Please Note: This requirement does not just apply to access. All performance solutions including fire engineering, structure, egress, services & equipment, health & amenity etc will all need performance based design briefs prepared.
From 1 July 2021, the way performance solutions or performance-based design solutions are prepared has changed. This includes the definition of Performance Solution and the addition of a Performance-Based Design Brief within the NCC Building Code of Australia 2019 Amendment 1.
This process now requires designers to develop a Performance-Based Design Brief and have it approved by relevant stakeholders before an access consultant prepares a performance-based design solution.
Vol 1 of the Building Code of Australia Amendment 1
A2.2 Performance Solution
(4) Where a Performance Requirement is proposed to be satisfied by a Performance Solution, the following steps must be undertaken:
(a) Prepare a performance-based design brief in consultation with relevant stakeholders.
(b) Carry out analysis, using one or more of the Assessment Methods listed in (2), as proposed by the performance-based design brief.
(c) Evaluate results from (b) against the acceptance criteria in the performance-based design brief
(d) Prepare a final report that includes—
(i) all Performance Requirements and/or Deemed-to-Satisfy Provisions identified through A2.2(3) or A2.4(3) as applicable; and
(ii) identification of all Assessment Methods used; and
(iii) details of steps (a) to (c); and
(iv) confirmation that the Performance Requirement has been met; and
(v) details of conditions or limitations, if any exist, regarding the Performance Solution.
“A provision that states something ‘shall’ or ‘must’ be done by a person generally imposes an obligation to do that thing….. these words impose an obligation” (Guy 2014 p,79).
Therefore, before preparing a performance solution, a performance-based design brief must first be prepared.
The development and approval of a Performance Solution can be a relatively simple process if initiated by the collaborative preparation of a performance-based design brief (also known as the brief or PBDB). Using this process can assist in developing a solution that satisfies the requirements of the NCC.
The purpose of the brief is to record the fundamental activities and outcomes of the performance-brief design process, as agreed by stakeholders. Consequently, the design process can be commenced with a high degree of confidence that the design will be NCC compliant.
BCA Amendment 1 2019:
Performance-based design brief (PBDB) means the process and the associated report defining the scope of work for the performance-based analysis, the technical basis for analysis, and the criteria for acceptance of any relevant Performance Solution as agreed by stakeholders or involved with any design elements.
The preparation of a performance-based design brief shall be in consultation with relevant stakeholders.
Also, must be competent in the performance-based scope of works
Everyone relevant to the performance solution must now come together and agree to what is being proposed.
For access matters, the designer typically initiates the design brief process, sometimes in conjunction with an access consultant. Broadly, the components in the
process of development of a brief include:
Once the performance-based design brief has been prepared, the designer will need to have it signed off by the relevant stakeholders. Once approval has been received from the relevant stakeholders, it can then be issued to the access consultant to prepare the performance-based design solution.
We have developed a template to assist designers to prepare a Performance-Based Design Brief. This will be provided on the acceptance of our fee proposal.
This non-mandatory Handbook guides applying the requirements introduced into the NCC with Amendment 1 of NCC 2019, specifically clause A2.2(4).
It will assist a range of stakeholders with the application of the performance-based NCC and the process for developing Performance Solutions.
This issue comes up time and time again with building surveyors, and even today we had a pool builder questioning the classification following advice from another access consultant of using class 10b for pools and spas on upper levels of a class 2 development. This is categorically incorrect.
A Class 10 building includes one or more of the following sub-classifications:
Therefore to be given a class 10b classification a pool must be a structure in its own right/ outbuilding and not part of any other building i.e. an externally landscaped pool.
This is further clarified in A6.11 Explanatory information figure 6 below where it clearly shows the class 10 swimming pool is separate to the class 2 development. The pool is associated with the class 2 development, it is not a part of the class 2 development.
Table D3.1 Requirements for access for people with a disability
This table as follows states the access provisions that are required for buildings with swimming pools.
