BCA concerns on compliance

PROPOSED changes to the Building Code of Australia (BCA), aimed at providing guidelines for disabled access to buildings, are a cause of significant concern to property owners and developers.

The Federal Government is currently developing guidelines and standards in relation to buildings based on the Disability Discrimination Act (DDA).

At the same time there is a move to get the BCA to increase its provisions in regards to disabled access.

“So that [means that] if someone complies with the BCA there’s a better chance they’ll comply with the DDA,” Jackson McDonald partner Maria Saraceni said.

“But there’s a big ‘but’ because if you comply with the new BCA it will not necessarily mean you are free from complaints under the DDA.”

In spite of concerns about the cost of these new standards, the issue is unavoidably one of human rights, according to Ms Saraceni.

“A lot of people have a problem with the DDA but, again, it’s a human right and it’s something Australia signed to under the international convention and it makes sense when we’ve got an ageing population,” Ms Saraceni said.

Under the DDA the Government can issue standards that assist people understand how to comply with the act, she said.

The State Government recently released the Standards for Accessible Public Transport 2002, and the standards for buildings are expected in the near future.

It’s expected the standards and guidelines in relation to access to buildings will be sufficiently broad to ensure that the concept of equality is property represented.

“It [the Standards for Accessible Public Transport 2002] talks about access paths, manoeuvring areas, passing areas, ramps, surfaces, hand rails, grab rails, lifts, alarms and so on,” Ms Saraceni said.

The standards have been under development for about six years in consultation with industry bodies such as the Property Council of Australia and the BCA.

“Because the act is so broad, and because the act is to help people at a disadvantage, it’s beneficial legislation. So from a legal perspective it’s interpreted very broadly,” Ms Saraceni said.

“The act is to provide equality for disabled people, and when we talk about equality we’re talking about such things as availability, comfort, convenience, dignity and equality of amenity.”

In addition to the development of guidelines and standards for the industry the Government is working with the BCA to increase the provisions of the code in relation to disability so that it better complies with the DDA.

“There are certain provisions in the BCA for dealing with access to and egress from buildings,” Ms Saraceni said.

“But they’re very broad and the exemptions are ridiculous.

“If you comply with the BCA now it’s nothing to you at all.”

She said a heritage listing didn’t protect a building from complaints under the DDA.

“Where you have, say, a national heritage listed building and it doesn’t have access for people with certain disabilities, a lot of people say you can get out of it [the DDA] because to comply with the national heritage you can’t meet the standards,” Ms Saraceni said.

“A building being heritage listed does not preclude it from complying with the DDA.

“The only way of getting out of compliance is if you rely on the defence of unjustifiable hardship, and that’s defined in the act.

“And that’s what a lot of companies, building owners property owners rely on.”

A number of property owners would adopt a fairly robust view of the act, especially in cases where considerable investment is needed to make a building compliant, Ms Saraceni said.

Someone who had owned a building for 15 or 20 years might take the line: ‘I’ve never had a complaint so far and if I do I’ll take action at that point’, she said. This attitude won’t protect the owner from legal action but it might be deemed that a $20,000 out-of-court settlement is simply a minor cost in comparison to spending $500,000 on new lifts,.

“Some people will take a robust approach and say: ‘I’m not going to change the building because the legislation is complaints driven’,” Ms Saraceni said.

“It’s a question of risk.

“People will blame the lawyers and blame the insurance companies and it’ll just be a circle, rather than saying everybody has a right to equal treatment.

“The whole human rights thing is to try and change people’s attitudes over time.”

One industry analyst commented that the vocal disability lobby was driving the development of the guidelines.

“The lobby has a very strong agenda to implement some very costly reforms,” he said.

“Lifts will have to be changed to accommodate individuals in wheelchairs and corridors in commercial spaces will have to be wide enough to cater for two wheelchairs.”

National policy manager with the Property Council of Australia, Paul Waterhouse, is currently involved in negotiations to decide the access requirements to be included in the BCA.

“What we’re doing is negotiating on the minimum standard, which is considered to be complying with the BCA,” Mr Water-house said

“It’s a long process; we started talking about this in about 1996.”

The amendments to the BCA will be made available for public comment next year, at which stage people will be invited to respond to it.

At this stage the cost of any alternations will be discussed.

“Our concern is that the costs will be significant,” Mr Waterhouse said.

“The changes will affect not just new buildings but it will affect any alterations to buildings.

“In old buildings, whenever a refurbishment is undertaken the owner will be required to make changes to ensure the building is compliant.

“This is what we are negotiating with at the moment.”