Local government liability for permitting inaccessible development
The Disability Discrimination Commissioner was recently asked to comment on a South Australia Environment, Resources and Development Court ruling on a City of Adelaide requirement that access be provided to a swimming pool in a hotel development.
The Commissioner's response to the request includes an update on developments in relation to a proposed DDA Disability Standard on access to premises and is published here for others interested.
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Thank you for your letter seeking comment on the recent case before the South Australian Environment, Resources and Development Court in Pruszinski Architects P/L v City of Adelaide (No 84 of 2001).
As I understand it the case involved an appeal in relation to a condition imposed by the City of Adelaide that a swimming pool to be located in a hotel be made accessible for people with disabilities. The appeal argued that access to the pool itself was not required in the current BCA and that there would be difficulties achieving the condition relating to access to the swimming pool.
From the information available to me it appears that the Council sought to impose the condition following their assessment of the access requirements of the DDA and an assessment of the views previously expressed by me about Local Government responsibilities when exercising their development approval functions.
The Environment, Resources and Development Court decision concluded that in its view "it is not appropriate to seek to enforce the Disability Discrimination Act through the Building Rules provisions of the Development Act". In other words the Court appears to have taken the view that the City of Adelaide would be acting outside its authority to apply a condition that, in their view, goes beyond the requirements of the South Australia Development Act and Building Code. The Court deleted the requirement for access in the approval.
I would like to comment on a number of issues arising from the specific case and broader questions relating to Local Government responsibilities under the DDA.
Access in this particular matter
In relation to this particular matter I would like to repeat the advice provided to your office in December 2000. First, it is my view that access to and into a swimming pool is covered by the provisions of the DDA. Secondly, any service provider or property owner/operator who failed to provide equitable access would be liable for a complaint under the DDA. Thirdly, if a complaint were lodged with the Commission and conciliation was not possible, the complainant could take their complaint to the Federal Court or Federal Magistrates Service for determination.
The question of whether or not the requirement to provide access constituted an unjustifiable hardship could be determined only by the Court or Magistrates Service.
Finally, the fact that the BCA or any particular Australian Standard may or may not address the question of swimming pool accessibility may not be decisive in terms of responsibilities under the DDA. The Environment, Resources and Development Court quite correctly noted that their decision did not mean the developer was not bound by the provisions of the DDA.
Indeed the Court went to some lengths to make it clear their decision should not be interpreted as a statement that access for people with disabilities was not important and concluded "Developers will be wise to heed the provisions of the Disability Discrimination Act when designing and undertaking building development."
Should the development in question go ahead without providing access to the pool there would be an ongoing liability for complaints under the DDA.
Local Government liability
In relation to the question of the responsibilities of the City of Adelaide, and Local Government in general, clearly the Environment, Resources and Development Court expressed a different view to the one expressed by the Commission and the Federal Court in relation to a NSW case involving Cooper v Coffs Harbour City Council. It is important to bear in mind that these bodies operate under differing legislation. In the Cooper v Coffs Harbour case, the Federal Court primarily considered the issue of what constitutes "permitting" once unlawful discrimination has been found.
The Environment, Resources and Development Court said that it is legally inappropriate for the City of Adelaide to pursue the objects of the DDA by imposing conditions under the building provisions of the local Development Act. The implication of that view is that Local Governments in South Australia would have no liability under section 122 of the DDA for permitting a discriminatory action.
As you know I have expressed a view, based on the Commission and Federal Court decisions in Cooper v Coffs Harbour City Council, that Local Governments throughout Australia may face a similar liability for successful complaints under section 122 if they fail to adequately consider the DDA when exercising their approval authority and approve a development which is subsequently proven to be discriminatory.
Details of my comments and advice given to Local Governments on this matter can be found on the Commissions web site at http://www.humanrights.gov.au/disability_rights/faq/Local_govt/local.htm
The NSW case referred to the existence of broad 'permissive' powers under s 90 (at that time) of the Environmental Planing and Assessment Act. (EPAA). The Council had argued that it was beyond its power to impose a condition to provide access for people with disabilities, because that would, in effect, import into the assessment process factors that were beyond the scope of their Act. The Commission rejected that argument on the basis that such an issue was both a matter of "public interest", and constituted a relevant "circumstance of the case". As such the Council was authorised to consider wheelchair access under s 90 of the EPAA.
