Local government liability
for permitting inaccessible development

The Disability Discrimination Commissioner was recently asked to comment
on a South Australia Environment, Resources and Development Court ruling
on a City of Adelaide requirement that access be provided to a swimming
pool in a hotel development.

The Commissioner's response to the request includes an update on developments
in relation to a proposed DDA Disability Standard on access to premises
and is published here for others interested.

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Thank you for your letter seeking comment on the recent case before the
South Australian Environment, Resources and Development Court in Pruszinski
Architects P/L v City of Adelaide (No 84 of 2001).

As I understand it the case involved an appeal in relation to a condition
imposed by the City of Adelaide that a swimming pool to be located in
a hotel be made accessible for people with disabilities. The appeal argued
that access to the pool itself was not required in the current BCA and
that there would be difficulties achieving the condition relating to access
to the swimming pool.

From the information available to me it appears that the Council sought
to impose the condition following their assessment of the access requirements
of the DDA and an assessment of the views previously expressed by me about
Local Government responsibilities when exercising their development approval
functions.

The Environment, Resources and Development Court decision 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
other words the Court appears to have taken the view that the City of
Adelaide would be acting outside its authority to apply a condition that,
in their view, goes beyond the requirements of the South Australia Development
Act and Building Code. The Court deleted the requirement for access in
the approval.

I would like to comment on a number of issues arising from the specific
case and broader questions relating to Local Government responsibilities
under the DDA.

Access in this particular matter

In relation to this particular matter I would like to repeat the advice
provided to your office in December 2000. First, it is my view that access
to and into a swimming pool is covered by the provisions of the DDA. Secondly,
any service provider or property owner/operator who failed to provide
equitable access would be liable for a complaint under the DDA. Thirdly,
if a complaint were lodged with the Commission and conciliation was not
possible, the complainant could take their complaint to the Federal Court
or Federal Magistrates Service for determination.

The question of whether or not the requirement to provide access constituted
an unjustifiable hardship could be determined only by the Court or Magistrates
Service.

Finally, the fact that the BCA or any particular Australian Standard
may or may not address the question of swimming pool accessibility may
not be decisive in terms of responsibilities under the DDA. The Environment,
Resources and Development Court quite correctly noted that their decision
did not mean the developer was not bound by the provisions of the DDA.

Indeed the Court went to some lengths to make it clear their decision
should not be interpreted as a statement that access for people with disabilities
was not important and concluded "Developers will be wise to heed the provisions
of the Disability Discrimination Act when designing and undertaking building
development."

Should the development in question go ahead without providing access
to the pool there would be an ongoing liability for complaints under the
DDA.

Local Government liability

In relation to the question of the responsibilities of the City of Adelaide,
and Local Government in general, clearly the Environment, Resources and
Development Court expressed a different view to the one expressed by the
Commission and the Federal Court in relation to a NSW case involving Cooper
v Coffs Harbour City Council. It is important to bear in mind that these
bodies operate under differing legislation. In the Cooper v Coffs Harbour
case, the Federal Court primarily considered the issue
of what constitutes "permitting" once unlawful discrimination
has been found.

The Environment, Resources and Development
Court said that it is legally inappropriate for the City of Adelaide to
pursue the objects of the DDA by imposing conditions under the building
provisions of the local Development Act. The implication of that view
is that Local Governments in South Australia would have no liability under
section 122 of the DDA for permitting a discriminatory action.

As you know I have expressed a view, based on the Commission
and Federal
Court decisions in Cooper v Coffs Harbour City Council, that Local
Governments throughout Australia may face a similar liability for successful
complaints under section 122 if they fail to adequately consider the DDA
when exercising their approval authority and approve a development which
is subsequently proven to be discriminatory.

Details of my comments and advice given to Local Governments on this
matter can be found on the Commissions web site at http://www.humanrights.gov.au/disability_rights/faq/Local_govt/local.htm

The NSW case referred to the existence of broad 'permissive' powers under
s 90 (at that time) of the Environmental Planing and Assessment Act.
(EPAA). The Council had argued that it was beyond its power to impose
a condition to provide access for people with disabilities, because that
would, in effect, import into the assessment process factors that were
beyond the scope of their Act. The Commission rejected that argument on
the basis that such an issue was both a matter of "public interest",
and constituted a relevant "circumstance of the case". As such
the Council was authorised to consider wheelchair access under s 90 of
the EPAA.

