The draft premises standard and small business

This is the text of a letter from Commissioner Ozdowski on 4 October 2005 in response to a request from the Australian Federation of Disability Organisations for views on the effect of the draft Disability Standard on Access to Premises on small business and in particular small business operating out of existing buildings:

Ms Maryanne Diamond

CEO

Australian Federation of Disability Organisations

Ross House 247 Flinders Lane Melbourne

Vic 3000

Dear Ms Diamond

Thank you for your inquiry concerning my views on the effect of the draft Premises Standard on small business and in particular small business operating out of existing buildings.

Current situation

As you know currently every shop, café, office block, government office, heritage tourist building, hotel or similar building is vulnerable to possible disability discrimination complaints if equitable access is not provided.

If subject to a successful complaint the owner and/or operator would have to make changes to improve access, up to the point of unjustifiable hardship, as determined by the Federal Court.

With the exception of South Australia, each State and Territory has comparable legislation covering access to buildings.

In addition to the costs associated with creating access an owner/operator may find themselves required to pay compensation (a recent Queensland Anti-discrimination Tribunal case, CvA, awarded compensation of $25,000).

However, because the law makes general statements about non-discrimination no owner or operator of a building knows exactly what they have to do to satisfy their responsibilities under the DDA. As a result there are many inconsistent and ineffective decisions being made about what access to provide.

I believe this is not acceptable to people with disabilities or the property sector and is the primary reason for developing a Premises Standard.

The effect of a Premises Standard

A Premises Standard will clearly define the level of access that must be provided in order to meet existing responsibilities under the DDA.

Because the Building Code of Australia (BCA) will also be changed to reflect the content of the Premises Standard, developers will know that fulfilling BCA requirements will also fulfil DDA requirements on those matters covered by the Premises Standard.

This surety will mean that developers can feel confident they will not be subject to a successful complaint if they comply with the BCA. It will also ensure a more accessible and sustainable built environment for people with disabilities and others who will benefit from the changes, such as families and our growing ageing population.

As you know it is proposed that the Premises Standard and a revised BCA will only apply to new buildings and new work in existing buildings. A small business operating on the High Street will not be subject to the requirements of the standard unless they or the building owner choose to upgrade the building in a way that triggers the new BCA. Even then the Premises Standard and BCA will only apply to the new work that is being undertaken and not the whole building.

Activities such as re-painting, putting up a new sign or replacing damaged shelving will not trigger such a requirement.

Effect on small businesses

While there was a wide variety of views expressed about the original draft there was particular concern expressed about the effect of the draft Premises Standard on small business, particularly those operating in sub-urban and rural areas.

As a result of the public consultation a number of changes to the original draft were discussed at the Building Access Policy Committee (BAPC). In addition I understand the Australian Building Codes Board has proposed ways forward on a number of issues where agreement could not be reached at the BAPC. A revised Regulation Impact Statement is being developed to reflect those proposals and will be forwarded to the Attorney General and the Minister for Industry, Tourism and Resources on completion.

While I am not in a position to provide any new information on the likely outcome of the revised RIS figures I would like to provide you with my views on the likely impact of the Premises Standard on small businesses operating in a typical small country town.

My assessment is based on an appraisal of how the Premises Standard will apply in reality, which adds an important dimension to the debate about cost and benefit.

My comments are based on proposals in the public draft of the Premises Standard which was the subject of consultation in 2004.