I believe that Local Governments outside of NSW should look very closely at their respective powers and responsibilities when assessing their own liability.
Ultimately, it will up to the Courts to decide on this question as further case law develops as a result of DDA complaints.
Advice to Local Government
Following the decisions in Cooper v Coffs Harbour City Council I provided advice in the document referred to above on how Local Governments might establish a mechanism for responding to this responsibility and processing appeals from developers who considered they faced an unjustifiable hardship in relation to the requirements of the DDA. Essentially that advice included:
1. Developing an access policy or Development Control Plan (DCP) that, as closely as possible, reflects responsibilities under the DDA. This could involve an assessment of relevant documents and case law such as the current BCA, the Building Access Outcomes Report and the Regulation Document RD/9701 issued by the Australian Building Codes Board (ABCB) and available through their web page at http://www.abcb.gov.au/content/publications/ , the Commission’s own Advisory Notes access to premises and a number of DCPs already developed by Local Governments. Clearly until such time as the BCA is changed to achieve consistency with the DDA any policy or DCP developed by a Local Government could only act as a guide to minimise the chances of complaint. The Commission recognises the difficulty this limit imposes and is working closely with the ABCB, disability community, industry and government to conclude discussions and consultation on the development of a DDA Disability Standard on access to premises that will address many of those difficulties.
Nonetheless, I believe that developing and implementing a policy or DCP will both improve access in the built environment and significantly reduce the current liability.
2. Providing information on the policy or DCP at an early stage in the development application process so that designers and developers are clear about what will be expected of them before applications are lodged. This would also include a pro-active education strategy with local designers, builders, Building Surveyors and potential applicants to ensure they addressed access issues in the early design stage.
3. Establishing a mechanism or appeals process, in consultation with local experts and advisory bodies such as Access Committees, for dealing with requests from applicants for variations or exemptions from compliance with the policy or DCP on the grounds that they believed they faced an unjustifiable hardship. Clearly such a mechanism is likely to be most relevant to applicants undertaking new work on existing buildings rather than new proposed buildings. The purpose of such a mechanism would be to assist Local Governments to apply a rigorous assessment to an applicants case, one that would stand up to the scrutiny of a court should a complaint be lodged against a Local Government in relation to an approval for a development which was subsequently the subject of a successful DDA complaint.
Such a mechanism would include procedural guidelines to assist decision makers in their role and would need to include training of appropriate staff in the DDA and its application.
The mechanism should assist a Local Government to make the best possible decision and thereby reduce their own liability. Such a mechanism, if applied, would not give either the applicant or the Local Government absolute protection, but it will significantly reduce the likelihood of complaints. The difficulties associated with making assessments on claims from applicants are obvious and there is no formula that can be simply applied in each case, but as the NSW case law shows, approving an application without a thorough assessment of DDA requirements and rigorous assessment of claims of unjustifiable hardship could lead to successful complaints.
Some Local Governments have responded to the advice provided and established DCP’s and appeals mechanisms and discussions are taking place which will hopefully lead to the Commission being able to make information available on our web site.
Developments in relation to a DDA Disability Standard
Finally, I would like to provide you with an update of current discussions in relation to the development of a DDA Disability Standard on access to premises and a proposed Administrative Protocol currently under discussion.
As you will be aware the DDA now includes a provision to allow for the development of a DDA Disability Standard and the Minister for Industry, Science and Resources has formally asked the ABCB to develop a draft through the Building Access Policy Committee (BAPC) which includes representatives from the ABCB, disability community, industry, Standards Australia, the Australian Local Government Association, design professionals, government and the Commission.
The BAPC has set itself a goal of producing a draft for consultation as soon as possible and the ABCB will be providing progress reports through its web page http://www.abcb.gov.au/ and other sources. We are confident of significant progress within the next 12 months.
A full and complete DDA Disability Standard is likely to consist of a number of parts covering buildings and other aspects of the built environment including, fixtures and fittings, streetscape, open spaces such as parks and matters concerning the management of buildings to ensure access is retained.