I believe that Local Governments outside of NSW should look very closely
at their respective powers and responsibilities when assessing their own
liability.

Ultimately, it will up to the Courts to decide on this question as further
case law develops as a result of DDA complaints.

Advice to Local Government

Following the decisions in Cooper v Coffs Harbour City Council I provided
advice in the document referred to above on how Local Governments might
establish a mechanism for responding to this responsibility and processing
appeals from developers who considered they faced an unjustifiable hardship
in relation to the requirements of the DDA. Essentially that advice included:

1. Developing an access policy or Development Control Plan (DCP) that,
as closely as possible, reflects responsibilities under the DDA. This
could involve an assessment of relevant documents and case law such as
the current BCA, the Building Access Outcomes Report and the Regulation
Document RD/9701 issued by the Australian Building Codes Board (ABCB)
and available through their web page at http://www.abcb.gov.au/content/publications/
, the Commission’s own Advisory
Notes access to premises and a number of DCPs already developed
by Local Governments. Clearly until such time as the BCA is changed to
achieve consistency with the DDA any policy or DCP developed by a Local
Government could only act as a guide to minimise the chances of complaint.
The Commission recognises the difficulty this limit imposes and is working
closely with the ABCB, disability community, industry and government to
conclude discussions and consultation on the development of a DDA Disability
Standard on access to premises that will address many of those difficulties.

Nonetheless, I believe that developing and implementing
a policy or DCP will both improve access in the built environment and
significantly reduce the current liability.

2. Providing information on the policy or DCP
at an early stage in the development application process so that designers
and developers are clear about what will be expected of them before applications
are lodged. This would also include a pro-active education strategy with
local designers, builders, Building Surveyors and potential applicants
to ensure they addressed access issues in the early design stage.

3. Establishing a mechanism or appeals process,
in consultation with local experts and advisory bodies such as Access
Committees, for dealing with requests from applicants for variations or
exemptions from compliance with the policy or DCP on the grounds that
they believed they faced an unjustifiable hardship. Clearly such a mechanism
is likely to be most relevant to applicants undertaking new work on existing
buildings rather than new proposed buildings. The purpose of such a mechanism
would be to assist Local Governments to apply a rigorous assessment to
an applicants case, one that would stand up to the scrutiny of a court
should a complaint be lodged against a Local Government in relation to
an approval for a development which was subsequently the subject of a
successful DDA complaint.

Such a mechanism would include procedural guidelines to assist decision
makers in their role and would need to include training of appropriate
staff in the DDA and its application.

The mechanism should assist a Local Government to make the best possible
decision and thereby reduce their own liability. Such a mechanism, if
applied, would not give either the applicant or the Local Government absolute
protection, but it will significantly reduce the likelihood of complaints.
The difficulties associated with making assessments on claims from applicants
are obvious and there is no formula that can be simply applied in each
case, but as the NSW case law shows, approving an application without
a thorough assessment of DDA requirements and rigorous assessment of claims
of unjustifiable hardship could lead to successful complaints.

Some Local Governments have responded to the advice provided and established
DCP’s and appeals mechanisms and discussions are taking place which
will hopefully lead to the Commission being able to make information available
on our web site.

Developments in relation to a DDA Disability Standard

Finally, I would like to provide you with an update of current discussions
in relation to the development of a DDA Disability Standard on access
to premises and a proposed Administrative Protocol currently under discussion.

As you will be aware the DDA now includes a provision to allow for the
development of a DDA Disability Standard and the Minister for Industry,
Science and Resources has formally asked the ABCB to develop a draft through
the Building Access Policy Committee (BAPC) which includes representatives
from the ABCB, disability community, industry, Standards Australia, the
Australian Local Government Association, design professionals, government
and the Commission.

The BAPC has set itself a goal of producing a draft for consultation
as soon as possible and the ABCB will be providing progress reports through
its web page http://www.abcb.gov.au/
and other sources. We are confident of significant progress within the
next 12 months.

A full and complete DDA Disability Standard is likely to consist of a
number of parts covering buildings and other aspects of the built environment
including, fixtures and fittings, streetscape, open spaces such as parks
and matters concerning the management of buildings to ensure access is
retained.

