In a Melbourne inner-suburb, premises housing a former supermarket were to be sub-divided into a smaller supermarket and 12 retail shops. The design, documentation, and permit applications were carried out by a firm of architects specialising in shopping centres.

A town-planning permit was issued by the Local Council, with the condition that entrance doors be constructed to accord with the Australia "access" standard AS1428.1 and to the satisfaction of the Council.

A number of planning approval amendments were later sought and granted, and a building permit also sought and obtained, from the Council (the building permit was obtained from a private building surveyor acting as delegate for the Council). The subsequent drawings prepared by the architects, and submitted for purposes of the planning approval amendments and building permit included details for steps at the entries to many of the shops. These details were not noticed or acted upon by the Council planning officers or the building surveyor.

Towards completion of the project, the Council became aware that there were steps at the entries of many of the shops. The council thereupon advised the architects that the project had not proceeded in accordance with the permit and directed, in effect, that the shop entries be modified to have no steps.

The architects lodged an appeal with the Tribunal against the directive.

The solicitor for the architects argued that:

  1. Notwithstanding the initial planning condition, the Council, by approving the subsequent planning amendments and building permit, in effect approved the steps at the shop entries.
  2. The condition was invalid because it was inconsistent with the Building Code of Australia, and
  3. It was an unreasonable directive.

In relation to 1, the Tribunal found that, whilst building plans for these approvals included details for the shop entries, there was no evidence that the subsequent approvals were, among other matters, specifically for the shop entries. It therefore found that that the issue of the subsequent approvals did not constitute Council's agreement that its initial planning condition had been met.

The argument for 2 was in effect that:

  • requirements of the Building Code of Australia are maximum requirements, not minimum;
  • small shops (under a particular floor area) are not required by the Building Code of Australia to be accessible to people with a disability,
  • a planning permit cannot require a higher standard than a building permit.

The Tribunal rejected the first and last parts of this argument, finding that building regulations set minimum, not maximum requirements, and that planning permit conditions can set higher standards than may be contained in building regulations.

The argument for 3 was in effect that:

  • the shops are small and are therefore not required by the Building Code of Australia to be accessible to people with a disability
  • modifying the shop entries would be very costly and also disruptive to tenancy agreements.

In response to this the Tribunal stated:

".... the biggest surprise .... is that these shops were designed with two steps at their entries. The development involved the construction of a new floor, therefore the opportunity existed for the construction of shops with entrances at footpath level. It is difficult to understand why this was not done ....

The Tribunal accepted a submission on behalf of a post-polio group that "demonstrated how the shops .... completely deny access to people in wheelchairs, and make access difficult for the very elderly or infirm who rely upon walking sticks, walking frames and the like..... The Tribunal noted that "....technology and community attitudes mean that people who in the past may have been restricted to their own homes are increasingly found enjoying access to public facilities, in particular shopping centres. The Tribunal was not satisfied that the "mistake which has occurred in this case" that is, the oversight of the entry details,should be allowed to prevent the condition of the original planning permit being implemented, and which condition the Tribunal found reasonable.

The Tribunal directed that the original planning condition be upheld and that the steps therefore be removed from the shop entries.

Summary prepared by Hunarch Consulting