The first part of a DDA Disability Standard, however, will be addressing those things that are currently covered by the BCA which primarily consists of the building structures themselves. Agreement has been reached that the DDA Disability Standard will effectively pick up and reflect the access provisions in a new revised BCA. This will mean that someone building in accordance with a future revised BCA will be sure of complying with the DDA Disability Standard and will therefore effectively be protected from successful complaints under the DDA.
When this is achieved Local Government will have a clear benchmark against which to assess development applications and building certification in relation to those parts of new buildings covered by the access provisions of the BCA. At that point in time any access policy or DCP should be revised to include the specific requirements of the new BCA/DDA Disability Standard and the Local Government would be justified in believing their approval of something that met the BCA/DDA Disability Standard could not result in a successful DDA complaint against the developer or themselves.
Ongoing role for Local Government
There would, however, continue to be three areas where Local Governments may continue to have a role to play in relation to important access questions.
- First would be situations in which there was some question of interpreting whether or not something actually met the deemed-to-satisfy provisions of the BCA/DDA Disability Standard and whether an alternative performance solution met the Performance Requirements of the BCA.
- Secondly, there may continue to be questions raised by applicants about possible exceptions from compliance with the access provisions of a revised BCA/DDA Disability Standard in relation to new work on existing buildings.
- Thirdly there may be issues not covered by the access provisions of a BCA, but which may still come under the authority of the Local Government in terms of approvals. For example issues relating to streetscape, parks, recreational areas and outdoor services such as pavement restaurants or cafes.
In all three areas the Local Government may continue to have a liability if they approved a development that was subsequently the subject of a successful complaint.
In the first two of these areas, questions of interpretation and questions of full application of the revised BCA/DDA Disability Standard to existing buildings, the BAPC has been working on developing a nationally consistent Administrative Protocol that will provide guidance to building regulators faced with questions of interpretation or appeals by developers and owner/operators.
I have supported discussions on the development of a draft protocol as I believe there will be real questions of interpretation and legitimate questions of application of a new BCA to some existing buildings and a protocol has the potential to deliver non-binding but effective results in relation to these questions.
The protocol would involve establishing a mechanism at a state/territory level to deal with interpretive questions for new and existing buildings and application questions in relation to existing buildings that trigger the new BCA as a result of new work or change of function. The mechanism would include setting up an Access Panel and drawing on Access Experts to assist in decisions making. While use of the protocol could not eliminate the right of individuals to pursue a complaint in the event that a decision of an Access Panel resulted in a discriminatory barrier, it would assist in ensuring consistent and rigorous analysis of individual circumstances.
The mechanism would, however, reduce the chances of complaints being lodged and significantly reduce the likelihood that complaints would be successful. As such it would provide a similar level of protection to that available to Local Governments who have acted on my advice following the Cooper v Coffs Harbour case.
I do not envisage every question of interpretation, or application of the BCA to existing buildings, will be forwarded to a state/territory wide Access Panel for consideration. Local Governments will in many instances feel competent to make those decisions. In that context I believe those Local Governments that have established mechanisms and undertaken staff training to respond to their current possible liability will be in a very good position to respond once a new BCA/DDA Disability Standard and Administrative Protocol are adopted.
In addition a local mechanism could assist Local Governments faced with questions in relation to the third element identified above - those issues not covered by the access provisions of a BCA, but which may still come under the authority of the Local Government in terms of approvals.
In conclusion I would say that I am still of the view that Local Governments may face a liability for complaint under section 122 of the DDA if they approve a development which is subsequently the subject of a successful DDA complaint. This liability can be reduced through the establishment of a local mechanism to better define access and deal with appeals from developers.
Discussions are taking place at a national level with a view to establishing an Administrative Protocol that looks very similar in structure and function to the mechanism I have proposed at a local level and, irrespective of interpretation of the liability of Local Governments under section 122, I would suggest it would be a valuable mechanism for all Local Governments to establish – both to manage their ongoing responsibilities and encourage an inclusive environment.
The issues your questions raise have relevance to other Local Governments throughout Australia so I will be forwarding copies to various Local Government Associations and making this response available through our web page.
Yours sincerely
Dr Sev Ozdowski OAM
Disability Discrimination Commissioner
10 July 2001