The first part of a DDA Disability Standard, however, will be addressing
those things that are currently covered by the BCA which primarily consists
of the building structures themselves. Agreement has been reached that
the DDA Disability Standard will effectively pick up and reflect the access
provisions in a new revised BCA. This will mean that someone building
in accordance with a future revised BCA will be sure of complying with
the DDA Disability Standard and will therefore effectively be protected
from successful complaints under the DDA.

When this is achieved Local Government will have a clear benchmark against
which to assess development applications and building certification in
relation to those parts of new buildings covered by the access provisions
of the BCA. At that point in time any access policy or DCP should be revised
to include the specific requirements of the new BCA/DDA Disability Standard
and the Local Government would be justified in believing their approval
of something that met the BCA/DDA Disability Standard could not result
in a successful DDA complaint against the developer or themselves.

Ongoing role for Local Government

There would, however, continue to be three areas where Local Governments
may continue to have a role to play in relation to important access questions.

1. First would be situations in which there was some question of interpreting
   whether or not something actually met the deemed-to-satisfy provisions
   of the BCA/DDA Disability Standard and whether an alternative performance
   solution met the Performance Requirements of the BCA.
2. Secondly, there may continue to be questions raised by applicants
   about possible exceptions from compliance with the access provisions
   of a revised BCA/DDA Disability Standard in relation to new work
   on existing buildings.
3. Thirdly there may be issues not covered by the access provisions of
   a BCA, but which may still come under the authority of the Local Government
   in terms of approvals. For example issues relating to streetscape, parks,
   recreational areas and outdoor services such as pavement restaurants
   or cafes.

In all three areas the Local Government may continue to have a liability
if they approved a development that was subsequently the subject of a
successful complaint.

In the first two of these areas, questions of interpretation and questions
of full application of the revised BCA/DDA Disability Standard to existing
buildings, the BAPC has been working on developing a nationally consistent
Administrative Protocol that will provide guidance to building regulators
faced with questions of interpretation or appeals by developers and owner/operators.

I have supported discussions on the development of a draft protocol as
I believe there will be real questions of interpretation and legitimate
questions of application of a new BCA to some existing buildings and a
protocol has the potential to deliver non-binding but effective results
in relation to these questions.

The protocol would involve establishing a mechanism at a state/territory
level to deal with interpretive questions for new and existing buildings
and application questions in relation to existing buildings that trigger
the new BCA as a result of new work or change of function. The mechanism
would include setting up an Access Panel and drawing on Access Experts
to assist in decisions making. While use of the protocol could not eliminate
the right of individuals to pursue a complaint in the event that a decision
of an Access Panel resulted in a discriminatory barrier, it would assist
in ensuring consistent and rigorous analysis of individual circumstances.

The mechanism would, however, reduce the chances of complaints being
lodged and significantly reduce the likelihood that complaints would be
successful. As such it would provide a similar level of protection to
that available to Local Governments who have acted on my advice following
the Cooper v Coffs Harbour case.

I do not envisage every question of interpretation, or application of
the BCA to existing buildings, will be forwarded to a state/territory
wide Access Panel for consideration. Local Governments will in many instances
feel competent to make those decisions. In that context I believe those
Local Governments that have established mechanisms and undertaken staff
training to respond to their current possible liability will be in a very
good position to respond once a new BCA/DDA Disability Standard and Administrative
Protocol are adopted.

In addition a local mechanism could assist Local Governments faced with
questions in relation to the third element identified above - those issues
not covered by the access provisions of a BCA, but which may still come
under the authority of the Local Government in terms of approvals.

In conclusion I would say that I am still of the view that Local Governments
may face a liability for complaint under section 122 of the DDA if they
approve a development which is subsequently the subject of a successful
DDA complaint. This liability can be reduced through the establishment
of a local mechanism to better define access and deal with appeals from
developers.

Discussions are taking place at a national level with a view to establishing
an Administrative Protocol that looks very similar in structure and function
to the mechanism I have proposed at a local level and, irrespective of
interpretation of the liability of Local Governments under section 122,
I would suggest it would be a valuable mechanism for all Local Governments
to establish – both to manage their ongoing responsibilities and
encourage an inclusive environment.

The issues your questions raise have relevance to other Local Governments
throughout Australia so I will be forwarding copies to various Local Government
Associations and making this response available through our web page.

Yours sincerely

Dr Sev Ozdowski OAM

Disability Discrimination Commissioner

10 July 2001