Submitted by on July 12, 2016

Over the years we have been asked to advise on the requirements for disability access to and within mixed use buildings, especially where class 2 buildings are proposed. This question arises often where a development proposes to have a class 5 or 6 (offices or shop) on the ground floor and class 2 (sole occupancy unit/s) on the level above. Since the inception of the Premises Standards in 2010 and the subsequent incorporation into the Building Codes of Australia the requirements for disability access for Class 2 buildings is as follows BCA Table D3.1:

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. To and within not less than 1 of each type of room or space for use in common by the residents, including a cooking facility, sauna, gymnasium, swimming pool, common laundry, games room, individual shop, eating area, or the like.

Where a ramp complying with AS 1428.1 or a passenger lift is installed— (a) to the entrance doorway of each sole-occupancy unit; and (b) to and within rooms or spaces for use in common by the residents, located on the levels served by the lift or ramp.

This requirement creates issues for developers as, like the example above of a mixed use building, the proposed access to the upper floor containing the sole occupancy units is usually via stairs only. The disability access requirements is to be to at least one floor containing sole occupancy units. Therefore the upper level must be made accessible. Accessible means accessed via a lift in most cases.

Where confusion and questions arise from is the Premises Standards Table D3.1 highlighting of the requirement to be for sole occupancy units that are made available for short term rent. Extract shown below:

Common areas in buildings where one or more sole-occupancy units are made available for short-term rent.

Although the Premises Standard makes a distinction in the use of the sole occupancy units when compared to the NCC, it is almost impossible for the relevant building authority to predict the future use of the sole occupancy units – for example at the time of the construction the units may be for purchase only, but only a few years later to be made available for short term rent by the new owners.

More and more are we seeing such issues arise like this as the two planning process grant permission to proceed and due to this being a technically NCC deemed to satisfy provision it gets overlooked. This then creates huge implications for the development team. There has been a very interesting legal case of this very issue.

Ian Cooper on behalf of North Coast Dial Inc. v. Coffs Harbour City Council

This case set a precedence and changed the way NSW local governments approach to accessibility, especially at the town planning stage of a proposed development. The following are extracts from the hearing at the Human Rights Commission.

DATE OF HEARING: 11 February 2000
DATE OF DECISION: 12 May 2000

In approving a development that was not accessible, it follows that the complaint against the Council has been substantiated in that in terms of section 122, it permitted the development without requiring compliance with the access requirements of the DDA.

Section 103 of the DDA catalogues the powers of the Commission after inquiry. It was submitted, inter alia, by the complainant that because of its breach of the DDA the Council should be ordered to make a public apology to the complainant and to those whom he was representing and further that monetary compensation should be ordered.

In my view neither form of relief is appropriate in this case. The Council clearly identified the relevant issue which it had to consider and it is accepted that the relevant belief concerning the operator’s position was honestly held by the Council. It fails in its defence because of the reasonableness issue. In those circumstances the only appropriate relief is to declare pursuant to section 103(1)(b)(i) of the DDA that the complaint against the Council has been substantiated and that the Council in approving the application permitted a breach of the DDA by the operator and that in so doing its act was unlawful.

A fully summary of the complaint and findings can be obtained here www.humanrights.gov.au/ian-cooper-behalf-north-coast-dial-inc-v-coffs-harbour-city-council

So where does this leave us? – it’s only a matter of time before other local governments are taken before the legal system for such approvals. It’s our recommendation and advice that developers and the development team engage the services of accredited members of the Association of Consultants in Access Australia (ACAA) – (Accredited Access Consultants)

ASN has had extensive experience addressing these types of developments and are willing to assist – please contact our office for further information and find below a useful  list of requirements to consider.

DDA REQUIREMENTS TO CONSIDER

  1. Access for people with disability is to be in accordance with AS1428.1. A detailed review will need to be undertaken during the Design Development phase (town planning) and working drawings.
  2. Corridor accessways through the accessible parts of the building must be in accordance with AS 1428.1.
  3. All common entrance doors serving the building must be in accordance with AS 1428.1. All accessible doors must achieve a minimum clear width through the doorway of 850mm.
  4. At least one accessible car parking space shall be sized in accordance with AS2890.6 to cater for people with disability. Note that the space does not need to be signed as to restrict its use for people with disability, if there is five (5) or less spaces proposed.
  5. Tactile and braille signs must be installed to identify accessible entrances, lifts and exits.
  6. Pedestrian access to all levels must be via a complying passenger lift.
  7. Disabled access is required to be provided to:
    1. All common spaces/rooms for use by the residents, including common areas such as bin room, resident stores and bike racks.
    2. The residential foyer and corridors to all levels served by the lifts.
  8. Access ways must have passing spaces complying with AS 1428.1 at maximum 20m intervals. A passing space may serve as a turning space. A turning space is to be within 2m of the end of a passageway. For a 180º turn space the design requirements are 1540mm (wide) x 2070mm (long). For a 90º turn the design requirements are 1500mm x 1500mm.
  9. Fire isolated stairway nosings are required to be illuminated in a contrasting colour.
  10. The lifts must comply with the following:
    1. The lifts serving any storey above an effective height of 12m must be of sufficient size to accommodate a stretcher by providing a clear space not less than 600mm wide x 2000mm long x 1400mm high above the floor level.
    2. Warnings signs at every call button.
    3. Fire service controls required to lifts above an effective height of 12m. Lift car fire service control switch must comply with Clause E3.9 & E3.10 of the NCC.
    4. Lifts shall be served with emergency hands free communication.
    5. Audible information within the lift car and audible and visual indication at each lift landing is required.
  11. The passenger lifts must comply with the provisions of AS1735.12.