Disability (Access to Premises — Buildings) Standards 2010

In this edition of Access News is a plain English guide to the new access laws for land developers and construction teams. For Builders: The key difference between a home renovator and a commercial builder doing Class 2 to 9 construction is the ability to project- manage advice from a diverse consulting team including Fire, Section J and Access Consultants. This bulletin will improve your understanding of working with Access consultants through simple realistic simulations of the codes in practice.The best way to build your working knowledge of the codes is to first; know how good access works.

In this Edition

1. Existing Building no Changes
2. Upgrading in response to a complaint
3. Upgrade Plan
4. Alt-adds Completed to the Access to Premises Standard (APS)
5. Alt Adds affecting the existing building
6. Lessees Concession
7. Works to which the BCA and APS do not apply
8. Unjustifiable Hardship   

Call us before acting on advice: The cases used here to illustrate the newly introduced access laws are likely scenarios based on claims statistics reported by State and Commonwealth Anti-Discrimination Commissions.  Any similarity to actual people, places or events is serendipitous and of course the information provided is general in nature and not legal and we strongly advise readers that if you feel a connection with the situations described then you should contact us for advice.

A man with a walking frame: To illustrate the Disability (Access to Premises — Buildings) Standards 2010;- Access to Premises Standard (APS) or Premises Standard as often referred, with examples of its application, rather than simply focusing on a wheelchair users, we’ve developed a fictional character that perhaps better represents the demographics and impairment types of a person and a community with growing access needs that will, and sometime demand to be accommodated.

Our Crash Test Dummy is ‘a man with a walking frame’. His storey begins as a simple complaint to the Anti Discrimination department against our fictional owner and manager: O&M brand of a shopping Mall.

Illustrated Guide to the Access to Premises Standard

The storey begins…

A man with a walking frame lodges a complaint against his local O&M shopping centre after his regular quarterly appointment with his optometrist.

1. Existing Buildings with No changes

The DDA 92 will continue to apply to actions relating to publicly accessible buildings and place. If a client regularly visits a service provider and can no longer as age or illness makes minor barriers such as steps insurmountable, then the client may have grounds for complaint.

In mediation it was found that the man had been visiting the Optometrist every 3 months due to his worsening aged related macular degeneration and had asked that the O&M Mall management provide safe priority accessible parking at the entrance and clear signage.  O&M maintained that they treat all old people equally and refused the request.

The tribunal determines that access to the services be provided equally to vision impaired person as provided to that same person without the acquired condition. The hearing was adjourns to allow further mediation.

2. Upgrading in response to a complaint

In addressing a complaint O&M may commit to carrying out upgrade works to the current standard and it’s possible that in most circumstances the level of upgrade work required in a dispute settlement will be limited to the APS and minimum BCA standards.

Prior to mediation O&M find that the carparking had already been installed 20 years earlier however, maintenance sign writers had overtime reduced the accessible carpark widths and removed wayfinding signage. The O &M Mall management agree to compensate for the lost appointment and install new line marking and signage to the present standard.

3. Upgrade plan

A Disability Action Plan made under Section 60-65 of the DDA permits an act of discrimination with respect to existing buildings and sets a time period for remedy.

In mediation it is found that the Mall had been initially constructed in the 1960′s and had not been upgraded for 50 years. The Centre managers agree to upgrade the mall access over five years and to publish the proposed building upgrade schedule in the next ‘Coffee News’.

4. Alt-adds Completed to the Access to Premises Standard (APS)

For new buildings the APS requires that the proposed buildings meet the standard at the time of building approvals and on completion. (4)

In mediation it was found that recent extensions to the O&M-Mall carparking were constructed to the current standards AS2890.6 for accessible carparking and although the specified required bollard can make manoeuvring difficult; the work has been verified by an access consultant to meet the Premises Standard and the complainant is dismissed.

5. Alt-adds affecting the existing building

The premise standard requires that a new part of a building be constructed to the standard and that a path from the existing main entry to the alterations and additions be upgraded.

In mediation it was found that the entry threshold to the optometrists had increased from 35 mm to 75 mm when a new floor and sprinkler system were installed in the Mall.  The level differences escaped the notice of the design-construct team when the contract package was nova-ted from the designer and the PCA in review identified a minor oversight.

The complainant accepts a financial contribution to new eye-wear and a holiday to overcome the stress and inconvenience.  O&M centre management agree to install a new raised floor throughout to rectify the entries to tenancies and commence discussion with the design development team on costs.

6. Lessees Concession

For buildings with more than one tenant the developers and managers are not necessarily required to upgrade the path of travel to the new works and in most cases are able to limit the affected part to within the zone of the new work.

In mediation it was found that the optometrist had correctly installed a new accessible toilet to the latest AS 1428.1 standards and that the Access consultant statement had limited the required upgrade under the APS to the area of the new works within the tenancy.