Effect on small businesses opening new buildings

Feature	Current BCA requirements	Draft Premises Standard	Effect
Doorways	Minimum 800mm opening	Proposed minimum 850mm opening	Very little effect if any. Most commercial businesses already have their required accessible doorways wider than the current minimum.
Entrances	Main entrance must be accessible	Proposed 50% of entrances must be accessible for buildings less than 500 m².	No effect. Small businesses operating on the High Street would not have more than two entrances so in reality the main entrance would continue to be the only one required to be accessible.
Passing spaces along corridors	No requirements	Proposed passing spaces will be required where there are corridors over a certain length. (Two options were proposed, every 9 meters and every 20 meters).	Very little effect if any on small business, particularly if the 20 meter option is adopted. Industry avoids putting in long corridors as they are seen as a waste of space. Even if they do exist small business are unlikely to operate in buildings where 20 meter corridors are a feature. Where required good design can combine the space with doorway circulation areas or alcoves to minimise impact.
Turning spaces	No requirements - but there are already requirements for larger circulation spaces around doorways which generally occur at the end of corridors	Proposed turning spaces will be required where there are corridors over a certain length. (Two options were proposed, every 9 meters and every 20 meters). As a result of comments received in the public consultation other options were discussed at BAPC including a proposal that turning spaces would only be required at the end of corridors where it is not possible to continue along the accessway	Effect on small business will be limited due to the fact that the use of long or dead end corridors is infrequent. Where required good design can combine the space with already required doorway circulation areas or other features to minimise impact.
Accessible Toilets	Requirements vary for Class of building, use and size of building	Proposed unisex accessible toilet required wherever there is a block of male and female toilets.	For small businesses already required to have an accessible toilet minimal additional costs and space requirements (30x30 cm). For new small businesses not currently required to have an accessible toilet the effect of this requirement is significantly limited because a unisex toilet counts as one male and one female toilet. In a small business with only one set of toilets a single unisex accessible toilet will fulfil all their toilet facility requirements.
Access to upper floors in low rise buildings	No requirement - but where lifts are provided they have to comply with access requirements for circulation space and information consistent with AS 1735.12.	Proposed required for all levels in the public comment draft. Introduced a range of much more cost effective lifting devices for low rise two and three story buildings. In addition there are an extensive series of Exemptions available for certain types of building and uses of building. (See below) As a result of comments received in the public consultation other options were discussed at BAPC including the possibility of providing targeted concessions for small low rise buildings.	If an option of providing an exemption for small low rise buildings is introduced there will be no cost effect on small businesses operating out of buildings smaller than the specified area. Most small businesses on the High Street will be operating out of buildings that are significantly less than existing NZ (400 m²) and US (290 m²) concession in this area. For those buildings required to provide access to upper floors more cost effective alternatives can be used. A range of Exemptions listed below further limit the effect of the draft on small business.
Exemptions	Specific concessions for some parts of bars, cafes etc and other places 'inappropriate' because of use	Extensive list of exemptions including: Commercial kitchen; staff serving area in a bar; loading dock; bunded area; hazardous area; storage area for produce; power plant room; cleaners store-rooms and mezzanine areas used only for storage. In addition low rise Hotels and Motels generally will not be required to provide access to the upper floors if all the common facilities such as pool, restaurants and accessible rooms are on the ground floor. Similarly two and three story 'walk up' apartment blocks will not be required to provide access to the upper floors if common facilities are on the accessible ground floor.	Any small business with areas covered by the exemptions will not be required to provide access to those areas. Small country Motels, businesses using upper storeys for storage, 'walk-up' apartment blocks, small industrial concerns, pub serving areas and kitchens and all those businesses operating out of small buildings exempted because of the size of the upper storeys will benefit from these exemptions.

For existing buildings

Under current building law any new work on an existing building or renovation that requires a building approval automatically triggers a requirement that the new work must comply with BCA96.

This means that already building owners and operators face potential costs associated with bringing the new work up to a certain level of access whenever they upgrade.

The additional costs associated with achieving the access requirements of the Premises Standard, therefore, are only those costs associated with moving from the BCA96 level to the Premises Standard level.

Only those buildings that undergo renovation or change of use and which trigger the requirement to upgrade facilities to the revised BCA will be covered by the Premises Standard.

I think this is an important point to stress - the Premises Standard will not apply to existing buildings on the High Street that just continue to operate as small businesses and who do not undergo any new work requiring building approval.

In addition to all the concessions and exemptions available to developers of new buildings as identified above, those responsible for existing buildings have additional concessions and mechanisms to limit the effect of the standard in exceptional circumstances as identified below.

Most importantly the Premises Standard will retain the defence of unjustifiable hardship. This means that if a requirement of the Premises Standard was considered to be too onerous in a particular situation a provision will exist that would allow a developer to defend a decision to not meet the requirements of the Premises Standard in full.

