No. H.97/232
Number of pages - 19
IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992
R NETTLEFOLD
COFFS HARBOUR, 3 December 1997 (hearing), 18 May 1998 (decision)
#DATE 18:05:1998
Appearances:
Mr Paul Batley of Legal Aid New South Wales for the Complainant
Mr Bill Langler of Murray Backhouse Turner Lawyers (New South Wales and Queensland) for the Respondent
Order: complaint dismissed
R NETTLEFOLD
1. INTRODUCTION
By a referral dated 7 October 1996 the Disability Discrimination Commissioner, being of the view that the complaint was not amenable to conciliation, referred the complaint for an inquiry by the Human Rights and Equal Opportunity Commission ("the Commission"), pursuant to a power granted to her by s.76(1)(a) of the Disability Discrimination Act 1992 (Cth) ("the DDA").
The complaint dated 7 August 1995 was lodged on behalf of the members of the North Coast D.I.A.L. Inc. ("North Coast D.I.A.L.") who are confined to wheelchairs. The complainant's letterhead indicates the letters D.I.A.L. stand for Disability, Information, Advocacy and Lifestyle. The complaint was lodged against two parties: Holiday Coast Cinema Centres Pty Ltd ("the Cinema Centre") and the respondent, Coffs Harbour City Council ("the Council"). The complaint against the Cinema Centre alleges breaches by it of sections 23(1)(b), (c) and (e) and 24(1)(b) and (c) of the DDA. That complaint has been the subject of a separate inquiry before the Commission.[1] The complaint against the respondent was said to be under s.24 (1) (b) and (c) of the DDA. It alleged that the respondent allowed the Development Application in relation to the Cinema Centre to proceed without the provision of access for North Coast D.I.A.L. members who are confined to wheelchairs and, as such, is discriminating in the provision of services to those members.
The letter of complaint dated 7 August 1995 sets out the basis of the complaint. The basis of the complaint was described as follows:
"Holiday Coast Cinema Centres are constructing a new cinema in the Coffs Harbour Cinema Complex, in Coffs Harbour.That Coffs Harbour City Council, Planning, Environment and Development Committee, at it's meeting of 11 May 1995, approved the Development Application, with the knowledge that the cinema would not be accessible to people who are confined to wheelchairs.
If Holiday Coast Cinema Centres Pty Ltd does not construct the new cinema so it is accessible to our Members who are confined to wheelchairs, they will not be able to access this new cinema or use the services provided within it. If this is so the Holiday Coast Cinema Centres Pty Ltd will be discriminating against our Members who are confined to wheelchairs in relation to the means of access they will have to the new cinema in the Cinema Complex, as well as in relation to the provision of services and facilities provided in the new cinema. This will cause great inconvenience and distress to our Members, especially if
(i) Our Members wish to visit the cinema with their families or friends;
(ii) They wish to utilise any service which may be provided in the new cinema.
Therefore I request that the Commission investigate this matter and desire that the Holiday Coast Cinema Centres Pty Ltd be ordered to construct the new cinema of the Coffs Harbour Cinema Complex so that it is accessible to our Members who are confined to wheelchairs.
I also wish the Commission to investigate the matter against Coffs Harbour City Council and an order be made that the Council not grant any development applications when it is aware that the proposed construction will discriminate against people with disabilities in the provision of access and services."
At hearing, the inquiry proceeded, without objection, on the basis that the persons, on whose behalf the complaint was lodged, were claiming compensation and other remedies against the respondent for breach not only of s.24(1)(b) and (c) of the DDA, as alleged in the complaint, but also s.23(1)(b),(c) and (e).
2. RELEVANT PROVISIONS OF THE DDA
The sections of the DDA mainly relied on during the inquiry were sections 3, 11, 23, 24, 47(3) and 122. Those sections read as follows:
"SECTION 3 OBJECTS3 The objects of this Act are:
() to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
() work, accommodation, education, access to premises, clubs and sport; and
() the provision of goods, facilities, services and land; and
() existing laws; and
() the administration of Commonwealth laws and programs; and
() to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
...
SECTION 11 UNJUSTIFIABLE HARDSHIP
11. For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:
(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and
(b) the effect of the disability of a person concerned; and
(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and
(d) in the case of the provision of services, or the making available of facilities - an action plan given to the Commission under section 64.
...
SECTION 23 ACCESS TO PREMISES
23 (1) It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:
(a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or
(b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; or
(c) in relation to the provision of means of access to such premises; or
(d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or
(e) in the terms or conditions on which the first-mentioned person is prepared to allow the other person the use of any such facilities; or
(f) by requiring the other person to leave such premises or cease to use such facilities.
23 (2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability in relation to the provision of access to premises if:
(a) the premises are so designed or constructed as to be inaccessible to a person with a disability; and
(b) any alteration to the premises to provide such access would impose unjustifiable hardship on the person who would have to provide that access.
...
SECTION 24 GOODS, SERVICES AND FACILITIES
24 (1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
24(2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.
...
SECTION 47 ACTS DONE UNDER STATUTORY AUTHORITY
...
47(3) [Another law] During the period beginning at the commencement of this section and ending 3 years after the day this section commences, this Part does not render unlawful anything done by a person in direct compliance with another law.
...
SECTION (122) LIABILITY OF PERSONS INVOLVED IN UNLAWFUL ACTS
122 A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2, or 3 of Part 2 is, for the purposes of this Act, taken also to have done the act."
