Court rules that owners corps must not discriminate

The recent Supreme Court of Victoria ruling makes clear that Victorian owners corporations are required to make reasonable adjustments for both tenants and visitors who have a disability.

Since 2015, Anne Black had lived in an apartment on the fourth floor of a residential development. In 2015, she developed disabilities that required her to use a wheelchair which inhibited her from accessing her apartment and other parts of the building.

Lift added to building

Ms Black commenced proceedings, pursuant to sections 44, 45 and 56 of the Equal Opportunity Act 2010 (‘the EOA’), against the relevant Owners Corporation asserting that the Owners Corporation was unlawfully discriminating against her by failing to make alterations to the building so she could access the common areas and her apartment independently. Read together, sections 44 and 45 of the EOA essentially provide that a service provider must not discriminate against a person with a disability by refusing to make reasonable adjustments to a service so the disabled person may access or derive a substantial benefit from the service.

The Owners Corporation’s position was that its obligations were limited to consenting to Ms Black making reasonable alternations to the common property so long as she paid for those alterations. In support of that position the Owners Corporation relied on section 56 of the EOA which obliges Owners Corporations to allow owners to make reasonable alterations to the common property at their own cost in circumstances where those owners are disabled.

VCAT’s Determination

Senior Member Steele found that section 56 did not exclude the operation of sections 44 and 45 and therefore those sections applied to Owners Corporations as a service provider. However, the question of whether the Owners Corporation had unlawfully discriminated against Ms Black depended upon whether the alterations required by Ms Black were reasonable within the meaning of section 45(3) of the EOA. Submissions on the reasonableness of Ms Black’s requests were not made at this hearing.

Background

Over the past 30 years the Commonwealth Government and the state and territory governments have introduced laws to help protect people from discrimination and harassment.

The following laws operate at a federal level and the Australian Human Rights Commission has statutory responsibilities under them:

The following laws operate at a state and territory level, with state and territory equal opportunity and anti-discrimination agencies having statutory responsibilities under them:

Commonwealth laws and the state/territory laws generally overlap and prohibit the same type of discrimination. As both state/territory laws and Commonwealth laws apply, you must comply with both. Unfortunately, the laws apply in slightly different ways and there are some gaps in the protection that is offered between different states and territories and at a Commonwealth level. To work out your obligations you will need to check the Commonwealth legislation and the state or territory legislation in each state in which you operate.

You will also need to check the exemptions and exceptions in both the Commonwealth and state/territory legislation as an exemption or exception under one Act will not mean you are exempt under the other.

See the tables below for detailed information on Victorian Acts.

Disability Discrimination Act 1992

Discrimination on the basis of physical, intellectual, psychiatric, sensory, neurological or learning disability, physical disfigurement, disorder, illness or disease that affects thought processes, perception of reality, emotions or judgement, or results in disturbed behaviour, and presence in body of organisms causing or capable of causing disease or illness (eg, HIV virus).

Also covers discrimination involving harassment in employment, education or the provision of goods and services

Discrimination in employment, education, access to premises, provision of goods, services and facilities, accommodation, disposal of land, activities of clubs, sport, and administration of Commonwealth laws and programs.
Victoria: Equal Opportunity Act 2010 (VIC)

Discrimination on the basis of age, breastfeeding, disability, employment activity, gender identity, industrial activity, lawful sexual activity, marital status, parental status or status as a carer, physical features, political belief or activity, pregnancy, race (including colour, nationality, ethnicity and ethnic origin), religious belief or activity, sex, sexual orientation, and personal association with someone who has, or is assumed to have, any of these personal characteristics.

Sexual harassment is also prohibited under this Act.

Victoria: Racial and Religious Tolerance Act 2001 (VIC)

Vilification on the basis of race or religion is prohibited under this Act.

Discrimination in employment, partnerships, firms, qualifying bodies, industrial organisations, education, provision of goods and services, disposal of land, accommodation (including alteration of accommodation), clubs, sport, and local government.

On the 21 June 2018 the Supreme Court of Victoria confirmed that owners corporations must make reasonable adjustments to buildings for tenants and visitors with a disability, or they risk being discriminatory.

The case, Owners Corporation v Anne Black, has significant implications for residential and commercial owners corporations across Victoria.

“Owners corporations are vitally important bodies that can help Victorians use, access and enjoy their homes and the world around them,” said Commissioner Kristen Hilton.

“This case confirms their obligations towards people with a disability, including making sure they can access their home and public spaces.”

Accessibility is a common issue for people with a disability. In this case, Ms Black has trouble accessing her own apartment because of heavy, manual doors that don’t open easily with the scooter she uses. The owners corporations responsible for managing the apartment complex argued they did not provide a service, and that Ms Black must pay for any changes to the building herself.

