Note on recent VCAT decision
Victorian Civil and Administrative Tribunal - Wellington Street PL v Monash CC [2004] VCAT 295 (20 February 2004)
The acting Disability Discrimination Commissioner has been asked for his views on a recent decision by VCAT available at http://www.austlii.edu.au/au/cases/vic/VCAT/2004/295.html and its implications for Local Governments generally.
Background to the case
Monash City Council had imposed a condition on a developer that access must be provided to the upper floor of a new two storey building.
Council argued that requiring access to the upper floor was a reasonable and relevant planning consideration and that failure to require access might leave Council open to a complaint of discrimination as had occurred in the Cooper v Coffs Harbour City Council case: see http://www.humanrights.gov.au/disability_rights/buildings/permit.htm
The applicant in the case argued that other legislation, such as the Building Code of Australia and the DDA itself, controlled the issue of disability access and that the Council would be acting beyond its area of responsibility and authority to impose the access requirement in a planning permit.
The applicant argued that imposing the condition of requiring access to the upper floor was more constraining than the BCA required and possibly more demanding than the DDA would require because under the DDA a defence of unjustifiable hardship might be available to the developer.
The Tribunal concluded that in this particular situation "the proper forum for this type of condition in this limited type of situation is the building surveyor exercising his discretion under the Building Act 1993, the building regulations and the BCA."
The Tribunal directed that the Council's condition be deleted.
Commissioner's view
The VCAT decision is one relating to the application of planning and building regulations in Victoria and is not directly concerned with the requirements of the DDA.
The Tribunal found that it was unreasonable for the Council to impose the access condition "in the factual circumstances of this case involving a two storey office building" and that in its opinion "in this limited type of situation" a decision relating to the provision of access to the upper floor should be left to the discretion of the building surveyor acting within the requirements of the Building Act 1993 and the BCA.
The Tribunal does not appear to have directly addressed the general question of the appropriateness of attaching conditions to planning permits in all circumstances, but says that in this instance it believed such a condition would be inappropriate.
The Tribunal does not address the continuing dilemma faced by the Council, and the building surveyor, that in other situations they may be subject to complaints under section 122 of the DDA if they permit a development which is later subject to a successful DDA complaint.
The Commissioner does not believe that this limited Tribunal decision alters his previously expressed views that Councils (and building surveyors) who permit developments which are subsequently found to be discriminatory, may themselves be subject to DDA complaints.
The case does, however, highlight the importance of concluding the current
process of developing a DDA Disability Standard for Access to Premises
and changes to the BCA so that building law and anti-discrimination law
are consistent in this area.