Recommendation for temporary exemption: Murranumbla Bed and Breakfast

This is a recommendation for granting of a temporary exemption, for a period of 18 months, regarding disability access to bathroom facilities at a proposed bed and breakfast facility, on condition that within 12 months of the date of the exemption the operators commence work to provide accessible bathroom facilities and complete that work within 18 months of the date of the exemption.

Background

The application (dated 23 June) indicates that:

• access is available into and within the homestead itself
• while people with disabilities would be welcomed as guests, the current bathroom is not fully accessible and there is no entry point on to the veranda
• if heritage approval currently pending for alterations to provide access to the veranda is not received access will be provided by temporary means
• the operators are seeking to open with one room for a trial period of 12 months to determine whether the business is viable before undertaking alterations to provide an accessible bathroom
• if after 12 months the business proves to be viable and is extended to the full capacity of three rooms, the operators undertake within 6 months to address any outstanding access difficulties including the construction of an accessible bathroom for guests with disabilities.

Issues

The following issues were identified in a notice of inquiry published on the Commission's web site on 6 July.

In previous decisions the Commission has indicated that:

• heritage issues are relevant to although not necessarily conclusive of unjustifiable hardship under the DDA;
• it is not appropriate to grant exemptions purely to certify the existence of unjustifiable hardship on financial or other grounds;
• it is not an appropriate use of the Commission's power under section 55 of the DDA to substitute for the power of local government to approve or decline to approve buildings for use;
• local government bodies which consider that they are exposed to excessive uncertainty regarding potential liability under the DDA in making decisions on building access issues should themselves consider making applications for exemption; such applications might include appropriate criteria and processes for making decisions and might also be accompanied by other commitments on improving access in local communities; but
• the Commission has been prepared to grant exemptions on condition that the applicant makes and meets commitments to provide 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.

Discussion of issues

In accordance with Commission policy submissions on these or other relevant issues were requested by 17 August 2004. No submissions were received.

The draft Disability Standards for Access to Premises would require accessible bathroom facilities for bed and breakfast accommodation only where 3 or more rooms are provided. These draft standards of course lack any current legal status of their own. However in my view it would be appropriate for the Commission to conclude that a commitment in the context of an exemption application to comply with relevant provisions of the draft standards would be consistent with and promote the objects of the DDA.

The application indicates that accessible bathroom facilities will be provided within 18 months if but only if a review after 12 months of operation within one room indicates it is viable to expand the business to provide 3 rooms.

If the operators decide not to expand the business to 3 rooms and thus not to provide accessible bathroom facilities, or decide for any other reason not to provide accessible bathroom facilities, they would cease to have the benefit of the exemption but would have the same capacity to raise a potential unjustifiable hardship defence as they currently do.

I would also note that in my view it is regrettable that such a small scale development finds it necessary to approach the national human rights commission for approval through the exemption process rather than issues of this kind being able to be resolved through local approval processes. However, pending greater harmonisation of discrimination law and building and development approval processes (including through finalisation of Disability Standards in this area), the Commission clearly is required to determine exemption applications of this kind on their merits when such applications are made.

David Mason Director Disability Rights policy 3 September 2004

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