REG- 15

Disability Access Implications for Building Owners and Tenants

AUST  Hendry advises the integration of the disability access code with the Building Code of Australia (BCA) since 2011 carries significant implications for building owners, tenants, and property and facility managers.

The Disability (Access to Premises – Buildings) Standards 2010, ‘the Premise Standards’ contain detailed disability access requirements specifying the circumstances and types of building where the Standards apply to a new building, a new part of an existing building, and the affected part of an existing building.

/ DISABILITY ACCESS TERMINOLOGY
In disability access, the affected part of a building means:

  • The principal pedestrian entrance of an existing building that contains a new part
  • Any part of an existing building that contains a new part, that is necessary to provide a continuous accessible path of travel from the entrance to the new part

Generally speaking, the affected part of a building must comply with the new access requirements where alterations and/or additions are proposed to an existing building, and the proposed work is subject to a building permit/complying development certificate or a construction certificate/building permit. The affected part of the building, relative to disability access, does not apply to:

  • Existing parts of buildings outside the area of the new work and the affected part upgrade
  • An access way from the allotment boundary, from any accessible car parking space on the allotment or between other buildings on the allotment

Upgrading works for an affected part may include the following disability access works:

  • Accessibility of upper floors to new work
  • Providing lift access features such as Braille or tactile buttons
  • Signage
  • Removing a step at a building entrance
  • Upgrading handrails on a ramp
  • Minimum width requirements of doorways or passageways, including passing and turning spaces

/ WHEN DISABILITY ACCESS PROVISIONS APPLY

The Lessee concession within Access to Premises Standards allows for the affected part of the building to not apply to existing parts of buildings outside the area of the new work and the affected part upgrade in a multi-tenanted building.

In this situation, if a Leesee of a multi-tenanted building submits an application for approval for building work to their leased area only, a Certifier does not need to ensure that the affected part of the building complies with the Premises Standards for disability access.

This concession however, does not apply if the new part is within a building with only one lessee, or where the works include works to other parts of the building on behalf of the building owner. Note, building owners who make alterations or upgrades to their buildings, the Premises Standards affected part provisions will apply regardless of whether the building is multi-tenanted or not.

The Premise Standards make some limited disability access concessions to these circumstances. For example, a lift is not required in a Class 5, 6, 7b or 8 new or existing building if there are not more than three storeys, with a floor area of each above ground storey, of not more than 200m2 each.

There are also disability access concessions for existing lifts and existing accessible unisex toilets under certain circumstances, and there is also a general exemption for areas where providing access would be inappropriate because of the purpose for which the area is used, such as a fire lookout tower for example, or to areas that would pose a health or safety risk for people with a disability such as a loading dock or plant rooms.

Existing buildings that are not undergoing any alterations or change of use are not required to be retrospectively upgraded to comply with the BCA and the Premises Standards. However, the existing building could still be the subject of a compliant under the Disability Discrimination Act, and the case made that the building does not meet the general requirements for disability access in accordance with the Premises Standards.

While an application can be made on the grounds of unjustifiable disability access hardship, the extent of documentation that must be submitted with the application, (including financial position and so forth) is likely to make the process a difficult one that will receive serious scrutiny by the applicable State or Territory Appeals authority, and ultimately, unjustifiable hardship may only be conclusively determined by a Federal Court or the Federal Magistrates Court.

/ IMPLICATIONS OF DISABILITY ACCESS
The Premise Standards have likely created bargaining arrangements in the establishment of commercial leases and have highlighted the importance of make-good provisions between building owners (landlords) and tenants in leasing arrangements.

The circumstances under which these provisions will prevail will in all likelihood be tested going forward, but there is no doubt that the provisions for Disability Access code compliance have been significantly strengthened, and the scope for dispensations significantly curtailed.

The Premise Standards have impacted on most building owners and tenants since their introduction in 2011 and whilst full compliance may not be the be the objective, Hendry Building Surveyors can provide the disability access appraisal necessary to establish your building’s current Disability Access position, and assist you in formulating a suitable ‘Access Plan’ strategy and the costings necessary to move progressively toward an acceptable future compliance outcome.

Download a print version of this bulletin