REG-17

Victoria’s Disability Access Regulations Explained

VIC  Hendry advises there have been some significant changes to the Building Regulations 2006 for new buildings, existing building upgrades and alterations for which an application for building approval is made after 1 May 2011 revolving around disability access.

The Disability (Access to Premises—Buildings) Standards 2010 were adopted under the Commonwealth Disability Discrimination Act 1992 and in Victoria, the Building Amendment Regulations 2011, and in particular Regulation 116 came into operation also in May 2011 to cover disability access.

The disability access requirements of the Premises Standards is now also included into Part D3 of the Building Code of Australia and will provide a level of consistency for building owners and developers. However it carries significant implications for building owners, building managers and tenants.

/ BUILDING AMENDMENT REGULATIONS 2011
Regulation 116 of the Building Amendment Regulations 2011 on the 1st May 2011 to cover disability access now requires that any alterations to an existing building, that requires the issue of a building permit, will act as a trigger to now also require an upgrade of the principal pedestrian entrance of a building and the accessible path of travel to the altered part of the building to allow for disability access.

This aspect has significant implications for future projects involving alterations to existing buildings, since consideration of the costs to upgrade the principal pedestrian entrance, the access to the altered part of the building and toilets for people with disabilities also need to be taken into account for any costings due to the increased scope of works for disability access. For example any alterations on level 2 of a particular buildings will also need to address an upgrade of the entrance of the building and provision of compliant lift disability access to level 2.

The disability access provisions also apply to toilets for people with disabilities, whereby existing toilets within the altered parts of the building and in the accessible path of travel from the main entrance to the altered parts must also be upgraded in accordance with AS 1428.1-2009. Existing toilets however that comply with the previous edition of AS 1428.1-2001 (disability access code) are not required to be upgraded to the 2009 edition. Existing toilets that are not located in the accessible path of travel and are not within the altered parts of the building do not have to be upgraded.

/ EXEMPTIONS AND CONCESSIONS
Access from an allotment boundary, from any accessible car parking spaces on the allotment or between buildings however do not have to be upgraded as part of any projects involving internal alterations to a building under provision of Regulation 116 for disability access. The requirements of Regulation 116 only apply to the principle pedestrian entrance and the internal parts of a building.

There are also concessions in multi-tenanted buildings, whereby if a tenant carries out alterations to their tenancy, they will not be required to upgrade the main entrance and any lift and access from the main entrance of the building to tenancy for disability access.

There are also some limited concessions under the BCA for disability access. For example a lift is not required in a building of not more than three storeys, with a floor area of each storey, of not more than 200m².

There are also concessions for existing lifts and disabled persons toilets under certain circumstances. Existing toilets for people with disabilities that comply with the previous AS 1428.1-2001 (disability access code) are not required to be upgraded to the current AS 1428.1-2009.

There is also a general disability access exemption for areas where providing access would be inappropriate because of the purpose for which the area is used, or to areas that would pose a health or safety risk for people with a disability.

/ EXISTING BUILDING WITH NO BUILDING WORKS
Existing buildings that are not undergoing any alterations are not required to be upgraded to comply with the BCA disability access requirements. However the existing building could still be the subject of a complaint under the Commonwealth 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 since a building manager or property owner “must ensure that the building complies with the Access Code” under the Premises Standards.

The obligations under the Premises Standards are given effect by the Commonwealth Disability Discrimination Act. The Disability Discrimination Act is a complaints based (as opposed to a compliance based) legislation. This means if a person or building owner does not meet their disability access obligations under the Premises Standards they may be subject of a compliant under the Disability Discrimination Act to the Australian Human Rights Commission.

/ UNJUSTIFIABLE HARDSHIP
While an application can be made to the Building Appeals Board in Victoria on the grounds of unjustifiable hardship relation to disability access, 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 Building Appeals Board.

/ ALTERNATIVE SOLUTIONS REQUIREMENTS
Alternative solutions can also be considered by the building surveyor to determine if the disability access proposal complies with the performance requirements of the Building Code of Australia 2011, instead of complying with the Deemed to Satisfy Provisions where the building surveyor determines that the level of disability access is not less than the Deemed to Satisfy Provisions of the BCA.  Advice from a disability access consultant may be required, depending on the circumstances, to assess any design solutions on access matters to support the issue of any alternative solution determinations involving disability access by the building surveyor.

