Disabled Access – Existing Buildings

The Disability (Access to Premises – Buildings) Standards 2010 or more commonly known as ‘The Premises Standards’ commenced way back on 1 May 2011 yet is still not very well understood by professionals in the construction industry particularly with regard to its application to existing buildings.

Let us try to shed some light on this.

If a building complies with the Premises Standards, those responsible for the building (ie design architect, builder, building surveyor, owner etc) cannot be subject to a successful complaint of unlawful discrimination for inadequate disabled access under the Disability Discrimination Act 1992 (Cth) (DDA) in relation to the matters covered by the Premises Standards.

The purpose of the Premises Standards is to both provide for equitable and dignified access to new buildings and those areas of existing buildings that undergo renovation or upgrade that requires a building approval/permit and also provide a minimum benchmark for compliance for those responsible for the design, management and approval of the works.

Generally speaking, if a building permit is required within an existing building then the requirements for upgrading access to comply with the Access Code is limited to the ‘affected part’ only and not the whole building. However, this varies from state to state since it is driven by the State legislation of which each state has it’s own separate set of regulations (some states are very loose on the issue and some, like Victoria are quite rigid). ‘Affected part’ means the new works or part and the area between (and including) that area and the main entrance of the building (main entrance is also called the Principle Pedestrian Entrance). It does not extend to the allotment boundary or any required carparking spaces or to any toilet facilities or other rooms adjacent to or outside that pathway. There are various exceptions and concessions to this rule as noted below.

The Premises Standards do not apply to all of the building Classifications or parts and also allow certain concessions in accordance with Part 4 for the following cases even when the proposed works are part of the ‘affected part’ –

  • Existing building lifts travelling more than 12 m
  • Existing accessible sanitary facilities if they comply with AS 1428.1 (2001)
  • Unjustifiable hardship (although very hard to justify this and not an approach we take)
  • Lessee concessions where a building is occupied by more than one tenant

State and territory building regulations require compliance with the Building Code of Australia (BCA) and compliance with the access provisions of the BCA also ensures compliance with the Access Code. This can be achieved either by a Deemed to Satisfy approach (complying with the BCA and relevant Australian Standard ie for example AS 1428.1) or by a Performance Solution (previously known as an ‘alternative building solution’ or ABS) issued by a qualified Access Consultant and supported by the Relevant Building Surveyor (RBS).

The Premises Standards allows for innovative solutions by qualified Access Consultants through the development of alternative approaches so long as the solution satisfies the relevant Performance Requirements of the Access Code. This can be via a Performance Solution report based on any of the assessment methods listed in Part A0.5 of the BCA (Volume 1) for Class 2 to 9 buildings. The BCA (Volume 2) also allows the use of Performance Solutions via the Assessment Methods listed in Part 1.0.9 in that code. In each case, when issuing a Performance Solution, an Access Consultant must demonstrate that the solution complies with the relevant Performance Requirements and in most cases this will be via a comparison to the Deemed to Satisfy Provisions or by Expert judgement.

We have heard some noise recently that clients should be wary of accepting Performance Solutions issued by Access Consultants when the issue is based solely on Expert Judgement. Our response to this is that any Performance Solution carries some level risk of being challenged in court (fire engineered or Access related) and the Relevant Building Surveyor (RBS) must therefore be vigilant particularly with accepting Performance Solutions that address issues of high risk and have inadequate substance from an Access Consultant. In terms of Performance Solutions, the definition in the BCA of ‘Expert Judgement’ is the judgement made by an expert who has the qualifications and experience to determine whether a Performance Solution complies with the Performance Requirements. It is therefore very important that the RBS is satisfied that the Access Consultant meets those requirements.

At Stonehenge Consulting, we are qualified in Access Consulting and Building Surveying and have over 25 years experience in this specific industry.

If you have a project that requires a building permit/approval and the works are for an existing or proposed building we can provide assistance to your own specific scenario and advise what level of disabled access would be required to comply with the Access Code. This can be done by requesting an Access Design Audit Report. For existing buildings, we recommend that we carry out a site inspection (ideally once the proposed plans are available) and for new buildings we can do Desktop Design Review. The report would also highlight whether any Performance Solutions would be feasible to allow partial compliance with the Access Code depending on the challenges and risks encountered.