Access and the Premises Standards

What the Standards are

The Australian Human Rights Commission explains that standards under the Disability Discrimination Act are “legally binding regulations” set by the Attorney-General, and that the Commission issues guidelines to help people understand and meet them. For the Premises Standards it lists the Standards themselves, its 2013 guidelines on how they apply, and a 2021 government review.

The Standards state two objects. The first is “to ensure that dignified, equitable, cost-effective and reasonably achievable access to buildings, and facilities and services within buildings, is provided for people with a disability”. The second is to give certifiers, developers and managers certainty that access provided in line with the Standards will not be unlawful under the Act, to the extent the Standards cover it.

Does a shop or café count?

The Standards apply to a new building, and to a new part and any affected part of a building, where the building is (among others) “a Class 3, 5, 6, 7, 8, 9 or 10 building”. The National Construction Code describes a Class 6 building as a shop or other building used for retail sale of goods or for supplying services direct to the public, and its list includes “An eating room, cafe, restaurant, milk or soft-drink bar.”

Whether a fit-out is new is set by dates. A part of a building is a new part if it is an extension or a modified part and an application for approval for the building work “is submitted, on or after 1 May 2011, to the competent authority in the State or Territory where the building is located” (with a separate test for Crown work).

The new part and the affected part

This is the clause that makes a small fit-out reach beyond its own walls. Section 2.1(5) of the Standards reads:

“An affected part is: (a) the principal pedestrian entrance of an existing building that contains a new part; and (b) 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.”

Disability (Access to Premises - Buildings) Standards 2010, section 2.1(5)

The Standards do not apply to the inside of a sole-occupancy unit in a Class 2 (apartment) building, and a note adds that the Disability Discrimination Act itself “applies to actions relating to buildings to which these Standards do not apply.”

Who has to make it comply

Section 3.1 says a building certifier, building developer or building manager of a relevant building “must ensure that the building complies with the Access Code”, the code set out in Schedule 1 of the Standards. Each of those roles is defined by responsibility or control, and the Standards give examples:

The Access Code is deemed to be met by certifiers and developers when a building complies with clauses D3.1 to D3.12, E3.6, and F2.2 and F2.4 of the Access Code (Part H2 as well for public transport buildings). Those deemed-to-satisfy clauses are limited to design and construction, and the Standards say they are not meant to limit other ways of meeting the performance requirements. The Access Code is based on the Building Code of Australia; in today’s National Construction Code, access for people with a disability sits in Part D4 of Volume One. Which edition applies to your approval depends on the state’s adoption date, listed by the Australian Building Codes Board.

A concession for tenants

Section 4.3 deals with lessees directly. Where the lessee of a new part submits the application for approval of the building work, the building certifier, building developer and building manager “do not have to ensure that the affected part of the building complies with these Standards”. That concession does not apply “if a building with a new part is leased to only 1 person.” In this guide’s reading, set against the drawing above: when a tenant in a shared building applies for approval of its own fit-out, section 4.3 lifts the duty to bring A and B up to the Access Code, and it does not lift it where the whole building is leased to one person.

Unjustifiable hardship

The Standards say it is not unlawful to fail to comply with a requirement “if, and to the extent that, compliance would impose unjustifiable hardship”, but compliance is still required “to the maximum extent not involving unjustifiable hardship.” Their example: enlarging a lift may be unjustifiable hardship, while upgrading the lift control panel with braille and tactile buttons may not be.

All relevant circumstances are taken into account. Section 4.1(3) lists sixteen, (a) to (p), opening with the extra capital, operating or other costs and any lost revenue that compliance would cause, then the savings or extra revenue it would bring. Later in the list come the financial position of the person who must comply, technical or geographic factors such as load-bearing elements or gradient, whether the cost of making the premises accessible is disproportionate to the building’s value, “taking into consideration the improved value that would result from the alterations”, and evidence of good-faith efforts to comply, including consulting access consultants or building certifiers. Whether hardship applies is decided on the facts of each case, which is why the Commission’s guidelines and the advice of an access consultant or certifier matter.

Two other concessions in the Standards

• Existing lifts (section 4.4). The Access Code’s minimum lift floor of 1,400 mm by 1,600 mm does not apply to an existing passenger lift in a new or affected part that travels more than 12 m and has a floor of at least 1,100 mm by 1,400 mm.
• Existing accessible toilets (section 4.5). Paragraphs F2.4(c) and (e) of the Access Code, “to the extent that they require compliance with” AS 1428.1-2021, do not apply to existing accessible sanitary compartments, or to existing ones suitable for people with a disability, where they comply with AS 1428.1-2001 and are located in a new part of a building.