/ ALTERATIONS TO BUILDINGS
A building surveyor can still issue a dispensation to the BCA disability access provisions under Regulation 608 of the Building Regulations 2006 for alterations to an existing building, however since the Premises Standard is Commonwealth legislation under the Disability Discrimination Act, it takes precedence over Victorian State Legislation (Building Regulations 2006).

Therefore even though a building surveyor may issue a disability access dispensation, taking into account the amenity (disability access) of the building, the dispensation would be disregarded by the Australian Human Rights Commission in the event that a complaint was made to them and they would in fact consider the building surveyor to have acted unlawfully.

/ CHANGE OF USE AND MAJOR REFURBISHMENT
Disability Access and toilet facilities for people with disabilities may also need to be upgraded to current BCA and AS 1428.1-2009 requirements if the existing building under goes a change of use under the provisions of Regulation 1011 of the Building Regulations 2006.

Also under Regulation 608 of the Building Regulations 2006, major refurbishments that exceed more than half of the original volume of the building, together with any other alterations completed within the previous 3 years, may also require the entire building to be brought into conformity with the current BCA and AS 1428.1-2009 requirements i.e. upgrading the disability access requirements.

The building surveyor may however consent to partial compliance under both Regulations 1011 and 608, if appropriate, taking into account Regulation 116 and the reasonable provision for the amenity (disability access) of the building and the safety and health of people using the building.

The building surveyor and applicant would however be acting unlawfully under the Commonwealth Disability Discrimination Act by approving building work in relation to the altered parts of the building that does not comply fully with the disability access provisions of the BCA.

/ BCA AND AS1428.1-2009 MAJOR CHANGES
The introduction of the BCA and AS1428.1-2009, that supersedes the previous AS1428.1-2001 (disability access code) edition, has resulted in some significant changes to the disability access and toilet facilities for people with disabilities. Some of the major Disability Discrimination Act changes, implications and concessions applicable to the campuses are as follows. Please note that the reference to accessible in the items below is “having features to enable use by people with a disability” and reference to ambulant disabilities is “people who have a mobility disability but are able to walk”.

/ MANAGEMENT OF REGULATORY ISSUES
The objectives of the Disability (Access to Premises- Buildings) Standards 2010 is to “ensure that dignified, equitable, cost-effective and reasonably achievable disability access to buildings, and facilities and services within buildings, is provided for people with a disability” (Part 1.3). Similarly the Performance Requirement of the BCA DP1 requires that disability access must be provided “to the degree necessary”

It is acknowledged that it can be physically difficult and costly to make an existing building fully comply with the current disability access requirements of the BCA and AS1428.1-2009 and therefore there are some exemptions, alternative solutions and unjustifiable hardship options available to building owners and applicants as discussed in this article.

The circumstances under which these provisions of the Premises Standards and the BCA will prevail will in all likelihood be tested going forward, but there is no doubt that the provisions for disability access in the BCA have been significantly strengthened, and the scope for dispensations and grounds for unjustifiable hardship significantly curtailed.

Designers and architects need to be aware that the BCA only provides the minimum disability access design requirements and therefore there maybe particular situations where additional Disability Discrimination Act measures should be installed and adopted. For example, the BCA does not require tactile indicators in fire isolated stairways, given that typically the stairs are only intended to be used for emergency evacuation purposes and it would be expected that there would be a passenger lift within the building. There may however be situations in particular buildings where the occupants may regularly use the fire isolated stairways as a means of access between the floors, either because there is no lift or it provides a quicker means of access. In some circumstances it may be appropriate to install tactile indicators in the fire isolated stairways, even though they are not required by the BCA as disability access can be foreseen.

We recommend that a review or upgrade of any building should not be considered in isolation and therefore any Disability Discrimination Act upgrades of buildings and external walkways need to be addressed as part of an overall master plan for a building or a number of buildings on an allotment. This will also ensure that a consistent approach is adopted.

Disability access needs to be considered from allotment road boundaries, accessible car parking space, to and between all buildings on the allotment to access work, public places and toilet facilities. Consideration needs to be given to the compliance of any landscaping and external works that, although may not require the issue of a building permit, should nonetheless be reviewed since it may affect disability access and pathways to the buildings and facilities. We recommend that a review or upgrade of any building should not be considered in isolation and therefore any Disability Discrimination Act upgrades of buildings and external walkways need to be addressed as part of an overall master plan for a building or a number of buildings on an allotment. This will also ensure that a consistent approach is adopted.

Download a print version of this bulletin