Building Regulation and access - an Australian view
Building Regulation and access - an Australian view
Paper prepared July 2003 for UK Centre for Accessible Environments
Michael Small is Senior Policy Officer in the Disability Rights Unit at the Australian Human Rights Commission michaelsmall@humanrights.gov.au
Overview
Since the Disability Discrimination Act (DDA) came into force in March 1993 complaints to the Australian Human Rights Commission (the Commission) have shown significant inconsistencies between anti-discrimination law and current building law in Australia .
These inconsistencies cover both the level of access required, for example the area of coverage of a hearing augmentation system in a conference room, and the amenity of the access provided, for example the location of unisex accessible toilets and location of accessible doorways.
Progressive changes to the national building code - the Building Code of Australia (BCA) - have been made since 1995 to address these inconsistencies, but in 2000 significant momentum was given to the process when the Commonwealth Government amended the DDA to allow for the development of a Disability Standard on Access to Premises (Premises Standard).
This amendment allows for a mechanism that will clarify accessibility requirements under the DDA and ultimately ensure consistency between building law and the DDA.
The effect of a Premises Standard would be that owners and developers of buildings used by the public would be able to meet the objectives of the DDA (as they apply to buildings) by meeting the requirements of the Premises Standard . In the absence of a Premises Standard, people with disabilities, owners and developers would continue having to rely on the individual complaints mechanism of the DDA as the only means of defining compliance.
Rather than develop a Premises Standard as a separate and additional code to be followed by the building industry agreement was reached to change the BCA so that it could be picked up and referenced within the Premises Standard. The consequence of this would be that compliance with the new BCA would ensure compliance with the DDA.
Three years later we are close to completing the work of developing changes to the BCA and completing the Premises Standard. This has been an enormous task and has involved vigorous debate and negotiation between the disability sector, regulators, property owners and operators, government and design professionals.
Once completed, however, Australia will have a comprehensive, clear and consistent construction code for new buildings and new building work which gives meaning to the objects of the DDA and ensures a safer, more accessible and sustainable built environment for all Australians.
Requirements of the DDA
The broad objects of the DDA include eliminating, as far as possible, discrimination against people on the ground of disability, and promoting recognition and acceptance within the community that persons with a disability have the same fundamental rights as the rest of the community.
The DDA sets out the specific areas in which it prohibits a person being discriminated against on the ground of their disability. This includes access to or use of "any premises that the public, or a section of the public, is entitled or allowed to enter or use".
The DDA definition of 'premises' is very broad and includes:
- existing buildings, including heritage buildings;
- proposed or new buildings;
- car parks;
- open air sports venues; and
- pathways, public gardens and parks.
In fact, any part of the 'built environment' that the public is entitled, or allowed, to enter or use falls within the definition.
In addition, because the DDA refers to the 'use' of premises, it also covers issues such as fit out design (for example, the height of service counters) and the way premises are maintained and managed (for example, ensuring accessible toilets are not used as storage spaces or overhanging branches do not result in a barrier on a path of travel).
The DDA recognises that in certain circumstances, providing equitable access for people with disabilities could cause 'unjustifiable hardship' for an owner or operator of premises. The DDA does not require access to be provided to the premises if it would impose an 'unjustifiable hardship' on the person who would have to provide the access.
It is only the Federal Court or Federal Magistrates Service that can determine what constitutes 'unjustifiable hardship', but the DDA states that all relevant circumstances of the particular case are to be taken into account. This includes the nature of any benefit or detriment likely to be experienced, technical limitations, the estimated costs of the work and the financial circumstances of the person claiming the hardship.
The Building Code of Australia (BCA)
The BCA is developed and maintained by the Australian Building Codes Board (ABCB) on behalf of the Commonwealth in conjunction with the State and Territory Governments, who each have statutory responsibility for building control and regulation within their jurisdiction.
The BCA is a comprehensive statement of the performance and technical requirements relevant to the design and construction of buildings and other related structures. The BCA is therefore a national code, which is administered at a State and Territory level.
The BCA is referred to as a 'performance based' code, describing acceptable Performance Requirements that buildings and other structures throughout Australia must meet.
Performance Requirements must be satisfied by the design and construction of the building. This may vary depending on the building classification - (for example, there may be different requirements depending on whether the building is a theatre, an office building or a hospital).
There are two ways to meet the Performance Requirements. These are referred to as Building Solutions:
The Deemed-to-Satisfy provisions are detailed prescriptive technical requirements within the BCA of how the building is to be constructed and equipped. They include reference to technical details found in Australian Standards such as AS 1428.1, which is currently the main Australian Standard covering access related issues for people with disabilities.