3. STATEMENT OF AGREED FACTS
At the hearing, the parties produced a "Statement of Agreed Facts and Matters to Be Determined By the Inquiry". It reads as follows:
"STATEMENT OF AGREED FACTS AND MATTERS TO BE DETERMINED BY THE ENQUIRYAgreed facts
1. The Human Rights and Equal Opportunity Commission (in proceedings no 96/157) determined on 29 August 1997, that Holiday Coast Cinema Centres Pty Ltd, ("HCCC") engaged in conduct in breach of s.23 of the Disability Discrimination Act 1992 ("DDA") by discriminating against the Complainants on the grounds of the Complainant's disabilities (the disabilities giving rise to difficulty in mobility) by imposing terms and conditions on which the HCCC, was prepared to allow the Complainant's access to HCCC's Cinema Complex in Vernon Street Coffs Harbour ("the premises"), being a condition that the Complainants be able to access such Complex by making use of the stairways contained in the said premises (or, otherwise, be forced to submit to assistance in the form of being physically carried up the said stairways).
2. That the Respondent is "a person" for the purposes of the Disability Discrimination Act 1992.
3. The complainant, Ian Cooper and the members of North Coast D.I.A.L. Inc. who use wheelchairs are people who each have a disability within the meaning of the DDA.
4. In or about October 1990 the Respondent formed a Disability Access Committee.
5. On 21 October 1994, a development approval (No. 225/94) was granted by the Respondent to HCCC to redevelop the premises from a 3 theatre complex to a 5 theatre complex at an estimated cost of $800,000.00. A condition of the development approval was the inclusion of lift access. HCCC never took up this approval.
6. On 7 April 1995, HCCC lodged a further Development Application No. 88/95 ("the Development Application") with the Respondent for alterations to the Cinema Centre at Lot 33 DP801765, Vernon Street Coffs Harbour. The Development Application proposed adding a third theatre (with 103 seats) to the premises, resulting in a reduction in seating capacity of the other existing two (2) theatres from 553 to 395 seats, being an overall reduction in total seating of 55 seats.
The Development Application made no provision for disabled access to the existing premises.
7. On 8 April 1995 the operator of the Cinema, John Madge, and the architect who prepared the Development Application, Ross Colquhoun, attended a meeting of the Respondent's Technical Liaison Committee which included the following members of the Respondent's staff: C Spring, K Maquire, M Hannon, G Power, M Salten, J Kilbourn.
8. The Development Application was again considered by Council's Technical Liaison Committee on 11 April 1995. Of the matters raised for consideration at the meeting was the need to determine disabled access and facilities.
9. By letter dated 26 April 1995, HCCC made written submissions to the Respondent claiming the imposition of a condition to provide disabled access would result in unjustifiable hardship to HCCC.
10. On 13 April 1995, the Respondent wrote to the Senior Policy Officer of the Human Rights and Equal Opportunity Commission seeking urgent advise (sic) to assist the Respondent in its determination of disabled access issues to existing public buildings including the premises the subject of the Development Application.
11. The Committee in its report to the Respondent of 11 May 1995, recognised the Development Application did not provide for disabled access but in the circumstances put forward by HCCC it had a fair claim for unjustifiable hardship if such a condition was imposed.
12. The Development Application was approved by the Respondent at its meeting on the 11 May 1995. No condition was imposed by the Respondent in relation to the provision of disabled access. A motion was passed that "On the matter of the Commonwealth District (sic)(Disability) Discrimination Act it is reasonable under the circumstances stated in the report to confirm that the Applicant has a fair claim for hardship in this particular circumstance". The Development Consent was issued by the Respondent on 19 May 1995.
13. On 5 June 1995, the Respondent received a Building Application in respect of the development consent for the premises.
14. On 23 June 1995 a Building Notice of Approval was issued to HCCC. A condition was not imposed by the Respondent in relation to the provision of disabled access in the Notice of Approval.
15. On 7 November 1995, the Respondent sent a letter to HCCC advising that the registration of the premises as a Place of Public Entertainment was due.
16. On 24 November 1995, an application for registration of the premises as a Place of Public Entertainment was received from HCCC.
17. There has been subsequent correspondence and discussions between the Respondent and HCCC wherein the Respondent has withheld Registration of the premises as a place of Public Entertainment pending compliance without outstanding conditions of the Building Notice of Approval.
Matters in dispute to be determined by the enquiry
18. Whether pursuant to section 122 of the DDA the Respondent has aided or permitted an act that is unlawful under section 23 of the DDA (being the act of discrimination specified in paragraph 1 above) by:
() Approving Development Application No. 88/95 on 11 May 1995 without imposing a condition that HCCC provide access to persons with disabilities to the premises.
() Issuing a Building Notice of Approval to HCCC on or about 23 June 1997 in respect of Building Application No. 529/95 without imposing any conditions requiring HCCC to provide access to persons with disabilities to the premises.
() Permitting HCCC to operate the premises from about May 1995 without a licence to operate as a place of Public Entertainment.
19. Whether the said acts were done by the Respondent "in direct compliance with another law" within the relevant period defined in the exemption contained in s.47(3) of the DDA.
20. Subject to the determination of 18 and 19, the appropriate remedies or relief in the circumstances."
4. THE DEVELOPMENT APPLICATION AND THE BUILDING APPLICATION
4.1 Lodgement of the development application and its consideration
The Development Application was lodged with the respondent on 7 April 1995.
