafter to plan for the provision of services would be affected in a significant way.

8.18 The Committee was therefore not satisfied that significant detriment to the proper planning of pharmaceutical services would result from a grant of the application.

Regulation 18(2)(a)(ii)

8.19 The Committee had regard to

"(a) whether it is satisfied that granting the application would cause significant detriment to— …

(ii) the arrangements the NHSCB has in place for the provision of pharmaceutical services in that area"

8.20 The Committee was not provided with any evidence regarding significant detriment to the current provision of pharmaceutical services.

8.21 The Committee was therefore not satisfied that significant detriment to the arrangements currently in place for the provision of pharmaceutical services would result from a grant of the application.

8.22 In the absence of any significant detriment as described in Regulation 18(2)(a), the Committee was not obliged to refuse the application and went on to consider Regulation 18(2)(b).

Regulation 18(2)(b)

8.23 The Committee had regard to

"(b) whether, notwithstanding that the improvements or better access were not included in the relevant pharmaceutical needs assessment, it is satisfied that, having regard in particular to the desirability of—

granting the application would confer significant benefits on persons in the area of the relevant HWB which were not foreseen when the relevant pharmaceutical needs assessment was published"

Regulation 18(2)(b)(i) to (iii)

Regulation 18(2)(b)(i) – reasonable choice

8.24 The Committee accepted the suggestion that reasonableness of choice is to an extent bound up with the issues of access and mobility. It may for example be perfectly convenient and thus reasonable for someone who routinely works in a town three or four miles from home to pop out during a lunchbreak and pick up a prescription. It would be less convenient if they had to make the journey for that sole reason. Inconvenience will increase if they have to pay to use infrequent public transport services and/or they are disabled, elderly or have young children. There comes a point at which inconvenience becomes difficulty and a patient is deprived of a choice. However, even that of itself is not unreasonable if there is a good alternative.

8.25 Reasonableness is not simply a question of convenience or what patients would like or, as was suggested, there would be a pharmacy five minutes from every home. The question is do patients have a reasonable choice. This depends upon the circumstances of each case. It includes both choice or location and choice of supplier. The issue of patient numbers is dealt with under the section headed Regulation 18(2)(b) generally.

8.26 Having considered the plans and the submissions about the development at Castle Hill and, despite its green credentials/aspiration, car-ownership and usage was clearly part of the design. Whilst other modes of transport such as bus, bike or walking may be encouraged there was little evidence of these being used by residents. Such bus- services as there are appeared generally to be sporadic, indirect, costly and for the most part insufficiently convenient to be considered a reliable way of accessing pharmaceutical services. This was particularly the case if someone was less mobile either through infirmity, pregnancy or they had young children in tow. Reference was made to the Kent Carrier service but other than the cost the Committee heard no evidence as to whether there were disabled residents in Castle Hill (save that mention was made of one person in a wheelchair) or whether it was used by residents at Castle Hill or it was otherwise relevant to this case.

8.27 Cycling may be an acceptable method to access pharmaceutical service for a small number of people and although there were bike-lanes on the development, there were

few if any cyclists evident during the Committee’s visits and none mentioned on the papers. The Committee did not consider cycling to be a realistic method of access to pharmaceutical services for much the same reason as for walking. The Committee did not consider walking to be a realistic consideration other than by Whitecliffe Road and Southfleet Road. Whilst the former may be wide and pleasant the latter was not. Neither offered any protection from the elements and the Committee did not consider Southfleet Road to be a safe appropriate route for the elderly or parents with young children on foot or in pushchairs/prams etc. Nor did the Committee consider it to be safe for cyclists let alone cyclists with children.

8.28 In short the Committee had little doubt the reality was that residents of Castle Hill are likely to access pharmaceutical services by car. Without a car they would have difficulty and, their only real option would be to attend the Swan Valley pharmacy.

8.29 The evidence concerning car ownership and access to a second car if one person was away was not entirely clear. Figures from the 2011 census were of no help in addressing this. The Committee saw cars on the development on both weekdays and weekends as well as seeing young mothers walking with children. The reference to young mothers being isolated might give credence to the idea that some lacked access to a car.

8.30 The Committee were informed that about 1,200 residents at Castle Hill nominated Ackers as their pharmacy of choice and, the majority of prescriptions were for people in the 30 – 50 year age bracket or under 5 years. The figure represents a significant proportion of residents at Castle Hill. There was little evidence of residents going elsewhere albeit other pharmacies in the surrounding areas were mooted. The Committee did not consider Bluewater to be a viable alternative given its size, nature and distance. Asda was mentioned in evidence as was the suggestion that patients could cycle or walk there however the Committee did not consider this realistic. Routine access to pharmaceutical services by patients at Asda was also not borne out by the prescription numbers dispensed. The Committee noted there are pharmacies in several of the towns and villages surrounding the development. Mention was also made of a pharmacy at St Pancras station which may be useful to commuters. However, there was no evidence that any residents on the development accessed pharmaceutical services at these more distant pharmacies.

8.31 The Committee accepted the comment in Mr Loughrey’s report that the pharmacies in surrounding areas were designed to serve and did serve their own communities. They were not intended for, nor did they attract patients from the development. The Committee was of the view that were they reasonably easy to access then there may be evidence of patients accessing them by choice but there was not. The Committee felt that this supported the conclusion that although it may look like there is choice on the papers, the reality was otherwise.

8.32 The Committee considered that this reality was supported by the fact that Ackers had themselves attempted to relocate their Church Road pharmacy to the location proposed by the applicant. Part of the reason for this was commercial which rather suggests they expected Castle Hill patients to make a different choice to their current one. Whether such a move would have adversely affected Swan Valley pharmacy where the many Castle Hill patients attend, the Committee could not say. Instead it inferred that such a move was viewed as likely to capture an increasing market because the market would have a better choice than they do now.

8.33 This likelihood of a change in choice was strongly supported by the evidence from Ms Rouse and Gareth Johnson MP regarding the concerns raised by residents. The fact that a large proportion of patients attend the only nearby pharmacy may support the conclusion that it is the only real choice. It certainly does not detract from that conclusion. The fact they do not appear to attend the Church Road pharmacy supports the conclusion that, in reality, this is not a reasonable alternative.

8.34 The Committee considered that in reality this case involved a considerable number of patients who had access to one pharmacy and only to that if they had reliable access to a car. There was some evidence from which to infer that not everyone had access to a car and that some people were at least at risk of being isolated. The Committee noted the criticism made of the application regarding the hours offered however what was clear was that a pharmacy open all day on Saturday and easily accessible to all residents during the week within a few minutes as opposed to a round trip of perhaps an hour was a very significant benefit. It was in the Committee’s view a benefit residents would avail themselves of.

8.35 Therefore the Committee was satisfied that, having regard to there being a reasonable choice with regard to obtaining services, granting the application would confer significant benefits by way of physical access on persons.

Regulation 18(2)(b)(ii) – protected characteristics, specific need & difficulty

8.36 In considering Regulation 18(2)(b)(ii) the Committee reminded itself that it was required to address itself to people who share a protected characteristic having access to services that meet specific needs for pharmaceutical services that are difficult for them to access. The Committee was also aware of its duties under the Equality Act 2010 which include considering the elimination of discrimination and advancement of equality between patients who share protected characteristics and those without such characteristics.

8.37 The 2010 Act lists the following as protected characteristics: Age, Disability, Gender reassignment, Marriage or civil partnership, Pregnancy and maternity, Race, Religion or belief, Sex and Sexual orientation.

8.38 At the commencement of proceedings the Committee advised the parties that it had seen little evidence regarding patients with protected characteristics, or upon the issues of specific need and difficulty beyond those applicable to the general population. The lengthy submissions added little to this.

8.39 The Committee was of the view that patients who share protected characteristics are referred to in this subsection as a subset of all patients in order to ensure that the interests of patients who are potentially more vulnerable and/or have particular needs and difficulties are considered. Whilst patients with protected characteristics are part of the general patient population and fall to be considered with everyone else under the issues of choice, access and innovation, this subsection gives them special prominence. However, that prominence is limited by a focus on three questions. One, are there any patients relied on by the applicant who share a protected characteristic? Two, do they have specific needs? Three, do they have difficulty in accessing pharmaceutical services to meet those needs?

8.40 In the Committee’s view it is not enough simply to say ‘we all have protected characteristics because we all have an age, a sex or a racial background etc so any difficulty applies to us all’. Nor is it enough to simply suggest that any population must contain patients with protected characteristics so any difficulty experienced by the population must be experienced by them. If that were the case there would be little point in this subsection.

8.41 Whilst the Committee accepted the proposition that in any given population there will be persons with protected characteristics, that was only the starting point. The phrase “people who share a” suggests a number of patients with a common characteristic, a group of people with the same feature. Once that group was clearly identified an applicant needed to link that group to the important issues of specific need and difficulty beyond the generalities of access and choice.

8.42 The Committee heard some evidence concerning the residents of Castle Hill. As for protected characteristics, there was passing reference to someone in a wheelchair and

to the potential for an unknown number of older relatives moving close to their families otherwise the evidence relied on by the applicants was confined to young mothers. Members of the Committee saw some young mothers on their visits and noted the existence of garden toys and suchlike which supported the inference that the development was being occupied by young families. There was no particular reference to pregnancies but the inference is again clear.

8.43 The Committee considered whether there was evidence of such persons having specific needs and difficulty in accessing pharmaceutical services to meet those needs. It found there was little or none beyond those dealt with in access and choice.

8.44 As to ‘specific needs’ there was little direct evidence. Analysis of the prescriptions issued by the Swan Valley Pharmacy suggested that the 1,200 patients from Castle Hill who had nominated that pharmacy “were predominantly younger people in the 30- 50 age bracket and children aged 5 and under”. There was no detail as to the proportion of any age brackets within this, what their needs were, or whether they were related to a protected characteristic such as age or sex. The Committee could not say if the prescriptions were, for example, for particular child-related illnesses, specific needs or were for general illnesses suffered by many people some of whom happen to be children in this case.

8.45 The closest thing to evidence of a specific need was the comment made by Mr O’Sullivan who raised the concern regarding the potential isolation of young mothers. The implication was that this might occur if a partner was absent at work/similar and, presumably, such isolation might affect their mental health or ability to cope.

8.46 The Committee has set out the difficulties in accessing pharmaceutical services that all residents at Castle Hill face. These difficulties would necessarily be faced by persons with protected characteristics. Whilst it might be appropriate for an inference regarding difficulty to be drawn in some circumstances (e.g. a number of elderly patients, patients with reduced mobility or with limited faculties such as sight or hearing), without some detail as to the existence of these persons and the difficulties they specifically face no such inference could be drawn in this case.

8.47 The Committee considered that all these issues of general needs and general difficulty have been dealt with in the context of access and choice.

8.48 For the above reasons the Committee was therefore not satisfied that, having regard to the desirability of people who share a protected characteristic having access to services that meet specific needs for pharmaceutical services that are difficult for them to access, granting the application would confer significant benefits on persons.

Regulation 18(2)(b)(iii) - Innovation

8.49 In considering Regulation 18(2)(b)(iii) the Committee had regard to the desirability of innovative approaches to the delivery of pharmaceutical services. In doing so, the Committee would consider whether there was something more over and above the usual delivery of pharmaceutical services that might be expected from all pharmacies, some ‘added value’ on offer at the location.

8.50 Innovation was not relied upon by the applicant nor was any immediately obvious from the papers.

8.51 The Committee was not satisfied that, having regard to the desirability of there being innovative approaches taken with regard to the deliverability of pharmaceutical services, granting the application would confer significant benefits on persons

Regulation 18(2)(b) generally

8.52 The issue of how many residents and/or potential patients may benefit from the grant of this application was the cause of some debate in the hearing. The number(s) affect the issue of whether any benefits may be described as significant in terms of population. This debate focused on when the estimate should be made and whether any future development and its population may be taken into account.

8.53 The development is by all accounts very large and evolving. Whilst home-building was interrupted by the first Covid lockdown, it has recommenced. The Committee accepted Ms Rouse’s observation that since construction in Weldon/Ebbsfleet Green was only 48 homes behind its annual target there was reason to believe that building was getting ‘back on track’. Construction work was also evident on each Committee members’ visit to the location.

8.54 The entire development has the potential for 15,000 or more new housing units although not all the development is relevant to this application. The development is being built in phases and, roughly speaking is formed of ‘parcels’ or ‘villages’ around the town of Swanscombe. The parcels to the north and north-east of Swanscombe (Croxton, Craylands, Swanscombe Peninsular, Grove Road and Northfleet) played no real part in this case being referred to only in passing. Ebbsfleet Central to the east was referred to but with little detail since as yet there are few if any new homes there. Springhead Park to the south east is more advanced than Ebbsfleet Central but is quite distant from the proposed location. Other than a passing suggestion that residents from Springhead Park might possibly go to Castle Hill, there was no evidence to suggest that residents from these areas would access pharmaceutical services at or from the location.

8.55 Ebbsfleet Green/Weldon also to the south east is part-built and sits on the cusp of relevance. It has some limited services in the form of a local Co-Op store and, is roughly equidistant between the proposed location and the existing pharmacies in Swanscombe albeit the convenience of access and availability of parking may make the proposed location preferable. The main areas of relevance are the ‘parcels/villages’ of Castle Hill, Alkerden and Ashmere of which only Castle Hill has seen significant completion and occupation of homes.

8.56 None of the development parcels have major employment centres either currently or planned albeit there are some small shops and schools. The expectation is that the majority of residents will commute to their places of work and, many are expected to travel from Ebbsfleet station into London.

8.57 Regarding Mr Daly’s assertion that the Regulations are “silent as to timing” the Committee noted that the Regulation requires an assessment of whether granting the application “would confer of significant benefits on persons in the area of the relevant HWB”. Whilst this appears to be written in the present tense implying that only current residents should be considered, both parties asserted that the Committee could include an element of “futurity” provided it did not enter the realms of speculation. There was disagreement as to how far into the future the Committee should go. Mr Daly relied upon two authorities to suggest that the Committee could go some considerable way and housebuilding figures were provided up to and including 2025. Ms Hunneyball said the Committee should not look far into the future at all when considering the number of houses or residents but, she also invited the Committee to take account of the tunnel- link to Bluewater which is not expected to be completed until 2023/24.

8.58 Looking briefly at the two cases cited, Lloyds Pharmacy v NAP involved the assessment by the Court of Regulation 5 of the National Health Service (Pharmaceutical Services) (Scotland) Regulations 1995 and, amongst other issues, consideration of the phrase “secure adequate provision”. On this point the Court of Sessions stated at Paragraph 10 of its judgement that: “[in addressing] the adequacy of the existing provision … it is in our opinion proper to have regard to probable future developments, for two reasons. First, the standard of adequacy in a particular neighbourhood will obviously

change with time … for example through the construction of new housing developments or the movement of population … Secondly, regulation 5(10) uses the word "secure" in relation to the adequate provision of pharmaceutical services. That word seems to us to indicate that the decision-maker can look to more than merely achieving a bare present adequacy of pharmaceutical provision. "Secure" suggests that it should be possible to maintain a state of adequacy of provision into the future. That indicates that the decision-maker must have some regard to future developments, in order to ensure that an adequate provision can be maintained. The decision-maker must, however, determine the adequacy of the existing provision of pharmaceutical services at a specific time, the time of its decision. It must accordingly reach its conclusion on the adequacy of the existing provision on the basis of what is known at that time, together with future developments that can be considered probable rather than speculative.

8.59 In R v FHSA & Boots ex parte Moss the Court of Appeal considered Sec.42 of the National Health Act 1977 which speaks of regulations to “secure” arrangements for the provision of pharmaceutical and other services. The Regulations applicable at that time were the NHS (Pharmaceutical Services) Regulations 1992. Regulation 4(4) also contained the phrase “in order to secure…” The application of this case is less obvious however, when considering the issue of securing services by way of a pharmacy opening in a new shopping centre, the Court referred with some approval to the FHSA taking into account the fact that a neighbourhood “was in the process of development” and taking account of “present circumstances and future expectations.” The Committee also notes that in this case the Court placed some emphasis on the fact that “the scale of proposed further development was substantial and [it] was attracting large numbers of visitors.”

8.60 The Committee noted Ms Hunneyball’s submission that these cases deal with old Regulations and that there is a process within the current Regulations to deal with a future identified need. However, the Committee was also aware that a future need application had been rejected.

8.61 The Committee observed that the word “secure” is included in Regulation 18 together with the phrase “would confer”. The Committee was of the view that this carries similar implications to the word secure. In the two cases cited, adequate services would not be secured if they only dealt with today and ignored foreseeable changes. Likewise it could not be said that benefits would be secured or conferred on a patient population in an HWB if, within a foreseeable time the services would be unable to cope with the number of new patients.

8.62 The Committee agreed with the cautionary comment that completed homes was not the same as occupied homes. However it determined that whilst it should concentrate on the current population it could and should look someway into the future to ensure that any benefits conferred by the grant would remain viable.

8.63 Various figures were mooted regarding how many homes had been completed and occupied and, how many were projected within a varying time-period. The current estimates for Castle Hill ranged between 914 homes with 2,196 residents currently (using a multiplier of 2.4 residents per home) plus a further 233 homes by the end of 2020 and, 1,111 homes with 2,800 residents by the end of the financial year in March 2021 (using a multiplier of 2.5). It was said that Ebbsfleet Green/Weldon added 496 completed homes to this with a further 58 built and 48 pending this year. The Committee considered that if all these homes were built by the end of the current financial year (602 homes) this may result in between 1,385 and 1,505 additional residents applying the multipliers of 2.3 and 2.5 suggested by Ms Hunneyball and Mr Loughrey respectively. Ms Hunneyball suggested that residents in Ebbsfleet Green/Weldon might just as easily go to Swan Valley Pharmacy as the new location and, Mr Daly conceded as a rule of thumb that he relied upon half the resident population of this village rather than all of them. The evidence was that Alkerden would

add 66 homes in 2021 and 215 in 2022 whereas Castle Hill would tail-off in 2023. Applying the multiplier of 2.3 and 2.5 to Alkerden results in an estimate of 646 – 702 residents.

8.64 In the round, the Committee accepted that it could look into the future but it was limited to considering matters that were probable or expected and not speculative. This application involved consideration of a clear and structured development with detailed plans and evidence that it was being delivered. Continued development was a probability not a possibility.

8.65 Pulling these strands together the Committee noted that the development had suffered some delay albeit it was getting back on track. Whilst development in Alkerden and Ashmere are next in line and in that order, it saw little evidence that either had started. Castle Hill was well on the way to completion as was Ebbsfleet Green/Weldon. The Committee concluded that it should consider a broad estimate for Castle Hill and Ebbsfleet Green/Weldon adjusted as stated by Mr Daly, together with what was expected in Alkerden only. That would combine the figures for the current and the next financial years. Beyond that period of 15 months whilst the development may continue apace, there was no guarantee of that in the current financial and political climate. The Committee considered that to look beyond the current and the next financial years was to enter into speculation.

8.66 Given the different time-scales which affected house-numbers and the different multipliers, the Committee concluded that rather than pinpoint a figure it would be more appropriate to consider a bracket of potential populations. Using this approach the Committee concluded that the evidence supported a population range of around 2,196 – 2,800 in Castle Hill, around 1,385 – 1,505 in Ebbsfleet Green/Weldon and around 646 – 702 in Alkerden by March 2021. The total of these results in a range of 3,535 – 4,255 patients by March 2021. After deducting half the Ebbsfleet Green/Weldon residents as Mr Daly suggested, the Committee concluded that a broad but reasonable estimate of the current and/or shortly to be expected population was around 4,000 residents. The Committee concluded that this represented a significant number of people and there was reason to believe that it would increase in the future.

8.67 Having considered the number of residents in the relevant area of the HWB the Committee concluded that the benefits identified were significant both in terms of the improvements and the number of people positively affected.

8.68 One final point to consider was the current availability of premises. As outlined above, development continues at Castle Hill and elsewhere. There is however limited availability of commercial premises. There are five premises available at Castle Hill several of which are taken for other businesses. The applicant has secured one set of premises in the heart of the development. There is no guarantee that in the future any other premises would become available.

8.69 The Committee was of the view that in accordance with Regulation 18(2)(b) the granting of this application would confer significant benefits on persons in the area of the HWB which were not foreseen when the PNA was published.

Other considerations

8.70 Having determined that Regulation 18(2)(b) had been satisfied, the Committee needed to have regard to Regulation 18(2)(c) to (e) and found that there were no other applications or appeals to be considered at the same time as the current application.

8.71 No deferral or refusal under Regulation 18(2)(f) was required in this case.

8.72 The Committee had regard to Regulation 18(2)(g) and found that it did not apply in the circumstances of this case.

8.73 The Committee considered whether there were any further factors to be taken into account and concluded that there were not.

8.74 The Committee was satisfied that the information provided demonstrates that there is difficulty in accessing current pharmaceutical services such that a pharmacy at the proposed site would provide better access to pharmaceutical services.

