DDA Explanatory Note Update

Attached is a recently released update by HREOC of an Explanatory Note concerning the question of local government liability for complaints under section 122 of the Disability Discrimination Act.

The update summarises the Commissioner's current understanding of the possible liability of both local governments and Building Surveyors when performing their development approval and building certification functions.

The Commissioner has issued the update in response to numerous inquiries from community groups, local governments, architects and private building surveyors and invites comment and ongoing discussion on this and any other matter concerning access to premises.

Comments on the update can be forwarded to Michael Small

What responsibilities do local government authorities have under the Disability Discrimination Act 1992 (DDA) when considering development approval applications?

What responsibilities do local government and private Building Surveyors have under the Disability Discrimination Act 1992 (DDA) when certifying building work?

Can the Human Rights and Equal Opportunity Commission grant a dispensation to a developer or give its approval to a local government to proceed with a development application that does not include access for people with disabilities?

The Disability Discrimination Commissioner has previously expressed a view that councils have a critical role to play in ensuring developments comply with the requirements of the DDA. Recent Commission and Federal Court decisions show that councils can be liable under s 122 of the DDA for permitting discriminatory acts when exercising their development approval responsibilities.

In August 1995 the Commission received a complaint from Mr Ian Cooper concerning access for people who use wheelchairs to a cinema complex. The cinema in question had been granted development approval by the Coffs Harbour City Council to build a new cinema in an existing complex. Mr Cooper's complaint alleged unlawful discrimination in that no provision had been made to ensure access for people who use wheelchairs.

The complaint was referred for hearing and in August 1997 the Commission decided that lack of wheelchair access to the new cinema constituted unlawful discrimination by the cinema operator under the DDA.

Mr Cooper had also complained that Coffs Harbour City Council in approving the development application for the cinema, had acted unlawfully under section 122 of the DDA by permitting the unlawful conduct of the cinema operator. (Section 122 states, 'A person who causes, instructs, aids or permits another person to do an act that is unlawful under Division 1, 2 or 3 of Part 2 is, for the purposes of this Act, taken also to have done the act.')

Once the complaint against the cinema operator had been determined the Commission was able to proceed with the complaint against the council. In Cooper v Coffs Harbour City Council (18 May 1998) the Commission decided that the council was required to take into account the requirements of the DDA regarding access to premises in deciding whether to approve a development application.

In its decision the Commission stated

The DDA is a fundamental law of the Commonwealth, in the sense that it is a statute dealing with important human rights and having the important objects set out in s.3. In so far as it deals with access to, and use of, public buildings for people with disabilities, to the extent of the reach of its relevant provisions, it is entitled to primacy over any conflicting state or territory laws. To ignore the primary law on the subject, the DDA, when considering whether access should be made available to people with disabilities, would be an unrealistic and unlawful exercise.

In this particular case the Commission found the council had considered the DDA and had formed the view that the provision of equal access to particular premises would have involved unjustifiable hardship. The Commission found this view reasonable, although incorrect, and it excused the council from liability under section 122 of the DDA for permitting a discriminatory act.

Mr Cooper appealed to the Federal Court against the Commission's decision. The Court up-held Mr Cooper's appeal and referred the case back to the Commission for further consideration. The Court's decision emphasised that section 122 does not contain any defence that it was reasonable to permit discrimination if the action permitted is in fact found to be unlawful discrimination.

The case was referred back to the Commission to consider whether the council could establish a significantly narrower defence of honest and reasonable mistake of fact in relying on incorrect information given to it on the ratio of costs of providing access to overall building costs.

A decision on the second Hearing of the case Cooper v Coffs Harbour City Council was handed down on 12 May 2000. In his decision Commissioner Carter QC found that while Council had acted honestly, its reliance on the facts presented to it by the developer was not reasonable, and concluded:

It follows that the complaint against the Council has been substantiated in that in terms of section 122, it permitted the development without requiring compliance with the access requirements of the DDA.

Following from the Cooper v Coffs Harbour City Council case the Disability Discrimination Commissioner's opinion is that:

local government legislation and the BCA do not fully state the responsibilities of local government in exercising their development approval functions

councils, when determining development applications, are required to take the DDA into account. The Commissioner does not believe that simply alerting developers to their liability in the form of a disclaimer is sufficient to meet their responsibilities

in making decisions about applications councils may make an assessment as to whether they believe imposing particular access requirements would involve an �unjustifiable hardship' and thus potentially not be required by the DDA

however, councils decisions could be the subject of a complaint under s 122 if it could be shown that they permitted a development which was subsequently shown to be unlawful

because there is no general defence included under section 122 the only defence available, if the complaint proceeded to Court, would be where a council could show a specific defence of honest and reasonable mistake of fact. If council had, for example, been given incorrect information and could show it had honestly and reasonably relied on those facts it would have fulfilled its obligations under the DDA and not be liable for permitting unlawful discrimination. The Federal Court decision noted that councils, because of their experience and expertise, should be well placed to assess the realism of facts presented to them.

Where to from here?

The case law establishes that approval of a development application by a local government does not in itself protect developers, owners or operators from liability under the DDA or under equivalent State or Territory legislation. It also establishes the liability of councils under s 122 of the DDA in permitting a development that subsequently turns out to be unlawful discrimination.

The Commissioner's view is that liability for s 122 complaints would exist across Australia and would not be limited to councils in NSW.

This clearly puts local government authorities in a difficult position when considering building and development applications. Some of these difficulties would be addressed if the Building Code of Australia were revised to reflect the requirements of the DDA and the Commissioner supports work by the Australian Building Codes Board to revise the BCA so that it reflects those requirements.� The Commissioner also supports adoption of a suitably revised BCA as part of a Disability Standard on Access to Premises under the DDA so that there is a clear and consistent regulatory regime.

