There is some remedy via a link between the BCA and the DDA, in that the BCA contains specific provisions for access to and within buildings. However this does not mean that these technical requirements meet the overall intent and objectives of the DDA. So we have a situation where there is one legislative tool that sets out only broad objectives (DDA) and another that sets out standards in part (BCA), i.e. accessibility for disabled persons which enables partial compliance.
As a complaints-based legislative tool, the DDA allows anyone who is aggrieved to seek redress from the Human Rights and Equal Opportunity Commission (HREOC) and other equivalent bodies at a state and territory level. Compliance with the DDA has also been sought through bodies such as the Victorian and Civil Administrative Tribunal (VCAT) and Environment Resources and Development Court of South Australia.
The question of responsibility and, more critically, liability under Section 122 of the DDA has led to a number of local government authorities in various states to incorporate DDA compliance at the planning or development approval stage. This has generally been the case with councils in NSW and Victoria.The landmark case, which made it clear to local government that they had a crucial role to play in relation to exercising their power as an approval authority, was Cooper v Coffs Harbour City Council. In this case, Mr Ian Cooper took a local cinema to HREOC when the cinema had no accessible features. HREOC deemed that the cinema owner was at fault, but not Coffs Harbour City Council, even though they had approved the development of the cinema. When the matter later went to Federal Court, the court overruled HREOC and deemed the council was at fault.
The significance of this precedent means that local governments are now very active in holding up development applications where there are any accessibility issues. However, when the matter of compliance in relation to access was heard by the Environment, Resources and Development Court in the case of Pruszinski Architects P/L V City of Adelaide, the Court concluded that, in its view. “it is not appropriate to seek to enforce the Disability Discrimination Act through the Building Rules provisions of the Development Act.”
In Victoria, VCAT has been requested to review council determinations that have imposed conditions relating to DDA compliance. It has held in a number of decisions that it is unreasonable to impose these conditions through the planning process. In general, the principle of compliance with the objectives of the DDA was supported. However it was held to be a matter to be resolved through other legislation. Cases supporting this principle include Ian Perkins and Associates v Stonnington and Manory Properties Pty Ltd v Bayside. Certainly, a broad link can be made between planning legislation and the DDA. NSW planning legislation identified in the Environment and Planning and Assessment Act 1979 provides in Section 79C that one of the matters of consideration by the consent authority relates to 1(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, and (e) the public interest.It then goes on to state that under Section 80A of the Act, a condition of development consent may be imposed if “it relates to any matter referred to in Section 79C(1) of relevance to the development subject to the consent…” This has led to some councils incorporating detailed access requirements as part of their general development guidelines in the Development Control Plans.
In Victoria, the State Planning Policy Framework establishes that one of the key goals for all councils is that planning contributes to the goal of accessability. One of the key councils in Melbourne has endeavoured to include provisions in their planning scheme relating to accessible buildings and compliance for all new public and commercial buildings with Australian Standard 1428 Part 2 provisions for access and mobility.
However this was not supported by the State Government as it was deemed inappropriate and a matter best addressed through the provision of the new access standards to form part of the Building Code. The case law to date is varied, depending on the mandate of the court or body reviewing the particular issues and whether there is scope within the Act under which compliance is being considered.
It appears that councils have imposed conditions through the town planning phase of the development approval process in an effort to be proactive and ensure that liability under Section 122 of the DDA is diminished.
Planning and development approval is required for the use and development of the land. Frequently the design of the internal layout of the building is not a consideration in the planning permit process and is considered in detail in the building approval stage.
Many local government authorities are facing resourcing pressures so it is reasonable to question the appropriateness of introducing further complexity that is best left to other areas of council to review and approve. This is apart from the question of validity.
The proposed new standards, which are to be made by the Commonwealth as deemed to comply with DDA provisions, should, as a matter of logic, form part of the BCA and a new Australian Standard be implemented.
Maureen Jackson is associate director Urban Planning at Davis Langdon, and is also a member of the Building Appeals Board