8.75 The Committee had regard to Regulation 19(6) which states:

(6) If the NHSCB is satisfied as mentioned in regulation 18(2)(b), it may grant the application not withstanding that the improvements or better access were or was not included in the relevant pharmaceutical needs assessment.

8.76 Pursuant to paragraph 9(1)(a) of Schedule 3 to the Regulations, the Committee may:

8.76.1 confirm NHS England’s decision;

8.76.2 quash NHS England’s decision and redetermine the application;

8.76.3 quash NHS England’s decision and, if it considers that there should be a further notification to the parties to make representations, remit the matter to NHS England.

8.77 For the reasons set out above the Committee determined that the decision of NHS England must be quashed.

8.78 The Committee went on to consider whether there should be a further notification to the parties detailed at paragraph 19 of Schedule 2 of the Regulations to allow them to make representations if they so wished (in which case it would be appropriate to remit the matter to NHS England) or whether it was preferable for the Committee to redetermine the application.

8.79 The Committee noted that representations on Regulation 18 had been sought from parties by NHS England and representations had already been made by parties to NHS England in response. These had been circulated and seen by all parties as part of the processing of the application by NHS England. The Committee further noted that when the appeal was circulated representations had been sought from parties on Regulation 18.

8.80 The Committee concluded that further notification under paragraph 19 of Schedule 2 would not be helpful in this case.

9 DECISION

9.1 The Pharmacy Appeals Committee (“Committee”), appointed by NHS Resolution, quashes the decision of NHS England, for the reasons given above, and redetermines the application.

9.2 The Committee determined that the application should be granted.

9.3 The Committee has considered whether the granting of the application would cause significant detriment to proper planning in respect of the provision of pharmaceutical services in the area covered by the HWB, or the arrangements in place for the provision of pharmaceutical services in that area and is not satisfied that it would;

9.4 The Committee determined that the application should be granted on the following basis:

9.4.1 In considering whether the granting of the application would confer significant benefits, the Committee determined that –

9.4.1.1 there is not already a reasonable choice with regard to obtaining pharmaceutical services;

9.4.1.2 there is insufficient evidence of people sharing a protected characteristic having difficulty in accessing pharmaceutical services; and

9.4.1.3 there is no evidence that innovative approaches would be taken with regard to the delivery of pharmaceutical services;

9.4.2 Having taken these matters into account, the Committee is satisfied that granting the application would confer significant benefits as outlined above that would secure improvements or better access to pharmaceutical services.

Committee Chair

A copy of this decision is being sent to:

Rushport Advisory LLP on behalf of Delmergate Limited Gordons Partnership LLP on behalf of Ackers Chemists Ltd PCSE on behalf of NHS England – South East (Kent et al)

ANNEX A

Arena Point REF: SHA/23365 Merrion Way Leeds APPEAL AGAINST NHS ENGLAND SOUTH EAST (KENT LS2 8PA

ET AL) AREA TEAM, NHS COMMISSIONING BOARD Tel: 0203 928 2000 ("NHS ENGLAND") DECISION TO REFUSE AN Fax: 0207 821 0029 APPLICATION BY DELMERGATE LIMITED FOR Email: [email protected] INCLUSION IN THE PHARMACEUTICAL LIST OFFERING UNFORESEEN BENEFITS UNDER REGULATION 18 AT THE NEW RETAIL DEVELOPMENT, CASTLE HILL LOCAL CENTRE, EBBSFLEET GARDEN CITY, KENT

1 The Application

By application dated 31 May 2019, Delmergate Limited (“the Applicant”) applied to NHS Commissioning Board (“NHS England”) for inclusion in the pharmaceutical list offering unforeseen benefits under Regulation 18 at the new retail development, Castle Hill Local Centre, Ebbsfleet Garden City, Kent. In support of the application it was stated:

1.1 In the Applicant’s view this application should not be refused pursuant to Regulation 31 as there is no other pharmacy in same or adjacent premises so not applicable.

In response to “Please describe the unforeseen benefit(s) that you are offering to secure and how it will secure improvements or better access to pharmaceutical services, or pharmaceutical services of a specified type in the HWB’s area, the Applicant stated:

1.2 NHSE IS ASKED TO NOTE THAT THIS APPLICATION HAS BEEN RESUBMITIED BY DELMERGATE AS WE WISH NHSE TO RECONSIDER THEIR PREVIOUS REFUSAL AND CONSIDER THE RESULT OF THE APPEAL IN SHA/21088 ACKERS CHEMISTS LTD- APPLICATION FOR A NO SIGNIFICANT CHANGE RELOCATION FROM 90-94 CHURCH ROAD, SWANSCOMBE, KENT, DA10 OHF, TO NEW RETAIL DEVELOPMENT, CASTLE HILL LOCAL CENTRE, EBBSFLEET GARDEN CITY WHEN CONSIDERING THIS APPLICATION

1.3 A major new commercial centre, up to 15,000 homes, improved public transport and seven city parks are planned for Ebbsfleet Garden City.

1.4 Developers are already on site building a wide range of new houses and apartments.

1.5 A new primary school in Eastern Quarry opened to pupils in September 2017, as well as a new restaurant and pub, to be followed by a hotel.

1.6 There are currently seven developers on site creating hundreds of new homes across the Garden City including at Ebbsfleet Green where Redrew is building 950 new homes and has a show home open and at Springhead to build a further 123 homes.

1.7 Keepmoat had plans approved for 598 new homes at Northfleet East on the banks of the River Thames.

1.8 The PNA for does not currently identify the need for a pharmacy at this location and this application is therefore submitted under Regulation 18 as an unforeseen benefits application.

1.9 The proposal is to open a pharmacy at the Castle Hill Local Centre in Ebbsfleet Garden City. Planning has been granted for the local centre which will serve as a hub for the local community and provide a range of retail offerings in a convenient location.

1.10 Planned services include a new supermarket and smaller units for non-food retail, small businesses, a cafe and a take-away uses in the first new village centre to provide services to local residents.

1.11 A new primary school, Cherry Orchard, opens in the area next month and eventually there will be 6,250 homes in three villages in Eastern Quarry.

1.12 Social housing provider Clarion was given permission for a further 37 houses and 31 apartments in Castle Hill, all of which will be shared ownership. These will provide people on average salaries in North Kent the chance to get on the property ladder in the Garden City.

1.13 Given the not insignificant population of the area and the requirement for patients to leave the area in order to access any type of primary care services, including pharmaceutical services, granting the application would secure better access to pharmaceutical services for the relevant population.

1.14 In addition to providing dispensing services, the pharmacy would provide all other essential, advanced and enhanced services that are commissioned by NHS England or the local authority. Providing access to these services will be of significant benefit for patients, particularly those who may have difficulty in accessing other areas, such as the elderly, infirm disabled, or parents with young children (i.e. those who share a protected characteristic).

Please explain how you intend to secure the unforeseen benefit(s).

1.15 By opening a pharmacy at the proposed location.

2 The Decision

NHS England considered and decided to refuse the application. The decision letter dated 31 March 2020 states:

2.1 NHS England has considered the above application and is writing to confirm that it has been refused. Please see the enclosed report for the full reasoning.

Extract from the Minutes of the Meeting of the NHS England & NHS Improvement South East Region RSRC, 16 March 2020

One application made under Regulation 18 from Delmergate Ltd, New Retail Development, Castle Hill Local Centre, Ebbsfleet Garden City, Kent, offering unforeseen benefits.

2.2 Declarations of interest.

2.2.1 There were no declarations of interest.

2.3 Oral Hearing

2.3.1 On the basis of the information before the members, it was agreed that it was not necessary to hold an oral hearing

2.4 Notification Exercise – comments received from parties

2.5 The statutory notification exercise was carried out by Primary Care Support England and comments were received from the parties below:

2.6 Comment by Ackers Ltd:

2.6.1 ‘Recent adverse decision

2.6.2 The same application has been considered very recently and was refused. The determination was in 2019 under reference SHA/19996. There has not been a sufficient change in circumstances since then to warrant a different decision.

2.6.3 The Pharmacy Appeal Committee gave a detailed determination which considered, among other things, the following:

2.6.3.1 Number of surrounding pharmacies - there has been no change in the number of local pharmacies

2.6.3.2 Transport links between Swanscombe and Castle Hill – there are still good transport links

2.6.3.3 Capacity of the local pharmacies to deal with increased demand – our client’s pharmacy still has capacity to handle additional prescriptions.

2.6.3.4 Level of facilities at Castle Hill - it is still the case that the majority of population of Castle Hill will travel away from Castle Hill to access facilities including the GP surgery.

2.6.4 The determination recorded that there was reasonable choice with regard to obtaining pharmaceutical services and there was no evidence of people sharing a protected characteristic having difficulty in accessing pharmaceutical services. In the earlier application, as with this one, there was no suggestion that there would be innovative approaches to the delivery of pharmaceutical services.

The application is flawed

2.6.5 The renewed application still does not address local needs. An example of this is weekday core opening hours of the proposed pharmacy which are only until 5:30pm. This does not provide pharmaceutical services to those with acute prescriptions from the evening surgeries at the closest health centres: Swanscombe Health Centre (Weds until 8pm), White Horse Surgery and Walkin Centre in Gravesend (every day until 8:00pm) or Ivy Bower Surgery in Greenhithe (6:30pm on Tues, Thurs and Fri).

2.6.6 It is likely that the residents of Castle Hill will attend one of these surgeries as there is no GP surgery in Castle Hill which makes the failure to match these hours important in the consideration of whether this application provides a significant benefit.

Significant detriment

2.6.7 NHS England must have regard to 18(2)a “whether it is satisfied that granting the application would cause significant detriment to—(i)proper planning in respect of the provision of pharmaceutical services in the area of the relevant HWB.”

2.6.8 There have now been three related applications for the proposed site. When the PNA cycle recommences, the Kent PNA steering group will have a chance to consider the position in Ebbsfleet in light of the determinations by NHS Resolution. If, as our client has submitted in the past, the intention of the PNA was to encourage a relocation rather than a new contract the steering group has clear guidance about how to draft the PNA to give effect to that intention.

2.6.9 It is arguable that for this reason the application for unforeseen benefits should not be granted as granting the application will cause significant detriment to proper planning as it does not give the steering group an opportunity to set out clearly what it is planning for Ebbsfleet.

The application is premature

2.6.10 The application is still made on the basis that there will be 15,000 new homes in Ebbsfleet Garden City and 6,250 homes in the Eastern Quarry area. The application gives no indication of the current number of homes or the current level of occupancy. The Castle Hill centre where the pharmacy is to be sited is still not constructed.

2.6.11 In the circumstances, Ackers ask that NHS England refuse the application by Delmergate Ltd.’

2.7 Comment by Kent Local Medical Committee:

2.7.1 ‘We have no comment to make at this point but please keep us informed of any further developments.’

2.8 Comment by Kent Local Pharmaceutical Committee:

2.8.1 ‘Currently the Kent Local Pharmaceutical Committee do not have any comments to make about this application other than those made at the original application by this contractor. However, we would like to be kept informed of the progress of this application and any decisions made.’

2.9 Rebuttal by Applicant:

2.9.1 Full rebuttal by applicant at appendix 1. [not included in these papers]

Consideration

2.10 The Committee considered whether or not to approve the application for a proposed new pharmacy and took into account the relevant Regulation(s) and a range of other factors including those set out in the Department of Health’s publication “NHS Pharmaceutical Services: Assessing Applications” published in November 2013, providing guidance to NHS England.

2.11 The Committee had before it the application together with a map of the area showing existing local pharmacies and doctors’ surgeries and the site of the proposed pharmacy. It also had before it the responses to the notification exercise.

2.12 The Committee noted that there had been previous applications by both Delmergate and other contractors wishing to either open new or relocate pharmacies in the area.

2.13 The Committee also noted that the area had not expanded as rapidly as originally planned. Currently, 2,000 houses had been built, with another 15,000 still to be built. The current PNA states that the situation need to be monitored regularly to determine need and the pace of the development’s completion.

2.14 There had been some confusion around whether regulation 15 or 18 should be used – applications using both regulations had been previously submitted, refused by the Committee and refused again upon appeal. Identified current need had not been proved in the Castle Hill area.

2.15 The Committee noted that the area is populated predominantly by commuters, who leave the estate to access the vast majority of daily services beyond Ebbsfleet Garden

City namely schools, GP surgeries, major shopping areas and significantly for their work. The estate is only accessible by road and is separate from other local areas. There is limited employment in the area.

Regulations 36 & 37

2.16 The Committee then considered Regulation 36 and 37. The area had previously been determined as a non-controlled locality and, in the absence of any proposal from either the LPC or LMC that this classification should be changed, the Committee confirmed that it should remain a non-controlled locality within the meaning Regulations 36 of the 2013 Regulations.

Regulation 31

2.17 The Committee first had regards to Regulation 31 of the regulations which states: [quoted in full]

2.18 The Committee was of the view that the criteria of this regulation did not apply to the application.

2.19 According to Google maps, the nearest existing pharmacy to the proposed site is Swan Valley Pharmacy. This is 1.7km away with a journey by car taking some 3 minutes, or 21 minutes to walk.

2.20 Based on the information before it, the Committee was not required to refuse the application under the provisions of Regulation 31.

2.21 The Committee noted that, if the application was granted, the successful applicant would – in due course – have to notify NHS England of the precise location of its premises (in accordance with paragraph 31 of Schedule 2). Such notification would be invalid (and the applicant would not be able to commence provision of services) if the location then provided (had it been known now) have led to the application being refused under Regulation 31.

Regulation 18

2.22 The Committee noted that this was an application for “unforeseen benefits” and therefore was to be considered under the provisions of Regulation 18 which states: [quoted in full]

Will approving the application(s) secure improvements or better access to pharmaceutical services? (Regulation 18(1)(a))

2.23 The Committee considered the provision of pharmaceutical services in the area of Ebbsfleet where currently there are dispensing services provided by Swanscombe Health Centre, from its branch surgery in Bean (5.5km distant), but no pharmacy.

2.24 The Committee therefore found that Regulation 18(1)(a) was satisfied in that it was required to determine whether it was satisfied that granting the application or granting it in respect of only some of the services specified in it, would secure improvements, or better access, to pharmaceutical services, or pharmaceutical services of a specified type, in the area of the relevant HWB.

Were these improvements included in the PNA? (Regulation 18(1)(b))

2.25 The Committee having considered that Regulation 18(1)(a) was satisfied, went on to consider whether Regulation 18(1)(b) was satisfied i.e., whether the improvements or better access that would be secured if the application was granted were or was included in the PNA in accordance with paragraph 4 of Schedule 1 of the regulations.

2.26 Paragraph 4 of Schedule 1 requires the PNA to include: “a statement of the pharmaceutical services that the HWB had identified (if it has) as services that are not provided in the area of the HWB but which the HWB is satisfied (a) would if they were provided ... secure improvements or better access, to pharmaceutical services ...(b) would if in specified future circumstances they were provided ... secure future improvements or better access to pharmaceutical services ...”

2.27 The Committee considered the PNA prepared by Kent HWB published in April 2018 and was conscious of the fact that this document provides an analysis of the situation as it was assessed at the date of its publication. However, the Committee was also mindful of the obligations under Regulation 6(2) on the body responsible for the PNA to make a revised assessment as soon as reasonably practicable (after identifying changes that have occurred that are relevant to the granting of applications) unless to do so appear to be disproportionate response to those changes. Where it appears disproportionate, the responsible body may, but is not obliged to, issue a Supplementary Statement under Regulation 6(3). Such a statement then forms part of the PNA. The Committee noted that no Supplementary Statements, other than updated pharmacy lists, had been issued since the publication of the PNA in April 2018.

2.28 The summary of pharmacy provision in Kent PNA 2018, P15 states:

‘Ebbsfleet Garden City:

A major housing development was identified in 2015 for the Ebbsfleet area, to be known as Ebbsfleet Garden City, with up to 15,000 homes initially. It was highlighted in the 2015 PNA as possibly needing extra pharmaceutical services in the future. This area is marked on a map in Appendix A and the development lies across the Dartford/Gravesham Council boundaries.

Although building has been slow to happen, it has been estimated that nearly 750 units will be ready for occupation in the area by 2018. This means that it has now been identified that there may be need for pharmaceutical services in the area within the life of this PNA dependent on the capacity of the surrounding pharmacies. There are already over 40 pharmacies servicing the population of Dartford and Gravesham and it may be more appropriate to invite relocation of one or more of these pharmacies into the Ebbsfleet area rather than open yet another contract.’

Page 16 states:

‘The provision of new housing in the Dartford, Gravesham and Swanley area especially around Ebbsfleet Garden City needs to be reviewed regularly’

Page 17 states:

‘Therefore, pharmaceutical services are mainly good across the area and we do not need any more providers in the area except

1) A need for pharmaceutical services in the area of Ebbsfleet within the life of this PNA. This should be met by relocation of some of the current services.’

2.29 Based on the information provided the Committee noted that the improvements or better access, that the Applicant was claiming would be secured by its application, were not included in the relevant PNA in accordance with paragraph 4 of schedule 1.

2.30 In order to be satisfied in accordance with regulation 18(1), the Committee had to have regards to those matters set out in Regulation 18(2). The Committee’s consideration of the issues is set out below:

Would granting the application cause significant detriment to the proper planning of the provision of pharmaceutical services in the HWB’s area? (Regulation 18(2)(a)(i))

2.31 The Committee had no information to demonstrate that the planning of the provision of pharmaceutical services would be significantly affected by the opening of a further pharmacy.

2.32 The Committee was of the view that a granting of the application would not cause significant detriment to the proper planning of the provision of pharmaceutical services in the HWB’s area.

Would granting the application cause significant detriment to the arrangements for the provision of pharmaceutical services in the area? (Regulation 18(2)(a)(ii))

2.33 The Committee had no information to demonstrate that a granting of the application would cause significant detriment to the arrangements for the provision of pharmaceutical services in the HWB area.

2.34 The Committee was of the view that a granting of the application would not cause significant detriment to the arrangements for the provision of pharmaceutical services in the HWB’s area.

2.35 In the absence of any significant detriments as described in Regulations 18(2)(a), the Committee was not obliged to refuse the application and went on to consider Regulation 18(2)(b).

2.36 Regulation 18(2)(b) confers significant benefits

Reasonable choice (Regulation 18(2)(b)(i))

2.37 The Committee noted that currently there is no pharmacy located within Ebbsfleet itself. However, the question of choice relates to choice with regards to obtaining pharmaceutical services in the area of the relevant HWB. The Committee therefore examined the choices currently available to patients within a reasonable travel distance of the best estimate location.

2.38 The nearest pharmacy to the proposed site would appear to be Swan Valley Pharmacy (1.7k distant), which is open for 40 core hours per week, from 9am to 12pm on a Saturday. The applicant offers 09:00-17:30 on Saturday. There are five other pharmacies located within 5km.

Local Core opening Dispensing Distance from Car/Train/Walk* (in Pharmacies hours stats (last 3 DA10 0DF* minutes) months) Swan Valley 09:00-13:00; 36,140 DA10 0BF 1.7km Pharmacy 14:00-18:00 (3m)/(6m)/3.5km Mon-Fri (44m) Ackers Chemist 09:00-17:00 20,433 DA10 0HF 1.6km Mon-Fri (3m)/(17m)/1.6km (19m) Hill Pharmacy 09:00-13:00; 11,488 DA11 9EY 3.8km 14:00-18:00 (7m)/(32m)/3.3km Mon-Thur (40m) 09:00-13:00; 14:30-18:00 Fri Lloyds 08:00-11:00; 29,334 DA11 8BZ 3.8km Pharmacy 17:00-20:00 (7m)/(21m)/3.7km Mon-Sat (46m) 08:00-10:00; 18:00-20:00 Sun

Penders 09:00-13:00; 16,965 DA11 8LG 4.1km Chemist 14:00-17:30 (7m)/(28m)/3.8km Mon-Fri 09:00- (49m) 11:30 Sat Williams 09:00-13:00; 23,732 DA11 8BS 5.5km Pharmacy 14:15-18:15 (47m)/(51m)/6.4km Mon-Fri (1hr 24m)

2.39 The nearest GP practice to the proposed site is Swanscombe Health Centre.

2.40 Delmergate proposed to provide pharmaceutical services for 51 core hours a week, the pattern of which was as follows:

Monday to Friday: 09:00-18:00 Saturdays: 09:00-12:30 Sundays: Closed

2.41 The Committee noted that within the Greenhithe ward a relatively high number of residents felt that their health was good or very good. The number of households with 2+ car/vans was reasonable.

2.42 Population data (from the Office for National Statistics)

Greenhithe/Dartford Ward Figures* Middle Lower S.O.A Total population 6,587 97,365 % population who say they have good or very good 86.9% 83.5% health Households with 2+ cars/vans 32.8% 35.4%

2.43 The Committee was also aware that no complaints had been received about the current level of services provided or indeed concerns about future provision.

2.44 Therefore, when considering the criteria for reasonable choice in relation to physical access, and the size of the population, the services provided by a range of providers in Ebbsfleet as well as the GP Service provision, the Committee was of the view that there was already now reasonable choice with regards to obtaining pharmaceutical services in the area of the relevant HWB.

