The commencement of the national Premises Standards on 1 May 2011 brings clearer integration between the Building Code of Australia and the non-discrimination provisions of the Disability Discrimination Act for disabled access. A new requirement is for the upgrading of the principal pedestrian entrance and paths of travel in existing buildings where new building work is proposed. The NSW Building Professionals Board has now established an Access Advisory Committee to advise on claims of “unjustifiable hardship” in relation to compliance with the Premises Standards.
On 1 May 2011, the Disability (Access to Premises - Buildings) Standards 2010 (Cth) (“Premises Standards”) came into operation, and now sets national performance requirements and technical specifications to ensure access to, and use of, buildings for people with a disability. The Premises Standards, made under the Disability Discrimination Act 1992 (Cth) (“DDA”), clarify the general non-discrimination provisions of the DDA in relation to the design, construction and management of buildings.
When do the Premises Standards apply?
The Premises Standards apply to:
(a) a new building where an “application for approval for its construction is submitted” on or after 1 May 2011; or
(b) a new part of an existing building where “application for approval for the building work is submitted” on or after 1 May 2011.
In effect, this means that in NSW, the Premises Standards apply to building work (for most Building Code of Australia (“BCA”) building classes) for which an application for a construction certificate, complying development certificate or occupation certificate is submitted on or after 1 May 2011.
The Premises Standards also require the “affected part” of an existing building to comply with the Access Code where new building work requiring approval is proposed. An “affected part” of a building is: the principal pedestrian entrance of an existing building that contains a new part; and any part of an existing building, that contains a new part, that is necessary to provide a continuous path of travel from the entrance to the new part.
Compliance with the BCA and the Premises Standards
A revised version of the BCA also commenced on 1 May 2011. Prior to this revision, the technical requirements of the BCA in relation to access were not considered to meet the objectives of the DDA.
From 1 May 2011, compliance with the Premises Standards (and, effectively, the corresponding provisions of the BCA) satisfies the DDA non discrimination requirement for the matters covered by the Premises Standards. The Premises Standards contain an Access Code of construction that, from 1 May 2011, is incorporated and mirrored in the technical access provisions of the BCA.
New work must comply with the Access Code in the Premises Standards in the same manner as complying with the BCA by meeting deemed-to-satisfy provisions or by adopting an alternative solution that achieves the relevant performance requirements. Compliance is assessed and determined by a certifying authority (Council or accredited certifier) when considering an application for a construction certificate, complying development certificate or occupation certificate. Building developers and building managers are also responsible for ensuring that compliance is achieved.
“Unjustifiable hardship” exemption
The Premises Standards provide a general exemption to compliance where it would cause “unjustifiable hardship”.
The NSW Building Professionals Board has set up an Access Advisory Committee (“Committee”) under the Building Professionals Act 2005 (NSW), with expertise in disability access, quantity surveying, building surveying, structural engineering and heritage conservation, to make recommendations on applications for exemption from requirements of the Premises Standards on the grounds of unjustifiable hardship. Currently, the process of engaging the Committee is not mandatory and the Committee’s decisions are advisory only.
Applications for an exemption from compliance with a requirement of the Premises Standards can be made to the Committee:
- only by the relevant certifying authority (a council or an accredited certifier) engaged in relation to the development; and
- before the issue of a construction certificate, complying development certificate, or occupation certificate; and
- as a matter of last resort.
Applicants must demonstrate how they have sought to comply with the requirements of the Premises Standards, and provide the Committee with reasons why complying with a deemed-to-satisfy provision of the Access Code in the Premises Standards, or a performance requirement in the Premises Standards, would impose unjustifiable hardship upon a person. All relevant circumstances of the case will be taken into account in determining whether compliance with a requirement of the Premises Standards would involve unjustifiable hardship, including the financial and operational burden of compliance (for a non-exhaustive list of circumstances, see sections 4.1(3) and (4) of the Premises Standards). The Committee will make a recommendation as to whether one or more requirements of the Premises Standards cannot be complied with on the basis of unjustifiable hardship. The certifying authority must then consider this recommendation before issuing a construction certificate or complying development certificate, or prior to the issue of an occupation certificate, depending on the circumstances of the case.