Protocol for Administering Building Works in australia
TABLE OF CONTENTS
Annexure to the Protocol
Preamble
The Parties to this Protocol, hereinafter referred to as the Parties agree that:
the administration of building control, which is the responsibility of State and Territory governments, should be consistent with the Commonwealth government's Disability Discrimination Act 1992 (DDA) when dealing with access related building matters;
if the approach described in the Protocol, and the relevant annexure, is followed it will provide the most protection from action possible under the DDA ;
if the approach described in this Protocol is followed, it will provide consistency of application for the disability sector, and define the extent of discretion that Building Control Authorities may exercise;
this Protocol will not protect a building owner or operator who creates a barrier outside of the Building approval process, a Building Control Authority approving work without following the process described, or a service provider who chooses to establish a business in an existing inaccessible building where no building work is carried out and consequently no approval is sought.
and have agreed as follows:
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Definitions
1 For the purpose of this Protocol:
"Access Expert" means a person who would be recognised by the Administration and HREOC as having the qualifications and experience in access matters appropriate for endorsing Building Upgrade Plans and determine whether a building solution complies with the BCA;
"Access Panel" means a body authorised by the Administration to deal with access related matters including endorsing Building Upgrade Plans, endorsing performance based alternative Building Solutions and, where required by the Administration, hearing appeals against a decision of a Building Control Authority;
"Administration" means the State or Territory Government organisation responsible for the administration of building legislation in that jurisdiction;
"Alternative Solution" means a Building Solution that complies with the BCA Performance Requirements other than by reason of satisfying the Deemed-to-Satisfy Provisions.
"BCA" means the Building Code of Australia edition that is accepted as part of a Disability Standard for premises at the time; and in respect building applications, at the time when the building application is lodged;
"Building Control Authority" means the person or body responsible for approving building;
"Building Solution" means a solution which complies with the Performance BCA Requirements and is-
- an Alternative Solution; or
- a solution which complies with the Deemed-to-Satisfy Provisions; or
- a combination of (a) and (b).
"Building Upgrade Plan" means a plan for upgrading an existing building's access provisions that is submitted by an applicant and is endorsed by an Access Panel;
"Deemed-to-Satisfy" means provisions that are deemed to satisfy the BCA Performance Requirements.
"DDA" means the Commonwealth Government Disability Discrimination Act, 1992;
"Disability Standard" means a document, or series of documents, approved by the Commonwealth Attorney General, that describes the level of access, or the means of determining the level of access, that satisfies the DDA;
"HREOC" means the Commonwealth Government's Human Rights and Equal Opportunity Commission.
"Performance Requirement" means a requirement that states the level of performance which a Building Solution must meet;
"Person Competent in Access" means a person who would be recognised by the Administration as having the qualifications and experience in access matters appropriate to be part of, and provide advice to, an Access Panel.
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Objective
The parties commit themselves to providing a process that ensures, as far as possible, that the application of the BCA to building work provided access for people with disabilities in a way that is consistent with the objects of the DDA.
Process requirements
To achieve the Objective, the process shall:
- provide for the resolving of issues about access to premises in the course of the building approval process in an efficient, expedient and timely manner that would otherwise need to be resolved as complaints under the DDA;
- assist Administrations and Building Control Authorities in assessing performance based Building Solutions;
- give the building industry and its practitioners confidence that when a decision is properly made, the requirements of the DDA would also be satisfied;
- give people with disabilities confidence that the avoiding of building related barriers to access would be achieved through the building control systems of the States and Territories;
- not deny aggrieved people their current rights under anti-discrimination law to lodge a complaint;
- assure the Commonwealth that it is meeting its obligations to foster an efficient and competitive building industry that is responsive to community needs and the objects of the DDA; and
not create any new rights or obligations.
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Protocol scope
1 This Protocol shall cover any access related matter that is covered by building legislation including:
(a) new buildings and new building work where either a Deemed-to-Satisfy solution, or a performance based Alternative Solution, is proposed;
(c) new buildings or building work where modifications or exemptions are sought or where appeals against applying BCA provisions are made. and
(b) existing buildings where the Building Control Authority is vested with discretion to require the upgrading of a building such as when there is a change of use or classification, structural alterations or upgrade orders, or the extent of the new work warrants consideration upgrading access to more than the new work.
