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Frequently asked questions - Local government

Revised: 8 May 2001

Contents

What responsibilities do local government authorities have under the Disability Discrimination Act 1992 (DDA) when considering development approval applications?

In summary:

The Disability Discrimination Commissioner has previously expressed a view that councils have a critical role to play in ensuring developments comply with the requirements of the DDA. Recent Commission and Federal Court decisions show that councils can be liable under section 122 of the DDA for permitting discriminatory acts when exercising their development approval responsibilities.

In August 1995 the Commission received a complaint from Mr Ian Cooper concerning access for people who use wheelchairs to a cinema complex. The cinema in question had been granted development approval by the Coffs Harbour City Council to build a new cinema in an existing complex.

Mr Cooper's complaint alleged unlawful discrimination in that no provision had been made to ensure access for people who use wheelchairs. The complaint was referred for hearing and in August 1997 the Commission decided (Cooper v Holiday Coast Cinema Centres Pty Ltd) that lack of wheelchair access to the new cinema constituted unlawful discrimination by the cinema operator under the DDA.

Mr Cooper had also complained that Coffs Harbour City Council in approving the development application for the cinema, had acted unlawfully under section 122 of the DDA by permitting the unlawful conduct of the cinema operator. (Section 122 states, 'A person who causes, instructs, 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.') Once the complaint against the cinema operator had been determined the Commission was able to proceed with the complaint against the council.

In Cooper v Coffs Harbour City Council (18 May 1998) the Commission decided that the council was required to take into account the requirements of the DDA regarding access to premises in deciding whether to approve a development application.

In its decision the Commission stated:

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.

In this particular case the Commission found the council had considered the DDA and had formed the view that the provision of equal access to particular premises would have involved unjustifiable hardship. The Commission found this view reasonable, although incorrect, and it excused the council from liability under section 122 of the DDA for permitting a discriminatory act.

Mr Cooper appealed to the Federal Court against the Commission's decision. The Court upheld Mr Cooper's appeal and referred the case back to the Commission for further consideration. The Court's decision emphasised that section 122 does not contain any defence that it was reasonable to permit discrimination if the action permitted is in fact found to be unlawful discrimination. The case was referred back to the Commission to consider whether the council could establish a significantly narrower defence of honest and reasonable mistake of fact in relying on incorrect information given to it on the ratio of costs of providing access to overall building costs. A decision on the second Commission hearing of the case Cooper v Coffs Harbour City Council was handed down on 12 May 2000.

In his decision Commissioner Carter QC found that while Council had acted honestly, its reliance on the facts presented to it by the developer was not reasonable, and concluded:

It follows that the complaint against the Council has been substantiated in that in terms of section 122, it permitted the development without requiring compliance with the access requirements of the DDA.

Following from the Cooper v Coffs Harbour City Council case the Disability Discrimination Commissioner's opinion is that:

If council had, for example, been given incorrect information and could show it had honestly and reasonably relied on those facts it would have fulfilled its obligations under the DDA and not be liable for permitting unlawful discrimination. The Federal Court decision noted that councils, because of their experience and expertise, should be well placed to assess the realism of facts presented to them.

Where to from here?

The case law establishes that approval of a development application by a local government does not in itself protect developers, owners or operators from liability under the DDA or under equivalent State or Territory legislation. It also establishes the liability of councils under s 122 of the DDA in permitting a development that subsequently turns out to be unlawful discrimination. The Commissioner's view is that liability for s 122 complaints would exist across Australia and would not be limited to councils in NSW.

This clearly puts local government authorities in a difficult position when considering building and development applications. Some of these difficulties would be addressed if the Building Code of Australia were revised to reflect the requirements of the DDA, and the Commissioner supports work by the Australian Building Codes Board to revise the BCA so that it reflects those requirements. The Commissioner also supports adoption of a suitably revised BCA as part of a Disability Standard on Access to Premises under the DDA so that there is a clear and consistent regulatory regime.

While awaiting the development of a Disability Standard in this area the Commissioner strongly encourages initiatives by local government throughout Australia to:

In the absence of a Disability Standard, implementing these policies and procedures will not automatically prevent or resolve complaints under the DDA. They are likely, however, to result in significantly fewer situations in which people with disabilities feel aggrieved by council decisions to the extent that they would consider proceeding with a complaint against the council. The initiatives are also likely to result in greatly enhanced compliance with the relevant provisions of the DDA and a more accessible community.

For more information on access issues relating to new premises refer to the Commission's Advisory Notes on Access to Premises available from the Publications Officer, GPO Box 5218, Sydney, NSW 1042 or at http://www.hreoc.gov.au/disability_rights/buildings/access_to_premises.html

What about the role of Building Surveyors?

While there is currently no case law concerning the liability of local government or private Building Surveyors under s 122 of the DDA it is the Commissioner's view that they do have liability in exercising their various building certification functions.

While the roles and responsibilities of Building Surveyors may vary between states and territories there are two circumstances under which they may be liable under s 122.

The first, and most obvious, is where a local (or State) government development approval specifically requires access as part of an approval, but the Building Surveyor 'signs off' on the building without access being provided. In this circumstance the Building Surveyor would clearly be liable for a complaint under s 122 in the event of a successful complaint against the owner/occupier of the building.

The second circumstance would be where the development approval only advised the applicant to provide access or was silent on this matter. As previously stated there is no case law on this situation, but the Commissioner's view is that the approval body and the Building Surveyor providing building certification would both be potentially liable for complaints under s 122. The Building Surveyor may also have some liability under contract and tort law in terms of their duty of care to their clients should they fail to identify access difficulties which may subsequently be the subject of complaints.