The Commission joined the case, as a friend of the court, to provide expert advice on discrimination law.

The Equal Opportunity Act 2010 requires service providers to make “reasonable adjustments” to accommodate people with disabilities. What is reasonable depends on individual circumstances, such as the size of the owners corporation, the nature of adjustments required and their cost.

The ruling makes clear that Victorian owners corporations are required to make reasonable adjustments for both tenants and visitors who have a disability. This may mean providing appropriate signage, lighting or accessible meeting rooms, depending on circumstances. It will affect owners corporations operating in commercial settings, like a shopping plaza or private offices, as well as in residential settings.

 

References:

() A quick guide to Australian discrimination laws, Available at: https://www.humanrights.gov.au/employers/good-practice-good-business-factsheets/quick-guide-australian-discrimination-laws (Accessed: 11 July 2018).
(9 February 2018) Anne Black v Owners Corporation OC1-POS539033E (Human Rights) [2018] VCAT 185 (8 February 2018), Available at: http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2018/185.html (Accessed: 11 July 2018).
Anna Craig (21 June 2018) Court rules that owners corps must not discriminate, Available at: https://www.humanrightscommission.vic.gov.au/home/news-and-events/item/1722-court-rules-that-owners-corps-must-not-discriminate (Accessed: 11 July 2018).
James Collier and Gerard Nymyer (4 May 2018) Owners Corporation Management: Black v Owners Corporation OC1-POS539033E [2018] VCAT 185, Available at: https://www.strataconsultants.com.au/owners-corporation-management-black-v-owners-corporation-oc1-pos539033e-2018-vcat-185/ (Accessed: 11 July 2018).

 

Expert Judgement in Access could leave you open to a lawsuit

No Expert Judgement Disability AccessThe use of ‘Expert Judgement’ when assessing a Performance Solution in regard to disability access can leave practitioners open to potential claims under the DDA.

The Premises standards do not state that ‘Expert Judgement’ is an unsuitable method of assessment, however it does state that to achieve compliance with the relevant Performance Requirements, the performance solution must be comparable to the ‘Deemed to Satisfy’ provisions. From this we can then determine BCA A0.5 (a), (b) or (d) can be used.

When assessing any proposed ‘Performance Solution’, Equal Access typically do not rely solely upon ‘expert judgement’ (BCA assessment method A0.5(c)). The BCA was amended in 2011 to align with the Premises Standards, enacted under the DDA. But, as there are several differences with these documents and where an inconsistency occurs, Equal Access adopts the more onerous requirements.

Disability Access and the New Building Regulations 2018 (Vic Only).

Under the new Victorian Building Regulations introduced June 2, 2018, Regulation 38 states:

“Building surveyor to document determination of performance solution –

When determining an application for a building permit, the RBS must record in writing how a performance solution has been assessed as meeting the performance requirements of the NCC

The relevant building surveyor must record the following in writing if the relevant building surveyor determines that a performance solution meets a performance requirement of the BCA in relation to proposed building work—

  (a) the performance requirement with which the performance solution complies;

  (b) details of any one or more of the following that the relevant building surveyor uses or relies on in making the determination—

    (i) the assessment method or methods;

    (ii) the details of any expert judgement;

    (iii) the details of any tests or calculations;

    (iv) the details of any standards or other information.

Why ‘Blue’ Disabled Carpark Bollards & at What Height?

Blue Flexible Disabled Car Park BollardThe concept of ‘Universal Design’ (UD) is simple in nature, yet requires careful consideration to execute successfully and for people with vision impairment, the built environment can create unintentional barriers if a holistic view is not taken.

An example of this is the required bollard for accessible car parking spaces as required by AS 2890.6.

Whilst the standard requires the provision of a bollard, it does not however, prescribe any requirements on the design of the bollard. This has resulted in the copious number of calls to our office from people that have reversed into them (are you listening Bunnings?) seeking advice on whether they are non-compliant. Sadly for them, as I mentioned earlier, there are no requirements.

When the standard was first released we took a best practice approach with height recommendations which we blogged about.

If we look at AS/NZS 2890.1:2004 (Incorporating Amendment No. 1) Parking facilities Part 1: Off-street car parking

A New Inclusive ‘Gender Neutral’ Toilet Sign
Gender Neutral Toilet Sign

Purchase Gender Neutral Toilet Sign

A question we have received a number of times within our practice is the provision of and identification of ‘Gender Neutral’ toilets.

Upon researching signage options we were dismayed at the various designs currently being used. For this reason, we decided we would develop our own.

