First published in 201 as a beginners guide and revised in 2014 with readers input and a special thanks to Bonnie Kurbis for assisting with publishing.

Access to Premises Standard or just Premises Standard is the abridged name for the Disability Access to Premises (Building) Standard 2010 document referenced within the Commonwealth Disability Discrimination Act of 1992 (DDA). The Premises Standard is intended to give greater legal weight to the provisions for disability access within the Building Code of Australia (BCA), and in practice, the Premises Standard mutually recognises the BCA and Visa Versa, meaning that compliance with the BCA is to comply with the DDA.

Premises Standard History

Immediately following the introduction of the DDA in 1992 there was a level of awareness within the Architectural community about the veracity of the DDA and acceptance of the general principles of providing barrier free entry to buildings, services and facilities within the BCA. However, the Australian construction industry supply chain is at best unregulated and at worse requires punitive sanctions to motivate compliance, which gave reason for federal intervention.

Another problem was that prior to the Premises Standard the BCA and AS 1428.1 Design for access and mobility described ways of meeting the BCA, yet meeting the BCA per se didn’t confer compliance with the DDA and exposed the design team to complaints.

The Premises Standard provides a level of certainty that the BCA performance provisions inter alia Australian Standards satisfactorily addressed their obligations to people with disabilities. Quid pro quo, providing a level of access comparable to the BCA would enable people with physical challenges to do the things others take for granted such as shopping and going to the cinema.

Premises Standard Politics 

The Premises Standard first drafted in the late 1990’s by the then Liberal Government, yet delayed by the attorney General Philip Ruddock for indeterminate time and reasons. Meanwhile in the US, the George W. Bush administration introduced the Americans with Disability Act  that was a patriotic move to accommodate returned veterans from Gulf conflicts and Toni Blair made similar moves in the UK. Both the US and UK laws had elements of retrospectivity, meaning upgrading existing parts of the buildings when renovating.

A change in government brought forward a backlog of bills including the Premises Standard that was finally enacted  in 2010 by the Attorney-General Robert McClelland (Labor) and inforce May 2011.

Premises Standard Review

A 5 year review and public feedback on the Premises Standard is slatted for 2015 and recommendations for amendments will likely follow.  Some of the early recommendations for amendments include:

  • broadening of the Lessees Concession to include strata owners
  • inclusion of building elements such as service counters
  • broadening the ambit to include public areas particularly council footpaths in strip shopping areas that tend to disadvantage small shops.
  • including or excluding tourism and health promoting and disability prevention facilities and challenges such as skate parks and forest trails.

Hypotheticals/ Case Studies

Disability (Access to Premises — Buildings) Standards 2010

  1. Existing Building no Changes
  2. Upgrading in response to a complaint
  3. Upgrade Plan
  4. Alt-adds Completed to the Access to Premises Standard (APS)
  5. Alt Adds affecting the existing building
  6. Lessees Concession
  7. Works to which the BCA and APS do not apply
  8. Unjustifiable Hardship

Illustrated Guide to the Premises Standards

This access to premises building standards dummies_Guide illustrates the premises standard through the eyes of a typical person who would benefit from the laws…

A man with a walking frame lodges a complaint against his local shopping centre after his regular quarterly appointment with his optometrist.

1. Existing Buildings with No changes

The DDA 92 will continue to apply to actions relating to publicly accessible buildings and place. If a client regularly visits a service provider and can no longer as age or illness makes minor barriers such as steps insurmountable, then the client may have grounds for complaint.

In mediation it was found that the man had been visiting the Optometrist every 3 months due to his worsening aged related macular degeneration and had asked that the O&M Mall management provide safe priority accessible parking at the entrance and clear signage.  O&M maintained that they treat all old people equally and refused the request.

The tribunal determines that access to the services be provided equally to vision impaired person as provided to that same person without the acquired condition. The hearing was adjourns to allow further mediation.

2. Upgrading in response to a complaint

In addressing a complaint O&M may commit to carrying out upgrade works to the current standard and it’s possible that in most circumstances the level of upgrade work required in a dispute settlement will be limited to the premises Standard and minimum BCA standards.

Prior to mediation O&M find that the carparking had already been installed 20 years earlier however, maintenance sign writers had overtime reduced the accessible carpark widths and removed wayfinding signage. The O &M Mall management agree to compensate for the lost appointment and install new line marking and signage to the present standard.

3. Upgrade plan

A Disability Action Plan made under Section 60-65 of the DDA permits an act of discrimination with respect to existing buildings and sets a time period for remedy.

In mediation it is found that the Mall had been initially constructed in the 1960’s and had not been upgraded for 50 years. The Centre managers agree to upgrade the mall access over five years and to publish the proposed building upgrade schedule in the next ‘Coffee News’.

4. Alt-adds Completed to the Access to Premises Standard 

For new buildings the APS requires that the proposed buildings meet the standard at the time of building approvals and on completion. (4)

In mediation it was found that recent extensions to the O&M-Mall carparking were constructed to the current standards AS2890.6 for accessible carparking and although the specified required bollard can make manoeuvring difficult; the work has been verified by an access consultant to meet the Premises Standard and the complainant is dismissed.

5. Alt-adds affecting the existing building

The Premise Standard requires that a new part of a building be constructed to the standard and that a path from the existing main entry to the alterations and additions be upgraded.

In mediation it was found that the entry threshold to the optometrists had increased from 35 mm to 75 mm when a new floor and sprinkler system were installed in the Mall.  The level differences escaped the notice of the design-construct team when the contract package was nova-ted from the designer and the PCA in review, identified a minor oversight.

The complainant accepts a financial contribution to new eye-wear and a holiday to overcome the stress and inconvenience.  O&M centre management agree to install a new raised floor throughout to rectify the entries to tenancies and commence discussion with the design development team on costs.

