Victorian Bills Explanatory Memoranda

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BUILDING AMENDMENT BILL 2011

         Building Amendment Bill 2011

                         Introduction Print


               EXPLANATORY MEMORANDUM


                                   General
One of the purposes of this Bill is to insert a new provision, section 160B,
into the Building Act 1993 as a response to recently enacted Federal
discrimination law standards which deal with access to buildings and
associated services and facilities for persons with disabilities.
One of the objects of the Disability Discrimination Act 1992 of the
Commonwealth (the DDA) is to eliminate discrimination against persons on
the grounds of disability as far as possible in various areas, including access
to premises that the public is entitled to enter or use. Under section 31 of the
DDA, the Commonwealth Minister may formulate disability standards in
relation to any area in which it is unlawful for a person to discriminate
against another person on the grounds of a disability of the other person.
The Commonwealth Attorney-General has made the Disability (Access to
Premises-Buildings) Standards 2010 (the National Premises Standards)
under the DDA, which take effect on 1 May 2011. It is unlawful for a person
to contravene the national Premises Standards under section 32 of the DDA.
The objects of the National Premises Standards are to ensure that dignified,
equitable, cost effective and reasonably achievable access to buildings and
facilities and services within buildings is provided for people with a
disability, and to give certainty that if access to buildings is provided in
accordance with National Premises Standards the provision of access will
not be unlawful under the DDA.
The National Premises Standards apply to people who have responsibility
for, or control over, the building approval process for a building (building
certifier, building surveyors) or the design or construction of a building
(building developers, including property developers, property owners,
building designers, builders and property lessees) and building managers,
including property managers and operational staff. Schedule 1 to the
National Premises Standards contains the Access Code for Buildings


571017                                 1       BILL LA INTRODUCTION 8/2/2011

 


 

(the Access Code) which consists of the technical accessibility requirements for people with disabilities. The Access Code in the National Premises Standards will be incorporated into the Building Code of Australia Volume One as from 1 May 2011 and so apply in Victoria as part of the building regulations. Section 34 of the DDA provides that Part 2 (Prohibition of disability discrimination) does not apply if a person complies with a disability standard relating to access to premises. The Federal Court in deciding whether a person has complied with the National Premises Standards may look at whether compliance would impose unjustifiable hardship on a person and must take into account all relevant circumstances specified in Part 4.1 of those Standards. The National Premises Standards provide that decisions by State and Territory panels, established to make recommendations on building access matters, are to be taken into account by the Federal Court when determining if a person has acted lawfully because compliance with the Standards would impose unjustifiable hardship. The Bill inserts a new section 160B in the Building Act 1993 to enable persons to apply to the Building Appeals Board for a disapplication, modification or variation of an access provision of the building regulations (these are the requirements in the Access Code that are to be inserted in the Building Code of Australia Volume One) on the ground that compliance would impose unjustifiable hardship on the applicant. When determining an application under new section 160B of the Building Act 1993, the Building Appeals Board must take into account similar circumstances to the Federal Court under Part 4.1 of the National Premises Standards. This is so there will be consistent decision making between the complaints system in the Federal court under the DDA and the Victorian building control system, the aim being to reduce the likelihood of a complaint of discrimination under the DDA. This in turn will provide more certainty to stakeholders, who have an interest in the design, construction and use of public buildings, regarding whether building work in Victoria will comply with the National Premises Standards. Clause Notes Clause 1 sets out the main purposes of this Bill. The main purposes of the Bill are to amend the Building Act 1993 to provide for an application to the Building Appeals Board for the disapplication, modification or variation of the building regulations relating to the provision of access to buildings and facilities and services 2

 


 

within buildings for persons with disabilities. The Bill will also amend the Building Act 1993 to recognise the National Construction Code Series, which will contain the Building Code of Australia and the Plumbing Code of Australia. Clause 2 sets out when the provisions of the Bill come into operation. All provisions of the Bill come into operation on 1 May 2011. Clause 3 amends definitions in section 3(1) of the Building Act 1993. It inserts a new definition of the National Construction Code Series, which is published by the Australian Building Codes Board. It also amends the definition of the Building Code of Australia to update its status as Volume One of the National Construction Code Series including any variations or additions in the Appendix Victoria set out in the appendices to that Volume and Volume Two of the National Construction Code Series including any Victoria additions set out in Appendix A of that Volume. These new definitions recognise that the Building Code of Australia is now part of the National Construction Code series, which comes into effect from 1 May 2011. Clause 4 inserts a new section 160(4) into the Building Act 1993 to exclude applications of the type that can be made under new section 160B (inserted by clause 5). This means that a person can not apply to the Building Appeals Board under section 160 of the Building Act 1993 for the disapplication or modification or variation of a performance requirement in the Building Code of Australia relating to access to buildings and facilities for people with disabilities (an access provision of the building regulations). This is because a proceeding and determination under section 160 of the Building Act 1993 is not designed to take into account whether there is unjustifiable hardship and all the relevant circumstances in new section 160B(4) and (5). These matters are taken into account in the National Premises Standards. Clause 5 inserts a new section 160B into the Building Act 1993 to enable an application to be made to the Building Appeals Board for a determination that an access provision of the building regulations will not apply, or apply as modified or varied, to the building or land specified in that application. Subsection (2) sets out who can make an application to the Building Appeals Board under new section 160B. 3

 


 