Class 1b rooming house
To and within—
1 bedroom and associated sanitary facilities; and not less than 1 of each type of room or space for use in common by the residents or guests, including a cooking facility, sauna, gymnasium, swimming pool, laundry, games room, eating area, or the like
Class 2 apartment building
To and within not less than 1 of each type of room or space for use in common by the residents, including a cooking facility, sauna, gymnasium, swimming pool, common laundry, games room, individual shop, eating area, or the like.
Class 3 supported accommodation or hotel
To and within not less than 1 of each type of room or space for use in common by the residents, including a cooking facility, sauna, gymnasium, swimming pool, common laundry, games room, TV room, individual shop, dining room, public viewing area, ticket purchasing service, lunchroom, lounge room, or the like.
Class 9b place of assembly
To and within all areas normally used by the occupants.
All classifications above clearly require access to be provided “To and within“ swimming pools without exception or conditions. You must then apply the requirements of D3.10 for the type of access that must be provided with large pools more than 70m perimeters not being able to rely solely on a sling-style swimming pool lift.
Class 10b: Swimming pool
To and into swimming pools with a total perimeter greater than 40 m, associated with a Class 1b, 2, 3, 5, 6, 7, 8 or 9 building that is required to be accessible, but not swimming pools for the exclusive use of occupants of a Class 1b building or a sole-occupancy unit in a Class 2 or Class 3 building.
As detailed above under ‘Back to basics’ for a pool to have a class 10b classification it must be its own structure, for example, an external pool that is separate from any building.
As soon as a pool becomes a part of a building i.e. a hotel (Class 3) or an aquatic centre (9b) it must be assessed as part of the building it is within (external or internal). However there are instances where a building surveyor may apply a 9b classification to a pool and gym area of a hotel (mixed-use), but again class 10b must not be applied.
If an aquatic centre has both internal and external swimming pools, the internal pool would be classified as 9b and the external pool 10b.
If an apartment building has pools or spas on external decks say on upper levels, they are associated with the class 2 building they must be assessed as class 2 pools and spas and not class 10b.
Ask yourself, if the Class 10 requirements were to be applied to all pools, why would the D3.10 requirements be needed?
For Class 1b, 2, 3 & 9b buildings, the Class 10b 40m concession does not apply. The access requirements detailed within D3.10 Swimming pools must be applied as follows.
(a) Not less than 1 means of accessible water entry/exit in accordance with Specification D3.10 must be provided for each swimming pool required by Table D3.1 to be accessible.
(b) An accessible entry/exit must be by means of—
(i) a fixed or movable ramp and an aquatic wheelchair; or
(ii) a zero depth entry and an aquatic wheelchair; or
(iii) a platform swimming pool lift and an aquatic wheelchair; or
(iv) a sling-style swimming pool lift.
(c) Where a swimming pool has a perimeter of more than 70 m, at least one accessible water entry/exit must be provided
by a means specified in (b)(i), (ii) or (iii). View Post
(d) Latching devices on gates and doors forming part of a swimming pool safety barrier need not comply with AS 1428.1.
Pool less than 70M perimeter
An accessible entry/exit must be provided by means of one of the following
Pool greater than 70M perimeter
An accessible entry/exit must be provided by means of one of the following
Hopefully, this clears everything up so no longer will a pool or spa as part of a Class 1b, 2, 3 or 9b building be classed as a 10b and exempted from providing access if under 40l/m, unlike a standalone pool that has been built separately to other buildings.
Be part of the discussion on Linkedin https://www.linkedin.com/feed/update/urn:li:activity:6744910042094546944/Why providing Covid 19 screens is not enough
The COVID-19 worldwide pandemic is a devastating and highly contagious disease that is affecting us all, particularly people with disability.
The key principles of prioritising public health and safety to protect people against infection, compliance with public health guidelines, working with governments and public health authorities, and changing our behaviours such as social distancing and hygiene measures are being practiced at every opportunity.New Changing Places Design Specifications 2020
It has been a very rewarding twelve months sharing my knowledge by assisting in the development of two technical standards. The first was the NDIS Specialist Disability Accommodation Design Standard where I was a co-author. The second was these Changing Places design specifications 2020 where I was the lead author.