While awaiting the development of a Disability Standard in this area the Commissioner strongly encourages initiatives by local government throughout Australia to:

ensure that applicants for development approval are aware of their DDA responsibilities

develop policies, procedures and guidelines to assist those responsible for approving applications to ensure the requirements of the DDA are taken into account. A number of local government authorities have done this through rigorously applying locally developed Development Control Plans (DCP) or access policies

develop policies, procedures and guidelines to assist decision makers deal with requests from developers for variations or exemption from access requirements, on the grounds that providing full access would be technically too difficult or too costly

establish appropriately resourced access committees or reference groups to assist local government develop decision making procedures

encourage architects, developers and planners to build consideration of access issues into the design process from the outset by actively promoting DCPs or access policies.

In the absence of a Disability Standard, implementing these policies and procedures will not automatically prevent or resolve complaints under the DDA. They are likely, however, to result�in significantly fewer situations in which people with disabilities feel aggrieved by council decisions to the extent that they would consider proceeding with a complaint against the council. The initiatives are also likely to result in greatly enhanced compliance with the relevant provisions of the DDA and a more accessible community.

For more information on access issues relating to new premises refer to the Commission's Advisory Notes on Access to Premises available from the Publications Officer, GPO Box 5218, Sydney, NSW 1042 or at http://www.hreoc.gov.au/disability_rights/buildings/access_to_premises.html

What about the role of Building Surveyors?

While there is currently no case law concerning the liability of local government or private Building Surveyors under s 122 of the DDA it is the Commissioner's view that they do have liability in exercising their various building certification functions.

While the roles and responsibilities of Building Surveyors may vary between states and territories there are two circumstances under which they may be liable under s 122.

The first, and most obvious, is where a local (or State) government development approval specifically requires access as part of an approval, but the Building Surveyor 'signs off' on the building without access being provided. In this circumstance the Building Surveyor would clearly be liable for a complaint under s 122 in the event of a successful complaint against the owner/occupier of the building.

The second circumstance would be where the development approval only advised the applicant to provide access or was silent on this matter. As previously stated there is no case law on this situation, but the Commissioner's view is that the approval body and the Building Surveyor providing building certification would both be potentially liable for complaints under s 122.

The Building Surveyor may also have some liability under contract and tort law in terms of their duty of care to their clients should they fail to identify access difficulties which may subsequently be the subject of complaints.

Clearly Building Surveyors need to carefully review the conditions of development approvals, understand the requirements of the DDA and advise their clients of their liabilities.

Can HREOC grant dispensations to developers or approve development applications that fail to provide for full access?

Since the Cooper v Coffs Harbour City Council case the Commission has received many inquiries from developers, builders and local governments asking if we can give a legally binding exemption, dispensation or approval to a developer who believes that providing full access would impose an unjustifiable hardship on them. Local government authorities are eager to make the right decision in relation to requests from developers for dispensation and developers are understandably looking for as much surety as possible that their properties will not be the subject of a complaint.

There is, however, no mechanism for the Commission to do this. The Commission's role is to promote and encourage compliance with the law and to attempt to conciliate complaints lodged by people with rights under the DDA. A final decision about what would or would not constitute an unjustifiable hardship is a decision that only the Federal Court can make.

As stated earlier in this advice, the Commissioner's understanding of the outcome of the Cooper v Coffs Harbour City Council case is that councils have a responsibility to consider the requirements of the DDA in the development approval process, but that it is open to a council to respond to appeals from developers by deciding to not require full access in situations where, in their view, that would impose an unjustifiable hardship on the developer.

The Court ruling in Cooper v Coffs Harbour City Council clarified the requirement that councils act rigorously and thoroughly when making their assessment of the developers claim.

If a council imposes access requirements they believe are consistent with the requirements of the DDA, in the form of a DCP or access policy, and a developer appeals against those requirements a mechanism should exist within the council for those appeals to be heard.

If, after thorough examination, the council makes a decision to approve a development with less than full access there is a possibility that at some point a complaint may be lodged against the developer (and the approval body). If the Commission cannot conciliate an agreement on the complaint against the developer it would be open to the complainant to pursue their complaint with the Federal Court, at which point the question of unjustifiable hardship could be formally addressed.

If the developers claim of unjustifiable hardship was not successful the Court would determine what action needed to be taken. At this point the complainant would also be free to proceed with their complaint against the local government or approval body under s 122 as the original decision to give approval would clearly have been wrong.

If, however, the developers defense of unjustifiable hardship were accepted by the Court the complaint would be dismissed and the decision of the council to approve the development would have been the correct one.

In summary

• Development approval bodies must take the requirements of the DDA into account when processing applications.
• They should also establish mechanisms to ensure a thorough assessment of any claim by a developer that providing full access would impose an unjustifiable hardship
• The Commission cannot participate in this process by giving a dispensation to developers to provide legal protection from complaints
• The approval body may decide to allow a development with less than full access if it believes the requirement would be too onerous and would only face a liability if their decision was proved to have been wrong following a successful complaint against the developer.

Temporary Exemptions

The Commission does have the authority to grant a Temporary Exemption in some circumstances and has developed guidelines to assist applicants. However, the use of Temporary Exemptions is generally limited to situations where an applicant is actively pursuing plans to get rid of discriminatory barriers and seeks protection from complaints while fixing the problem. For more information on Temporary Exemptions see http://www.hreoc.gov.au/disability_rights/exemptions/exemptions.html

Disability Discrimination Commissioner
Human Rights and Equal Opportunity Commission
February 2001

To keep up to date on developments in this and other areas subscribe to the Disability Rights Unit e mail update service by sending a message to join-listname@list.humanrights.gov.au, leave the Subject field blank and in the body of the message type subscribe drupdate