2 The Protocol is not intended to protect:
(a) a builder, owner or occupier who creates an access barrier outside of the building approval process;
(b) a Building Control Authority which approves work without following the Protocol;
(c) a Building Control Authority which grants an exemption or modification or approves a performance based Alternative Solution without reference to an Access Panel or, in time, to an Access Expert; or
(d) a service provider who chooses to occupy an inaccessible building.
3 The Protocol only covers aspects regulated under building law and not aspects such as fixtures and fittings, street furniture and operational issues. A builder, owner or occupier that creates, or permits the creation of, access barriers in such elements would not be protected by the Protocol.
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Building standard
1 The standard for building work shall be the Building Code of Australia edition referenced as part of a DDA Disability Standard for premises.
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Alterations, additions and refurbishment of existing buildings
1 When an existing building is to be altered, added to or refurbished, the DDA Disability Standard for premises shall be applied to the extent reasonable in:
(a) the entire building where the new work is extensive; or
(b) for a part of a building undergoing relevant new work-
(i) that part of the building; and
(ii) where the new work is significant-
(aa) from the building entrance to the area of the new work; and
(bb) to and within any essential facilities associated with that part of the building.
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Building Upgrade Plan
1 Where compliance with the BCA may not be practical or where other measures may provide an acceptable solution for a particular building a Building Upgrade Plan may be prepared and submitted to an Access Panel for endorsement.
2 A Building Upgrade Plan may also propose a solution that is outside the scope of building regulations instead of proposing a Building Solution. It may also provide for a reasonable program for progressive upgrade.
3 Once the Access Panel endorses a Building Upgrade Plan and building approval is given on the basis of that plan, the plan shall be enforceable as a condition on the approval and must be followed unless a replacement plan is submitted and endorsed.
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Access Panel
1 Access Panels shall be established by the Administrations to hear appeals, assess requests for modifications, exceptions, partial compliance and for the endorsement of an Alternative Solutions or a Building Upgrade Plan.
2 The Access Panel must not endorse a reduction in the level of accessibility provided by an existing building.
3 The Access Panel's operation shall be transparent and decisions put on public record.
The membership of an Access Panel shall include a sufficient number of people with relevant expertise for the particular issues and shall include at least one (1) Person Competent in Access.
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Appropriate qualifications, indemnity and recognition
1 The Administrations shall ensure that the qualifications and experience of members of an Access Panel are appropriate for the issues under consideration and sufficient to enable them to competently assess advice given, understand the issues and approve the use of an Alternative Solution.
2 The Administrations shall ensure that the qualifications and expertise of an Access Expert, a Person Competent in Access or a Building Control Authority dealing with access matters, be appropriately qualified, indemnified and recognised.
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Complaints by an aggrieved third party
A third party may be aggrieved over new or proposed building work. This may have resulted from a decision by a Building Control Authority, an Access Expert advising a Building Control Authority or an Access Panel. Such an aggrieved person currently has the right of complaint through a variety of mechanisms, including HREOC and the Federal courts, and any Protocol dealing with the DDA can not remove that right.
2 The Administrations shall put in place a process that:
minimises the likelihood of a complaint; and
minimise the likelihood of a building owner or practitioner from being penalised if they have acted in good faith; and
(c) does not impede an aggrieved person who may wish to lodge a complaint through one of the established mechanisms.
A successful complaint resulting from a failure of the process followed shall result in a review of the process.
Where an Administration chooses to provide an appeal mechanism for either an appeal by an applicant against a decision or by an aggrieved third party, the person or body hearing the appeal must not have been party to the original decision.
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Annexes
1 Annexes 1 to 8 of this Protocol describe the operational procedures of individual Administrations for administering this Protocol and shall form an integral part thereof.
2 Annex 9 provides guidance on administering this Protocol.
3 Amendment and modifications to Annexes may be adopted and become effective in accordance with Article 14.
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Compliance with this protocol
1 Each Party shall take appropriate measures within its competence, including the adoption of laws and regulations, administrative actions and enforcement measures, to ensure compliance with this Protocol.
2 It is not mandatory under building control legislation or the DDA to comply with this Protocol. However, the level of certainty afforded by this Protocol is only available to those abiding by its requirements.
