Recommendation for temporary exemption: Bendigo tram service

Recommendation

That the Commission grant an exemption to the Bendigo Trust from compliance with the Disability Standards for Accessible Public Transport, in so far as those Standards would prevent installation of one tram stop using kerb side boarding, for a period of three years, on condition that:

• during the exemption period the applicants install four compliant tram stops as proposed in their application; and that
• the applicants report to the Commission within 12 months on options for providing access where kerbside boarding is used, including through modification of tram vehicles to provide lifts or hoists.

Application

The Human Rights and Equal Opportunity Commission has received an application under section 55 of the Disability Discrimination Act for a temporary exemption regarding tram services and associated infrastructure in Bendigo . The application includes the following:

The Bendigo Trust, who oversee the historic Bendigo Tramways, currently run a tourist tram service through the centre of Bendigo highlighting the City's many historic features. The existing tram service has four tram stops, of which only one provides disabled access. The Bendigo Trust has secured $3.7 million from the Victorian State Government to build one new tram stop, (which will provide disabled access) plus an extension to the existing tram tracks. Phase two of the project is seeking $2.8 million from the Commonwealth Government to build 4 additional tram stops, plus increased car parking facilities at either end of the tram route to provide a park and ride facility into the Bendigo CBD for commuters and tourists. It is anticipated that an application and design for phase two of the project will be submitted for funding by the end of October 2004, with a possible start date around the middle to end of 2005 if successful.

It is acknowledged that a new operators permit will be required from the DOI [Department of Infrastructure]  to run a commuter service, and discussions are already well advanced in this regard.

Initial discussions with Vic Roads and the City of Greater Bendigo Council on the second phase of the project have identified three additional tram stop sites where disabled compliant stops would be constructed. However, the fourth tram stop site identified only allows for a traffic lights controlled style of stop to be created, where passengers access the tram from the kerb side, due to the narrower road width along this section. This obviously does not, and will not, allow for a disabled tram stop to be constructed in the road at this point. 

The site for this stop has been selected as it would service the local BRIT College and the Chinese gardens/museum (outside the entrance to both on opposite side of the road), both high interest/likely user groups for the service. However, the road width and traffic flows along this section of the highway do not allow for a disabled stop to be constructed in this area. 

As funding is currently being sought for this project, and the impact of a traffic lights controlled stop, as opposed to not having a stop at all, at this point affects the level of funding required, an early indication on the likelihood of an exemption would be most helpful. 

Issues

The Disability Standards for Accessible Public Transport require, among other things, that passengers in wheelchairs or mobility aids must be able to enter and exit a conveyance and position their aids in the allocated space.

The Standards permit, and require, staged compliance with the Standards for services.

However, they require immediate compliance for construction or installation of new infrastructure (any structure or facility used by passengers in conjunction with travelling on a public transport service) - subject to the defence of unjustifiable hardship and subject to the capacity of the Commission to grant temporary exemptions.

In previous decisions the Commission has not been prepared to grant exemptions purely to certify the existence of unjustifiable hardship. However the Commission has been prepared to grant exemptions on condition that the applicant makes and meets commitments to provide increased access within a reasonable period, on the basis that to grant an exemption in such circumstances (rather than leaving an applicant to raise possible hardship defences in response to complaints if access is not provided) can be appropriate as a means of promoting achievement of the objects of the DDA.

Call for submissions

In accordance with the Commission's policy on exemption applications under the DDA, a public notice of inquiry was issued on 27 October seeking submissions by 30 November. One submission was received, from the Accessible Public Transport Jurisdictional Committee (a body with which the Commission is required to consult in deciding applications for exemption in relation to the Disability Standards for Accessible Public Transport).  

Reasons for recommendation

The submission provided by the Accessible Public Transport Jurisdictional Committee characterises the application as a request to have unjustifiable hardship certified through the exemption process, and recommends refusal of the application accordingly.

However, the application does not seek simply permission to do nothing.

The project proposed involves moving from a position where one out of four stops provide access for people using wheelchairs and other passengers with similar mobility requirements, to a position where access is provided at three out of four new stops, and five stops out of eight overall.

Although not complying with the requirements of the Standards in relation to new infrastructure (considered without reference to possible unjustifiable hardship defences), this would produce a situation where the five and ten year compliance targets (25% and 55% respectively) were met ahead of time, for the infrastructure elements of the tram service concerned and for the service considered as a whole.

Use of kerbside boarding at one of the proposed new locations presents the same problem for achieving access as is faced by tram operations in a number of other locations, where a dedicated right of way is not available and it is hence difficult or impossible to provide elevated platforms. In these instances operators have had to seek solutions by acquiring new vehicles to provide low floor access, or modifying existing vehicles to provide hoist or lift access. The Disability Standards for Accessible Public Transport are not prescriptive regarding the choice between these approaches.

As already indicated, the applicants' proposals would see their services exceeding the initial targets provided by the Standards, in substance although not in detail, for the period covered by the proposed exemption. Into the future, compliance will require difficulties of kerbside boarding to be addressed - either by vehicle based or infrastructure based solutions. For this reason the recommended decision includes a requirement to report on solutions to provide accessible boarding where high level platforms are not available.