It sought approval for alterations to the Cinema Centre at Lot 33 DP 801765, Vernon Street, Coffs Harbour.
The Development Application proposed the reduction in seating capacity of the existing two theatres from 553 to 395 and the addition of another theatre of 103 seats, total seating capacity to be 498 seats (a reduction of 55 seats from the original capacity).
The Development Application was first considered by the respondent's Technical Liaison Committee on 11 April 1995. Matters for consideration raised at that meeting comprised:
(i) The need to determine disabled access and facilities;(ii) Car parking;
(iii) Egress; and
(iv) Contributions.
The evidence of Mr Hannon, the Corporate Liaison Officer for the respondent, is that the application was referred internally to the respondent's Building Control Section to determine building requirements; to the Engineering Section to assess car parking and developer contribution requirements and to the Community Services Section to review access for persons with a disability.
The Building and Development Branch responded:
"The existing building does not provide disabled access to the cinemas which are located at first floor level. The Building Code of Australia ("BCA") requires disabled access to new buildings. As the application is for structural modifications within an existing building, Council has the discretion under Clause 20 of the Local Government Act provisions not to require a total upgrading of the building under the BCA. As the cinemas are located at first floor level and the proposal provides for a decrease in patron numbers, the provision to require disabled access is not warranted. The applicant should, however, be required to substantiate the proposal to not provide disabled access."
The Engineering Section did not impose any requirements due to a reduction in overall seating capacity. The Community Services Section advised as follows:
"As no access for people with disabilities is being provided, it is suggested that opinion be sought, as to Council's position in approving the D.A. from H.R.E.O.C. It could be that the development contravenes the D.D.A. but the clause of "unjustifiable hardship" in this instance could well be applied as the entire redevelopment is only $100,000.
The decision not to provide access is, in my opinion, morally reprehensible but the final decision as far as the Council is concerned rests with Human Rights & Equal Opportunity Commission."
On 13 April 1995 the respondent wrote to the Senior Policy Officer of the Commission to seek urgent advice to assist in determining applications with respect to "access" issues to public buildings. No formal response was received from the Commission until 30 May 1995, after conditional consent to the Development Application had been granted.
Mr Hannon had discussions with an officer in the Commission's DDA Policy Unit, before the preparation of the Report to the respondent on the Development Application. The officer advised Mr Hannon that claims under the DDA had been largely untried and accordingly there was an absence of precedent to assist in the determination of the Cinema application. This oral advice was included in the Report to Council of 11 May 1995.
The Development Application was reported to Council for determination at its Planning Environment and Development meeting on 11 May 1995. The Development Application was not publicly notified. The provisions of Clause 19 of the Coffs Harbour Local Environmental Plan 1988 exempted any requirement to advertise the application.
An officer or officers of the Council submitted a Report to the Council on the Development Application. For present purposes, the important parts of that Report are:
(1) Under the heading "Description of Item", is among others, the following paragraph:
"The redeveloped complex will not be accessible for people with disabilities and the question of inaccessibility to this public building has been a moot point with the disabled community for some time. This matter will be expanded upon further in this report."
(2) The comments of the Building and Development Branch, set out above, and the Community Services Section, also set out above, were included in the Report.
(3) For present purposes, an important section of the Report is that which appears under the heading "Issues". It reads as follows:
"The issue of access for people with disabilities to this public building is an important consideration in the determination of this application. Section 90(1)(s) of the Environmental Planning and Assessment Act requires Council to consider access for disabled people in the determination of a Development Application.
The original cinema development was approved without access for disabled people. This was permissible under the building regulations in force at the time. Council's current policy requires access and facilities for the disabled to be provided to all existing buildings, where practicable, when a building is redeveloped. A new cinema complex would require access and facilities for disabled.The application before Council, however, is for the refurbishment of an existing building and, due to the complexity of the current and proposed floor plan layout, it is maintained by the applicant that compliance is not possible and, further, the applicant believes that any requirement by Council to provide disabled access would cause the owners unjustified hardship.
Separate to Council Policy on access and statutory requirements for access under the Building Code of Australia are provisions of the Commonwealth Disability Discrimination Act, 1992 (DDA) which makes it against the law for public places to be inaccessible to people with a disability. Access under this legislation applies to existing places as well as new developments. The Act requires modification of existing places to be accessible except where this would involve "unjustifiable hardship".
The issue for resolution by Council is that whether to require the provision of access would cause the owners unjustifiable hardship. In making this determination, Council must be aware that if a complaint was lodged under the DDA against the developer of a building because of its lack of access, and the Council had approved the development of that building, the developer could either join the Council in the action under the DDA or, if it was found to have breached the DDA, sue the Council for negligent misrepresentation.
Advice from the Policy Unit of the DDA confirms that claims under this Act have been largely untried and, accordingly, there is an absence of precedent to assist the determination of the current proposal.
It is considered that the applicant has a fair claim for unjustifiable hardship in the particular circumstances. The existing complex is accessed by three separate stair flights and a fourth set of stairs will access the new theatre. The installation of a lift to service each level is impractical and the installation cost, if proposed, would be disproportionate to the cost of building works. Stair inclinator chairs are not a viable option due to the floor layout and cost.
The applicant has provided a written submission in support of the application. The applicant is fully aware of the provisions of the DDA.