This will be particularly important in limiting the effect of the Premises Standard on small businesses as it is small business which will always be most reliant on alternative proposals in exceptional circumstances. I should also note that the unjustifiable hardship defence could be particularly relevant in situations where there are heritage questions as the removal of a heritage feature in order to provide access might constitute an unjustifiable hardship.

Let us assume, for example, that a Certifying body was faced with a claim from a developer that full application of the revised BCA to a renovation was too onerous, that an Alternative Solution proposed was acceptable, or that full application of the BCA would affect the heritage features of the building.

The Certifier would assess the proposal from the developer and use their professional judgement to make a decision. The design and certification industries are already well experienced in assessing such proposals in relation to the application of the current BCA to existing buildings.

If the building was subsequently subject to a complaint because it did not fully meet the requirements of the Premises Standard the unjustifiable hardship provision would allow the owner/operator to defend their decision.

In order to assist Certifying bodies and developers to make their decisions the Building Access Policy Committee developed an Administrative Protocol which includes guidelines on how to assess proposals from developers in a manner that is consistent with the concept of unjustifiable hardship.

Certifying bodies and industry have expressed concern that decisions made at this level, as distinct to binding court decisions, do not provide them with the surety they desire.

It may be that further consideration might need to be given to looking at ways in which the decisions of an accredited Certifying body might be sufficient to give the surety sought.

Effect on small business operating out of existing buildings\

Feature	Current BCA requirements for new work or when upgrading existing building	Draft Premises Standard	Effect
Doorways	Any new doorway or altered doorway must be upgraded to BCA96 requirements minimum 800mm	Any new doorway or altered doorway minimum 850mm	If a new doorway is being constructed the effect will be little if any. If an existing doorway is less than 800mm the BCA already requires upgrading and the increased size from 800mm to 850mm will have little effect. The developer can appeal to the certifying body that the requirement for upgrading would be too onerous in their circumstances or propose an Alternative Solution. The Premises Standard retains the defence of unjustifiable hardship to allow for this.
Entrances	If the main entrance is not accessible and work is being undertaken in this area access must be provided to the degree required in BCA96	Essentially the same requirements	The Premises Standard will have no additional effect to the existing BCA requirements for small businesses with just two entrances. The developer can appeal to the certifying body that the requirement for upgrading would be too onerous in their circumstances or propose an Alternative Solution. The Premises Standard retains the defence of unjustifiable hardship to allow for this. Heritage issues may be of particular relevance in terms of entrances as Alternative Solutions to providing access might need to be considered.
Passing spaces along corridors	No requirement	Proposed passing spaces will be required if work is being done on the corridors where there are corridors over a certain length. (Two options were proposed, every 9 meters and every 20 meters).	Very little effect on small business as they invariably do not have long corridors. The developer can appeal to the certifying body that the requirement for upgrading would be too onerous in their circumstances or propose an Alternative Solution. The Premises Standard retains the defence of unjustifiable hardship to allow for this.
Turning spaces	No requirement	Proposed turning spaces will be required where work is being undertaken on corridors over a certain length. (Two options were proposed, every 9 meters and every 20 meters).	Effect on small business will be limited due to the fact that use of dead end corridors is infrequent. The developer can appeal to the certifying body that the requirement for upgrading would be too onerous in their circumstances or propose an Alternative Solution. The Premises Standard retains the defence of unjustifiable hardship to allow for this.
Accessible toilets	Where work is being done on toilets or change of use requires the addition of accessible toilets they must be upgraded to BCA 96 level.	Where work is being done on the toilets or change of use triggers provision of accessible toilets they must be upgraded to the Premises Standard level. In addition where there is more than one block of male and female toilets undergoing new work an accessible toilet may be required at the location of each block.	Where work is being done on upgrading an existing accessible toilet the effect will involve an increase in size above the current BCA requirements of approximately 30x30 cm. In small businesses it is unlikely there will be more than one block of toilets and therefore the question of additional accessible toilets is unlikely to occur. The effect of providing an accessible toilet where there was previously no toilet will be limited by the fact that the accessible toilet can count as one male and one female toilet. The developer can appeal to the certifying body that the requirement for upgrading would be too onerous in their circumstances or propose an Alternative Solution. The Premises Standard retains the defence of unjustifiable hardship to allow for this.
Access to upper floors in low rise buildings	No requirement - but where lifts are provided and work is being done on them, or a new lift is being put in, they have to comply with access requirements for circulation space and information consistent with BCA 96.	Proposed required for all levels in the public comment draft. As stated above, however, as a result of comments received in the public consultation other options were discussed at BAPC including the possibility of providing targeted concessions for small low rise buildings. Where a new lift is being put in the Premises Standard introduces a range of much more cost effective lifting devices for low rise two and three story buildings. For existing lifts in existing buildings the Premises Standard proposes no changes be required to the lift car floor size. In addition there are an extensive series of Exemptions available for certain types of building and uses of building. (See below)	If an option of providing an exemption for small low rise buildings is introduced there will be no cost effect on small businesses operating out of buildings smaller than the specified area or covered by any on the Exemptions. Most small businesses on the High Street will be operating out of buildings that are significantly less than existing NZ (400 m²) and US (280 m²) concession in this area. For those buildings required to provide access to upper floors more cost effective alternatives can be used. The developer can appeal to the certifying body that the requirement for providing access to upper floors would be too onerous in their circumstances or propose an Alternative Solution. The Premises Standard retains the defence of unjustifiable hardship to allow for this.
Exemptions	Specific concessions for some parts of bars, cafes etc and other places 'inappropriate' because of use.	Extensive list of exemptions including: Commercial kitchen; staff serving area in a bar; loading dock; bunded area; hazardous area; storage area for produce; power plant room; cleaners store-rooms and mezzanine areas used only for storage. In addition low rise Hotels and Motels generally will not be required to provide access to the upper floors if all the common facilities such as pool, restaurants and accessible rooms are on the ground floor. Similarly two and three story 'walk up' apartment blocks will not be required to provide access to the upper floors if common facilities are on the accessible ground floor.	The Premises Standard will only apply to the new work being undertaken and not the whole building. Any small business with areas covered by the exemptions will not be required to provide access to those areas. The developer can appeal to the certifying body that the requirement for upgrading would be too onerous in their circumstances or propose an Alternative Solution. The Premises Standard retains the defence of unjustifiable hardship to allow for this.