2.45 The Committee therefore found that granting the application, would not confer significant benefits on persons in the area.

Difficulty of access (protected characteristics (Regulation 18(2)(b)(ii))

2.46 In considering Regulation 18(2)(b)(ii)) the Committee was aware that it was required to focus on people who share a protected characteristic having access to services that meet specific needs for pharmaceutical services that are difficult for them to access. The Committee was also aware of its obligations under the Equality Act 2010 which include considering the elimination of discrimination and advancement of equality between patients who share protected characteristics and those without such characteristics.

2.47 The applicant stated:

‘Providing access to these services will be of significant benefit for patients, particularly those who may have difficulty in accessing other areas, such as the elderly, infirm, disabled, or parents with young children.’

2.48 However, the Applicant has not presented any evidence to indicate that there are any persons with protected characteristics who are currently experiencing any difficulty accessing services. If there was a requirement in the area for particular services to address difficulties in accessing services that meet the specific needs of people with protected characteristics, either NHS England or the local Clinical Commissioning Group could commission such a service.

2.49 The Committee was therefore not satisfied that, having regards to the specific needs of those with protected characteristics in the area, that granting the application would confer significant benefits on persons.

Providing an innovative approach to the delivery of pharmaceutical services (Regulation 18(2)(b)(iii))

2.50 In considering Regulation 18(2)(b)(iii) the Committee considered the desirability of innovative approaches to the delivery of pharmaceutical services. In doing so, the Committee was expecting provision of services that were ‘over and above’ the standard delivery and range of pharmaceutical services that might be expected from all pharmacies under the NHS contract i.e., essential, advanced and enhanced services.

2.51 The applicant states the following services would be provided:

2.51.1 MUR, NMS, EHC, smoking cessation, chlamydia, flu, other screening, services under PGDs, palliative care, needle & syringe exchange, gluten-free foods, supervised consumption.

2.52 The Committee did not consider these to be innovative, either in type or method of delivery as envisaged by the Regulations.

2.53 The Committee agreed that there are no innovative approaches to the delivery of pharmaceutical services in the application.

Regulation 18(2)(b) generally

2.54 Having examined the application against the requirements of Regulation 18(2)(b) the Committee was of the view that in accordance with the regulation the granting of this application would not confer significant benefits on persons in the area of the HWB which were not foreseen when the PNA was published

Other considerations

2.55 Having determined that Regulation 18(2)(b) had not been satisfied, the Committee did not need to have regards to regulation 18(2)(c) – (e).

2.56 No deferral or refusal under Regulation 18(2)(f) was required in this case.

Regulation 19

2.57 The Committee then considered Regulation 19 which states: [quoted in full]

2.58 The Committee considered the additional matters set out in Regulation 19 and decided that it did not wish to defer the application for grounds set out in Regulation 19. It felt that the application was not meeting the criteria for offering improvements or better access not foreseen in the PNA as required by Regulations 18(2)(b) and therefore it would not grant the application under Regulation 19(6).

Deliberation

2.59 The Committee considered the information presented by the Applicant and the parties, the current service provision in the area, the Kent Pharmaceutical Needs Assessment, as well as the health and mobility of the local population.

Decision

2.60 The Committee carefully examined the various factors against which applications made under Regulation 18 must be determined. It concluded that the location was in a non- controlled locality and that the best estimate for the premises was not in a reserved location.

2.61 The Committee concluded that granting the application would not prejudice the proper provision of relevant NHS Services in the area of (a) the relevant HWB or (b) a neighbouring HWB of the relevant HWB.

2.62 The Committee considered whether the granting of the application would cause significant detriment to proper planning in respect of the provision of pharmaceutical services in the area covered by the HWB, or the arrangements in place for the provision of pharmaceutical services in that area and is satisfied that it would not.

2.63 The Committee determined that the application should be refused on the following basis:

2.63.1 In considering whether granting of the application would confer significant benefits, the Committee determined that there is already a reasonable choice with regards to obtaining pharmaceutical services;

2.63.2 There is no evidence of people sharing a protected characteristic having difficulties in accessing pharmaceutical services; and

2.63.3 There is no evidence that innovative approaches would be taken with regards to the delivery of pharmaceutical services;

2.64 In conclusion, the Committee was not satisfied that granting the application would confer significant benefits as outlined above that would secure improvements or better access to pharmaceutical services.

2.65 The Application was refused.

Notification Exercise

2.66 The statutory notification exercise was carried out by Primary Care Support England and comments were received from the parties below. It was decided that the right of appeal should be given to parties indicated:

Ackers Ltd Appeal Right: No Kent LMC Appeal Right: No Kent LPC Appeal Right: No

3 The Appeal

In a letter dated 31 March 2020 addressed to NHS Resolution, Rushport Advisory LLP on behalf of the Applicant appealed against NHS England's decision. The grounds of appeal are:

3.1 As the Committee will be aware, there is significant relevant history of applications which pre-date this appeal.

3.1.1 Delmergate – regulation 18 – SHA/19996 – Appeal dismissed without any oral hearing – January 2019

3.1.2 Ackers Chemist Limited – regulation 15 – SHA/21104 – Appeal dismissed without any oral hearing – July 2019

3.1.3 Ackers Chemist Ltd – regulation 24 – SHA/21088 relocation approved by NHSE and refused at appeal following an oral hearing in October 2019

3.1.4 Current application from Delmergate

3.2 It is notable that the owner of the closest two pharmacies to the application site, namely Ackers Chemist Ltd has applied for both a new contract under regulation 15 and a relocation of one of the closest pharmacies to the application site. Neither application has been successful.

3.3 The Applicant asks the Committee to note that SHA/21088 was an unusual case as the appeal was granted and the application refused because the applicant had failed to properly identify the premises to which they proposed to relocate. At the oral hearing the Applicant requested that the Chairman give some indication of whether the application would have been refused in any event as the pharmacy was such a significant distance from the proposed location and access to it was poor. The decision letter does not provide the clarity that the Applicant would have liked to have seen but during the previous oral hearing it became clear that Swanscombe (the nearest settlement to the proposed site in this case) was simply too far away and did not have sufficient transport links to be considered to provide services to Ebbsfleet Garden Village.

3.4 In the Ackers relocation application, their previous representative claimed that patients should walk along a mud path and climb a metal barrier to access Swanscombe from Ebbsfleet Garden Village (and vice versa). It is now abundantly clear that this was not a credible suggestion. The Applicant provided photographs at the previous hearing showing this route and the drug paraphernalia around it.

3.5 The Applicant asks NHSE [sic] to consider the following comments from the oral hearing decision when considering this application;

2.8 From the pharmacy the Committee walked to the proposed location at Castle Hill. Although the Committee intended to follow the routes suggested by the Applicant, it proved difficult to identify the various paths and other routes shown on the map and the routes taken on the outgoing and return journeys were not necessarily the quickest or most direct routes.

2.11 There is a gradual incline up along Whitecliffe Road and there are bus stops on both sides of the road. Near the crest of the incline the Committee turned left along a paved footpath following a sign to the Village Centre. This lead through the houses but the Committee were unable to reach the Centre itself owing to the positioning of barriers close to the Centre across the footpath.

3 A summary of the above observations was provided to those in attendance. They were invited to comment upon them or indicate if any of the observations appeared to be inaccurate. In particular the Chair indicated that there was a noticeable contrast in the condition of the roads, housing and pavements between Swanscombe and Castle Hill, that the area had been seen to be hilly and that the incline leading up from the Village Centre to Whitecliffe Road was particularly significant. He also stated that the footpath linking Castle Hill and Swanscombe was not considered to be suitable for general use by local residents. [Rushport emphasis]

3.6 It should now be clear that as no pharmacy could realistically relocate to Ebbsfleet Garden Village, that the only way to meet the need for pharmaceutical services at the

site (which Ackers agrees exists as they made two applications to open a pharmacy there) is to approve this application.

3.7 There is a clear indication from the previous oral hearing committee that access, at least on foot, is not suitable between the two different towns. The benefit of the site visit is that it is clear that the two areas are distinct and have their own identity, needs and requirements.

3.8 The basis of the appeal is set out in the attached “Pharmacy Report” (at Appendix B). The report has been compiled by an expert in planning matters (Mr Eamonn Loughrey of Inaltus) with input from Rushport Advisory LLP.

3.9 The report deals with the true position in relation to the Ebbsfleet development, which is one of the largest ongoing developments in the U.K.

3.9.1 Section 3 discusses the Ebbsfleet Garden City;

3.9.2 Section 4 discusses the PNA;

3.9.3 Section 5 considers Healthcare Provision in the Area;

3.9.4 Section 6 deals with Regulation 18 Compliance ; and

3.9.5 Section 7 sets out the Conclusions.

3.10 With regard to the NHSE decision letter the Applicant is disappointed to note that in an area which is growing as fast as Ebbsfleet, the Committee relied on a site visit report which is nearly two years old. The Committee will note that NHSE accepts that there is no provider of pharmaceutical services in the area, but still finds that granting the application would not secure either improvements or better access to pharmaceutical services. The Applicant rejects the approach adopted by NHSE and their reasoning for the reasons set out in the report.

3.11 The Committee will note that section 5 of the report clearly sets out why existing contractors in other areas cannot be considered to provide pharmaceutical services to the new Ebbsfleet development and provides clear rationale for making this submission.

3.12 The Ebbsfleet development already has over 2,000 completed homes and the Ebbsfleet Development Corporation estimate the current population at 5,000. Development work is ongoing and involves multiple house builders to ensure the maximum rate of new houses possible.

3.13 The Applicant submits that there are times when Primary Care Appeals can issue a decision that feels impossible to reconcile with the position on the ground. In the Applicant’s first application they requested an oral hearing because the scale of this development is enormous and it is physically isolated from surrounding towns where pharmacies are located. The Applicant further asks the Committee to note that the PNA states that the main reason for patients choosing a pharmacy is that it is close to their home (51%) and that the most common method of travel to a pharmacy is on foot (43%). Those living in Ebbsfleet have neither option in any reasonable sense.

3.14 Unfortunately in the previous application the Committee chose to refuse the appeal and did not hold an oral hearing. However, in the subsequent relocation application of one of the nearest pharmacies, an oral hearing was held and the comments from the Chairman clearly indicate that the area of this application and the area where the nearest pharmacies are both owned by Ackers Chemist Ltd, were distinct and access on foot between the areas was poor.

3.15 There is a clear requirement for a new pharmacy to serve Ebbsfleet and it is likely that it will require more than one pharmacy as development proceeds further. The Applicant asks the PCA does hold an oral hearing in this case if there is any doubt about the strength of the application, but the Applicant similarly submits that this application can and should be granted on the papers alone.

Submitted with the letter of appeal was a Pharmacy Report (undated) for “Proposed Pharmacy for premises at the New Castle Hill Local Centre, Ebbsfleet Garden City”. The report stated:

QUALIFICATIONS AND EXPERIENCE

3.16 This Report has been prepared by Eamonn Loughrey with further input from Rushport Advisory LLP relating to the proper construction of the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013

3.17 My qualifications are a BSc Hons in Town and Regional Planning from the University of Dundee.

3.18 I am Director of Inaltus Limited and I have been a chartered town planner since 2000. I am a member of the Royal Town Planning Institute and Irish Planning Institute. I have over 20 years’ experience in planning practice.

3.19 I have been involved in many pharmacy applications throughout the UK in the last 18 years. I have given expert evidence to appeal panels in England, Wales and Northern Ireland. I have acted for many companies in pharmacy matters including independent and multiple pharmacy businesses.

3.20 I have been involved in numerous retail planning applications and advised some of the UK’s largest retailers. I have given expert evidence in planning appeals and inquiries in Northern Ireland and England. I have also advised local authorities in England and the Department of Environment in Northern Ireland on planning matters.

3.21 I am instructed in this case by Delmergate Limited. I have made a site visit to the application site, the Castle Hill area and the wider Ebbsfleet Garden City area. I have familiarised myself with the background to this application, I have read the application forms, and reviewed the Pharmaceutical Needs Assessment for Kent. I have had discussions with Planning Officers at Ebbsfleet Development Corporation. I have visited the other nearest pharmacies in the wider area.

INTRODUCTION

3.22 This a new application for inclusion in the pharmaceutical list by Delmergate Limited for premises in the new local centre at Castle Hill, Ebbsfleet Garden City DA10.

3.23 The application is being made to the Thames Valley Area Team, and is made under Regulation 18 of the NHS (Pharmaceutical Services) Regulations 2013 in that the proposal will offer unforeseen benefits.

3.24 Structure of Report

3.25 The Report is structured as follows:

3.25.1 Section 3 discusses the Ebbsfleet Garden City;

3.25.2 Section 4 discusses the PNA;

3.25.3 Section 5 considers Healthcare Provision in the Area;

3.25.4 Section 6 deals with Regulation 18 Compliance ; and

3.25.5 Section 7 sets out the Conclusions.

EBBSFLEET GARDEN CITY

3.26 Ebbsfleet is a major regeneration area located on the south bank of the River Thames, about 4 miles from the M25. It is about 23 miles from Central London.

3.27 Ebbsfleet is designated as a Garden City and is the first such major development in the United Kingdom (UK) since the early 20th Century. Ebbsfleet sits in Kent and transcends the boundaries between Dartford Borough and Gravesham Borough. It forms part of the Thames Estuary Growth Area which stretches from Dartford to Margate.

3.28 Ebbsfleet is located on the strategic highway network with the A2 Walting Road running south of the area and linking the M25 to Canterbury and Dover. Ebbsfleet International train station is located in the heart of the Ebbsfleet Garden City. This is a major rail station for Eurostar and High Speed Trains linking London to mainland Europe.

3.29 The Government supports strong growth in Ebbsfleet. To encourage and expedite the delivery of significant volumes of housing, industrial and commercial buildings and the delivery of infrastructure to service the lands, the Ebbsfleet Development Corporation (EDC) was established in 2015. The EDC drives the granting of planning permission and the delivery of infrastructure in Ebbsfleet Garden City within a separately defined area known as the EDC Urban Regeneration Area (EDC URA).

3.30 Ebbsfleet

3.31 The aim of Ebbsfleet Garden City is to provide 15,000 new homes (including 12,842 within the EDC URA), with a population of 27,400 living in new neighbourhoods, 13 new primary school, 8 secondary school, 564,480 sq m of commercial floorspace, a new commercial centre providing up to 32,000 new local jobs for residents and 70,310 sq m of retail floorspace. It is a massive development and one of the largest developments in the UK.

3.32 Ebbsfleet can be considered in seven areas that will develop between existing communities of Northfleet, Swanscombe and Greenhithe. (see map at Appendix B) The seven development areas are:

3.32.1 Eastern Quarry;

3.32.2 Ebbsfleet Green;

3.32.3 Ebbsfleet Central;

3.32.4 Swanscombe Peninsula;

3.32.5 Northfleet Embankment West;

3.32.6 Northfleet Embankment East; and

3.32.7 Springhead Park.

3.33 Eastern Quarry and Ebbsfleet Green is the area in which the proposal will be located. This is located west of Ebbsfleet Central and will provide a constellation of vibrant urban villages set against the chalk cliffs and waterscapes of the former quarry. Eastern Quarry (which will have three villages i.e. Castle Hill, Western Cross and Alkerden) and Ebbsfleet Green and will provide:

3.33.1 7,200 homes across both sites with a diversity of house type and tenure;

3.33.2 4 distinct identities for the 4 villages;

3.33.3 4 walkable centres providing day-to-day needs of local residents within walking distance of homes to include primary school, local retail, healthcare and other community facilities;

3.33.4 a new secondary school and an education campus;

3.33.5 high levels of public transport accessibility; and

3.33.6 clear connections between individual development sites.

3.34 Ebbsfleet Central (and Springhead Park) will become a major commercial hub and a centre of excellence for medical education and learning. This area is centred on the Ebbsfleet International Train Station (with 5,500 parking spaces and interchanges for FastTrack and the wider bus network) and will be an urban heart for the Ebbsfleet Garden City, with a commercial core and business areas. It will provide health facilities potentially a secondary school and higher education; high density homes and community and cultural facilities within a new parkland setting.

3.35 Northfleet Embankment (east and west) will provide two new waterside residential neighbourhoods (1162 homes) along the Thames Embankment. It will also provide a new primary school and expanded provision in existing schools, retain existing and develop new employment opportunities.

3.36 Swanscombe Peninsula is the location of a major new entertainment resort for London, but will also see the protection of the ecology of the area and the retention of existing employment areas.

3.37 The Ebbsfleet Implementation Framework states that:

“10 new walkable neighbourhoods will be developed across Ebbsfleet to include a range of housing types and densities. Each neighbourhood will aim to provide access to public transport and key community facilities within 5 minutes walk”

3.38 Up to 15,000 homes are proposed for Ebbsfleet Garden City which will be distributed as set out in the table below. It can be seen that 42% of new homes will be developed in the Eastern Quarry area and 6% will be developed in the adjacent Ebbsfleet Green area.

3.39 Table 1 Housing Distribution in Ebbsfleet Garden City

Location No. Homes % Homes Eastern Quarry 6250 42 Ebbsfleet Green 900 6 Station Quarter 4000 27 Northfleet Embankment West 782 5 Northfleet Embankment East 700 5 Craylands Lane & Croxton Gary 210 1 Sub total 12842 86 Elsewhere outside EDC URA 2158 14 Total 15000 100

3.40 A key aspect of the Ebbsfleet Garden City will be the development of thriving local centres where community and cultural facilities and jobs will be provided. At Castle Hill a 2 FE primary school with nursery and community provision has already opened in the form of the Castle Hill Community Centre and the Cherry Orchard Primary School.

3.41 In the Alkerden Education Campus there will be a 8FE secondary school, and a 2 FE primary school with nursery, community facilities (library, youth centre, community centre, primary health care facility, health provision and a community sports centre). At Western Cross there will be a 2FE primary school with nursery and community provision.

3.42 Planning Permission for Eastern Quarry

3.43 Outline planning permission (Ref: DA/03/1134/OUT) was granted on 13 November 2007 for a mixed development comprising up to 6,250 dwellings and up to 231,000 sq m of built floorspace for business premises, education, community and social facilities, hotels, theatre and support retail and leisure facilities and associated works within the Eastern Quarry area. A subsequent application (Ref: DA/12/01451/EQVAR) granted modifications to the outline planning permission on 18 January 2013.

3.44 The outline permission left many elements of the development for detailed reserved matters, but fixed a ‘Land Use Disposition Plan’ which shows the broad spatial development of the area. A Site Wide Masterplan was approved under planning permission DA/12/01452/EQCON.

3.45 Both are set out at the map at Appendix B.

3.46 Following the granting of the outline planning permissions a large number of applications for detailed reserved matters have been approved.

3.47 Developers

3.48 There are a large number of developers in the Ebbsfleet area, most housing developers are focused on Castle Hill. The developers include the following:

3.49 Castle Hill

3.49.1 Taylor Wimpey (who are developing Waterside at Castle Hill);

3.49.2 David Wilson Homes (who are developing at Castle Hill);

3.49.3 New Crest (who are developing the local centre and housing at Castle Hill);

3.49.4 Clarion (who are developing social housing at Castle Hill);

3.49.5 Ward Homes (who are developing housing at Castle Hill)

3.49.6 Barretts (who are developing housing at Castle Hill);

3.49.7 Permission (who are developing housing at Castle Hill);

3.49.8 Charles Church (who are developing housing at Castle Hill).

3.50 Ebbsfleet Green

3.50.1 Redrow (who are developing housing and offices at Ebbsfleet Green);

3.50.2 Marstons Inns and Taverns (who have developed and are operating the hotel and public house at Ebbsfleet Green).

3.51 Northfleet

3.51.1 Keepmoat (who are developing housing at North Fleet East).

3.52 Ebbsfleet Central

3.52.1 Countryside (who are developing housing at Ebbsfleet Central).

3.53 Swanscombe Peninsula

3.53.1 Bellway (who are developing housing at Swanscombe Peninsula).

Castle Hill

3.54 Castle Hill is the most notable development in Ebbsfleet Garden City. It is the largest area of development land and is the focus for the majority of housing with 5,000 people already living there. It is also the focus for most ongoing housing development at present. The infrastructure to the site has been developed and continues to expand. (See photographs at Appendix B)

3.55 EDC keeps a record of the developed housing in the area. The Eastern Quarry area has detailed planning permission granted for 1084 units.

3.56 The current detailed development layout of Castle Hill is below. A significant amount of development has taken place. The Southfleet Road roundabout has been completed and Bluff Road has been developed. A variety of high, medium and low density housing and apartments have been built and are occupied. The fast track route is reserved and being developed. The Northern Access Road is constructed. Parcels 1 and 2 are largely completed and occupied. Parcel 5 is ongoing with some occupation taking place. Work is continuing into Parcels 3A where properties are ready for occupation and Parcel 5 is underway where Taylor Wimpey are marketing and constructing the Waterside Development.