Recommendation:
It is recommended that the Development Application No. 88/95 for alterations to the cinema centre at Lot 33, D.P. 801765 Vernon Street, Coffs Harbour be approved subject to the following condition:
1. Building Application (TPC101).
Submission of a Building Application complying in all respects with the provisions of the Local Government Act and the Building Code of Australia. Work on any building shall not commence until approval to the Building Application has been granted.
Note: After consideration of s.90 of the Environmental Planning and Assessment Act, Council considers that the above condition is necessary."
4.2 Submission of the Cinema Centre
The Report to Council was accompanied by a submission from the Cinema Centre dated 26 April 1995. For present purposes, the more important points in that submission are the following:
(1) That any requirement that they provide disabled access to the cinemas as a condition of the application would cause the owners unjustifiable hardship. In substance, the points made in support of this submission were the following:(a) Investigation had shown that it was physically impossible to provide either a lift or "stair risers" in the Cinema Centre. As to "stair risers", the submission asserted that they have an extension to their guide rails in order to allow level loading at each bottom level, and the rails would obstruct either the fire sprinkler valve room, the egress passageways at the foyer stairs, or the entry to the toilets.
(b) The submission further asserts that the cost of the stair risers is prohibitive, assuming that it was possible to install them without causing obstructions. It was said that four units plus level tracks would be needed for a total cost of over $100,000. It was asserted that that figure was as much as the total cost of construction of the third cinema.
(c) The assertion was made that an application for five new cinemas had been approved for the Pacific Boulevard site and that would have an "extremely detrimental effect" on the applicant's trading. Costs needed to be contained as much as possible, whilst increasing the cinema's appeal, and doubling the cost of the addition of an extra cinema would make it an uneconomic proposition.
It was submitted that, with the opening of the new cinemas in Bray Street "later this year" an excellent facility for the disabled will be in place, far superior to any that could be provided at the Vernon Street site. The Bray Street Cinemas will be showing "all the films we have simultaneously, plus others that we cannot accommodate". It was said that any facility at the Vernon Street cinemas would not be used, in preference to the ease of access in the Bray Street cinemas.
(d) The submission pointed out that the seating capacity of the cinemas was being reduced.
The final summation in the submission is as follows:
"We feel that the inclusion of any condition in the above DA that access be provided for the physically disabled would result in extreme financial hardship, coupled with an impossible installation situation of a facility that would not be used after the Bray Street cinemas are open."
4.3 Resolution of Council
The respondent Council at a meeting held on 11 May 1995 passed the following resolution:
A. Development Application No 88/95 for alterations to the Cinema Centre at Lot 33, DP801765, Vernon Street, Coffs Harbour, be approved subject to the following condition:
"Building Application (TPC101)Submission of a Building Application complying in all respects with the provisions of the Local Government Act and the Building Code of Australia. Work on any building shall not commence until approval to the Building Application has been granted.
Note: After consideration of S90 of the Environmental Planning and Assessment Act, Council considers that the above condition is necessary."
B. On the matter of the DDA it is reasonable under the circumstances stated in the report to confirm that the applicant has a fair claim for hardship in these particular circumstances.
By notice dated 19 May 1995 Holiday Coast Cinema Centres Pty Ltd was advised that the Development Application had been determined by granting of consent, subject to the condition concerning the submission of a Building Application set out in Council's resolution.
4.4 The evidence of Mr Hannon
Mr Hannon, in his evidence, asserts that the consent was granted following proper consideration of the provisions of s.90 of the Environmental Planning and Assessment 1979 and in particular s.90(1)(s).
The following additional points are taken from Mr Hannon's oral evidence:
(a) He gave evidence concerning the law to be applied by the Council in considering any Development Application. (For present purposes, the law to be applied is a matter for the Commission. That subject will be discussed later. Mr Hannon's view will be considered at that stage.)(b) He said that Ms Kilbourne provided the response of the Community Services Section of Council to the Development Application. She is also a member of Council's Disabled Access Committee.
(c) He said that the Development Application was valued at $100,000 and the developer indicated the cost of providing stair chairs to provide a form of disabled access to the building was approximately $100,000. He said that Council regarded such a provision as unreasonable having regard to the cost and the constraints of the existing building.
(d) He said that the Building Code of Australia calls up Australian Standard 1428.1 which is the standard for disabled access and facilities. The only access facilities mentioned under that standard are ramps and lifts. Ramps were inappropriate for this building and lifts were not suggested by the developer.
(e) He referred to the 1994 Development Application made by this developer in relation to this building. The facts relating to that matter appear as fact No. 5 in the "agreed facts" set out above.
(f) The only indication the Council had in terms of cost of the work was $100,000, the figure in the Development Application.
(g) During cross-examination he said that, under State Planning Laws, there is a time restriction of 40 days for consideration of Development Applications.
(h) During re-examination Mr Hannon asserted that the only statutory requirements the Council was obliged to consider in assessing the Development Application was s.90(1)(s) of the Environmental Planning and Assessment Act 1979 and Regulation 65 of the Environmental Planning and Assessment Regulation 1994. He said that to impose a condition for disabled access in assessing a Development Application is not a mandatory duty imposed on the Council.