Subsection (2)(a) enables an application to be made by the owner of a building or land. Subsection (2)(b) enables an application to be made by the purchaser under a contract of sale of a lot of a kind referred to in section 9AA(1) of the Sale of Land Act 1962. Subsection (2)(c) enables a lessee of the building, who proposes to have or is having building work carried out in respect of the building, to apply. Subsection (2)(d) enables a person acting on behalf of a person in paragraph (a), (b) or (c) to apply, other than the relevant building surveyor. Subsection (3) inserts the ground on which an application can be made under new section 160B. An application must be made on the ground that compliance with the access provision of the building regulations will impose an unjustifiable hardship on the applicant. Subsection (4) inserts a list of specific factors that must be considered by the Building Appeals Board each time it determines an application on the ground of unjustifiable hardship for the disapplication, modification or variation of an access provision of the building regulations. These factors are consistent with the factors the Federal court must consider when considering whether a person has failed to comply with the National Premises Standards. This ensures consistency in decision-making at the State level prior to the building work being completed and decision-making at the National level after the building work is completed. A relevant circumstance in subsection (4) includes-- any additional costs that are reasonably likely to result from compliance. This includes any additional capital or operating costs or loss of revenue that may off-set any hardship; any reductions in costs that are reasonably likely to result from compliance. This includes any reductions in capital or operating costs or increases in revenue; the extent to which the construction of the building will be financed by government funding; 4

 


 

the extent to which the building is used for public purposes or has a community function; the financial position of the applicant; any effect that compliance with the access provision of the building regulations is reasonably likely to have on the financial viability of the applicant; any exceptional technical or geographic factors that affect a persons ability to comply with the access provision of the building regulations. This includes technical factors such as the effect of load bearing elements on the structural integrity of the building or geographic factors such as gradient and topography; any financial, staffing, technical or information resources available to the applicant. This includes grants, tax concessions, subsidies or external assistance; whether the cost of the alterations to make the premises accessible is disproportionate to the value of the building; it also provides that a relevant circumstance includes the improved value that will result from the alterations; the benefits reasonably likely to accrue from compliance with the access provision of the building regulations; it also provides that a relevant circumstance includes the detriment likely to result from non-compliance; the detriment reasonably likely to be suffered by the applicant, building developer or building manager, persons with disabilities or other building users. This includes any detriment in relation to means of access, comfort and convenience; that if a detriment involves the loss of heritage significance, the Building Appeals Board must consider the extent to which the heritage features of the building are essential, or incidental to the heritage significance of the building; 5

 


 

any evidence regarding the efforts made in good faith by the applicant or a person required to comply with the access provision of the building regulations. This includes any evidence of consultation with access consultants or the relevant building surveyor; the terms and evidence of implementation of any action plan the applicant has given to the Commission under section 64 of the DDA; and the nature and results of any processes of consultation involving or on behalf of the applicant, building developer, relevant building surveyor or building manager and any persons with disabilities about the means of achieving compliance with the access provision. This includes any local, regional, State, national, international or industry consultation that may have taken place. Subsection (5) provides that the Building Appeals Board needs to consider how substantially equal access to premises can be achieved if a substantial issue of unjustifiable hardship is raised having regard to the factors mentioned in new subsection (4). Subsection (5)(a) requires the Building Appeals Board to give consideration to the extent that substantially equal access to public premises may be achieved other than by compliance with the access provision of the building regulations. Subsection (5)(b) requires the Building Appeals Board to give consideration to any measures undertaken, or proposed to be undertaken, to ensure substantially equal access. Subsection (6) limits the extent of any disapplication, modification or variation granted under new section 160B. This is to ensure that the maximum level of compliance with the access provisions of the building regulations occurs where it will not involve unjustifiable hardship. Subsection (7) inserts a requirement for the Building Appeals Board to have due regard to the rights and interests of all relevant parties when interpreting and applying the concept of unjustifiable hardship. Subsection (8) defines 5 key definitions that are applicable to an application for a disapplication, modification or variation to an access provision of the building regulations. 6

 


 

An access provision of the building regulations is defined as a performance requirement specified in certain parts of the Building Code of Australia Volume One. Specifically, an access provision of the building regulations is a performance requirement-- contained in Section D, Part E3 of Part F2 of the Building Code of Australia Volume One as forming part of the building regulations. The performance requirements in Section D are DP1, DP 4, DP6, DP8, DP9 (access and egress). The relevant performance requirement in Part E3 is EP3.4 (lifts) and is FP2.1 (sanitary facilities) in Part F2 of the Building Code of Australia Volume One; and in respect of which there is an equivalent performance requirement contained in the Access Code within the meaning of the National Premises Standards; and to the extent that the performance requirement relates to the provision of access to buildings and facilities and services within buildings for persons with disabilities; and includes any provision of a document that is applied, adopted or incorporated by reference in those performance requirements; and an applicant is defined as a person who has applied under new 160B or on whose behalf another has applied. The Building Code of Australia Volume One is defined in the same way as the amended definition of Building Code of Australia inserted by clause 3 in section 3 of the Building Act 1993. A building developer and building manager are also defined for the purposes of new section 160B. Subsection 9 inserts a provision excluding the application of Division 5 of the Building Act 1993 from applying to an application made under new section 160B except for section 161. 7

 


 

Clause 6 substitutes the definition of the Plumbing Code of Victoria in section 221B(1) of the Building Act 1993 to refer to the Plumbing Code that is published as Volume Three of the National Construction Code Series. Clause 7 provides for the automatic repeal of this amending Act on 1 May 2012. The repeal of this Act does not affect the continuing operation of the amendments made by this Act (see section 15(1) of the Interpretation of Legislation Act 1984). 8

 


 

 


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