3 Each Party shall draw the attention of all other Parties to any activity which in its opinion affects the implementation of the objectives and principles of this Protocol.
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Recognition and adoption
1 This Protocol itself shall be formalised by incorporation in the DDA Disability Standard for premises and each individual Annex shall be adopted in a State or Territory by agreement between the Commonwealth government and the respective State or Territory government.
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Modification or amendment
1 A modification or amendment to this Protocol shall only occur with the agreement of all signatories.
2 A modification or amendment to an individual Annex of this Protocol may occur in accordance with Article 13.
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ANNEX 1 [SAMPLE] TO THE PROTOCOL FOR ADMINISTERING BUILDING WORK
AGREEMENT FOR [STATE / TERRITORY]
Article 1.1 Agreement
This Annex is an agreement between the State/Territory of.and the Commonwealth.
Article 1.2 Interpretation of terms
1 The following are the terms used in the building regulations that are considered equivalent to those used in the Protocol:
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Access Expert |
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Access Panel |
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Administration |
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Building Control Authority |
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Building Upgrade Plan |
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Person Competent in Access |
Article 1.3 Scope of building regulations
1 Includes:..
2 Excluded:.......
Article 1.4: Building Standard
Article 1.5 Upgrading of alterations, additions and refurbishment of existing buildings
1 Current powers.....
2 Changes required..
3 Any transitional arrangements....
Article 1.6 Qualifications of Building Control Authority
1 Current qualifications....
2 Changes required....
3 Any transitional arrangements....
Article 1.7 Access Panel
1 Membership.....
2 Qualifications of members generally.......
3 Any changes required....
3 Any transitional arrangements....
Article 1.8 Qualifications of an Access Expert
1 Current qualifications....
2 Changes required....
3 Any transitional arrangements....
Article 1.9 Qualifications of a Person Competent in Access
1 Current qualifications....
2 Changes required....
3 Any transitional arrangements....
Article 1.10 Building Upgrade Plan
1 Current powers.....
2 Changes required..........
3 Any transitional arrangements....
Article 1.11 Complaints by aggrieved persons
1 Current powers.....
2 Any changes required..........
3 Any transitional arrangements....
Articles 1.12 Signatories
Signature.......... Signature......
Name........ Name.....
Title......... Title.......
Of............ Of..........
On.......... On.........
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ANNEX 9 TO THE PROTOCOL FOR ADMINISTERING BUILDING WORK
GUIDANCE ADVICE
Article 9.1: Intent
1 Because most buildings are unique it is not possible to prescribe a universal approach that will cover all situations. Instead, the following is provided for guidance as to what should be considered when assessing individual situations.
2 The Protocol may be applied to new buildings, new work in existing buildings and parts of existing buildings not undergoing new work. It can be applied to applications for exemptions from, and modifications to, Deemed-to-Satisfy provisions and for endorsement of performance based solutions. The process described can also be used for appeals or complaints.
Article 9.2: Aspects not covered
1 The Protocol does not cover those aspects outside building law. Where the work is within the scope of building law, the Protocol does not require the upgrading of access:
(a) for work that merely preserves the value or use of an existing asset, for example, maintaining, repairing and replacing;
(b) for work on a system that does not effect access and is not subject to access requirements, such as modifications to a ventilation or sprinkler system or installing a suspended ceiling system; and
(c) for work not requiring the approval of the Building Control Authority.
2 Any work covered above should not decrease the existing level of accessibility.
Article 9.3: Upgrading of alterations, additions and refurbishment of existing buildings
1 The Objective is compliance with the DDA Disability Standard for premises. However, where it is not practical to fully comply, it is better to achieve partial compliance rather than not providing any access at all because of the unjustifiable hardship that full compliance may cause.
2. The Protocol requires that the entire building be made accessible when it is undergoing "extensive" alterations, additions or refurbishment. This may be where the greater part of the building is being refurbished at one time, or within a relatively short period. For example, a program where the new work, plus the work carried out over the previous 3 years, affects more than 50% of the building could be considered as one "extensive" refurbishment.
3 An inaccessible existing building being added to may also be required to be made accessible such as where the addition is greater that the existing building (thus exceeding 50%) and the addition is being integrated into the existing building. Alternatively, the addition may be treated as a separate building provides it has separate access and is self-contained with all associated facilities.