4.5 The evidence of Patrick Salter
Mr Patrick Mark Salter, Manager of Building and Development Services for the respondent, said that the Local Government Act 1993 calls up specific provisions for access under the provisions of the Building Code of Australia which are mandatory for all new buildings and discretionary for alterations/additions to existing buildings. In practice at the Council an application for alternations/additions is treated differently to an application for a new development, in that other factors have to be considered and are considered on an individual basis. Such factors include:
(a) Existing levels of the site and floor levels of the buildings.(b) Floor plan layout of the building.
(c) Current and proposed use of the building.
(d) Floor levels.
(e) Location of entrances to the building.
(f) Location of car parking facilities.
(g) Levels of footpath (if any).
(h) Economic feasibility of the development and proposed access for the disabled (if any).
(i) Fire rating of existing structural members.
(j) Location of fire services.
(k) If access for the disabled is proposed which does not comply with the provisions of the BCA whether the access is satisfactory.
Mr Salter also said that the Council adopted the following policy in 1992:
"Access and facilities for the disabled shall be provided in all new buildings, in accordance with the Building Code of Australia, except as follows;*Access for the disabled shall be provided to the ground floor in all new buildings where the general public has access and access is not required under the Building Code of Australia.
*Access and facilities for the disabled shall be provided to all new buildings under the control of Council.
*Access and facilities for the disabled shall be provided to all existing buildings, where practicable, when the building is redeveloped."
Mr Salter advised that the requirements for assessing a Building Application are set out in the Local Government (Approvals) Regulation 1993. Regulation 12 lists the matters to be taken into account when considering a Building Application. Regulation 40 deals with approvals to alter buildings. In effect, he said that, for present purposes, the regulation provides that a council may, as a condition of an approval to make alterations to an existing building, require that the existing building be brought into conformity with the Local Government Act 1993 and the Local Government (Approvals) Regulation 1993 as though it were a new building if the proposed alterations, together with any other structural alterations completed or approved within the previous 3 years, represent more than half the total volume of the original building, measured over the roof and the external walls. Mr Salter pointed out the discretionary nature of that power, particularly in relation to alterations representing less than half of the total volume of the original building. Council can determine whether full compliance is necessary.
Mr Salter said that the Local Government (Approvals) Regulation 1993 does not have any specific requirements for consideration of disabled access. But Regulation 52 adopts the Building Code of Australia and Council is required to consider that code under Regulation 25.
Mr Salter said that when the Building Application in this case was approved disabled access was not considered at that stage, because Council had made a determination at the earlier Development Application stage.
During cross examination Mr Salter said that, under Regulation 40, Council did not have to require full compliance with Building Code of Australia. The redevelopment of the cinema did not appear to involve fifty per cent by volume of the area of the cinema complex, the area by volume being in the vicinity of twenty per cent.
Mr Salter said that, with alterations to existing buildings, there are many circumstances which have to be taken into account, and each one should be considered on its merits. With new buildings Council can insist on provision for access for people with disabilities, no matter what the cost to the developer.
4.6 The evidence of Robert Percival
Mr Robert Percival said that he held the position of Senior Health and Building Surveyor with the respondent. Mr Percival said that he was familiar with the Building Application in this case, being the building assessment officer for the alterations to this cinema complex. He said that the Building Application was received on 5 June 1995. He assessed the application having regard to the Development Consent issued on 19 May 1995. He confirmed that, the issue of disabled access having been determined in conjunction with the Development Application, the matter was not revisited, except for the undertaking provided by the applicant to include provision for ambulant disabled persons within the toilet amenity areas. On 23 June 1995 a Building Notice of Approval was issued subject to conditions.
Mr Percival said that, in his report on the Development Application - referred to above - he referred to a third cinema at first floor level, but in actual fact it is more at second floor level.
He also referred to Regulation 40 of Local Government (Approvals) Regulation 1993 and said that the extent of the work involved in these alterations to the cinemas was nowhere near fifty per cent of the total volume of the existing building, only a very small proportion of it.
Mr Percival said that, under the BCA provisions, disabled facilities are to comply with Standard A.S. 1428.1. He said that that "basically establishes" that the required means of access prescribed is to be via a ramp or a lift. The existing building did not have an existing lift. Mr Percival considered it was unreasonable to require the provision of a lift. There were no physical means which would enable you to change the existing building to provide a ramp, bearing in mind that the gradient of a ramp is 1:14, so the rise in level was out of the question. In assessing the Building Application he thought it would be an unreasonable condition to require provision of disabled access.
During cross examination Mr Percival said that, at the time of assessment of the Building Application, he did not regard it as part of his remit to look at issues of access for people with disabilities. He had already considered that matter as part of the process on the Development Application. He was referred to the resolution of Council granting the Development Application subject to a condition that a Building Application be submitted complying in all respects with the Building Code of Australia. He said he interpreted the resolution to mean complying with the BCA in all respects other than the requirements of the code for access for people with disabilities.
Mr Percival said that he was the officer of Council responsible for assessing the application for a place of public entertainment licence. The relevant requirements in relation to assessing that application are set out in Regulation 18 of Local Government (Approvals) Regulation 1993. He said that there is no provision requiring further consideration, or consideration at all, of the question of disabled access. The primary issues which arise on these applications are safety issues.
5. THE LAW TO BE APPLIED TO CONSIDERATION BY THE COUNCIL OF THE DEVELOPMENT APPLICATION, LEAVING ENTIRELY TO ONE SIDE THE PROVISIONS OF THE DDA
In determining the application, the Council was subject to a mandatory duty to take into consideration such of the matters set out in s.90 (1) of the Environmental Planning and Assessment Act 1979 as were relevant to the development the subject of the application.