3.57 Other development in the area includes a variety of parks and open space. The Village Green has been developed with play parks and tennis courts. A public house is proposed for this area. The Community Centre and Cherry Orchard Primary School are open. Cherry Orchard Primary also has a nursery.

3.58 Community activity in the Community Centre includes:

3.58.1 Mother and Toddlers Groups;

3.58.2 Yoga Classes;

3.58.3 Coffee Mornings;

3.58.4 Gymnastics Classes;

3.58.5 After School Clubs;

3.58.6 HIIT N’ Sculpt Fitness Classes;

3.58.7 Sunday Activity for group walks and jogging;

3.58.8 Fight Klub Fitness Classes;

3.58.9 HW Fitness Classes; and

3.58.10 Holistic Core Restore Classes for Women.

3.59 Shop Facilities

3.60 Planning permission was granted on 27 September 2017 (Ref: EDC/17/0067) for a “mixed use building comprising 10 townhouses, 46 apartments, up to 911 sq m of retail floorspace (A1,A2,A3 A5) and associate car parking, circulation space, landscaping, infrastructure”.

3.61 The retail development is now complete and Delmergate Ltd has secured one of the retail units.

3.62 The developer has been developed by Newcrest which is a specialist in developing mixed commercial developments to serve new and existing communities.

3.63 The site is located in the heart of Castle Hill at the junction of the North South Boulevard and the FastTrack route. It is located just north of the Community Centre and Primary School and southeast of the Village Green.

3.64 The proposal is for a u-shaped building ranging from 3 to 5.5 storeys in height. 5 retail units will be provided at ground floor as follows:

3.64.1 Unit 1 – convenience store (A1 use) up to 417 sq m;

3.64.2 Units 2, 3 & 4 – retail uses (A1, A2, A3 uses) up to 400 sq m;

3.64.3 Unit 5 – hot food take away (A5 use) up to 94 sq m (with flexibility to revert to A1, A2 or A3 use of no A5 occupier comes forward).

3.65 The proposal will also provide 56 dwellings in the form of 10 townhouses of 3 storeys high, and 46 apartments above the shops. A rear courtyard provides 67 car parking spaces for residents.

3.66 The retail development is now complete and Delmergate Ltd has secured one of the retail units.

Local Shopping Provision

3.67 The 5 ground floor units sit at the centre of Castle Hill, with the largest unit already let to the Coop. The school, housing, pub and village square are adjacent. The proposal site will be the shops for the local community. The nearest alternative shops are in Swanscombe, which is the established community to the north of Castle Hill. Swanscombe suffers from very narrow streets, where vehicles are unable to pass. The closest group of shops are at Swanscombe High Street about 1.2miles from the proposal site. The closest large food store is Sainsbury’s at Springhead Road, Northfleet which is about 3 miles away. The Castle Hill Local Centre will be a warmly welcomed facility when complete.

Access into Castle Hill

3.68 As explained above there are only two access points into Castle Hill. Both are located to the east and taken from Southfleet Road. As development of Eastern Quarry continues in a westward direction, the main access will continue to be via Southfleet Road. Additional access points to the west and south of the Eastern Quarry are identified, but these will not come forward for some time. As the residential developments grow, the Castle Hill Local Centre will be the focal point for an increasing number of new residents coming to live in the area.

3.69 For pedestrians seeking to link through to the Swanscombe area, some park paths have been opened up. These are narrow, bumpy, dirt tracks. They would not be suitable for people that have mobility issues, parents pushing a pram or even some cyclists.

Surrounding Area

3.70 Castle Hill is fairly isolated. To the south will be lakes and the A2 Walting Road dual carriage way. West is the remainder of Eastern Quarry, which will be developed into the Central Village (aka Alkerden) and Western Village (aka Western Cross). Beyond this, across the B255 is Bluewater Regional Shopping Centre. North of the area (across parkland and allotments) is Swanscombe and to the east is the large expanse of car parking and the open grounds around the Ebbsfleet International railway station.

The Proposal

3.71 With this background the proposal can be considered. Delmergate Limited are seeking to open a new pharmacy at the Castle Hill Local Centre. It will open between 9am to 6pm Monday to Friday and 9am to 5:30pm on Saturday providing 53.5 opening hours. It will be closed on Sunday. Its core opening hours will be 9 am to 5:30 pm Monday to Saturday, providing a total of 51 core hours.

3.72 The pharmacy will provide all appliances under part IX of the drug tariff which includes Stoma and incontinence products. At present the premises are not in the Applicant’s procession and thus floor plans are not available. However, the Applicant has now been able to agree terms with the developers for one of the retail units.

3.73 The proposal site will be located within the heart of this new community. Patients will be able to access the pharmacy as part of their daily patterns of movement. Many people will use the North South Boulevard to move around the area and will pass the application site when visiting the Community Centre, School and Nursery and will therefore pass the application site regularly.

3.74 People using the other shops being developed or visiting the Village Green and playground will be in the area and able to use the pharmacy.

3.75 Parents and children attending the school and community centre throughout the day, will have access to the pharmacy as part of their trip. This is important given the absence of any other form of healthcare service in the area at present as discussed below.

THE PNA

3.76 The Kent PNA 2018 is the current PNA covering the Ebbsfleet area.

3.77 Objectors to this application have previously argued that as the PNA discusses the Repton development that the application cannot be considered to be for “unforeseen” benefits. This interpretation of the Regulations is clearly wrong.

3.78 To properly understand the requirements of regulation 18 one must look at the wording of the Regulations.

3.79 Regulation 18(1)(2) states that the “improvements or better access that would be secured were or was not included in the relevant pharmaceutical needs assessment in accordance with paragraph 4 of Schedule 1.”

3.80 Paragraph 4 of Schedule 1 relates to information to be included in a pharmaceutical needs assessment. In particular, Para 4 requires a statement of the pharmaceutical services that the HWB has identified as services that are not currently provided, but if they were would secure improvements of better access either now or in specified future circumstances.

3.81 Applications to open new pharmacy premises therefore fall into one of two types under the Regulations, namely;

3.81.1 Those where a current need or future need has been identified in the PNA (regulations 13 and 15); and

3.81.2 Improvements or better access under regulation 17 where the improvements or better access were identified in accordance with Para 4 of Schedule 1; and

3.81.3 Unforeseen Benefits applications under Regulation 18, where the improvements or better access were not identified in accordance with Para 4 of Schedule 1.

3.82 There is no other type of application where the improvements or better access have “sort of” been identified.

3.83 A PNA cannot simply note that a housing (or other) development is planned and / or note that a pharmacy may be required in the future and then use these references to refuse all application types. To allow this would be to create a “no man’s land” of applications that could not be properly considered under any regulation. In our submission it cannot have been Parliament’s intention to have applications that do not meet any type of need / improvement / better access due to the wording of the PNA not being clear enough, but also not be considered as valid regulation 18 applications due to the improvements or better access being vaguely referred to in a PNA. Put simply, the PNA must either identify the improvements or better access in accordance with Paragraph 4 of Schedule 1 or it does not. It cannot fall between two stools.

3.84 Health and Wellbeing Boards have a duty under the Regulations to comply with the requirements of Schedule 1 and identify requirements in accordance with paragraphs 1 to 4. Any assessment which falls outside of paragraphs 1 to 4 (and to some extent paragraph 5, but not relevant here) may well be of interest and be helpful information, but it is no more than that.

3.85 For the sake of completeness we should add that whilst the words “unforeseen benefits” do not appear in the test to determine whether the application is correctly submitted under regulation 18 (i.e. regulation 18(1)(b)), a form of them appears at the end of regulation 18(2)(b) where, in relation to significant benefits, the Regulations use the words;

“granting the application would confer significant benefits on persons in the area of the relevant HWB which were not foreseen when the relevant pharmaceutical needs assessment was published.”

3.86 It must however be noted that regulation 18(2)(b) is not the test of whether the application has been correctly submitted for improvements of better access which were not included in the relevant PNA. Instead, under 18(2)(b), the decision maker will have regard to whether the significant benefits identified by the Applicant (if they have been so identified) of reasonable choice, innovation and access to services for those who share protected characteristics, were foreseen in the relevant PNA or not. This is a separate matter from the test under regulation 18(1)(b). Even in this case we would ask NHS Resolution to note that there is no mention of identifying a housing development or making a reference to a possible (rather than actual) future need for pharmacy services.

3.87 In summary, the Regulations provide no support for the position adopted by some objectors that the mention of a housing development in a PNA or the mention of a potential need for a pharmacy, but in unspecified circumstances, should lead to application automatically being refused under regulation 18.

3.88 The current PNA states;

"Ebbsfleet Garden City

is marked on a map in Appendix A and the development lies across the Dartford/Gravesham Council boundaries. Although building has been slow to happen, it has been estimated that nearly 750 units will be ready for occupation in the area by 2018. This means that it has now been identified that there may be need for pharmaceutical services in the area within the life of this PNA dependent on the capacity of the surrounding pharmacies. There are already over 40 pharmacies servicing the population of Dartford and Gravesham and it may be more appropriate to invite relocation of one or more of these pharmacies" (emphasis added)

3.89 It is clear that [3.80] the requirements of paragraph 4 of Schedule 1 are not met by this statement. Para 4 requires a statement of the pharmaceutical services that the HWB has identified as services that are not currently provided, but if they were would secure improvements of better access either now (current need) or in specified future circumstances (future need). No such statement is contained within the PNA.

3.90 At this time there is no identified need and Delmergate have correctly applied under Regulation 18. However, it is also important to note that the PNA wrongly assumes a number of facts;

3.90.1 The PNA wrongly assumes that pharmacies a significant distance away might cater for the increased demand from many thousands of new patients.

3.90.2 The PNA wrongly assumes that local pharmacies might simply relocate to the new development even though the nearest is nearly 1 mile away. (see below for details of closest pharmacies and their relationship with their local community).

3.90.3 The PNA wrongly assumes that there is no current need for a pharmacy within the development.

HEALTH CARE PROVISION IN THE AREA

3.91 Before considering the compliance with the Regulation 18 tests, it is instructive to understand the availability of health care services in the area around the proposal site.

3.92 As explained above, there is no pharmacy in the Castle Hill village. There is also currently no health centre, although there are plans that a health centre will be required to meet the demands of the 6,250 families that will live in the Eastern Quarry area.

3.93 The closest pharmacy and health care services are outside the Castle Hill village.

3.94 Swan Valley Pharmacy, Swanscombe Health Centre is located about 0.9miles (1400m) northeast of the proposal site.

3.95 This pharmacy is located under the same roof as the Swanscombe Health Centre. The Health Centre has a patient list of 17,951. Given the population of Swanscombe is 8186, it is clear the Health Centre is catering for patients from outside the Swanscombe area, and indeed perhaps 55% of its patients live outside the Swanscombe electoral ward.

3.96 The Swan Valley Pharmacy dispenses about 11,542 items per month on 5,550 forms. 10,011 (87%) of its items are from the Swanscombe Health Centre.

3.97 The Pharmacy is located within a campus that includes the Ebbsfleet Academy (600 secondary school students), Swanscombe Discovery Centre, Library, Adult Education Centre, Youth Service, and Brook Learning Trust. This pharmacy opens 9:00am to 6:30 pm Monday, Tuesday, Thursday and Friday, and from 9:00am to 7:30pm on Wednesday. It is closed on Saturday and Sunday.

3.98 A pedestrian link is provided to this site from Swanscombe Street. The pharmacy shares parking spaces with the health centre. There are about 16 patient parking spaces and at the time of our site visit, the spaces were all occupied and visitors were parking on double yellow lines as shown (see Appendix B). People park in this area despite an overspill car park available where 100 spaces are available to visitors to the various facilities on this campus.

3.99 Ackers Chemist, 94 Church Road, Swanscombe is located about 1.1 miles (1700m) northeast of the proposal site. It is located in the middle of Swanscombe residential streets. It is in the middle of this community and is not located to meet the needs of the new Castle Hill village community.

3.100 This pharmacy dispenses about 6,920 items per month from 2,916 forms. About 2945 (42%) of its items are from the Swanscombe Health Centre. About 2,385 of its items (34%) are from St Werburgh Medical Practice in Rochester. This pharmacy has therefore a significant relationship with a Medical Practice outside the Swanscombe area and is not solely reliant on the local population to support it.

3.101 The pharmacy opens 9:00am to 6:00pm Monday to Friday and from 9:00am to 1:00pm on Saturday.

3.102 On street parking is available for this site (about 3 spaces). This parking is shared with the surrounding houses and as shown in the photo above, the parking in front of the shop can often be fully occupied.

3.103 Both pharmacies serve the Swanscombe area, which had a 2011 population of about 7561, and is estimated to have grown to 8186 in 2016 (+8% in 5 years).

3.104 Both pharmacies are owned by the same contractor Ackers Chemist Ltd. This has a direct impact on choice and whether that choice is reasonable or not.

3.105 All other pharmacies in the wider area are simply too far away to be a consideration in this case.

3.106 For the avoidance of doubt, we have considered the following:

3.106.1 Hill Pharmacy, 7 Hill Road (2.5 miles away). This is a pharmacy in the middle of a local shopping area. It has limited parking with double yellow lines along part of the shop’s frontage;

3.106.2 Lloyds Pharmacy, Vale Road, North Fleet (2.4 miles away). This pharmacy forms part of the Fleet Health Campus where there are a number of surgeries (i.e. The Forge Surgery, The Gateway Medical Practice, White Horse Surgery);

3.106.3 Penders Chemist, 29 Dene Holm Road, Painters Ash Estate (2.6miles). This is a pharmacy in a local centre serving an already long established local community.

3.106.4 Boots, Unit MSU02 Lower Thames Walk, Bluewater (4 miles). This pharmacy is in the middle of a Regional Shopping Centre, catering for a massive catchment population. It is not designed to cater for the local Castle Hill village community;

3.106.5 Williams Chemist, 20 Vale Road (2.8 miles). This is located across the road from The Shrubbery Surgery, 65A Perry Street. It meets the needs of the local community visiting that surgery;

3.106.6 Asda, Station Road, Greenhithe (3.3 miles). This forms part of the Greenhithe District Centre. The pharmacy is a separate unit under the roof of the Asda

superstore. This pharmacy is closest to the Greenhithe Surgery, London Road, and Ivy Bower Surgery, Ivy Bower Close;

3.106.7 Chadwicks Chemist, 16 Lawrence Square, Cold Harbour Estate (3.5 miles). This is a pharmacy in a local centre serving an already long established local community that is separate and distinct from Eastern Quarry and Castle Hill village.

3.107 None of these pharmacies are likely to be affected by the proposal. They are all in their own separate communities and housing estates.

3.108 It is notable, that the closest large food store at Sainsbury’s does not have a pharmacy. This is important as often the Committee will give weight to such facilities on the basis that people will visit these shops regularly and often these types of pharmacy are 100 hour contracts and therefore meet the needs of patients that are car borne and seek dispensing late at night.

Summary

3.109 It is clear that there is no pharmacy or health centre in the Castle Hill village, or indeed many of the new communities that are being formed around Ebbsfleet such as at Ebbsfleet Green or Springhead. The proposal will be a new pharmacy that will also provide some health care services to the large growing population. Until a new health centre is developed in the Eastern Quarry, this proposal could provide vital services.

3.110 The closest pharmacy is located as part of the large Swanscombe Health Centre, which has almost 18,000 patients. As shown earlier and in Section 6 below, Swanscombe is a highly deprived area, and has significant health demands. The Swan Valley pharmacy is not suitably located to accommodate the ever-growing Castle Hill and Eastern Quarry population as well as caring for the significant population of Swanscombe and the even more significant population that appear to be resorting to the pharmacy and health centre from much further away.

REGULATION 18 COMPLIANCE

3.111 Regulation 18 (1) states: If—

(b) the improvements or better access that would be secured were or was not included in the relevant pharmaceutical needs assessment in accordance with paragraph 4 of Schedule 1, in determining whether it is satisfied as mentioned in section 129(2A) of the 2006 Act(a) (regulations as to pharmaceutical services), the NHSCB must have regard to the matters set out in paragraph (2)

3.112 The preceding Section clearly sets out that the Castle Hill village is a new neighbourhood, that has grown from literally an old quarry less than a decade ago, and is now a new vibrant community, which is designed to be a largely self-contained neighbourhood. Providing a new pharmacy will secure improvements in pharmacy services and better access to those services in the village given none exist at present. Residents currently have to leave their village to access pharmacy services either in the busy and deprived area of Swanscombe or look much further to access services some miles away.

Regulation 18 (2)(a)(i)

3.113 Regulation 18 (2)(a)(i) stipulates:

Those matters are—

(a) whether it is satisfied that granting the application would cause significant detriment to—

(i) proper planning in respect of the provision of pharmaceutical services in the area of the relevant HWB

3.114 The proposal will not cause significant detriment to the proper planning of pharmaceutical services. The PNA is under review and there is no suggestion that the proposal will undermine the emerging PNA. The reality is that even if the PNA did identify a need for a new pharmacy in the wider area, given the scale of development in the Eastern Quarry (delivering 42% of the Ebbsfleet Garden City housing) it would be the most obvious location for a new pharmacy contract.

Regulation 18(2) a(ii)

3.115 Regulation 18(2) a(ii) stipulates

(2) Those matters are—

(a) whether it is satisfied that granting the application would cause significant detriment to—

(ii) the arrangements the NHSCB has in place for the provision of pharmaceutical services in that area;

3.116 The existing pharmacy network is already robustly positioned to cater for clearly defined captive neighbourhoods, which the proposal will not attract from or cater for generally. The nearest pharmacy at Swan Valley is beside a busy Health Centre, in an area with clear health needs and is attracting people from outside its neighbourhood. The Askers Chemist is located in the middle of a residential area and also meets a high level of needs of the local population, but also is meeting the dispensing requirements of another Medical Centre some distance away. Neither pharmacy displays any suggestion that they are not viable and will not continue to thrive in the coming years.

3.117 The proposal is located to be attractive and meet the needs of the population of Castle Hill and the growing population of the Eastern Quarry. It is unlikely that residents from Swanscombe will in the future seek to bypass their existing long established pharmacies in their own area and use the Castle Hill pharmacy. The proposal will be attractive to people living in the Castle Hill area and the residents of the Ebbsfleet Green area. It will also be attractive to the growing population of the wider Eastern Quarry area as it continues to develop in coming years.

Regulation 18 (2)(b) (i-iii)

3.118 Regulation 18 (20)(b) (i-iii) states:

(i) there being a reasonable choice with regard to obtaining pharmaceutical services in the area of the relevant HWB (taking into account also the NHSCB’s duties under sections 13I and 13P of the 2006 Act (b) (duty as to patient choice and duty as respects variation in provision of health services));

granting the application would confer significant benefits on persons in the area which were not foreseen when it published its pharmaceutical needs assessment;

Reasonable Choice

3.119 The 5,000 current residents of Castle Hill and Ebbsfleet Green have no choice at present. Their neighbourhoods have no pharmacy at present. That is wholly unreasonable. When one looks to the nearest pharmacies, the Swan Valley Pharmacy and the Ackers Chemist are located in an established and deprived residential areas. These pharmacies provide no choice for either the Castle Hill or the Ebbsfleet Green areas. The residents of the new housing areas will have no social connection with these areas.

3.120 When one looks further, the next nearest pharmacies are substantial distances away and in neighbourhoods and housing estates that have no connection with the new Eastern Quarry housing areas. There are three layers of lack of choice in this application:-

3.120.1 the Castle Hill area and the Ebbsfleet Green areas have no choice in their own right;

3.120.2 the nearest pharmacies are not a reasonable choice for the new residents as they are in areas that will be wholly unfamiliar with the new residents; and

3.120.3 the pharmacies further away are wholly unconnected to the Castle Hill and Ebbsfleet Green areas.

Accessibility on Foot

3.121 In order to discuss accessibility on foot objectively, it is important to understand what an acceptable walking distance is. Two documents are of guidance. The “Manual for Streets” (produced by the Communities and Local Government and Department for Transport) advises (para 4.41) that ‘Walkable neighbourhoods are typically characterised by having a range of facilities within 10 minutes (up to 800m) walking distance of residential areas which residents may access comfortably on foot’. The Institution of Highways & Transportation provides “Guidelines or Providing for Journeys on Foot”. It states (para 3.30) that ‘Approximately 80% of walk journeys and walk stages in urban areas are less than one mile. The average length of a walk journey is one kilometre (0.6miles). This differs little by age or sex and has remained constant since 1975/76’. It suggests that an acceptable walking distances in an area such as the Castle Hill would be 800m, though 400m would be desirable and the preferred maximum would be 1200m. With both guidelines identifying 800m to be acceptable it is a reasonable position to adopted 800m/10 minute walk as a guide for this report.