6. Lessees Concession I  Strata? 

For buildings with more than one tenant the managers are not necessarily required to upgrade the path of travel to the new works and in most cases are able to limit the affected part to within the zone of the new work.

In mediation it was found that the optometrist had correctly installed a new accessible toilet to the latest AS 1428.1 standards and that the Access consultant statement had limited the required upgrade under the APS to the area of the new works within the tenancy.

The works were limited to within the tenancy and the building applicant is the tenant, O&M were also relieved of upgrading access from the entry to the alterations.  The Access statement secured O&M and the design and development team against a complaint, however;- (continued)

7. Works to which the BCA and standard do not apply

Compliance with the APS, BCA and referenced standards does not imply that areas outside of the standard or beyond the scope of the BCA will not be of concern to people with access needs.

(Continue) The complaint became focused on the optometrist as the display racks on the path to the toilet had not changed and were not required by the PCA to be rearrange, it was merely a recommendation of  the access consultants design report.

At the time of the optometry appointment the man couldn’t negotiate to the WC in timely manner and suffered hurt, humiliation and embarrassment as a result.

Not wanting to pursue the matter through the tribunal the optometrist settled for an amount and agreed to clear an accessway from the entry, reduce the reception counter height to 850 mm to facilitate communication and tutor staff on the appropriate responses to mobility impaired clients.

The DDA 92 applies to actions relating to buildings to which the BCA and standards do not apply. The Disability Discrimination Act 1992 (Commonwealth) Section 23 makes it unlawful to discriminate against another person on the ground of the person’s disability in relation to access to or use of premises.

8. Unjustifiable Hardship

The Premises Standards recognises some practical constraints to complying with the access provisions. The DDA provides a concessions or exception where avoiding discrimination would impose unjustifiable hardship.

The following is an example only of a likely scenario to be faced by the Access Panel;-

The increase in trade that flowed from upgrading pedestrian access to the Mall prompted O&M to strata the tenancies and the Optometrist purchased his own tenancy and an office above for a combined total of 450 sqm. The Optometrist plan is to install connecting stairs to create a Mega-Optometry store including retail downstairs and examinations and admin upstairs.

To do this the local building authority requested an upgrade to fire safety features including new sprinklers and the existing plaster walls and ceilings be lined with new Fire-Check-Gyprock.

The new works triggered the building application process which in turn triggered the APS. On the Architects advice; providing access to the affected parts means he may need to install a lift.

The budget for the new works came in at $30,000 for the new stairs, fire rating a further $15,000 and a lift a further $70,000. The Optometrist believes ‘the lift imposition is unfair and unreasonable’ and submits a claim for an exemption to the PCA who then forwards the application to the Access Panel for review.

The High Court provide that: “In determining what constitutes unjustifiable hardship, all relevant circumstances are to be taken into account. They include, relevantly, the nature of the benefit or detriment likely to accrue to, or be suffered by, the persons concerned, the effect of the disability, and “the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship”. [1]

The newly established process in NSW for determining UH follows that the Building Certify Authority (PCA) lodges an application, include financial statements, cost estimates and Access Consultants reports to an appointed State Access Panel for review and comment.

The Access Panel hands a recommendation to the certifier who is charged with making a final determination, presumably based on the Access panel’s recommendations.

We can only speculate on the possible outcomes of the UH process and at this stage its raising more queries than answers:

    • Will the Access Panel agree with the optometrist that the cost escalation for access will be 3 times the initial cost and therefore unjustifiable?
    • Will AP find the additional access works fair and ‘reasonable’ or ‘unreasonable’ and an unjust imposition?
    • Will they figure a % difference between the costs of the initial works and providing access is unjustifiable?
    • What if the PCA rejects the Access Panel’s recommendation and approves works which on completion is subject to a claim from a man with a walking frame backed by the legal wait of a leading Retinitis action group?

There have been few successful claims of unjustifiable hardship.

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References and Credits:

1. HIGH COURT OF AUSTRALIA: Purvis v New South Wales (Department of Education and Training)
2. Applying for an unjustifiable hardship exemption (NSW):
Part 4 of the Premises Standards outlines exceptions and concessions, including that it is “not unlawful for a person to fail to comply with a requirement of these Standards if, and to the extent that, compliance would impose unjustifiable hardship on the person.” More here..

3.Disability (Access to Premises — Buildings) Standards 2010, Under subsection 31 (4) of the Disability Discrimination Act 1992.

4.  Explanatory Statement Disability (Access to Premises—Buildings) Standards 2010 , Issued by the Authority of the Attorney-General.

Disability (Access to Premises—Buildings) Standards 2010Building certifiers, developers, and managers will be protected from complaints of unlawful discrimination under the DDA in relation to acts done in compliance with the Premises Standards  Conversely, section 32 of the DDA provides that it is unlawful for a person to contravene a disability standard.  Failure to comply with the Performance Requirements of the Premises Standards will thus be unlawful under the DDA unless unjustifiable hardship is established under the Standards..

5. Victorian Building Commission. More Here..

6. Building certifier responsibilities, regarding access for people with a disability, Version 1.1. Guideline  © State of Queensland. Published by the Department of Local Government and Planning,  August 2011, 100 George Street, Brisbane Qld 4000.

7. Association of Consultants in Access Australia. More Here

Contact us before acting on advice: The cases used here to illustrate access laws are likely scenarios based on claims statistics reported by State and Commonwealth Anti-Discrimination Commissions.  Any similarity to actual people, places or events is serendipitous and of course the information provided is general in nature and not legal and we strongly advise readers that if you feel a connection with the situations described then contact us for advice.