The argument at the hearing proceeded on the basis that only one of the matters set out in s.90(1) need be considered now. That matter is set out in s.90(1)(s) as "any other prescribed matter". The prescribed matter in question is that set out in Environmental Planning and Assessment Regulation 1994, Clause 65. The relevant part of the that provision reads as follows:
"65. For the purposes of s.90(1)(s) of the Act, the following matters are prescribed as matters to be taken into consideration by a consent authority in determining a development application:) whether adequate provision has been made to enable disabled persons to gain access to the development or to the land on which the development is proposed to be carried out."
By s.91(1) the Council was empowered to determine the application by granting or refusing it or granting it subject to conditions. By s.91(3) the Council had a discretion to impose, for the purposes of sub-section (1) of s.91, a condition relating to any matter referred to in s.90(1) of relevance to the development the subject of the consent. Section 91(3) also gave the Council a discretionary power to impose a condition for the purposes of s.91(1) if it "(f) requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in s.90(1) applicable to the development the subject of the consent".
A condition attached to the granting of consent to a Development Application, pursuant to the power granted by s.91(1), to be within power and valid must fulfil the following three conditions:
(a) it must be imposed for a planning purpose;() it must fairly and reasonably relate to the development for which permission is being given; and
() it must be reasonable, that it to say, it must be a condition which a reasonable local authority properly advised might impose (St George Building Society v Manly Municipal Council 3 A.PAD page 370 at page 381; see also Henry v Parramatta Council 6 APAC 170 at 172).
Section 91(3) of the Environmental Planning and Assessment Act 1979 appears to operate to prescribe exhaustively the range of conditions which might be imposed on the grant of development consent (St George Building Society v Manly Municipal Council 3 A.PAD page 370).
6. SOME RELEVANT RULES OF LAW DEALING WITH CIRCUMSTANCES IN WHICH A COURT MAY INTERFERE WITH A DECISION GIVEN BY A COUNCIL ON A DEVELOPMENT APPLICATION
All relevant questions of fact are for the council. However, the decision of council will be open to successful challenge if:
(i) The council fails to consider the considerations and questions which the legislation requires it to consider.(ii) The conclusion of council is affected by some mistake of law.
(iii) The council takes some extraneous consideration into account.
(iv) The council excludes from consideration some factor which should have affected the decision.
(For the above propositions see Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 per Dixon J.).
(v) The fact that minds might differ and conclude otherwise than did the council is no reason to vitiate its decision. If the decision of council was reasonably open to it on the materials before it then the decision should be allowed to stand provided, of course, it is not open to successful challenge under (i) - (iv) (above) (see also: Bentham and Anor v Kiama Municipal Council and Others 59 LGRA 94 at pages 98-99.
In curial proceedings which subject the decision of council to challenge:
Proof of invalidity rests upon the challenger (Parramatta City Council v Hale, supra, at page 335 per Street CJ): "It is for those who assert that the local authority has contravened the law to establish that proposition" (Associated Provincial Picture House Ltd v Wednesbury Corporation (1948) 1KB 223 at 228, 229.
(The proceedings before HREOC are, of course, not curial or judicial proceedings).
7. CONSIDERATION OF AN ARGUMENT BY COUNSEL FOR THE RESPONDENT BASED ON THE RULES OF LAW SUMMARISED ABOVE
7.1 The respondent's argument
Counsel argued that the evidence established that the Council had properly considered the matter of access for people who used wheelchairs. He argued that it is not a matter whether Council should or could have imposed a condition requiring wheelchair access to be available, but whether it properly considered that matter. The fact that a condition to that effect was not imposed is not a breach of the relevant law. The decision about disabled access was made in "direct compliance with" the requirements of Environmental Planning and Assessment Act 1979. Hence, the decision is protected by s.47(3) of the DDA. Counsel argued that the word "direct" in s.47(3) of the DDA implies an application of a rule contained in another statute or law where, by the terms of that other law, that rule must be complied with. Counsel submitted that sections 90 and 91 of the Environmental Planning and Assessment Act 1979 imposed an obligation on Council to determine the application for development consent in accordance with their terms, ie. the terms of s.90 and s.91. By the terms of those two sections Council was required to consider whether adequate provision had been made for disabled access. It decided that question in direct compliance with those two sections, that circumstance supplying it with a valid defence under s.47(3) of the DDA. Council did not impose a condition requiring disabled access because it decided that, in all the circumstances, the imposition of such a condition would be unreasonable. Counsel submitted that was a conclusion which Council was entitled to reach and one which would not be set aside on appeal to the court. Having concluded that the imposition of such a condition would be unreasonable, Council had no power to impose such a condition, and to attempt to do so would have been unlawful, because in the circumstances of the case, it would have been beyond the lawful powers of the Council.
Counsel submitted that Council could only consider the matter of disabled access in the light of the facts put before it at the time it made the decision. It would be wrong to take into account now additional evidence obtained in the proceedings before the Commission between the complainants and the developer.
Counsel submitted that at the time Council made the decision granting consent to the Development Application it was in a dilemma position. Applying sections 90 and 91 of the Environmental Planning and Assessment Act, it would have been acting beyond power had it imposed a condition for wheelchair access to be provided during the refurbishing of the cinemas. It would have been acting beyond power because it would have been imposing an unreasonable, and hence, unlawful condition.