Table 2 Walking Distance Analysis

Pharmacy Distance Distance Exceedance Time in Exceedance (metres) (miles) above mins above

Guidelines Guidelines (10 (800m) % mins) % Town Centre Swan Valley Pharmacy 1400 0.9 175 17 170 Ackers Chemist Ltd 1700 1.1 213 22 220

3.122 It can be seen above that Swan Valley Pharmacy is located almost double the distance considered to be a reasonable walking distance and the nearly twice the length of time it takes to walk to the pharmacy. Ackers Chemist is more than twice the distance and takes more than twice the length of time for a reasonable walk to a pharmacy. Neither pharmacy can therefore be considered to be within an objectively defined reasonable walking distance from the proposal site and the heart of the Castle Hill community.

Topography of the Area

3.123 Distance alone is not the only factor for accessibility on foot. Walking up a hill can be a deterrent for people with pharmaceutical needs. The Castle Hill area, as a former quarry, has got challenging levels throughout it. There is a significant slope from south to north. The local centre is located in the heart of this area and hence about half way up/down this hill, meaning residents have the same distances to travel.

3.124 The Map below shows that the lower part of Castle Hill at the Waterside development sits at -16ft, the proposal site sits at 49ft and the top end of Castle Hill sites at 141 ft. The hill north of Castle Hill separating it from Swanscombe is 161 ft. The area around Swan Valley Pharmacy sits at 95ft. Ackers Chemist sits at 108ft. Hence, while the walk between the proposal site and Swan Valley pharmacy is significant, the hill that residents are required to walk is a further hindrance and barrier to accessing pharmacy services for many residents.

3.125 It is notable that there are no clear pedestrian links designed to bring residents from Castle Hill to the Swanscombe area. Residents from Castle Hill have to leave their area to visit the pharmacies. As shown above the informal pedestrian links are very weak and not inviting to residents.

3.126 Also the only footpath to walk between the Castle Hill area and Swanscombe is along the Southfleet Road. This is a busy road which drivers often drive along at speed (40mph limit) and the footpath is narrow. It is a dangerous road for patients and mothers with toddlers and young children to walk along.

Accessibility by Car

3.127 Access to Swan Valley Pharmacy is via the Southfleet Road. Parking at the health centre is often congested with visitors parking on double yellow lines.

3.128 Access to Ackers Chemist is via either Swanscombe Street or Herbert Road. These roads are both narrow and if oncoming traffic is met, drivers can often have to reverse on the main road to find a passing space. Parking at Ackers Chemist is limited and spaces are shared with the adjacent residential properties. Accessibility by car is therefore not reliable and again residents do not have a reasonable choice in accessing pharmacy services.

Accessibility by Public Transport

3.129 There is currently only one bus route serving Castle Hill. Service 481 runs between Bluewater Regional Shopping Centre and Riverview Park to the east. The bus runs only every 30 minutes. The intention is that when the entire development of Eastern Quarry is complete a fast track service will link directly through to Bluewater. However, accessibility of Bluewater is difficult as there are quarry cliffs located along the edge of

the site and to provide direct linkage will need tunnels. The final route of the fast track service is undetermined at present.

Resident Population

3.130 The 2011 Census which is substantially out of date in this case indicates that the area of Castle Hill is within the electoral ward of Greenhithe. Greenhithes population was 6,567 in 2011. The 2016 mid-year estimates indicate the ward has increased in size by 1,288 (+20%) and stood at 7,855 two years ago. Applying a similar growth rate the ward population could have increased by a further 500 since 2016, and could be 8370 (+23% over the 2011 level). Most if not all of this growth will have occurred in Castle Hill.

3.131 The current population of 5,000 is growing on an almost daily basis. The trend is a steep increase in home ownership and population.

3.132 The site is being built out by a large number of separate developers and as such the delivery of housing is spread among a variety of house builders, and as such build rates are not a clear method to estimate population either. The house builders in the area are capable of completing up to 50 dwellings per year. If there are 5 developers on site that could yield 250 dwellings per year and an annual increase in the population of the area of over 600 people per year1. This population has grown from a base of zero in 2009 when the lands still operated as a quarry.

3.133 What is clear is that the EDC and government and house builders are committed to delivering as many of the 6250 houses in the Eastern Quarry as quickly as possible, and the evidence of the scale development on the site will be seen at the site visit. The anticipated population of Castle Hill will be about 4,000 in the next 3-4 years. Added to this, the population of Ebbsfleet Green is likely to increase to 2,375 in the same period. The proposal will therefore cater for a short-term population of between 6,000 and 7,000.

Affordable Housing

3.134 It can also be noted that a high volume of homes in the area will be affordable homes with a requirement for 30% of homes to be affordable. Clarion are a housing association who have permission for 68 units in Castle Hill. These will be shared ownership homes.

Approved Developments

3.135 As set out above, the ongoing development of Ebbsfleet will ultimately see the provision of 15,000 new homes in new neighbourhoods with a population of about 27,409. Within the Eastern Quarry area, the next phases of village development will see significantly increased density in housing development in the Alkerden and Western Cross villages. A further 4650 new homes will be built in this area. Many of these residents will look east to gain access into the area.

3.136 The sheer scale of development will place demands on all services and facilities including health care services in the area. To ensure that social infrastructure is capable of coping additional non-residential uses are proposed in key areas. The provision of a pharmacy at Castle Hill Local Centre is consistent with the wider Ebbsfleet Garden City masterplan.

Non Residential Development

3.137 As mentioned above, significant non-residential development is proposed. The scale of the development is difficult to comprehend. The table below sets out the scale of the

1 This is more than the 500 growth between 16-18 but reflects the intensity of building development that is now on site and the drive from EDC and Government to have the homes built out and occupied

homes, office, retail, hotel, leisure and community facilities that will be provided in the various areas of Ebbsfleet Garden City. It can be seen that Eastern Quarry also has significant levels of office, retail, hotel and leisure, and community uses.

Table 3 Proposed Uses in Ebbsfleet Garden City

Area Homes Offices Retail Hotel Leisure Community (sq M) (Sq M) (Sq M) (Sq M) (Sq M) Eastern Quarry 6,250 120,000 26,000 11,000 24,000 50,000 Ebbsfleet Green 950 1259 5,000 1,758 Ebbsfleet Central 4,000 455,000 147,000 21,500 Northfleet Embankment West 782 46,000 850 5,000 1,000 Northfleet Embankment East 700 87,500 Swanscombe Peninsula 210

3.138 The scale of the development proposed will mean high levels of people will not only live in the area, but that significant people will come into the area for shopping, work, business and to stay and relax.

3.139 The social infrastructure to be provided across the Ebbsfleet Garden City is set out in the table below. Again, it can be seen that substantial community facilities are proposed. In the Eastern Quarry a substantial educational campus is proposed. That will attract significant volumes of children, students, teachers and support staff.

Table 4 Social Uses in Ebbsfleet Garden Village

Facility Castle Alkerden Western Ebbsfleet Station Station Springhead Northfleet Northfleet Hill Cross Green Quarter Quarter West East South North Primary School Yes Yes Yes Yes Yes Yes Yes Yes Secondary Yes Yes school Community Yes Yes Yes Yes Yes Yes Yes Yes Yes Centre Youth Centre Yes Yes Library Yes Yes Yes Primary Health Yes Yes Care Facility Hospital Sports Pitch Yes Yes Yes Yes Sports Centre Yes Yes

Why Swanscombe Will Not Meet the Needs of Castle Hill and Eastern Quarry

3.140 Geographically in terms of size, Swanscombe is itself smaller than Castle Hill. It is only about a quarter the size of Eastern Quarry and is dwarfed by the size and scale of Ebbsfleet Garden City generally. When developed Eastern Quarry will have a population of over 15,000, which compares to the Swanscombe area which is about 6000. Hence Eastern Quarry will be more than 2.5 times the size of Swanscombe. Swanscombe Health centre is already catering for a population that is more than 55% larger than the Swanscombe area itself. It is simply not credible to imply that Swanscombe could meet the needs of the Eastern Quarry which will have a population of over 15,000. That would be added to the 18,000 patients listed with the Health Centre would give a population of almost 33,000. With two pharmacies providing the needs of

33,000 people would have a ratio of 1 pharmacy per 16,500 people. In contrast to the England average, 33,000 people should have over 7 pharmacies.

3.141 The Swanscombe Health Centre sits beside the Ebbsfleet Academy which has in the region of 600 pupils between the ages of 11-16. Manor Community Primary has 52 spaces in its nursery and has about 550-600 students. However, in addition to the schools Castle Hill and the other villages in the Eastern Quarry will have their own primary and secondary schools. If there is a clear unequivocal need for new primary and secondary education provision, an additional pharmacy must also be an obvious recognised need.

Deprivation in Swanscombe

3.142 We have set out above that the PNA itself recognises that Swanscombe is a deeply deprived ward.

3.143 In 2016 Kent Public Health Observatory published the Dartford, Gravesham & Swanley CCG Analysis of Deprived Areas. This found Swanscombe to be among the most deprived areas in the districts. Below are extracts from the Report which look at Swanscombe as a Type 3 Deprived LSOA.

3.144 It can be seen that Swanscombe has areas within it that is considered to have families with children in social housing, low incomes, poor education scores, high levels of single parents, high smoking prevalence, high levels of child obesity, low levels of welling being. These characterises and behaviours lead to premature mortality rates and high emergency hospital admission.

3.145 The Table (at Appendix B) shows that Swanscombe has a significant youthful population. It has the second highest 0-4 year old population and the highest 0-19 population in Dartford Council area.

3.146 7.36 The Table (at Appendix B) shows the wards which have the highest and lowest level of achievement at school. The Swanscombe electoral ward has the lowest percentage of children achieving a good level of development at the end of reception year.

3.147 The Swanscombe area has its own significant community issues. It has high levels of deprivation, a high youthful population that are underachieving at school. It is unreasonable and unfair to expect the existing pharmacies in Swanscombe to care of the existing Swanscombe population and add the ever-growing population of Castle Hill and Eastern Quarry to their workload and burden. It is certainly unreasonable for the new residents of Castle Hill and Eastern Quarry to have to go to a pharmacy which would seem at present to be already a very busy and popular service for a deprived local community.

Protected Characteristics

3.148 The proposal will cater for people of protected characteristics, namely those people of a particular age, disability, religion and pregnancy and maternity.

3.149 Many of the homes built in Castle Hill are family homes. These will be occupied by new parents with young children (hence the local Cherry Orchard Primary School has opened to accommodate the new children living in the area). These people will have a high degree of mothers with young children and many will have no access to the family car during the day, thus being required to either walk their children a mile or so to access a pharmacy or take a bus trip into Swanscombe Health Centre.

3.150 Having a pharmacy in close proximity to the school and community centre, creates the opportunity for linked trips to the pharmacy for members of the community when they travel to school and their child care facilities. The proposal will bring a significant benefit

to this group by offering pharmacy provision in close proximity to a location where they visit on a daily basis.

Innovation

3.151 The applicant does not rely on innovation in this application.

Summary

3.152 The proposal satisfies the Regulation 18 tests. It will:

3.152.1 Secure better access to pharmaceutical services for the new residents and workers in the Castle Hill and the wider Eastern Quarry and Ebbsfleet Green areas;

3.152.2 Will not cause detriment to the proper planning of pharmaceutical services in the HWB;

3.152.3 Will not cause detriment to the provision of pharmaceutical service in the area;

3.152.4 Will confer significant benefits to the local population of the Castle Hill and its surrounding area by improving choice of pharmacy services particularly through increased access to such services and will be a source of contracted and non contracted health care in a community which has none at present; and

3.152.5 Will confer significant benefit to people of protected characteristics, particularly mothers with children that need access to health care within reasonable proximity to their daily activities.

CONCLUSIONS

3.153 This Report relates to an application for a new pharmacy contract for premises at Castle Hill Local Centre, Ebbsfleet Garden City.

3.154 Ebbsfleet Garden City is a new mixed use development that is completely detached from Swanscombe. Within Ebbsfleet Garden City is the Eastern Quarry neighbourhoods which will be developed into 3 of the largest villages in the Ebbsfleet Garden City.

3.155 The first village is Castle Hill. This is a new neighbourhood already with its own substantial resident population.

3.156 Castle Hill, Eastern Quarry and Ebbsfleet Green forms the core part of the Government and EDC driven development of major housing at Ebbsfleet Garden City.

3.157 Castle Hill has very limited connection to the north Swanscombe neighbourhood. Swanscombe is disconnected physically and socially from the Castle Hill. There would be limited interaction between the areas. The fact that the Castle Hill has no pharmacy whatsoever, and the nearest is in a separate neighbourhood means that there is a clear lack of choice for the new residents in the Castle Hill village.

3.158 Whilst other pharmacies in Gravesend exist, none are any more accessible to the Castle Hill residents. They are all more challenging to get to by car, and are not accessible by a reasonable use of public transport.

3.159 The proposal has been assessed against Regulation 18 criteria and it can be concluded that it will:

3.159.1 Secure better access to pharmaceutical services for the residents and workers in Castle Hill, Eastern Quarry and Ebbsfleet Green area;

3.159.2 Will not cause detriment to the proper planning of pharmaceutical services in the HWB;

3.159.3 Will not cause detriment to the provision of pharmaceutical service in the area;

3.159.4 Will confer significant benefits to the local population of the Castle Hill and its surrounding area by improving choice of pharmacy services particularly through increased access to such services and will be a source of contracted and non contracted health care in a community which has none at present;

3.159.5 Will confer significant benefit to people of protected characteristics, particularly mothers with children that need access to health care within reasonable proximity to their daily activities.

3.160 Given the foregoing we respectfully request the application is granted and the contract is allowed.

4 Summary of Representations

This is a summary of representations received on the appeal.

4.1 NHS ENGLAND

4.1.1 NHS England & NHS Improvement South East Region (“NHS England”) wishes to comment on the appeal lodged against its decision in this case.

4.1.2 For ease of reading, the response from NHS England will address the issues in the same order as that used by the Applicant in the letter of Appeal dated 31 March 2020 and specifically the attached un-dated “Pharmacy Report” (Reference: IN1812/S1 on the front page, bottom left) (as found at Appendix B).

“At this time there is no identified need and Delmergate have correctly applied under Regulation 18. However, it is also important to note that the PNA wrongly assumes a number of facts.

 The PNA wrongly assumes that pharmacies a significant distance away might cater for the increased demand from many thousands of new patients.  The PNA wrongly assumes that local pharmacies might simply relocate to the new development even though the nearest is nearly 1 mile away. (see below for details of closest pharmacies and their relationship with their local community).  The PNA wrongly assumes that there is no current need for a pharmacy within the development.” (Pharmacy Report p. 23 para 5.11)

4.1.3 NHS England wishes to refute the assertion that the PNA wrongly assumes a number of facts.

4.1.4 Firstly, whilst NHS acknowledges that there currently is no pharmacy located within the Castle Hill development (part of the Ebbsfleet Garden City development), the NHS England would like to state that there are five pharmacies within a reasonable distance from the Appellant proposed site. These pharmacies are not, as argued ‘a significant distance’ away from the Castle Hill area, as distances between 1.7km to 4.1km cannot be considered a significant distance considering that the population in the Castle Hill area will be travelling out of the area for schooling above primary school, main

shopping, civic and health services, work and leisure opportunities. Please see the distances to the surrounding pharmacies below.

4.1.5 Furthermore, there is no evidence provided that these pharmacies cannot cater for the increased demand from new patients. Indeed, in the response to the notification exercises in connection with the Appellant’s application, the Ackers Chemist Ltd stated that its pharmacy still has capacity to handle additional prescriptions.

Local Core Opening Dispensing Distance from Car/Train/Walk* Pharmacies: Hours Stats (last DA10 (in minutes) 3 months) 0DF * Swan Valley 09:00-13:00; 36,140 DA10 0BF 1.7km Pharmacy 14:00-18:00 (3m)/(6m)/3.5km (44m) Mon-Fri Ackers Chemist 09:00-17:00 20,433 DA10 0HF 1.6km Mon-Fri (3m)/(17m)/1.6km (19m) Hill Pharmacy 09:00-13:00; 11,488 DA11 9EU 3.8km 14:00-18:00 (7m)/(32m)/3.3km Mon-Thu (40m) 09:00-13:00; 14:30-18:00 Fri

Lloyds Pharmacy 08:00-11:00; 29,334 DA11 8BZ 3.8km 17:00-20:00 (7m)/(21m)/3.7km Mon-Sat (46m) 8:00-10:00. 18:00-20:00 Sun Penders Chemist 09:00-13:00. 16,965 DA11 8LG 4.1km 14:00-17:30 (7m)/(28m)/3.8km Mon-Fri (49m) 09:00-11:30 Sat Williams Pharmacy 09:00-13:00; 23,732 DA11 8BS 5.5km 14:15-18:15 (47m)/(51m)/6.4km Mon-Fri (1hr 24m)

4.1.6 Secondly, the Appellant argues that ‘the PNA wrongly assumes that local pharmacies might simply relocate to the new development even though the nearest is nearly 1 mile away’. There is no evidence provided by the Appellant that local pharmacies might not relocate when and if the need for additional pharmaceutical services in the area has been identified. This is purely a speculation on behalf of the Appellant, especially as an application for relocation under Regulation 24 to Castle Hill was submitted by Ackers Chemists Ltd in 2019, which clearly demonstrates an interest for relocation by local pharmacies (this application was, however, refused on appeal as it did not comply with paragraph 1(7)(a) of Schedule 2 of the Regulations).

4.1.7 Thirdly, the Appellant sets out that ‘the PNA wrongly assumes that there is no current need for a pharmacy within the development.’ In reaching its decision to refuse the application by the Appellant, NHS England carefully considered whether Regulation 18(1)(b) was satisfied i.e., whether the improvements or better access that would be secured if the application was granted were or was

included in the PNA in accordance with paragraph 4 of Schedule 1 of the regulations.

4.1.8 Paragraph 4 of Schedule 1 requires the PNA to include: “a statement of the pharmaceutical services that the HWB had identified (if it has) as services that are not provided in the area of the HWB but which the HWB is satisfied (a) would if they were provided ... secure improvements or better access, to pharmaceutical services ...(b) would if in specified future circumstances they were provided ... secure future improvements or better access to pharmaceutical services ...”

4.1.9 NHS England as part of this consideration carefully determined if the improvements or better access that would be secured were or was not included in the relevant pharmaceutical needs assessment. The relevant PNA in this case was prepared by Kent HWB and published in April 2018. NHS England was conscious of the fact that this document provides a contemporary and comprehensive analysis of the situation as it was assessed at the date of its publication. However, it was also mindful of the obligations under Regulation 6(2) on the body responsible for the PNA to make a revised assessment as soon as reasonably practicable (after identifying changes that have occurred that are relevant to the granting of applications) unless to do so appear to be disproportionate response to those changes. Where it appears disproportionate, the responsible body may, but is not obliged to, issue a Supplementary Statement under Regulation 6(3). Such a statement then forms part of the PNA. It was noted that no Supplementary Statements, other than updated pharmacy lists, had been issued since the publication of the PNA in April 2018.

4.1.10 Of particular relevance is the ‘The summary of pharmacy provision in Kent PNA 2018’, which states (p. 15):

‘Ebbsfleet Garden City: A major housing development was identified in 2015 for the Ebbsfleet area, to be known as Ebbsfleet Garden City, with up to 15,000 homes initially. It was highlighted in the 2015 PNA as possibly needing extra pharmaceutical services in the future. This area is marked on a map in Appendix A and the development lies across the Dartford/Gravesham Council boundaries. Although building has been slow to happen, it has been estimated that nearly 750 units will be ready for occupation in the area by 2018. This means that it has now been identified that there may be need for pharmaceutical services in the area within the life of this PNA dependent on the capacity of the surrounding pharmacies. There are already over 40 pharmacies servicing the population of Dartford and Gravesham and it may be more appropriate to invite relocation of one or more of these pharmacies into the Ebbsfleet area rather than open yet another contract.’

Page 16 states: ‘The provision of new housing in the Dartford, Gravesham and Swanley area especially around Ebbsfleet Garden City needs to be reviewed regularly’

Page 17 states: ‘Therefore, pharmaceutical services are mainly good across the area and we do not need any more providers in the area except 1) A need for pharmaceutical services in the area of Ebbsfleet within the life of this PNA. This should be met by relocation of some of the current services.’

4.1.11 Based on this information provided the Committee noted that the improvements or better access, that the Applicant was claiming, would be secured by its application, were not included in the relevant PNA in accordance with paragraph 4 of schedule 1.

4.1.12 In order to be satisfied in accordance with regulation 18(1), NHS England then went on to consider those matters set out in Regulation 18(2).

4.1.13 The content of PNAs is set out in Schedule 1 to the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013. The PNA must contain:

Regulation 4(1)

SCHEDULE 1 Information to be contained in pharmaceutical needs assessments

Necessary services: current provision

1. A statement of the pharmaceutical services that the HWB has identified as services that are provided—

(a) in the area of the HWB and which are necessary to meet the need for pharmaceutical services in its area; and

(b) outside the area of the HWB but which nevertheless contribute towards meeting the need for pharmaceutical services in its area (if the HWB has identified such services).