As the works were limited to being within the tenancy and as the building applicant was the tenant, O&M were also relieved of the requirement to upgrade access from the entry to the alterations.  The Access statement secured O&M and the design and development team against a complaint, however;- (to be continued)

7. Works to which the BCA and standard do not apply

Compliance with the APS, BCA and referenced standards does not imply that areas outside of the standard or beyond the scope of the BCA will not be of concern to people with access needs.

(Continue) The complaint became focused on the optometrist as the display racks on the path to the toilet had not changed and were not required by the PCA to be rearrange, it was merely a recommendation of  the access consultants design report.

At the time of his appointment the man couldn’t negotiate his way to the WC in time and suffered hurt, humiliation and embarrassment as a direct result. Not wanting to pursue the matter through the tribunal the optometrist settled for an amount equivalent to the legal fees he would have incurred to pursue the issue and, agreed to clear an accessway from the entry, reduce the reception counter height to 850 mm to facilitate communication and tutor staff on the appropriate responses to mobility impaired clients

The DDA 92 applies to actions relating to buildings to which the BCA and standards do not apply. The Disability Discrimination Act 1992 (Commonwealth) Section 23 makes it unlawful to discriminate against another person on the ground of the person’s disability in relation to access to or use of premises.

8. Unjustifiable Hardship

The Premises Standards have recognised that there may be exceptional circumstances where there are practical constraints to complying with the access provisions. The DDA provides limited concessions and exception where avoiding discrimination would impose unjustifiable hardship.

The following is an example only of a likely scenario to be faced by the Access Panel;-

The increase in trade that flowed from upgrading pedestrian access to the Mall prompted O&M to strata the tenancies and the Optometrist purchased his own tenancy and an office above for a combined total of 450 sqm. The Optometrist plan is to install connecting stairs to create a Mega-Optometry store including retail downstairs and examinations and admin upstairs.

To do this the local building authority requested an upgrade to fire safety features including new sprinklers and the existing lath and plaster walls and ceilings to be lined with new Fire-Check-Gyprock.  The new works triggered the building application process which in turn triggered the APS. On the Architects advice; providing access to the affected parts means he may need to install a lift.

The budget for the new works came in at $30,000 for the new stairs, fire rating a further $15,000 and a lift a further $160,000. The Optometrist believes ‘the lift imposition is unfair and unreasonable’ and submits a claim for an exemption to the PCA who then forwards the application to the Access Panel for review.

The High Court provide that: “In determining what constitutes unjustifiable hardship, all relevant circumstances are to be taken into account. They include, relevantly, the nature of the benefit or detriment likely to accrue to, or be suffered by, the persons concerned, the effect of the disability, and “the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship”. ^[1]

The newly established process in NSW for determining UH follows that the Building Certify Authority (PCA) lodges an application, include financial statements, cost estimates and Access Consultants reports to an appointed State Access Panel for review and comment. The Access Panel hands a recommendation to the local or private PCA who is charged with making a final determination, presumably based on the Access panel’s recommendations, however not necessarily so.

We can only speculate on the possible outcomes of the UH process and at this stage its raising more queries than answers:

• • Will the Access Panel agree with the optometrist that the cost escalation for access will be 3 times the initial cost and therefore unjustifiable?
  • Will AP find the additional access works fair and ‘reasonable’ or ‘unreasonable’ and an unjust imposition?
  • Will they figure a % difference between the costs of the initial works and providing access is unjustifiable?
  • What if the PCA rejects the Access Panel’s recommendation and approves works which on completion is subject to a claim from a man with a walking frame backed by the legal wait of a leading Retinitis action group?

At this stage there hasn’t been a successful claim of unjustifiable hardship, yet the provision is now in place at the state level in NSW to receive applications.

References and Credits:

3.Disability (Access to Premises — Buildings) Standards 2010, Under subsection 31 (4) of the Disability Discrimination Act 1992.

4.  Explanatory Statement Disability (Access to Premises—Buildings) Standards 2010 , Issued by the Authority of the Attorney-General.

Disability (Access to Premises—Buildings) Standards 2010Building certifiers, developers, and managers will be protected from complaints of unlawful discrimination under the DDA in relation to acts done in compliance with the Premises Standards  Conversely, section 32 of the DDA provides that it is unlawful for a person to contravene a disability standard.  Failure to comply with the Performance Requirements of the Premises Standards will thus be unlawful under the DDA unless unjustifiable hardship is established under the Standards..

5. Victorian Building Commission. More Here..

6. Building certifier responsibilities, regarding access for people with a disability, Version 1.1. Guideline  © State of Queensland. Published by the Department of Local Government and Planning,  August 2011, 100 George Street, Brisbane Qld 4000.

7. Association of Consultants in Access Australia. More Here