Counsel submitted that the dilemma emerges when one adverts to the fact that it is now contended that to fail to impose a condition was unlawful because it was conduct aiding or permitting unlawful conduct by the developer (sections 122 and 23 of the DDA). If it imposed the condition it would have ended up in the appropriate appeal court because, purporting to exercise the power given to it by s.91 of the Environment Planning and Assessment Act, it had exceeded that power. Having declined to impose the condition it ends up in the Commission accused of breaching sections 23 and 122 of the DDA. To impose the condition sought, relying on the terms of the DDA, would be to import into the assessment process under the Environmental Planning and Assessment Act factors foreign to that to process, factors derived from the DDA, factors which should be treated as not relevant to the distinct process prescribed by the Environmental Planning and Assessment Act, a process which is a settled process expounded by the many court decisions about it. Counsel made this aspect of his argument quite clear in the following passage:
"To assess the question of whether that condition should or shouldn't be imposed, in essence, means that we must only consider the three elements set out in Henry's Case (supra) at page 172. We're (meaning the Council) are not empowered to consider the question whether there is a breach of another Act". Counsel went on "So, for Council to impose a condition based on a breach of that Act (the DDA) or a potential breach of that Act, would be unlawful so far as the considerations which Council must consider under the Environmental Planning and Assessment Act....The Environmental Planning and Assessment Act provides for things we must consider in s.90 of that Act: s.90, in the list of relevant considerations, does not include a specific consideration in regard to the DDA".
Counsel submitted that, in making its decision on the Development Application, Council was acting "in direct compliance with another law" within the meaning of that phrase in s.47(3) of DDA. Counsel submitted that Council correctly applied the law contained in sections 90 and 91 of the Environmental Planning and Assessment Act and, therefore, has acted in direct compliance with those sections. Counsel submitted that it did not have a wide discretion. The discretion it had was narrowed by the provisions of those sections and the series of decisions which include Henry v Parramatta Council 6 APAC 170. Counsel submitted that the Council should be treated, for the purposes of s.47(3) of the DDA as acting in direct compliance with the Environmental Planning and Assessment Act. Counsel submitted that the Council gave proper consideration to all relevant factors and should be treated as having acted in direct compliance with another law.
7.2 Response to the argument
The argument is rejected. Once the DDA came into operation, it was not right to treat the relevant provisions of it as provisions which must be left out of account when considering a Development Application under the Environmental Planning and Assessment Act 1979. The DDA is a fundamental law of the Commonwealth, in the sense that it is a statute dealing with important human rights and having the important objects set out in s.3. In so far as it deals with access to, and use of, public buildings for people with disabilities, to the extent of the reach of its relevant provisions, it is entitled to primacy over any conflicting state or territory laws. To ignore the primary law on the subject, the DDA, when considering whether access should be made available to people with disabilities, would be an unrealistic and unlawful exercise. I should add that I am satisfied that the Council did take into account the provisions of the DDA. In fact, of course, it gave the DDA a good deal of attention.
Counsel's argument appears to have its genesis in the notion that s.90 sets out all the relevant considerations and the provisions of the DDA are not included. Therefore, so the argument runs, the provision of the DDA must be treated as irrelevant when making a decision on a Development Application under s.91. But the terms of s.90(1) of the Environmental Planning and Assessment Act are such that the relevant provisions of the DDA can readily be treated as incorporated. Two items are expressed in terms adequate for the purpose of bringing into account the relevant disability access provisions of the DDA. They are:
s.90(1)(q) the circumstances of the case; ands.90(1)(r) the public interest
Clearly, the relevant provisions of the DDA are important parts of the circumstances of the case. Further, the public interest demands consideration, and obedience to, those provisions.
In considering whether it would have been reasonable to require the provision of adequate access for people using wheelchairs, it was necessary to treat as a relevant factor the relevant provisions of the DDA and, in particular, in the absence of a defence for the developer under sections 23(2) and 24(2) of the DDA, the fact that the developer would be guilty of a continuing breach of sections 23 and 24 and, hence, guilty of unlawful conduct. Further it was necessary for the Council, before it passed a resolution granting consent to the application, to consider the position of the Council under s.122 of the DDA. Unlawful conduct by a council, an elected public body, is a serious matter.
The question of the reasonableness of requiring a provision for some kind of wheelchair access, the DDA being ignored, is a different issue to that of the reasonableness of requiring wheelchair access having due and proper regard to the relevant provisions of the DDA. In the circumstances of this case, to consider the issue of the reasonableness of a condition requiring some provision for wheelchair access, ignoring, during the consideration of that issue, the provisions of the DDA, would be to make an error of law vitiating the decision. But I am not satisfied that the Council made any such error.
The conclusion just stated renders it unnecessary to consider the question of the correct construction of s.47(3) of the DDA. However, the matter has been considered and the conclusion reached should be stated.