As noted above the public consultation period identified a number of possible options for changes to the draft. One option that was raised was that certain low rise buildings of two or three storeys should be exempt from having to provide access to the upper floors.

I have previously acknowledged the need to respond to the genuine difficulties that small business and parts of rural Australia would experience if required to provide access to the upper floors of all buildings no matter what the size. However, I have always stressed the need to ensure that any concession should be as limited as possible - balancing the need to recognise the concerns of small business with a recognition of the existing rights of people with disabilities.

As an example of relative costs associated with providing access to the upper floors of low rise buildings I note that the ACT Governments assessment of construction costs for a new office block, for example, would be about $1 million for a 400 square two storey building ($1150 per square meter). I understand that a lift for such a building could be installed for around $40,000 which would be less than 5% of the construction costs - a figure that I believe is unlikely to constitute an unjustifiable hardship in a court of law where land purchase and fitout costs would be also considered as part of the total project cost.

I have previously referred to the access requirements for low rise buildings in countries such as USA, UK and NZ where limited concessions are provided. Quite apart from the legal questions of consistency with the DDA I must say that on the world stage I would be very concerned if after 5 years work we could not deliver a Premises Standard that moved beyond the provisions that our neighbours already have, in the case of NZ for almost 20 years.

Conclusion

Overall I believe the Premises Standard will provide for a broad range of concessions which target small business in a way that minimises potential onerous cost while increasing access.

Indeed because of the continuing provision of the defence of unjustifiable hardship small business operating out of existing buildings will retain access to a process which will allow them to deliver the best access possible, while taking into account their particular circumstances.

I believe that the issues raised by your correspondence will be of interest to others in the disability sector, Government and those representing small business so I intend to make my reply more widely available through our website.

Yours sincerely

Dr Sev Ozdowski OAM

Human Rights Commissioner

Acting Disability Discrimination Commissioner

4 Oct 2005

cc Attorney-General

Minister for Industry, Tourism and Resources