Necessary services: gaps in provision

2. A statement of the pharmaceutical services that the HWB has identified (if it has) as services that are not provided in the area of the HWB but which the HWB is satisfied—

(a) need to be provided (whether or not they are located in the area of the HWB) in order to meet a current need for pharmaceutical services, or pharmaceutical services of a specified type, in its area;

(b) will, in specified future circumstances, need to be provided (whether or not they are located in the area of the HWB) in order to meet a future need for pharmaceutical services, or pharmaceutical services of a specified type, in its area.

Improvements and better access: gaps in provision

4. A statement of the pharmaceutical services that the HWB has identified (if it has) as services that are not provided in the area of the HWB but which the HWB is satisfied—

(a) would, if they were provided (whether or not they were located in the area of the HWB), secure improvements, or better access, to pharmaceutical services, or pharmaceutical services of a specified type, in its area,

(b) would, if in specified future circumstances they were provided (whether or not they were located in the area of the HWB), secure future improvements, or better access, to pharmaceutical services, or pharmaceutical services of a specified type, in its area (emphasis added)

https://www.legislation.gov.uk/uksi/2013/349/schedule/1/made

4.1.14 From the wording of Regulation 4 Schedule 1 it is clear that the relevant HWB in its PNA(s) should be providing an identification of necessary services or

improvement and better access: gaps in provision. It is also clear that the PNA should cover not only the need for necessary services and improvement and better access at the time of issuing the PNA, but should also identify these if they, in specified future circumstances, would, if provided, meet a future need or secure improvement or better access to pharmaceutical services in its area.

4.1.15 With regards to the identification of pharmaceutical services, the previous and the current PNAs covering the Ebbsfleet Garden City, have repeatedly flagged up the need to be alert to future needs. However, the consecutive PNAs 2015 and 2018 have also clearly indicated that these needs have not yet materialised to an extent that to suggests that there are currently any unmet needs in the HWB.

4.1.16 The Kent PNA 2015 p. 24 stated

‘There are proposed major housing developments across Kent, the main ones being Chilmington Green near Ashford and Ebbsfleet Garden City. This will mean that these areas will need to be reviewed on a regular basis to identify any increases in pharmaceutical need.’ (Emphasis added)

4.1.17 The Kent PNA 2018 states on p. 5 that

‘Overall there is good pharmaceutical service ….

5. There are proposed major housing developments across Kent, the main one being Ebbsfleet Garden City and Chilmington Green. This will mean that these areas will need to be reviewed on a regular basis to identify any increases in pharmaceutical need. Locality specific areas are listed within the locality documents…’ (Emphasis added)

4.1.18 The Kent PNA - Dartford, Gravesham and Swanley CCG PNA 2018, p15 states:

‘Ebbsfleet Garden City A major housing development was identified in 2015 for the Ebbsfleet area, to be known as Ebbsfleet Garden City, with up to 15,000 homes initially. It was highlighted in the 2015 PNA as possibly needing extra pharmaceutical services in the future. This area is marked on a map in Appendix A and the development lies across the Dartford/Gravesham Council boundaries.

4.1.19 The main aim of a PNA is to assess and describe the current pharmaceutical services in the area of an HWB and systematically identify any gaps/unmet needs and in consultation with stakeholders make recommendations on future development.

4.1.20 The PNA is a key public document used by the local area Pharmaceutical Services Regulations Committee (PSRC) to make decisions on new applications for pharmacies and change of services or relocations by current pharmacies. It is also used by commissioners reviewing the health needs for

services within their particular area, to identify if any of their services can be commissioned through pharmacies.

4.1.21 As such, a PNA is not only giving a picture of the Status Quo in an area but is also providing an in-depth strategic analysis of a locality of possible future needs both in short term and longer term in order for statutory agencies to use this information to plan for comprehensive and targeted future service provisions. As with any strategic analysis some issues will be needing to be ‘flagged up’ and closely monitored for potential impact before they become or fail to become a reality. Without such early identification, tracking and review local strategic planning for future service provisions could be adversely affected.

4.1.22 Whilst the different PNAs state that this area of Kent is expected to be subject to continuing development in the future, the current developments so far do not necessitate further pharmaceutical services in the area at the moment. Had such a need been identified following the publication of the 2015 or 2018 PNAs respectively, a revised PNA or a Supplementary Statement should have been issued and no such documents have been issued relating to this development since April 2018.

4.1.23 The process of compiling and consulting on the PNA is both inclusive and very comprehensive and is focussed on ensuring accuracy and up to date intelligence. An outline of the process undertaken before the final PNA was published is described in the Kent 2018 PNA p. 3 – 6. https://www.kpho.org.uk/__data/assets/pdf_file/0004/76747/Kent- Pharmaceutical-Needs-Assessment-2018.pdf

4.1.24 The PNA for Dartford, Gravesham and Swanley CCG 2018 also states:

“Housing Like most of Kent, considerable new housing is expected to be built in the Dartford, Gravesham and Swanley area over the next 20 years. The Planning departments at Dartford Borough Council, Gravesham Borough Council and Sevenoaks District Council were consulted to identify any new developments that have or are due to be built since the 2015.” PNA p.15

“All areas will be reviewed regularly especially if the house building changes the landscape from rural to urban or progresses at a faster rate.” P. 15

https://www.kpho.org.uk/__data/assets/pdf_file/0006/76758/Kent-PNA-2018- DGSArea.pdf

4.1.25 The Kent PNA further states that it is monitoring housing developments and all associated increases in population, mindful of the implication that any such demographic change may affect the need for additional or relocated pharmaceutical provision.

4.1.26 With regards to the Ebbsfleet Housing Development, it is clear from the 2018 PNAs that the housing development in pace and scale has been slow and that the figures given by the Appellant (Pharmacy Report p.6) is just an illustration of what the future in Ebbsfleet as a whole with all its various developments might look like at some future point and assuming all the planned building developments do come to fruition within the original anticipated schedule. The Castle Hill village itself is one three villages, that comprise one of the 7 larger developments of the development areas. As the Appellant mentions, one of these 7 areas, namely Eastern Quarry, will ‘have three villages i.e. Castle Hill, Western Cross and Alkerden) … (Pharmacy Report p. 6). It is for the whole of the Eastern Quarry with its three villages that the number of 6200 homes are proposed, see Pharmacy Report p. 8, Table 1.

4.1.27 This longer-term planning horizon is furthermore illustrated in the web page for the local Castle Hill Community Centre

“The development currently has large green spaces, playgrounds, a primary school, and a community centre with future plans for local shops and other amenities. The construction of the development begun in 2015 and is expected to take at least 10 years for completion. P. 1 https://www.castlehillcommunitycentre.com/about-us/ “

4.1.28 NHS England in considering an application for inclusion in a Pharmaceutical List will have to consider the application within the context of the situation as it exists at the time of the decision rather than how it might be in an uncertain future, especially given that the economic situation of the area and the country might change in unpredictable ways

4.1.29 Whilst the Appellant refers to Castle Hill being ‘the largest area of development land and is the focus for the majority of housing with 5,000 people already living there’, then these figures do not match those from the Castle Hill Resident Guide from August 2019 which quotes a very low number of completed homes and even lower number of occupied homes.

“To date approximately 650 homes have been completed with around 550 occupied by new residents. A 2 form entry primary school, nursery and community centre have been completed and opened in September 2017. The central village green and tennis courts were completed a year later, and opened by September 2018. … The village is being brought forward in 6 phases; phase 1 and 2 are almost complete, works are also progressing well on phase 3 and the east of phase 6. … Detailed permission has been granted for properties in phases 4 and west of phase 6, with final completion of all residential properties expected by 2022.”

https://ebbsfleetdc.org.uk/wp-content/uploads/2019/08/Castle-Hill-Resident- Guide-Final.pdf

“A Fastrack rapid bus service will be introduced through Eastern Quarry via Castle Hill with a direct connection to Bluewater. The site wide developer, Henley Camland, is legally obliged to complete the route for Fastrack before the occupation of the 3000th dwelling which is likely to take place by 2023/24.”

4.1.30 At the moment, the number of completed houses for the whole of the Ebbsfleet development is 2011 and the number of new residents are 4826 (https://ebbsfleetdc.org.uk/community/). For the Castle Hill development, which is the site of the Applicant’s application, there are 1600 homes, which have been approved but as mentioned above, only around 650 were completed and around 550 were occupied by August 2019. It is very important to appreciate that the number of houses approved is very different from homes completed and the number of homes completed does not equate to houses sold and the number of inhabitants. It is the last figure – the number of residents that is the most salient. This is also clear and further underscored on the web site from the Taylor Wimpey developers which illustrates the number of houses for sale (accessed April 2020).

https://www.taylorwimpey.co.uk/find-your-home/england/kent/ebbsfleet- valley/waterside-at-castle-hill?utm_campaign=TWSE%20- %20Waterside%20- %20Ebbsfleet&utm_medium=cpc&utm_source=google&gclid=Cj0KCQjw9afO BRDWARIsAJW4nvyWa9l6OJUEbEZLUTTHjUwbip- JfYzxHQpLMNEzStrNe2O7MrJ3s_gaArHMEALw_wcB

and from the map (at Appendix C) indicating the substantial number of vacant homes currently at Castle Hill.

4.1.31 It is, therefore, clear from the information above that the development in the area has not taken place as rapidly as the Appellant seems to indicate and that, consequently, the number of new residents is still low. NHS England would, therefore, disagree with the Appellant’s statement about the 2018 Kent PNA wrongly assuming that there is no current need for a pharmacy within the development.

4.1.32 It is, therefore, the view of NHS England that the PNA was correct in its assessment that there are no current unmet needs for pharmaceutical services in the area of Castle Hill, Ebbsfleet.

The 5,000 current residents of Castle Hill and Ebbsfleet Green have no choice at present. Their neighbourhoods have no pharmacy at present. That is wholly unreasonable. (Pharmacy report para 7.9 p. 31)...

There are three layers of lack of choice in this application: -

 the Castle Hill area and the Ebbsfleet Green areas have no choice in their own right.  the nearest pharmacies are not a reasonable choice for the new residents as they are in areas that will be wholly unfamiliar with the new residents; and  the pharmacies further away are wholly unconnected to the Castle Hill and Ebbsfleet Green areas. (pharmacy report para 7.10 p. 31)

4.1.33 The Appellant in the statement above indicates that NHS England did not take into account the issue of choice when reaching its decision to refuse the application. NHS England agrees that there is no pharmacy located within Castle Hill itself, the best estimate location for the Appellant’s pharmacy. However, as to the question of choice, this relates to choice with regard to obtaining pharmaceutical services in the area of the relevant HWB. Moreover, there is no requirement in the Regulations that new residents should be familiar with the areas in which the pharmacies are located nor that pharmacies at a distance from any given location automatically constitute a lack of choice by their being unconnected. In line with the requirements of Regulation 18, NHS England, therefore, examined the choices currently available to patients within a reasonable travel distance of the best estimate location provided by the Appellant.

4.1.34 The nearest pharmacy to the proposed site would appear to be Swan Valley Pharmacy (1.7k distant). There are five other pharmacies located within approximately 5km.

Local Core Opening Dispensing Distance from Car/Train/Walk* (in Pharmacies: Hours Stats (last DA10 0DF * minutes) 3 months) Swan Valley 09:00-13:00; 36,140 DA10 0BF 1.7km (3m)/(6m)/3.5km Pharmacy 14:00-18:00 (44m) Mon-Fri Ackers Chemist 09:00-17:00 20,433 DA10 0HF 1.6km (3m)/(17m)/1.6km Mon-Fri (19m)

Hill Pharmacy 09:00-13:00; 11,488 DA11 9EU 3.8km (7m)/(32m)/3.3km 14:00-18:00 (40m) Mon-Thu 09:00-13:00; 14:30-18:00 Fri Lloyds Pharmacy 08:00-11:00; 29,334 DA11 8BZ 3.8km (7m)/(21m)/3.7km 17:00-20:00 (46m) Mon-Sat 8:00-10:00. 18:00-20:00 Sun

Penders Chemist 09:00-13:00. 16,965 DA11 8LG 4.1km (7m)/(28m)/3.8km 14:00-17:30 (49m) Mon-Fri 09:00-11:30 Sat Williams Pharmacy 09:00-13:00; 23,732 DA11 8BS 5.5km 14:15-18:15 (47m)/(51m)/6.4km Mon-Fri (1hr 24m)

4.1.35 NHS England, as part of its deliberations, had noted that within the Greenhithe ward a relatively high number of residents felt that their health was good or very good.

4.1.36 Households with 2+ car/vans were reasonable high as well and 86% have access to at least 1 vehicle.

4.1.37 Population data (from the Office for National Statistics)

Greenhithe/Dartford Ward Figures* Middle Lower S.O. A.

Total population 6,567 97,365

% Population who say they have good or very good health 86.9% 83.5%

Households with 2 + cars/vans 32.8% 35.4%

4.1.38 It was also noted that the ratio of number of pharmaceutical service (community Pharmacies and GP dispensing practices) providers per 100,000 population in the area of the Dartford, Gravesham and Swanley CCG is slightly above the Kent average.

Locality Number of providers Practice population Ration/100,000 population

NHS DGSCCG 60 266,075 22 Kent 21 England 23

4.1.39 The PNA for DGS CCG clearly sets out that although increases in population are expected across all age bands in Dartford, Gravesham and Swanley CCG according to Office for National Statistics population projections, the largest

increase is anticipated in the 85 and above age band, an increase of 22.7%, representing 1,325 additional individuals of that age group between 2015 and 2020.

4.1.40 The PNA also states that:

“Research has shown that in general, and during a lifetime, children and older people consume more medicines and that generally women, over their lifetime, consume more medicines than men. Therefore, it is suggested that areas where there are a higher number than average of children 0-9 and elderly people over 65 living alone, especially female, will have need to access pharmaceutical services more often. However, this need does not necessarily equate to needing more pharmacy premises as pharmacies are not restricted by list size and can readjust both staffing levels and premises size to manage the increased volume. It is widely thought that people being cared for in care homes (residential or nursing) access NHS services more frequently but that is not always the case in the access of pharmaceutical services. The nature of the care given in care homes means that medicines are ordered and supplied by the care home and patients rarely need to access a pharmacy individually. Most care homes now have external contracts with medicines suppliers which are not necessarily local and therefore there is no relationship between the number of care homes and the need for local pharmaceutical services.” P. 10 – 11 (Emphasis added)

“Pharmaceutical Services in the area.

There are two ways that patients can access pharmaceutical services within the Dartford, Gravesham and Swanley CCG area. They are through community pharmacies or through a dispensary within a GP practice (dispensing practices).

Appliances can be obtained through both of these methods or through a specific appliance contractor. Appliance contractors usually provide a service nationally and there are two based in the Kent area. Patients can also request to have their prescriptions (especially repeat prescriptions) sent electronically (EPS) to a pharmacy of their choice, such as one close to their work place or near their home. This means that positioning a pharmacy next to a GP practice is no longer as important.” P 8 – 9 (Emphasis added by NHS England)

https://www.kpho.org.uk/__data/assets/pdf_file/0006/76758/Kent-PNA-2018- DGS-Area.pdf

4.1.41 The general access to pharmaceutical services in the area is illustrated in the summary of pharmacy provision in Kent PNA - Dartford, Gravesham and Swanley CCG PNA 2018, p17 which states:

“Conclusion

Monday to Friday

There is good provision of full pharmaceutical services in and around Dartford, Gravesham and Swanley as well in most of the villages such as West Kingsdown, Higham, New Ash Green, Longfield, Meopham and Vigo. Most of the smaller villages in the area such as Farningham and Eynsford have access to pharmaceutical services through their dispensing surgery.

Saturdays

There is good provision of pharmaceutical services on Saturdays in and around Dartford, Gravesham and Swanley as well in most of the villages such as West Kingsdown, Higham, New Ash Green, Longfield, Meopham and Vigo

Sundays

There is good provision of full pharmaceutical services in and around Dartford, Gravesham and Swanley on a Sunday.

Therefore, pharmaceutical services are mainly good across the area and we do not need any more providers in the area except

1) A need for pharmaceutical services in the area of Ebbsfleet within the life of this PNA. This should be met by relocation of some of the current services.” (Local Emphasis)

https://www.kpho.org.uk/__data/assets/pdf_file/0006/76758/Kent-PNA- 2018DGS-Area.pdf

4.1.42 The access to pharmacies, with respect to their actual distance within the area is illustrated in the Kent Public Health Observatory. The Pharmaceutical Needs Assessment – NHS Dartford, Gravesham and Swanley CCG Supplementary data and maps data correct as of March 2018.

https://www.kpho.org.uk/__data/assets/pdf_file/0007/76759/NHS-DGS-CCG- Appendix-A.pdf

4.1.43 The access to existing pharmacies as can be seen on the map (at Appendix C), is not different from access to pharmacies in most other parts of Kent.

“Access The 2008 White Paper ‘Pharmacy in England: Building on strengths – delivering the future’ 2 states that it is a strength of the current system that community pharmacies are easily accessible, and that 99% of the population –even those living in the most deprived areas – can get to a pharmacy within 20 minutes by car and 96% by walking or using public transport. Moreover, recent research carried out by Durham University (published in BMJ Open online on 12th August 2014 http://bmjopen.bmj.com/content/4/8/e005764.full) suggests that 99.8% of the people in deprived areas can walk to a pharmacy within 20 minutes (1 mile/1.6km). Using simple “as the crow flies” parameters of one and five miles to represent the distance walked and driven respectively within 20 minutes, the majority of Kent residents are able to access a provider of pharmaceutical services (either community pharmacy or dispensing practice) within 20 minutes. Also, the majority of the residents living within the deprived areas of Kent, which may mean that there is not access to a car, are also able to access pharmaceutical services within 1 mile (1.6km) of their residence. “p. 11

4.1.44 The Opening hours of existing pharmacies in the area is also provided in the Dartford, Gravesham and Swanley CCG PNA 2018.

“Opening times

A review of all opening times was carried out in October 2017 using data provided by NHS England, which is available on NHS Choices. It was considered that there is good provision of pharmaceutical services through pharmacies and dispensing surgeries for the majority of the day between 8am and 6.30pm on Monday – Friday across the area

Swanley – 7 pharmacies in total Services before 8 am (2 pharmacies) and after 6.30pm (4 pharmacies) are provided in the Swanley area. All 7 pharmacies are

open Saturday mornings and 5 pharmacies also provide services on Saturday afternoons. 2 pharmacies also provide services on Sundays. P. 11

Pharmaceutical services out of hours: The Dartford, Gravesham and Swanley CCG area currently has five 100-hour pharmacies, two in Swanley, 2 in Gravesham and one in Dartford. These provide access to pharmacy services from early in the morning until late at night Monday to Saturday and are often open on a Sunday.” P 13

https://www.kpho.org.uk/__data/assets/pdf_file/0006/76758/Kent-PNA-2018- DGSArea.pdf

4.1.45 NHS England in reaching its decision on the application also had to examine multiple factors indicating the needs for pharmaceutical services of the reliant population.

4.1.46 The most detailed Multiple Deprivation information for the Swanscombe area can be seen from the latest Index figures below (Table 1) https://www.uklocalarea.com/index.php?q=Swanscombe&wc=29UDGP

4.1.47 Life expectancy at birth http://atlas.kpho.org.uk/single-map/atlas.html

4.1.48 Living Well DGS CCG

https://www.kpho.org.uk/__data/assets/pdf_file/0020/45317/Living-Well-DGS- CCG.pdf

4.1.49 These critical factors show that the area had an average more or less the same as the Kent average on most criteria.

4.1.50 It is also apparent from the interactive map (link below and in Appendix C) below that the Castle Hill area of the Ebbsfleet Development does not fall into the most deprived area of Swanscombe and that the reference to the deprivation in Swanscombe, as mentioned by the Appellant in the Pharmacy report para 7.32 – 7.37 pp. 38 – 42 bear no relevance on the Castle Hill development. http://atlas.kpho.org.uk/area- profile/atlas.html?loadAllData=true&indicator=i21&date=2015&prop_legendClassifier =quantile&pal_defaultPaletteId=Sequential%20Cyan&pal_defaultSchemeId=categoric Scheme1&pal_noClasses=5&bbox=557136.9182278995%2C172437.53504378436 %2C561916.8932954594%2C176754.93187899984&filteredFeatures=29UDGA%2C 29UDGB%2C29UDGC%2C29UDGD%2C29UDGE%2C29UDGF%2C29UDGG%2C2 9UDGH%2C29UDGJ%2C29UDGK%2C29UDGL%2C29UDGM%2C29UDGN%2C29 UDGP%2C29UDGQ%2C29UDGR%2C29UDGS

4.1.51 Finally, NHS England remains aware that no complaints have been received about the current level of services provided or indeed concerns about future provision.

4.1.52 Therefore, when considering the criteria for reasonable choice in relation to physical access, and the size of the population, the services provided by a range of providers in Ebbsfleet as well as the GP Service provision, NHS England wishes to retain the view that there is a reasonable choice with regards to obtaining pharmaceutical services in the area of the relevant HWB.