The argument by counsel for the respondent on that point is rejected. Section 47(3) is referring to a case -- where what is done is the making of a decision -- where "another law" is complied with by the relevant decision, and that compliance can sensibly be seen as directed by or, to a substantial degree, caused by the terms of the other law. The sub-section does not provide a defence where the decision is made in the exercise of an adequate discretion to decide one way or the other. Here, if the decision on the question whether some disabled access was reasonable had been approached, as it should have been, giving due weight to the relevant provisions of the DDA, it would have appeared that Council could require some access, without exceeding its power or running the risk of being found to have imposed an unreasonable condition. In reaching this conclusion on the construction of s.47(3) I have been assisted by the decision in Gulliver v Council of City of Sydney (1987) EOC 92-185 page 76,776
8. SUGGESTED PRIMARY LIABILITY OF THE COUNCIL ARISING OUT OF THE TERMS OF SECTION 23 OF THE DDA
Counsel for the complainant argued that the Council could be found liable, without any reference to s.122 of DDA, simply by an application of s.23 of the DDA alone. This point was only faintly argued and does not call for any detailed response. It is sufficient to say that, when the section is read as a whole, it becomes clear that the persons in contemplation in s.23(1), as persons who may be guilty of discrimination, are persons having a relationship with the premises which enables them to refuse access or impose terms or conditions on which access will be allowed etc. Without attempting to be definitive, the class of persons contemplated are persons having powers in relation to the premises which enables them to control or manage the premises. That is not an exhaustive description of the class but, rather, an indication of the main thrust of the provision. Reliance was placed on the phrase "on the person who would have to provide the access" in s.23(2). But that language is understandable when you consider a case, say, where the tenant is controlling and managing the premises but, under the terms of the lease, the landlord is required to undertake any necessary alterations.
9. ALLEGED LIABILITY OF THE COUNCIL PRODUCED BY A COMBINED OPERATION OF SECTIONS 23 OR 24 AND 122
The Referral Report discloses that the Council's response to the complaint was to decline to admit liability and state that it was aware of the requirements of the DDA at the time the Development Application was approved and it considered the applicant, Holiday Coast Cinema Centres Pty Ltd, may have an adequate defence of unjustifiable hardship.
A consideration in any given case of the subject of unjustifiable hardship requires a consideration of the meaning of the phrase itself. The meaning is supplied by s.11 of the DDA. The phrase has a wide meaning. Section 11 requires that all the relevant circumstances of the particular case are to be taken into account. In this particular case, the relevant circumstances included the following matters, there being no attempt to be exhaustive:
1. The matters contained in the developer's letter to Council of 26 April 1995.
On the basis of that letter, the Council could have reasonably concluded that the cost of providing access for people using wheelchairs was high, in comparison to the total cost of the work which was to be done. The Council could have reasonably concluded the factor of cost, together with other matters referred to in the letter, created a substantial risk that the work would not proceed if it insisted on stair-risers or any other form of wheelchair access. Council could have reasonably decided, in all the circumstances, that it was not prepared to run the risk of denying the community, including the building industry, the benefit of the project. No doubt, democratically elected councils come under a good deal of pressure in times of high unemployment and difficult economic circumstances. Surely, there is a natural reluctance to lose projects, or even have them delayed for a substantial period.
On this point, one recalls the following important passage in the Report to Council on the Development Application:
"It is considered that the applicant has a fair claim for unjustifiable hardship in the particular circumstances. The existing complex is accessed by three separate stair flights and a fourth set of stairs will access the new theatre. The installation of a lift to service each level is impractical and the installation cost, if proposed, would be disproportionate to the cost of building works. Stair inclinator chairs are not a viable option due to the floor layout and cost".
A perusal of the Development Application file leads one to wonder whether stair risers are entirely satisfactory. Perhaps they are plainly in the second- best category, their cost needing to be assessed in that light. The relevant point being that a councillor considering the Development Application would be entitled to form a view about that.
2. On the other hand, a very important aspect was that, if adequate access was not provided, people who use wheelchairs would continue to suffer discrimination and inequality, a matter to be weighed in the light of the objects of the DDA (see s.3). But it must be kept in mind that any point, however important in the abstract, must be weighed in the light of economic viability; in some cases, the cost of a benefit means that it is not practical to provide it.
At the end of the day, weighing up these factors was the duty of the councillors. When democratically elected councillors discharge such a duty a well instructed tribunal will hesitate long before disagreeing. The Council had before it a careful Report which adverted to the various aspects. Council decided as it did. In the nature of things, we cannot know all of their thought processes. In all the circumstances the correct approach is to ask this question: could a reasonable council, properly advised, reasonably form the view it did on the issue of unjustifiable hardship? The correct answer to the question is yes.
That being the answer to the question, it would be wrong to use s.122 of the DDA to treat the Council as if it had done an unlawful act. It did not do an unlawful act and should not be "taken" (see s.122) to have done so. What it did was to discharge a public duty in the public interest. To use a provision like s.122 to visit liability on the Council in those circumstances would be to make an inappropriate use of the section. At this point, the "Wednesbury Principle" should be recalled: "It is for those who assert that the local authority has contravened the law to establish that proposition" (Associated Provincial Picture House Ltd v Wednesbury Corporation (1948) 1 KB 223). In this case, that proposition has not been established.
10. THE BUILDING APPLICATION
The Council was entitled to deal with the application on the basis that it had already decided the relevant point ie. the matter of access for people using wheelchairs. There was no need to revisit that question.
11. THE APPLICATION FOR REGISTRATION AS A PLACE OF PUBLIC ENTERTAINMENT
The point just made about the treatment of the Building Application applies with even greater force in this instance.
12. CONCLUSION
For the above reasons, the complaint is dismissed.
FOOTNOTES:
[1]Decision of Commissioner Stephen Keim in Cooper v Holiday Coast Cinema Centres Pty Ltd, dated 29 August 1997, proceedings number H.96/157