4 Where new work in an existing inaccessible building is considered "significant" but not "extensive", the Protocol requires that access be provided to the area of the new work and to any essential facilities associated with the new work. For example, any toilets, communal laundries or cafeteria that serves the area of the new work.
Article 9.4: Access Panel
1 The body empowered under State or Territory law to rule on other building regulatory matters may also be the Access Panel for access related matters provided it is dually authorised and contains the appropriate expertise.
2 The more broad based the panel's membership, the less likely it is that a complaint will be lodged and the less likely it is that such a complaint would be successful. In any case, membership of an Access Panel should include a minimum of three people for minor or straightforward matters and a minimum of 5 for more complex matters. Members must have expertise relevant to the issues and include a person who is deemed or accredited to be competent in access matters. Where further expertise is needed, it shall be sought from advisers or the panel enlarged.
3 The Access Panel would undertake a technical assessment of the proposals. In doing so, it would take into consideration factors relevant to the specific building. The Access Panel would need to consider reasonableness, or unjustifiable hardship as a possible defence, in its deliberation.
Article 9.5: Unreasonable, Impractical and unjustifiable hardship
1 The terms "unreasonable" (or "impractical") as used in building law and the term "what is likely to cause unjustifiable hardship" as used in the DDA, may be very different in concept. However, for the application of the Protocol under building law, all three terms could be considered to mean the same.
2 In determining what is reasonable, no hard and fast rules can be provided, as the outcome will depend upon individual circumstances. What is unreasonable in one case may not be so in another so only guidance can be provided.
3 Indicative measures for what is reasonable in an office building or other commercial premises, may include:
(a) up to the loss of 5% of occupiable or rentable area is lost, or
(b) if cost of upgrading ancillary features, such as the path of travel to the new work or the associated facilities, are up to 20% of the cost of the new work.
4 The indicative measures in clause 3 may not be appropriate in other circumstances, such as if that building had an essential community function.
5 Community values that need to be considered as part of the Protocol include:
equity;
quality of life;
the heritage value of the building;
the type and use of the building, e.g. a building to which the public is not admitted as against a shopping centre or a medical centre;
safety and health;
the community needs, including cultural, religious, education, artistic, etc;
the extent of the benefit from providing appropriate access;
equivalent alternatives available;
the requirements of other legislation;
technical limits;
topographical restrictions;
the economic viability of a project;
the expected life of the building; and
the contents of an Endorsed Building Upgrade Plan.
6 The economic viability of a project would include considering such factors as initial costs, life cycle costs, net rentable area, expected revenue, etc. Specialist property management advice may be needed to assess the applicant's submission. Likewise, specialist heritage advice may be needed in some cases.
7 Another consideration would be that the improving of access should not bring the building into non-compliance with another aspect of the BCA.
8 Where to require some provision in an existing building may be considered unreasonable, a total exemption may not be appropriate. An alternative or partial solution may be preferred. For example, it may be better for 50% of wheelchair users to be able to enter than none at all. Likewise, upgrading lift controls and providing announcements in lifts may be feasible, while enlarging the lift may not. The former may assist people with a hearing or sight impairment even though access for wheelchair users is not improved.
Article 9.6: Building Upgrade Plan
1 The existence of a Building Upgrade Plan may affect the requirements because of a prior undertaking to improve access, or a prior acceptance that to require certain access features would be unreasonable. For example, a building may be due for demolition or a major refurbishment in the near future and so an interim upgrade may be exempted.
2 A Building Upgrade Plan may propose a solution that is outside the scope of building regulations instead of proposing a Building Solution. An example would be to avoid discrimination fitting a security device to exclude all members of the public from an inaccessible area. In this case, if endorsed, the Access Panel would be supporting a change to a requirement for building work, conditional on the security control device being put, and maintained, in place. The building owner would then be responsible for ensuring that the undertaking was honoured. If not, the protection provided by this Protocol would no longer be available and a subsequent complaint under the DDA may be successful.
3 A Building Upgrade Plan should indicate where staged or deferred upgrading is proposed such as "at change of fit-out" or "within five years".
4 Once an Access Panel endorses a Building Upgrade Plan and Building approval is given, the plan should be enforceable as a condition on the approval and be followed unless a replacement plan is submitted and endorsed.
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