Tanisha Cowell from our practice has discussed this in detail in two recent blog posts

The following explains why we have taken the design approach we have.

Purchase Gender Neutral Signs

Click on the following link to purchase the Gender Neutral Toilet Signage

 

Heritage Premises and Disability Access
Disability Access to the Heritage Listed Museum of Australian Democracy at Old Parliament House

Disability Access to the Heritage Listed Museum of Australian Democracy at Old Parliament House

We are regularly told in our practice by clients, that building modifications to provide access for people with disability cannot be undertaken due to “Heritage Restrictions” on the subject property.

This, however, is an incorrect statement and I hope the following post makes things clearer, particularly in terms of the hierarchical levels of Australian legislation.

Firstly we need to understand the relationship between federal and state acts and codes.

Disability Access Acts & Regulations

Disability Discrimination Act 1992

At the very top, we have the Disability Discrimination Act 1992 and whilst this does not include any such prescriptive requirements on how compliance can be achieved, it, however, outlines where and how discrimination must not occur.

The following are the key sections of the DDA that are typically applicable in the built environment.

Accessible (Disabled) and Ambulant Toilets within Childcare Centres

There is currently a lot of confusion regarding what toilets are required to be provided in a childcare centre, being a Class 9b building.

The current Disability (Access to Premises – Buildings) Standards 2010 (Premises Standards) and Building Code of Australia (BCA) requires the following amenities be provided for people with a disability.

The Building Code of Australia (BCA) requires the following amenities be provided for people with a disability.

Clause F2.4 – Accessible sanitary facilities
In a building required to be accessible
(a) Accessible unisex sanitary compartments must be provided in accessible parts of the building in accordance with Table F2.4(a); and

(b) Accessible unisex showers must be provided in accordance with Table F2.4(b); and

(c) At each bank of toilets where there is one or more toilets in addition to an accessible unisex sanitary compartment at that bank of toilets, a sanitary compartment suitable for a person with an ambulant disability in accordance with AS 1428.1 must be provided for use by males and females.

Is it a great grate or a not so great grate?

We often get asked about openings in floor surfaces, and how big these openings can be in order to meet the AS 1428.1 standards. Grated surface

AS 1428.1 Clause 7.5 accepts that a grate may be used on a continuous accessible path of travel if circular openings are not greater than 13mm in diameter. This Clause also states that slotted openings shall not be greater than 13mm wide, and they must be oriented so that the long dimension is transverse to the dominant direction of travel. When the slotted openings are less than 8mm, then the length of the slots may continue across the width of paths of travel.

Wheelchair on grated surface

Slip Resistance in Wet areas (Updated)
Slipped over in shower

Elderly falling in bathroom because slippery surfaces

As of the 1st of May 2014, the Building Code of Australia (BCA) introduced amendments to include specific requirements surrounding slip resistance for buildings.

These requirements were introduced to help enhance building designs to minimise the risk of slips to and within buildings and extended to ramps, stairways and landings.

Parts of buildings required to comply may be found under Part D2.10, D2.13 and D2.14 of Volume one & Part 3.9.1.4 of Volume Two with slip resistance materials to comply with AS4586 – 2013 (Slip Resistance Classification of new pedestrian surface materials).

 BCA SLIP-RESISTANCE CLASSIFICATION

Surface conditions
ApplicationDryWet
Ramp steeper than 1:14P4 or R11P5 or R12
Ramp steeper than 1:20 but not steeper than 1:14P3 or R10P4 or R11
Tread or landing surfaceP3 or R10P4 or R11
Nosing or landing edge stripP3P4
Stair Landings and Compliant Internal Handrails

As a disability access consultancy we get the opportunity to review a lot of architectural drawings, which we love to do. The main reason we get to do this is to undertake desktop reviews of architectural designs to ensure that they comply with all access requirements of the Building Code of Australia (BCA) and the Premises Standards.

As most of the followers of our blog posts know, there were major changes to the access provisions of the BCA introduced in 2011 and some of these requirements were adopted very quickly, such as ambulant toilets, new accessible car parking requirements, increased accessible toilet room sizes,  slip resistance, etc, but others not so.

One of these requirements that continues to be a common non-compliance in designs is the internal handrail transition over intermediate (or mid) landings on stairways.

The problem we regularly see is that the first ascending riser needs to be setback into the next flight of stairs the distance of one tread (or going). This ensures that the internal handrail transitions around over the landing and maintains a consistent height.

AS1428.1-2009 Clause 11.2(c) says that “Handrails shall have no vertical sections and shall follow the angle of the stairway nosings, as shown in Figure 28(b)”.