Protected characteristics:

4.1.53 In the appeal the Appellant make references to how the application would meet the need of people with a protected characteristic and make reference to new

parents with young children (Pharmacy Report p. 42 – 43 para 7.39 – 7.40). However, NHS England was provided with no information to show that these persons or any others with a protected characteristic, are having difficulty accessing services that meet specific needs for pharmaceutical services. NHS England was, therefore, not satisfied that, having regard to the desirability of people who share a protected characteristic having access to services that meet specific needs for pharmaceutical services, that the current services are difficult for them to access, and that granting the application would confer significant benefits on such persons.

Innovation

4.1.54 NHS England also noted that the Appellant had not claimed that its proposed services would be innovative and it was not satisfied that, having regard to the desirability of there being innovative approaches taken with regard to the deliverability of pharmaceutical services, that granting the application would confer significant benefits on persons.

Overall

4.1.55 NHS England was of the view that there was no evidence provided to suggest that the population, in the best estimate location for the application, currently has neither a reasonable choice nor access to pharmaceutical services. Therefore, it was not satisfied that granting the application would confer significant benefits on persons. It was also mindful that where it considers there is a need to do so, NHS England already has the power to bring about changes to the opening hours of existing pharmacies in the area.

4.1.56 In considering an application for unforeseen benefit NHS England must assess the application against the various requirements set out in Regulation 18. Firstly, Regulation 18(1)(a) needs to be satisfied in that NHS England is required to determine whether it was satisfied that granting the application or granting it in respect of some only of the services specified in it, would secure improvements, or better access, to pharmaceutical services, or pharmaceutical services of a specified type, in the area of the relevant HWB. Having been satisfied that this was the case, NHS England also had to be satisfied that the application meets the other criteria as set out in Regulation 18(1)(b) and Regulation 18(2).

4.1.57 In assessing the application against the other criteria in Regulation 18, NHS England’s decision letter explicitly set out the reasons why these criteria were not met.

4.1.58 NHS England, when considering the criteria for reasonable choice, took into account a range of data relating to the physical access, terrain, barriers, the health, size, and demography of the population, and the car ownership profile. In addition, NHS England assessed the services provided by the existing range of pharmaceutical service providers and their opening hours; as well as the pharmacies’ locations and the nature of the journeys (time and distance) required to reach them. Deliberating on all this, NHS England reached the decision that there was already a reasonable choice with regards to obtaining pharmaceutical services in the area of the relevant HWB.

4.1.59 Also, of relevance to the consideration of physical access is the information about public transport where the Kent PNA states:

Public transport links are good especially if you are close to the main towns, near to the main roads or near the railway lines. Community Transport services are available to residents who are unable to access public transport easily p.

10 Furthermore, NHS England was not aware that any complaints have been received about the current level of services provided.

Conclusion

4.1.60 Firstly, in reaching its decision to refuse the Appellant’s application under Regulation 18, NHS England carefully considered the relevant and very recent 2018 Kent Pharmaceutical Needs Assessment and the 2018 Dartford, Gravesham and Swanley CCG supporting PNA, conscious that the documents provide an full and in-depth analysis of the situation as it was assessed at the date of publication (April 2018) and other relevant supporting documents. NHS England was mindful of the fact that, under Regulation 6(2) of the NHS (Pharmaceutical Services) Regulations ("the 2012 Regulations"), the body responsible for the PNA must make a revised assessment as soon as reasonably practicable (after identifying changes that have occurred that are relevant to the granting of applications) unless to do so appears to be a disproportionate response to those changes. Where it appears disproportionate, the responsible body may, but is not obliged to, issue a Supplementary Statement under regulation 6(3). Such a statement then forms part of the PNA. Although Supplementary statements have been issued following the publication of the PNA none of these refers to matters relevant to the application for a new pharmacy made under Regulation 18 in the Castle Hill Village area of Ebbsfleet.

4.1.61 NHS England noted that the recent 2018 Kent PNA and its supporting documents do not consider that there are any gaps at the moment in the provision of pharmaceutical services in the area of the proposed site for the Appellant’s pharmacy application.

4.1.62 NHS England is aware that the Conclusions and Recommendations Kent PNA 2018 DGS area clearly states that:

“Any application must demonstrate that it can improve on the availability of services across the specific area without destabilising the current provision. It is recommended that if a need is identified, whether foreseen or unforeseen, that the current providers are approached to establish whether they can meet the need, before a completely new contract is considered. Permission for any applicant to provide extra pharmaceutical services to this area must be carefully considered as to whether it will destabilise the current providers, resulting in closures and less pharmaceutical services being available at crucial times.” P.18

https://www.kpho.org.uk/__data/assets/pdf_file/0006/76758/Kent-PNA-2018- DGSArea.pdf

4.1.63 Secondly, NHS England is also of the view that no information was provided by the Appellant to demonstrate that there is significant difficulty for people who share a protected characteristic or anyone else in accessing current pharmaceutical services or that a pharmacy at the proposed site would improve access significantly for residents in the area of the relevant HWB.

4.1.64 NHS England acknowledges, however, that with any application for a new pharmacy some might find it convenient to have a pharmacy to hand, but this is not, in itself, a determining factor. NHS England is of the view that the area around the proposed site in Castle Hill Village is mainly a residential estate and that residents regularly have to travel out of the area for work and the majority of their day to day living requirements, including their nearest GP surgeries, secondary and higher education, and main shopping facilities. Also, there is an already a reasonable choice of providers of pharmaceutical services within a

reasonable distance and, between them, they provide extended opening hours.

4.1.65 Therefore, NHS England considers that, to have a pharmacy in the proposed location in Castle Hill Village, will not result in a significant benefit being conferred with regards to choice or improvement in pharmaceutical services to persons in the relevant HWB area and is, therefore, of the view that the Appellant’s application did not meet the criteria set out under Regulation 18. [emphasis added by NHS England]

4.1.66 NHS England wishes to maintain its view that the application should be refused.

4.2 GORDONS PARTNERSHIP LLP ON BEHALF OF ACKERS CHEMISTS LTD (“Gordons”)

Background

4.2.1 Gordons note the history set out by Rushport of previous applications. However, they have not correctly identified the nature of the applications. The history is as follows: -

4.2.1.1 Delmergate - regulation 18 - SHA/ 19996 – appeal application identical to the application before NHS resolution now. Appeal dismissed - January 2019.

4.2.1.2 Ackers Chemists Limited - regulation 15 - SHA/21104 – application for a relocation of the Ackers Chemist at Church Road to a pharmacy in the Castle Hill area under regulation 12(b)(ii). The application was dismissed on the basis that the application did not fall within regulation 15 as the Pharmaceutical Needs Assessment was not sufficiently specific in relation to future need.

4.2.1.3 Ackers Chemists Ltd – regulation 24 - SHA/21088 – relocation refused on appeal - September 2019.

4.2.2 Rushport say that given the history above “no pharmacy could really realistically relocate to Ebbsfleet Garden Village and that the only way to meet the need for pharmaceutical services at the site is to approve this application.”

4.2.3 This is clearly not correct. Ackers Chemists Ltd owns two pharmacies in Swanscombe and an application could be made by either of these pharmacies either under regulation 24 or under regulation 12 (b)(ii). The previous applications failed for reasons that were not linked to the relocation. Ackers Chemists Ltd continues to be prepared to relocate one of the Swanscombe Pharmacies to the Ebbsfleet development. The position is that the development has not progressed sufficiently to require an additional pharmacy. It is not the case that Ackers Chemists Ltd accepts there is a need for this unforeseen benefit application which would have the effect of increasing the total number of pharmacies in an area that is already well served with pharmacies. This was the conclusion set out by the Pharmacy Appeals Committee which considered the Delmergate application decided in January 2019 and remains the position just over one year later.

The current application from Delmergate.

NHS England decision

4.2.4 NHS England considered the application. The minutes record that the Pharmaceutical Services Regulations Committee carefully considered the

range of services already on offer and the relevant population and “determined that the application should be refused on the following basis:

4.2.4.1 In considering whether granting of the application would confer significant benefits, the Committee determined that there is already a reasonable choice with regards to obtaining pharmaceutical services;

4.2.4.2 There is no evidence of people sharing a protected characteristic having difficulties in accessing pharmaceutical services; and

4.2.4.3 There is no evidence that innovative approaches would be taken with regards to the delivery of pharmaceutical services;

4.2.5 14.5 In conclusion, the Committee was not satisfied that granting the application would confer significant benefits as outlined above that would secure improvements or better access to pharmaceutical services.” Ackers Chemists Ltd’s case is that they reached the correct decision.

The Appeal Letter

4.2.6 The appeal by Delmergate merely rehearses the previous appeal history and encloses evidence that it relied on in the appeal that was heard in January 2019. The appellant criticises NHS England for relying on a site visit which took place in 2018 while relying on a document which was substantially created by Eamonn Loughrey of Inaltus in June 2018. The date has been removed from the cover of the document and some figures have been adjusted but it is essentially the same document. Gordons have attached a comparison document illustrating the changes for the committee’s assistance (Appendix D).

4.2.7 The remainder of the appeal letter deals largely with the failure of the Primary Care Appeals to hold an oral hearing. There is little evidence relating to any change in circumstances between January 2019 and the current position.

Regulatory Criteria

4.2.8 Gordons state that they will now address the regulatory test with particular reference to the change in circumstances between January 2019 and May 2020.

4.2.9 Gordons state that they adopt the position of the NHS England and the previous decision of NHS Resolution in relation to regulation 31 and regulation 18. They will not comment further on regulation 31 or regulation 18(2)(a).

4.2.10 It is Ackers Chemists Ltd’s case that the application still does not meet the regulatory test set out in regulation 18 with particular regard to 18(2)(b). Primary Care Appeals can still not be satisfied that granting the application would confer significant benefits on persons in the area of the relevant HWB which were not foreseen when the relevant pharmaceutical need assessment was published.

Regulation 18(2)(b) There being reasonable choice with regard to obtaining pharmaceutical services in the area of the relevant HWB.

4.2.11 It is important to establish the current population adjacent to the proposed site:

4.2.12 NHS Resolution said in their 2019 decision that 1174 to 1284 houses had been completed and on the basis of this there was likely to be a relatively small number of people living in the Castle Hill area.

4.2.13 The appeal letter from Rushport Advisory dated 31st March 2020 says ‘The Ebbsfleet development has over 2,000 completed homes and the Ebbsfleet Development Corporation estimate the current population at 5,000.” (The 5,000 figure is a misquote, the development corporation puts the figure across the development area as 4,826).

4.2.14 However, what is not made clear in the Rushport letter or the report that they rely on, is that the figure of 5,000 residents is across the whole development generally and not just in the Castle Hill area.

4.2.15 The Ebbsfleet Development Corporation (“EDC”) now has governance over a considerable area which includes the Swanscombe Peninsula to the north of Swanscombe and areas on the southern banks of the Thames. The Inaltus report attaches a map at page 6. It is clear development in these areas is irrelevant for the purposes of this application but the new homes constructed in these developments would have been counted in the figure of 4,826 included in the current Ebbsfleet population. The EDC website identifies four current areas of development. As well as Castle Hill, they identify Springhead Park, Ebbsfleet Green and Craylands Lane.

4.2.16 The location of the new development at Springhead Park is at the red marker (see map at Appendix D). (Castle Hill is at the Ebbsfleet Valley label). The publicity document indicates this is a development of 799 homes of which phase one has been built and phases two and three are under construction. This development can be disregarded for the purpose of the current application as it is closer to pharmacies in Northfleet and Gravesend than Castle Hill and so no benefit would be derived by these residents from a new pharmacy at Castle Hill.

4.2.17 A further development is at Ebbsfleet Green. Ebbsfleet Green Resident’s Planning Guide allows for up to 960 homes but from the Redrow Ebbsfleet current plan, it appears that there are approximately 118 completed houses. The development of Ebbsfleet Green is self-contained, and geographically separate from Castle Hill and it faces out on to the main road to Swanscombe.

4.2.18 There is also an EDC development at Craylands Lane providing 100 flats and houses, including a mix of private and affordable properties. This development is to the north of Swanscombe so again the existing pharmacies will be closer for the residents than the proposed pharmacy.

4.2.19 The Inaltus assessment of resident population does not mention any of these Ebbsfleet developments (save to suggest Ebbsfleet Green should be considered with Castle Hill) and therefore is highly misleading.

4.2.20 In relation to Castle Hill, the Castle Hill publicity says that there are over 1,600 homes at this site, but two phases of the build have not yet been completed. Therefore, even at completion the number of residents will not be as extensive as suggested by Rushport.

4.2.21 Using the figures from EDC - 2017 homes over the whole Ebbsfleet site with 4,826 residents, that gives an occupancy rate of 2.39 per home. Given 1,600 homes in Castle Hill when complete, the total residency will be 3,824 which is a relatively small population. The publicity documentation for residents (undated) suggests it will not be complete until 2022 or 2023 but it also says a supermarket will be open in 2019. As NHS England records, the development has not progressed as fast as anticipated and it is clear the current pandemic will put much on hold. Much of the Inaltus report relates to the future possible development of Ebbsfleet and not the position now or in the immediate future. At paragraph 6.64 of the SHA/19996 decision the committee stated that “it needed to consider the position regarding choice at the time it made its

decision on the appeal, with an eye to how the area may develop, if at all, in the short term.”

4.2.22 The Inaltus comments about the long term development of Ebbsfleet are not relevant and should be disregarded.

4.2.23 Even when the development is complete, our client’s pharmacies in Swanscombe would be able to deal with any increase in demand as, the prescription numbers, particularly for Ackers Chemist, are not high.

Facilities at Castle Hill

4.2.24 There are still very few amenities in the Castle Hill area. The retail area is to have a supermarket at some point in the future but there are no banks, libraries, dental surgeries and importantly GP surgeries. We made enquiries of the letting agent and were told that there have been no completions on the smaller retail units. There is no supermarket open at the moment. NHS England noted that many of the people living in the area were commuters.

4.2.25 The NHS Resolution determined in 2019 that “many of the residents of Castle Hill are likely to have to travel out of the area for work, GP appointment, secondary education, food and other shopping”. That position is still correct.

Existing provision for pharmaceutical services

4.2.26 In the 2019 decision, the Primary Care Appeals committee considered access to existing pharmacies and how this impacted on choice of obtaining pharmaceutical services. The conclusion then was that there was reasonable choice with regard to obtaining pharmaceutical services. No pharmacies have closed between January 2019 and May 2020.

4.2.27 NHS England, at its re-consideration of the application, recorded five pharmacies within 5 km (3.2miles) that offered hours and services at least as extensive as those offered by the applicant. NHS England appear to have missed out some of the closest pharmacies including the Asda Pharmacy located within the supermarket in Greenhithe and the Boots Pharmacy in Bluewater. There is also a large cluster of pharmacies in the Gravesend area - less than 3 miles away.

4.2.28 The Pharmaceutical Needs Assessment for the area recommended that any need for pharmaceutical services in Ebbsfleet be met by relocation as there was already a high density of pharmacies.

“There are already over 40 pharmacies servicing the population of Dartford and Gravesham and it may be more appropriate to invite relocation of one or more of these pharmacies into the Ebbsfleet area rather than open yet another contract.”

4.2.29 As has been stated on numerous occasions the hours offered by the applicant do not meet the need of the longer hours offered by local surgeries. Weekday core opening hours of the proposed pharmacy which are only until 5:30pm. This does not provide pharmaceutical services to those with acute prescriptions from the evening surgeries at the closest health centres:

4.2.29.1Swanscombe Health Centre (Weds until 8pm),

4.2.29.2White Horse Surgery and Walk in Centre in Gravesend (every day until 8:00pm) or

4.2.29.3Ivy Bower Surgery in Greenhithe (6:30pm on Tues, Thurs and Fri).

4.2.30 It is likely that the residents of Castle Hill will attend one of these surgeries as there is no GP surgery in Castle Hill which makes the failure to match these hours important in the consideration of whether this application provides a significant benefit.

4.2.31 In contrast Ackers Chemists Ltd’s pharmacies; Swan Valley Pharmacy in Swanscombe which is owned by Ackers Chemists Ltd is 1.2 km from the proposed location and adjacent to the Swanscombe Health Centre. It offers late opening until 19:30 on Wednesday. Ackers Chemist is the next closest and is also located in Swanscombe at 1.6 km (1mile) from the proposed location. Together these pharmacies offer a range of services that match and exceed those proposed by the applicant.

4.2.32 Asda and Lloyds Pharmacies, at 1.7 miles away from the proposed site according to the NHS website, are open until 10pm and 8pm respectively. (Except on Sunday - Asda, 5pm and Lloyds, 8pm)

4.2.33 No pharmacies have closed between Jan 19 and May 2020 therefore the position is as found in the appeal decision of NHS Resolution and of the NHS England consideration in March 2020. (see map at Appendix D)

Access by foot

4.2.34 A walk by road is possible for pedestrians. The walk to the closest pharmacy would take about 14 minutes according to google maps, less if using a footpath between the new development and Swanscombe. The PNA states:

“Using simple “as the crow flies” parameters of one and five miles to represent the distance walked and driven respectively within 20 minutes, the majority of Kent residents are able to access a provider of pharmaceutical services (either community pharmacy or dispensing practice) within 20 minutes. Also the majority of the residents living within the deprived areas of Kent, which may mean that there is not access to a car, are also able to access pharmaceutical services within 1 mile (1.6km) of their residence.”

4.2.35 The Castle Hill residents are within the guide parameter for pedestrian access for people who live in a deprived area. Swan Valley Pharmacy is only 0.4 mile away according to the NHS website, and there is no suggestion that Castle Hill is deprived, so the level of pedestrian access can be considered satisfactory.

4.2.36 Access to the existing pharmacies by public transport

ROUTE TIMES BUS NUMBER

481 Bluewater - Swanscombe - Northfleet - On weekdays: Gravesend - Riverview Park Starts - 05.46 Ends - 21.20 Approx. every 40 minutes Stops through part of Swanscombe - i.e. The Church Swanscombe and The Sun Swanscombe; and Candy Dene Ebbsfleet and Ebbsfleet International Railway Station

Ebbsfleet Station - Castle 484 Hill - On weekdays: Swanscombe - Greenhithe - Bluewater Starts - 09.25 Ends - 16.35

And until 18.50 on Saturdays. (See service below for morning and evening provision)

485/485A Castle Hill to Ebbsfleet International It should be noted that this service dovetails with the 484 Railway Station (485A calling at and provides an early morning (from 0603) and evening Swanscombe Rail Station) (to 2250) service.

4.2.37 Gordons attach bus timetable that shows the journey times are short. (see Appendix D) This is a pre-pandemic timetable and Gordons understand services are temporarily reduced.

4.2.38 There are also dial-a-ride services and on demand services:

4.2.38.1 The North West volunteer transport service is available in the Dartford and Gravesham district which includes Swanscombe. Volunteer drivers use their own cars to take members to medical appointments, to visit friends and relatives, to day care centres or to wellbeing classes and to get essential shopping.

4.2.38.2The Kent Karrier is a dial-a-ride service. It will pick up residents with mobility issues, over 85 or living 500 metres from a bus-stop from their home to set locations such as the nearest town centre or a supermarket. This would include to the nearest pharmacy. We attach a leaflet setting out the service offered we understand this service is still being offered in the current pandemic.

Access to pharmaceutical services by car

4.2.39 It was noted by NHS England that the number of households in Greenhithe ward with 2 plus cars was 32.8%. The number of households with cars was over 86% This means the majority of household have access to a car. It is also notable that the majority of new houses built in the Castle Hill area are built with parking indicating that the planners catered for high car ownership.

4.2.40 It can be seen from the number of pharmacies in the vicinity, some of which are open for long hours (see above) and have large car parks, if there is access to a car, a number of choices of pharmaceutical services will be available a short drive away. The closest pharmacy Swan Valley has access to a 100 space overflow car park. It will be noted that although Inaltus criticise on – street parking at Swan Valley they give no information about the number of spaces available in the car park. It is Ackers Chemists Ltd’s case that parking is available at both Swan Valley Pharmacy (in the car park) and Ackers Chemist (on street parking directly outside the pharmacy and on side streets).

4.2.41 NHS Resolution noted in the January 2019 decision that “the existing pharmacies can reasonably be accessed by car.”

4.2.42 It should also be noted that both Ackers Chemists Ltd’s pharmacies in Swanscombe deliver to patients and in the current pandemic the delivery service operated by the pharmacies has increased by nearly 50% for Swan Valley Pharmacy and nearly 30% for Ackers Chemist (which had a historically higher proportion of deliveries). The deliveries are run through a third-party provider and it is likely that an increased level of deliveries will be retained to some extent in the future subject to demand.

4.2.43 “The committee considered that as a whole for the residents of the Castle Hill area there was reasonable choice with regard to obtaining pharmaceutical services.” Ackers Chemists Ltd’s position is that this is still the case.

Regulation 18(2)(b)ii

Regard to the desirability of people who share a protected characteristic have access to services that meet specific needs for pharmaceutical services that, in the area of the HWB, are difficult for them to access.

