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Focus: New building access standards update

13 April 2010

In brief: Detailed requirements to enable property owners, tenants and developers to comply with the provisions of the Disability Discrimination Act 1992 (Cth) relating to access to premises have been provided in the form of new disability access standards, which will be adopted as an amendment to the Building Code of Australia. Partner Nicholas Cowie (view CV) and Senior Associate Matti Bechler report.

How does it affect you?

  • The Disability (Access to Premises – Buildings) Standards 2010 (Cth) (the Premises Standards) will commence operation on 1 May 2011. It is anticipated that these requirements will also be adopted as an amendment to the Building Code of Australia (the BCA) on the same date.
  • The Premises Standards set out detailed requirements to ensure access to premises is available for people with a disability and will apply to new buildings and modifications to existing buildings in certain specified classes.
  • A broad range of people, including owners, developers, tenants and property managers may be responsible for ensuring compliance with the Premises Standards.
  • Owners or developers who plan to lodge an application for development or building approval of a new building or renovation of an existing building on or after 1 May 2011 should ensure that the design for the relevant work complies with the requirements of the Premises Standards.

Background

Under section 23 of the Disability Discrimination Act 1992 (Cth) (the Act), it is unlawful to discriminate against another person on the ground of the person's disability in relation to the provision of access to premises. A person may make a complaint of disability discrimination to the Human Rights and Equal Opportunity Commission if he or she believes that disability discrimination has occurred.

While the complaints system gives persons with a disability an avenue to attempt to address access issues at a particular building, it has generally not led to greater accessibility. In addition, no design or performance specifications were provided in the Act to assist owners and developers in determining how to satisfy the non-discrimination requirement, which made it difficult to assess whether discrimination had occurred.

The Federal Government has addressed these issues by proclaiming the Premises Standards, which set out performance requirements for disabled access and provide references to technical specifications to satisfy those requirements. Complaints of unlawful discrimination cannot be made in relation to acts done that comply with the Premises Standards, giving greater certainty for owners and complainants.

Technical requirements

The Access Code (which forms part of the Premises Standards) sets out the substantive requirements of the Premises Standards. It provides a number of 'Performance Requirements' that must be met where the Premises Standards apply. The Performance Requirements are broad and somewhat more onerous than the current access requirements in the BCA, and deal with matters such as:

  • access to and egress from buildings;
  • carparking;
  • inbuilt communication systems;
  • passenger lifts; and
  • sanitary facilities.

The Performance Requirements can be met by complying with the detailed technical requirements set out in the 'Deemed-to-Satisfy Provisions' in the Access Code, or by an alternative solution that meets the Performance Requirements. A number of exemptions and concessions are available, including a general exemption where compliance would cause unjustifiable hardship.

Application to new and existing buildings

The Premises Standards will apply to all new buildings that fall within certain specified classes. Private residences are generally not subject to the Premises Standards, but most commercial premises (including offices, retail outlets and entertainment venues) will be.

In addition, the Premises Standards will apply where new work is undertaken on an existing building and that new work requires a development or building approval, but its application will be limited to the new or modified part of the building. Where the new work is being done by the owner of the building, or a tenant that occupies the whole of the building, it will also be necessary to provide an accessible path of travel from the principal pedestrian entry to the building to the new or modified part of the building.

Responsibility for compliance

A wide range of people are responsible for ensuring compliance with the Premises Standards. These people are:

  • building certifiers, being persons with responsibility for, or control over, the development and building approval process for a building (for example, local councils and private certifiers);
  • building developers, being persons with responsibility for, or control over, the design and construction of a building (for example, owners, builders, project managers and architects); and
  • building managers, being persons with responsibility for, or control over, any matters in the Access Code other than matters relating to the design and construction of a building. This could include owners, tenants and property managers.

Commencement date

The Premises Standards will commence operation on 1 May 2011 as a 'disability standard' under s31 of the Act. It is anticipated that these requirements will also be adopted as an amendment to the Building Code of Australia on the same date.

Conclusion

Following their commencement, the Premises Standards will provide owners and developers with some certainty as to how to satisfy the non-discrimination requirement in relation to access to premises. Applications for development or building approval for a new building or renovation of an existing building which will be, or are likely to be, lodged on or after 1 May 2011 will need to comply with the requirements of the Premises Standards and plans should be updated accordingly now to ensure compliance with the Act and to prevent delays in the approval process.

For further information, please contact:

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