Clearly Building Surveyors need to carefully review the conditions of development approvals, understand the requirements of the DDA and advise their clients of their liabilities.

Can HREOC grant dispensations to developers or approve development applications that fail to provide for full access?

Since the Cooper v Coffs Harbour City Council case the Commission has received many inquiries from developers, builders and local governments asking if we can give a legally binding exemption, dispensation or approval to a developer who believes that providing full access would impose an unjustifiable hardship on them.

Local government authorities are eager to make the right decision in relation to requests from developers for dispensation and developers are understandably looking for as much surety as possible that their properties will not be the subject of a complaint.

There is, however, no mechanism for the Commission to certify unjustifiable hardship. The Commission's role is to promote and encourage compliance with the law and to attempt to conciliate complaints lodged by people with rights under the DDA. A final decision about what would or would not constitute an unjustifiable hardship is a decision that only the Federal Court can make. As stated earlier in this advice, the Commissioner's understanding of the outcome of the Cooper v Coffs Harbour City Council case is that councils have a responsibility to consider the requirements of the DDA in the development approval process, but that it is open to a council to respond to appeals from developers by deciding to not require full access in situations where, in their view, that would impose an unjustifiable hardship on the developer.

The Court ruling in Cooper v Coffs Harbour City Council clarified the requirement that councils act rigorously and thoroughly when making their assessment of the developers claim. If a council imposes access requirements they believe are consistent with the requirements of the DDA, in the form of a DCP or access policy, and a developer appeals against those requirements a mechanism should exist within the council for those appeals to be heard.

If, after thorough examination, the council makes a decision to approve a development with less than full access there is a possibility that at some point a complaint may be lodged against the developer (and the approval body). If the Commission cannot conciliate an agreement on the complaint against the developer it would be open to the complainant to pursue their complaint with the Federal Court, at which point the question of unjustifiable hardship could be formally addressed. If the developer's claim of unjustifiable hardship was not successful the Court would determine what action needed to be taken. At this point the complainant would also be free to proceed with their complaint against the local government or approval body under s 122 as the original decision to give approval would clearly have been wrong. If, however, the developer's defence of unjustifiable hardship were accepted by the Court the complaint would be dismissed and the decision of the council to approve the development would have been the correct one.

In summary

The Commission does have the authority to grant a Temporary Exemption in some circumstances and has developed guidelines to assist applicants. However, the use of Temporary Exemptions is generally limited to situations where an applicant is actively pursuing plans to get rid of discriminatory barriers and seeks protection from complaints while fixing the problem. For more information on Temporary Exemptions see http://www.hreoc.gov.au/disability_rights/exemptions/exemptions.html

Disability Discrimination Commissioner
Human Rights and Equal Opportunity Commission
February 2001

Approval by local governemnt for modifications on private premises

Note the following response sent by Disability Discrimination Commission Halliday in 2000 to a query from a local government regarding applicability of the Disability Discrimination Act to the Council's consideration of a proposal to remove a significant tree from private premises:

The main provision of the Disability Discrimination Act dealing with access to premises, section 22, covers only premises which the public or a section of the public are entitled or allowed to use, rather than covering access issues within private premises as such. DDA section 22 therefore does not appear to have any application to the matter you raise.

It is also necessary to consider the possible application of DDA section 24, which prohibits discrimination in provision of services, including services of a kind provided by government. There is case law indicating that this can include decision making on approvals and permits (see the decision of the High Court in IW v City of Perth and others ) and so it is necessary to consider whether any discrimination as defined in sections 5 and 6 of the DDA would be involved in refusing approval in this case.

Section 5 deals with direct discrimination, where a person is treated less favourably because of his or her disability than a person without the disability would be treated in comparable circumstances. Assuming that the Council makes its decision in this matter on the same environmental grounds and by the same processes as in other cases, no direct discrimination appears possible since less favourable treatment requires treatment which is different as well as disadvantageous.

Section 6, dealing with indirect discrimination, is more relevant. Indirect discrimination occurs where a person with a disability is required to comply with a requirement or condition, which is not reasonable, which he or she does not or cannot comply with, and which a substantially higher proportion of people without than with the disability comply with or can comply with.

To make a complaint of indirect discrimination in this case it would first be necessary to argue that Council in refusing permission to remove the tree is in effect requiring the applicant to comply with a requirement or condition, such as that of being able to move about the premises concerned notwithstanding the presence of tree roots and debris.

I should note that I am not sure that such a requirement would in fact be imposed by Council refusing approval in this case. Noting your advice that the applicant has only recently purchased the property, it might well be found instead that the applicant has imposed any access restrictions on himself. There would also be issues of why the applicant could not arrange for debris to be removed from time to time as required and paths to be relaid and/or redesigned to provide for access notwithstanding the presence of tree roots on the property.

These considerations could well lead to the conclusion that no condition or requirement which the applicant is unable to comply with has in fact been imposed. If such a condition or requirement were nonetheless found to have been imposed, there is still no unlawful discrimination unless this condition is not reasonable.

The DDA does not set out any detailed criteria for assessing reasonableness. Factors likely to be relevant, however, would include: " the environmental importance, legislatively recognised, of tree preservation " the recent nature of the applicant's purchase of the property with the tree in place " the likely impossibility of moving the living tree to another location as against possibilities which may exist for moving or modifying pathways to provide access notwithstanding presence of tree roots. I trust that this assists in consideration of this application.