4.2.44 It was highlighted as a particular weakness in the Delmergate application both at appeal in Jan 2019, and by NHS England in relation to the current application, that no evidence was provided to suggest that there are any people with protected characteristics who require services that are currently difficult for them to access. As mentioned above NHS England states that many of the residents are commuters who travel outside the area for their place of work.

4.2.45 The Taylor Wimpey description of Ebbsfleet is as follows: -

“The town combines the best of urban and rural living and London St Pancras is just over 20 minutes away by train…

Getting out and about

Perfect for commuters, Waterside at Castle Hill is close to the M25 and the A2, as well as Ebbsfleet International station, providing high speed links to London. Those looking to venture further afield can also get to Paris and Brussels, via Ebbsfleet International, in just a few hours…”

4.2.46 The estate agents appear to be targeting an affluent mobile population. It is likely this population will have low health needs but because it is a new population it is difficult to obtain current data. NHS England records from census data that a relatively high number of people in Greenhithe Ward felt that their health was good or very good.

4.2.47 Whatever health needs the community does have are very well supported by existing provision; for example in the current crisis Swan Valley Pharmacy is supporting, on a short term contract, the dispensing of medication for patients who are visiting a nearby NHS site where only COVID positive patients are seen Face to Face. There are 22 such sites across Kent and Medway. The medication being either collected from the Pharmacy by a volunteer or relative, or if necessary, by delivery to the patient’s residence.

4.2.48 The committee in the January 2019 application said (para 6.104) “The Committee was not satisfied that having regard to the desirability of people who share a protected characteristic have access to services that meet specific needs for pharmaceutical services that, in the area of the HWB, that are difficult for them to access, granting the application would confer significant benefit on persons.” No more evidence has been produced since that hearing.

4.2.49 There is no suggestion that the applicant is relying on innovative approaches to the delivery of pharmaceutical services to support its application, so Gordons make no comment on that limb of the regulation 18 test.

4.2.50 Given the appellant’s reliance on old material and the failure to provide evidence to support key parts of the regulatory test it does not appears that there is any need to hold an oral hearing as the position set out in January 2019 still applies. Gordons would ask that the appeal is dismissed. However, if there is an oral hearing Ackers Chemists Ltd wish to attend and be represented at that hearing.

5 Observations

5.1 RUSHPORT ADVISORY LLP ON BEHALF OF THE APPLICANT

Ackers Chemist Ltd via Gordons Partnership LLP

5.1.1 The Applicant notes that Gordons takes issue with the history of previous applications and then lists them in the same way that the Applicant did in their letter of appeal whilst adding and underlining some words which the Applicant does not accept are correct. The Applicant trusts that the Committee will understand the nature of the previous applications relating to this site and area.

5.1.2 Gordons then states that;

Our client continues to be prepared to relocate one of his Swanscombe Pharmacies to the Ebbsfleet development. The position is that the development has not progressed sufficiently to require an additional pharmacy.

5.1.3 The language used in this statement is deliberately careful, but what is undeniable and factual is that Ackers has made two applications to open a pharmacy at the Castle Hill local centre. In both applications they clearly felt that the development had “progressed sufficiently” to require a pharmacy and indeed Ackers highlighted how much the development had progressed in their submissions to Primary Care Appeals. That remains the case today.

5.1.4 What is clear from the appeal is that Ackers is that they are asking the Committee to view the Applicant’s current appeal as being the same as the previous appeal. Ackers hope that if they are successful with this tactic then the Committee might dismiss the appeal by reference to the previous appeal.

5.1.5 The Applicant urges the Committee to recognise that this course of action would be completely unfair to Delmergate.

5.1.6 Delmergate has monitored this development for many years and have other pharmacies in the wider area. At the time of the previous application and appeal it may have appeared to the Committee that a relocation of an existing pharmacy would fill the clear gap in services in Ebbsfleet. That has not happened.

5.1.7 The Applicant was disappointed to note that in Ackers relocation application under regulation 24 (ref SHA/21088) the oral hearing decision did not let the parties know what the decision would have been if the application were a valid one. The Applicant requested that this be included when they attended the oral hearing but appreciate that, for whatever reason, it was not considered appropriate.

5.1.8 Instead, the only comment that the Chair was able to include that might help the Committee now came from the site visit report and states;

5.1.9 Whilst the application in front of the Committee now may be almost identical to the previous application, the evidence is not. Ackers ignores the fact that an oral hearing panel chairman found that the routes suggested by Ackers as the correct routes for those travelling on foot were in fact not suitable and in some cases were no more than dirt tracks with metal barriers across them. Ackers only comment is to say that walking to a pharmacy is “possible”.

5.1.10 The site visit report makes reference to “noticeable contrast[s]”, “difficulty” in identifying routes, “particularly significant” inclines, barriers and footpaths that were “not considered to be suitable for general use by local residents”.

5.1.11 Whilst not issuing a decision on the merits of the regulation 24 application submitted by Ackers Chemist, the tone is clear and it takes little help to infer that the relocation would not have been permitted as it would have made the pharmacy significantly less accessible.

5.1.12 There is of course a clear interplay between relocations and new contract applications. If a relocation would not be permitted because the applicant is too far away and the patient groups would find it significantly less accessible, then it is likely that the approval of a new pharmacy would secure “better access” as required under regulation 18.

5.1.13 Ackers then criticises the Applicant for relying on an updated version of their previous appeal document and they attach a comparison of the two documents. This is unwarranted and strange criticism. The Applicant’s case is that the Committee was wrong to dismiss their appeal in 2019 without holding an oral hearing. The Applicant’s position is reinforced by the comments made by the panel is the most recent oral hearing for Ackers relocation. The Applicant has therefore provided an updated version of the appeal report and is asking the Committee to recognise that, at the very least, an oral hearing is required to determine the case fairly.

5.1.14 There are times when a Committee can make a mistake. Ackers are hoping that the Committee will deny even the possibility of a mistake and simply refuse this appeal, whereas the Applicant is asking the Committee to acknowledge that it is at least possible that a mistake has been made and allow further investigation by way of oral hearing.

Regulation 19(2)(b)

5.1.15 Ackers say the figure quoted in the Applicant’s appeal of over 5,000 residents in Ebbsfleet is a misquote. It is not. The Applicant contacted the Ebbsfleet Development Corporation who confirmed that the figure was now estimated to be over 5,000 and that the figure on their website was out of date. Housing completions and occupation are ongoing.

5.1.16 Ackers then seeks to present the area of the application as being smaller than it is. In order to do this they argue that much of the area being developed should be ignored by the Committee. For example, Ackers states;

A further development is at Ebbsfleet Green. Ebbsfleet Green Resident’s Planning Guide allows for up to 960 homes but from the Redrow Ebbsfleet current plan, it appears that there are approximately 118 completed houses. The development of Ebbsfleet Green is self-contained, and geographically separate from Castle Hill and it faces out on to the main road to Swanscombe.

5.1.17 The obvious problem with this statement is that Ackers are now arguing that Ebbsfleet Green is self-contained and should be discounted in this application even though it is even further away from Acker’s pharmacies in Swanscombe than Castle Hill is. However, Ackers still want the Committee to consider their pharmacies in Swanscombe as being relevant whilst arguing that the closer development of Castle Hill is irrelevant. This is not a sustainable argument.

5.1.18 The correct evidence was presented to the Committee in the Appeal Report at section 3.6 and 3.7. In total, the 2 development parcels of Eastern Quarry and Ebbsfleet Green will provide 7,200 homes and 4 local shopping centres. This is out of a total of 15,000 new homes across all 7 development sites. For the avoidance of doubt, Eastern Quarry, where this application is made for, is the single largest development site by far across the wider Ebbsfleet garden City development area. Section 3.12 of the Appeal Report lists all the areas of the overall development and states that Eastern Quarry will provide 6,250 homes and account for 42% of the entire development.

5.1.19 Again, Ackers asks the Committee to ignore the majority of the Eastern Quarry area as they appear to consider it is too far from the application site to be relevant (even though the application site is central to the Eastern Quarry) but they then ask the Committee to consider pharmacies much further away as being relevant. This is not a credible or sustainable argument to make.

5.1.20 The Applicant notes that Ackers then refers to the current coronavirus pandemic and suggests that this will slow down housing development. The current pandemic has had a profound impact on every part of our lives. We live in the expectation and hope that measures to control the pandemic will ease and life will return to normal, but it is widely accepted that we are facing a “new normal”.

5.1.21 Thankfully some industries have been less affected that others and housebuilding is one of those. There is no doubt that development will slow, but as the EDC says on their website;

“It is very much business as usual for us despite the difficult circumstances we are all in. We continue to push forward with the development of Ebbsfleet.”

5.1.22 What has undoubtedly changed is a recognition of locally accessible services as being a key requirement within communities. This is unlikely to change in the future and there will not be one of us who has not experienced queuing outside a supermarket or pharmacy. The public were told not to use public transport and capacity has been significantly reduced. The Applicant of course

hopes to see this change, but it also demonstrates the importance of locally accessible healthcare and advice.

5.1.23 Similarly, NHS England is now advising pharmacies to order extra stock of flu vaccinations for this year as the criteria for vaccinating patients will be extended and there will be a direct correlation between demand for the pharmaceutical services and the need to provide them in an accessible way and these services are increasingly not linked to a requirement to visit a medical centre. Patients value pharmacies in medical centres and the Applicant knows this. However patients also value having a pharmacy close to where they live and the PNA for the are notes that the main reason for patients choosing a pharmacy is that it is close to their home (51%) and that the most common method of travel to a pharmacy is on foot (43%).

Facilities at Castle Hill

5.1.24 The Committee is asked to note that Ackers then moves on to two sections. The first entitled “Facilities at Castle Hill” and the second entitled “Existing Provision for Pharmaceutical Services”.

5.1.25 The first thing to note is that Ackers refer to the “Castle Hill area” as a distinct area. However, in their next section that refer to pharmacies many miles away. Ackers refers to “a large cluster of pharmacies in the Gravesend area - less than 3 miles away.” In fact, there is not a single Gravesend pharmacy within 3 miles as Gravesend is further than 3 miles from Castle Hill. Similarly, Ackers refers to NHS England having “missed out some of the closest pharmacies including Asda Pharmacy at Greenhithe and the Boots Pharmacy at Bluewater”. It is unclear what Ackers consider to be close, but Bluewater shopping centre is over 4 miles from the application site and Asda is over 3 miles away. Whilst there may be a “high density of pharmacies” in some areas, there is not at the application site and claiming otherwise is not credible. It is likewise notable that Ackers refers to the Asda Pharmacy as being 1.7 miles from the application site when it is in fact 3 miles from the application site. Ackers simply does not present an accurate or credible argument.

5.1.26 The main issue the Applicant takes with Ackers description is that they have completely misrepresented the position. The Applicant notes the very careful use of language in saying “We made enquiries of the letting agent and were told that there have been no completions on the smaller retail units.” – emphasis added, but even this careful language is factually incorrect. The argument presented to the Committee now by Ackers is exactly the opposite of the argument presented in their previous applications where they were satisfied that the development was of sufficient scale to warrant a pharmacy being located there. Again, there is no credibility in the argument presented by Ackers when it contradicts their previous position.

5.1.27 Nevertheless, the Applicant has confirmed the position with Mr Adam Forster of Newcrest (the developers of the local centre) and he has responded as follows when presented with Ackers comments;

As well as with Delmergate [applicant in this case], we have a signed agreement for Lease with the Co-op & a regional Estate Agent. We have also engrossed documentation with a national brand coffee shop and have a national Dental practice under offer pending the issue of the NHS Tender. Pre- Covid we were weeks away from these being able to open. Covid has primarily caused building programme to slow but we are mostly back on track and Co- op should be open by July.

5.1.28 Occupational demand has been strong even in the face of Covid and the Applicant is aware that there is a local interest neighbourhood group that would

appreciate a local pharmacy to reduce car trips & this has been highlighted as especially useful with the current Covid related issues.

5.1.29 There is an oversubscribed community hall in with the 420 place 2 form entry primary school. The soon to open local centre will provide essential services for everyone within this first village ‘ Castle Hill’ and they are at approx. 1,000 occupations of 1,500 with the remainder to be occupied over the next year or so. It is crying out for a pharmacy. In respect of their bank comment – banks are generally not taking high street/retail space anymore and mostly coming out of a physical presence especially in smaller location as many people can access these services online.

5.1.30 These comments sit in stark contrast to the picture being painted by Ackers and their representative. It is also of note that an NHS dentist is due to open at the development as well as other facilities.

5.1.31 The Applicant has also attached the previous letter of support from Mr Forster which remains valid today (Appendix E).

Access on Foot

5.1.32 Ackers describe access on foot as “possible”. This is correct for healthy people as it is not “impossible”. It is not however a journey that any patient would readily or willingly undertake and it would in fact be impossible for many. The gradients in the area (a former quarry) are very steep in areas. No person who had any sort of issues with mobility would undertake such a journey and the steep gradients were noted in the Ackers relocation oral hearing report. Ackers quote from the PNA is accurate but completely irrelevant as it does not deal with the facts in this case. Even the PNA describes its approach as “simple” and that is a correct if somewhat kind way to describe it.

5.1.33 Ackers quotes Swan Valley Pharmacy as being 0.4 miles away when they are fully aware it is double that distance. On page 6 of their letter Ackers refers to the same pharmacy as being “1.2km from the proposed location”. Neither is the correct measure of the distance. Section 7.11 to 7.16 of the Appeal Report correctly sets out the distances to local pharmacies and the difficulties in access for pedestrians. We note that none of this is challenged by Ackers (other than providing incorrect distance measurements). During the previous Ackers relocation application is was pointed out that there were significant levels of patients accessing Ackers using mobility scooters and walking aids. This was not denied by Ackers. Similar patients in Castle Hill simply have no pharmacy that can be accessed using a mobility scooter of walking aid.

Access by Public Transport

5.1.34 Section 7.19 of the Appeal Report sets out access by public transport to pharmacies outside Ebbsfleet. Ackers provide a list of bus routes that run every 30 to 40 minutes. Like any part of England it is possible to access other areas using a bus, but it is notable that the 481 bus route referred to by Ackers does not stop anywhere near the application site and the nearest stop is almost 1 mile from the application site. In other words, it is a shorter journey to walk to a pharmacy than it is to walk to the bus stop. It is unclear why this information has been provided by Ackers. The 484 / 485 do go from Castle Hill and currently operate approximately every 1 hour. It takes approximately 20 minutes to access the Asda or Bluewater Boots pharmacy (with travelling time to be added at each and as well as waiting time). It would cost one adult with one child £8.40 to use the bus to access any pharmacy and such costs are clearly a barrier to use.

Access by Car

5.1.35 There are no available statistics relating to levels of car ownership for Castle Hill or Ebbsfleet. Any figures quoted must be for Greenhithe and are from 2011 (9 years out of date).

5.1.36 Ackers states;

NHS Resolution noted in the January 2019 decision that “the existing pharmacies can reasonably be accessed by car.”

5.1.37 This quote is correct, but the Applicant challenges its legitimacy. Access to Swan Valley Pharmacy is via the Southfleet Road. Parking at the health centre is often congested with visitors parking on double yellow lines. Whilst Ackers provide details of the number of car parking spaces, they refer to the parking as being in an “overflow car park”, but this is not a health centre or pharmacy car park at all and is located over 200 metres from the pharmacy and is used by Ebbsfleet Academy and the Brook Learning Trust.

5.1.38 Access to Ackers Chemist is via either Swanscombe Street or Herbert Road. These roads are both narrow and if oncoming traffic is met, drivers can often have to reverse on the main road to find a passing space. Parking at Ackers Chemist is limited and spaces are shared with the adjacent residential properties. Accessibility by car is therefore not reliable and again residents do not have a reasonable choice in accessing pharmacy services.

5.1.39 The Applicant notes the comments from Ackers about the popularity of their delivery service. It is understandable that with no local pharmacy, patients of Castle Hill would rely on this service. However, it does not provide them with anything other than the delivery of a prescription to their home and ignores every other service and type of advice that a modern pharmacy is able to provide to patients.

5.1.40 Accessing pharmacies by car in the much wider area involves using the busy A2, A226 and A220 which can become heavily congested. In Castle Hill / Ebbsfleet, the only option for someone with mobility issues is to use a car even though the journeys are awkward. In addition the Applicant asks the Committee notes that on the one hand Ackers speculate (as did NHSE) that many people who live in Castle Hill will be commuters, whilst ignoring the fact that this is likely to remove a car from the household they live in where the majority only have one car.

5.1.41 Not only is it pure speculation to say that many people will be commuters, but even if this is true, a decision maker must then go on to not only infer, but also accept as correct that;

5.1.41.1Those left without a car have no need to access a pharmacy and

5.1.41.2The commuter has access to a pharmacy conveniently close to where they work at a time when they are allowed a break from that work.

5.1.42 Again, this is not a credible approach to adopt. It ignores modern living and working practices. It ignores those who work from home, or do not work at all, or who can have their prescription sent electronically to a place which is convenient to where they live. It ignores the clear move towards home working that is becoming more prevalent. It ignores those who have limited mobility and cannot drive and it denies the existence of those groups simply because the census does not yet cover this area. It therefore also ignores common sense and above all it relies on speculation as being of more probative value than all the facts it ignores.

5.1.43 In many ways this is similar to Ackers comment that “It is likely that this population will have low health needs…” This is uninformed speculation and nothing more. It ignores the requirement for children to receive medicine when sick or parents to seek advice on their behalf. It ignores those with conditions such as COPD or Asthma who will find walking to pharmacies very difficult or impossible, but could use a local pharmacy if one were available. It makes assumptions in ignorance of fact. The only credible assumption to make is that, in the absence of census data, this normal neighbourhood will have normal health needs that include access to a pharmacy. Any other assumption is negligent.

NHS ENGLAND submissions

5.1.44 NHS England starts by arguing that distances of up to 4.1km “cannot” be considered significant based on their uninformed speculation about people’s habits which we have already commented on above.

5.1.45 The further comment made about pharmacies in other areas being unable to cater for increased demand simply ignores the legal test where no such factor should be taken into account by the decision maker.

5.1.46 NHSE second point criticises my client for not providing evidence to prove a negative. Rather than being “pure speculation” as suggested, our comments on a possible relocation of other pharmacies are based on the many years of experience in dealing with such relocations and the fact that there is no relocation even applied for since the last one was refused. NHSE cannot grant an application that has not been made and there is no current application for a relocation to consider.

5.1.47 There is nothing in NHSE third point that requires a response from the Applicant. It consists largely of quoting Regulations which are not relevant in this appeal process and / or relies on the PNA to refuse an application when the entire point of the application is that the need was not identified in the PNA.

5.1.48 NHSE states that the map on page 9 of its letter shows the large number of vacant homes. In fact, the map shows housing types and does not show any vacant houses.

5.1.49 In their fourth point NHSE states;

However, as to the question of choice, this relates to choice with regard to obtaining pharmaceutical services in the area of the relevant HWB. Moreover, there is no requirement in the Regulations that new residents should be familiar with the areas in which the pharmacies are located nor that pharmacies at a distance from any given location automatically constitute a lack of choice by their being unconnected.

5.1.50 Given that this is a new consideration of the application, the clear errors in the NHSE decision making process are not of paramount importance. However, to suggest that reasonable choice can be secured by pharmacies in areas which are unconnected and which patients are not familiar with simply because the Regulations do not tell NHSE that they should not approach the test this way helps to demonstrate why the NHSE decision was so flawed.

5.1.51 NHSE then devotes several more pages to analysis of the PNA or to statistics which are not for the Castle Hill development and which we do not comment on given their lack of relevance.

5.1.52 NHSE conclusion reiterates that they based their decision largely upon the PNA, which again confirms the errors in the decision making process and

consideration of evidence. Unfortunately this appears to be the same process that this NHS Area follows in every case.

Final Points

5.1.53 The Applicant submits that there are times when Primary Care Appeals can issue a decision that feels impossible to reconcile with the position on the ground. In the Applicant’s first application they requested an oral hearing because the scale of this development and the fact that it is physically isolated from surrounding towns where pharmacies are located. The Applicant further asks the Committee to note that the PNA, in the few areas where it is relevant, states that the main reason for patients choosing a pharmacy is that it is close to their home (51%) and that the most common method of travel to a pharmacy is on foot (43%). These are facts and not speculation. Those living in Ebbsfleet have neither option in any reasonable sense.

5.1.54 Unfortunately in the previous application the Committee chose to refuse the appeal and did not hold an oral hearing. However, in the subsequent relocation application of one of the nearest pharmacies, an oral hearing was held and the comments from the Chairman clearly indicate that the area of this application and the area where the nearest pharmacies are both owned by Ackers Chemist Ltd, were in distinct and separate areas and that access on foot between the areas was poor. No party has challenged those comments in this appeal despite being specifically directed to them and given the opportunity to do so.

5.1.55 There is a requirement for a new pharmacy to serve Ebbsfleet and it is likely that it will require more than one pharmacy as development proceeds further. We ask the PCA does hold an oral hearing in this case if there is any doubt about the strength of the application, but the Applicant similarly submits that this application can and should be granted on the papers alone.

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