VIC – Hendry advise that, as of the time of writing, very few Councils in Victoria require applications for town planning permits to be assessed by independent Access Consultants. As a result, there exists the real possibility that, where Access Consultants or Building Surveyors are not consulted before or during the design phase, a development that obtains planning approval could be delayed or cancelled. This is due to the potential inability of the development as approved to meet the requirements of Building Regulation 116 (Victoria) and the provisions of Part D3 of the Building Code of Australia (BCA), and therefore to actually obtain a building permit to allow works to begin. Indeed, there is precedent in New South Wales, where Councils are now required to engage Access Consultants during the approval of a development application, as a result of Cooper v Coffs Harbour City Council (1998).
In this case, a development was approved for a cinema in an existing complex that had no provision for wheelchair access. The Australian Commission for Human Rights (then the Human Rights and Equal Opportunities Commission [HREOC]) ruled that the Council was required to take requirements under the Disability Discrimination Act (DDA) into account when making a decision on a development application. This is of particular concern with the increasingly popular trend of providing Class 2 apartments above commercial premises, in order to maximise profits on a single build. In these cases, A BCA Access Audit should be performed by a building surveyor before commencing any design work.
For an existing commercial premises with new Class 2 apartments above, the issue is one of the Building Regulations 2006. Regulation 116 of the Building Regulations 2006, which came into effect on the 1st of May 2011, stipulates that where alterations necessitating a building permit are carried out, there is a requirement to upgrade the principal pedestrian entrance of the building and provide an accessible path of travel from the entrance to the area undergoing alteration. Where the alterations are being carried out on floors other than the ground floor, this requires the installation of a compliant lift, in order to allow disabled access to these floors, and therefore satisfy the requirements of Regulation 116.
For a new mixed-use development, with Class 5 or Class 6 or a combination on the ground floor, and Class 2 above, the issue is one of BCA Part D3.1, which stipulates that for a Class 2 building or part of a building, access for people with a disability is required:
“From a pedestrian entrance required to be accessible to at least 1 floor containing sole-occupancy units and to the entrance doorway of each sole-occupancy unit located on that level.”
In both cases, a compliant lift is required as the apartments are above ground level, as is an accessible path of travel to the entrance doorway of (though interestingly, not to and within) each sole-occupancy unit. Where providing accessible paths of travel to the doorways of sole-occupancy units, consideration must be given to width of corridors, passing and turning spaces, and compliant circulation spaces at doors, in accordance with AS 1428.1-2009. If an application for a planning permit as outlined above is submitted to Council and approved without satisfying the requirements of the DDA, Building Regulation 116 and BCA Part D3.1, then the approving Council could face significant legal recriminations from the developer due to project delays and associated penalties, including the costs for redesign.
We advise that developers should engage a building surveyor as early as possible in the project, in order to minimise potential losses as a result of complications as outlined above, and damage to reputation as a result.