- An Alternative Solution is one that can be demonstrated to meet the Performance Requirements of the BCA by other means. The purpose of an Alternative Solution is to allow for new ways of achieving the required levels of performance. The onus is on the building applicant to show that the Alternative Solution complies with the Performance Requirements.
The BCA is amended each January and July to reflect changes in building practices, usage and technology. The ABCB, through its Building Codes Committee, drafts a Regulation Document and a Regulatory Impact Statement (RIS) for broad community consultation before recommending changes of a major nature for particular issues.
An RIS is a mandatory requirement when any new regulation or changes to an existing regulation occurs. Its purpose is to assess the proposed regulation to ensure it is the best way of achieving the desired goal. At the heart of an RIS is a cost/benefit analysis of the proposed regulation.
Building Regulations
Each State and Territory has building control legislation that references the BCA as the document containing the technical design and construction requirements for buildings.
While States and Territories may include minor variations to the BCA in their legislation and different criteria, or 'triggers' for how they apply it to existing buildings, essentially the BCA applies to:
- all new buildings;
- new building work in existing buildings, such as additions and alterations; and
- existing buildings that are to be used for a purpose different from that for which it was originally designed. This is often referred to as "change of use".
A Premises Standard
In 2000 the Commonwealth Government asked the ABCB to develop proposals for changes to the BCA which, if adopted, would allow the BCA to be referenced as part of a Premises Standard.
Because of the definition of 'Premises' in the DDA a Premises Standard could cover all parts of the built environment used by the public, including:
- the parts of buildings currently covered by the BCA's access provisions, including areas such as access to and within sanitary facilities, paths of travel in buildings, lifts, ramps, hearing augmentation systems and signs;
- the parts of buildings not currently covered by the BCA's access provisions, for example furniture and fittings, or not dealt with extensively for people with disabilities, for example emergency egress and warning systems;
- the parts of the built environment outside of buildings not covered by the BCA: parks, street furniture and pathways; and
- management, maintenance and staff service issues that could have a significant effect on the use of premises.
However, the Government decided on an incremental approach and at this stage has asked the ABCB to limit the current Premises Standard to those areas covered by the BCA.
The Premises Standard will essentially reference the revised BCA and will therefore set out specific accessibility requirements for developers, owners and operators of premises. This means that, for new buildings and new building work that are covered by the revised BCA, meeting its provisions will be sufficient to meet the requirements of the Premises Standard and therefore satisfy the objectives of the DDA
Those parts of buildings or the broader built environment not covered by the scope of the BCA or Premises Standard, and existing buildings not undergoing new building work, are beyond the scope of the current project. The existing provisions of the DDA will continue to apply to these matters.
The BAPC is also responsible for undertaking the required RIS on the draft and co-ordinating changes to the Australian Standards that are referenced in the BCA to reflect decisions made by the BAPC on issues as far ranging as circulation spaces, ramp design, signage and toilet fit-out.
Administrative Protocol
While the Premises Standard will be a Commonwealth regulation building law will continue to be administered by the States and Territories. Under State and Territory building law the BCA is applied fully to all new buildings, but various provisions exist to allow for some discretion in its application to new building work and change of use in existing buildings. This discretion will continue to apply, as will the possible defence of unjustifiable hardship to application of the Premises Standard to new work on existing buildings. This is because full application of the new BCA and Premises Standard to old buildings undergoing renovation may be technically impossible or prohibitively expensive.
In order to manage this situation in a manner which is most likely to result in consistent decisions in line with the objectives of the DDA, and to minimise the need for issues to be resolved through the courts, the BAPC has also developed an Administrative Protocol for adoption by State and Territory Governments.
The protocol will involve the setting up of Access Panels with appropriate expertise to deal with appeals by developers or questions from certifiers concerning the full application of the BCA and Premises Standard to existing buildings. It will also look at whether or not a proposed Alternative Solution meets the Performance Requirements of the BCA.
Decisions of the Access Panels will not be legally binding and people with disabilities will still be able to lodge complaints in relation to buildings dealt with by Access Panels but it is expected that because of the expertise of the panels its decisions will be consistent with the objectives of the DDA.
Final stage
The proposed changes to the BCA and draft Premises Standard are nearly complete and work has begun on the RIS. The full package of material is due for release towards the end of this year and a three month period of public consultation is planned to begin in February 2004.
When completed the material will be available on the websites of both the Commission ( www.humanrights.gov.au ) and the ABCB ( www.abcb.gov.au ).
Note: The disability sector in Australia generally prefer the use of the term 'people with a disability' rather than 'disabled people '. This paper draws on material previously published by the ABCB under the title Directions report .