Changing Places is very close to my heart having worked with Jack Mulholland, Helen Fearn-Wannan and Francesca Davenport since 2009 when the Australian version of the standard was developed. Our hard work paid off when it was included within the 2019 version of the Building Code of Australia.
Changing Places provide suitable facilities for people who cannot use standard accessible toilets. A Changing Places facility allows people with high support needs to fully participate in the community. This may include people with an acquired brain injury, spinal cord injury, cerebral palsy, multiple sclerosis, spina bifida, and motor neurone disease, as well as many other people with a disability.What is an Accessible Adult Change Facility? BCA 2019
A major inclusion into the ‘Building Code of Australia’ is the provision of Accessible Adult Change Facilities, but it has generated a number of questions such as “what are they?”, “whom are they provided for?” or “why are they required?” due to the lack of industry knowledge. The benefits such facilities provide to the community is significant and hopefully, this blog will go a long way in explaining to everyone that consults to the built environment, why.
An Accessible Adult Change Facility is a toilet and change facility that caters for users with high support needs and their carers where they require additional space, assistance and specialised equipment to allow them to use toilets safely and comfortably.
Accessible adult change facilities were developed and established in Australia back in 2009 originally as ‘Changing Places’. These were based on a model developed in the UK and have now been included in the 2019 Building Code of Australia to provide suitable facilities for people with high support needs who cannot use standard accessible toilets. We have also prepared a blog on the difference between an ‘Accessible Adult Change Facility’ vs ‘Changing Places’
Specification F2.9 is based on the Changing Places Information Guide and Technical Standard (June 2017 edition), copies of which can be obtained from the Changing Places website at: https://changingplaces.org.au/.
(Note: Changing Places is not in any way affiliated with, or endorsed by, the ABCB.)
There is nothing like the threat from a disgruntled stair nosing supplier to sue me if I do not retract my comments about purposely supplying non-compliant nosing. My answer to the retraction was simply ‘No” I had nothing to retract.
The reason for the threat is the compliance of the following style of commonly used stair nosings.
Striped style non-compliant stair nosings from a Chinese manufacturer as found on Alibaba.
Whilst the company name will remain redacted I thought it was a good time to discuss this type of nosings in question and why that style does not meet the prescriptive requirements of AS 1428.1:2009.
AS1428.1:2009 Figures 27(A) & (B)
The keywords within the above extracts are ‘Strip’ and ‘Colour’ both of which are used in a singular context.
This means the contrasting strip must be a ‘single strip’ and of ‘one colour’ only. The multiple strips nosings that are made up of bands of aluminium and coloured inserts, as shown above, do not meet this prescriptive requirement and are so non-compliant.
As detailed below, the maximum a stair nosing front face (any area of luminance contrast) is permitted to extend down the face of a riser is 10mm.
Standard stair nosing with a 50mm strip and maximum 10mm front extension on a square corner.
Any individual who specifies, supplies, certifies or installs such a product to a building that is required to be accessible (BCA Table D3.1) will be in breach of and potentially exposed to litigation as detailed in part 2.2 of the Disability (Access to Premises — Buildings) Standards 2010.
This is highlighted with the legal case of Toomey v Scolaro’s Concrete Constructions where a stair balustrade was found to be non-compliant and found to have contributed to a fall. In the end, Justice Geoffrey Eames decided that the responsibility of this case rests on a total of nine defendants and awarded $2.248M in damages paid by:
Balance 50% equally paid by the following:
Join the discussion on LinkedIn
Now we know what is required let’s go back to the very beginning and look at some of the key vision conditions that the nosing’s assist with. Information about these conditions is following along with images from two different stairs, the first with a solid yellow band and the second with a series of black strips. We have then applied vision conditions to them by using a vision impairment simulator to demonstrate their effectiveness.
The vision conditions applied from left to right are ‘Mild’, ‘Moderate’ & ‘Severe’ Note percentage population figures are from the UK.
Macular degeneration affects the part of the eye responsible for sharp, detailed central vision. It can cause blurring or darkness in the centre of the visual field, and can also affect the ability to see fine detail. It is particularly common in older people.
NOTE: In practice, the eye naturally focuses on the centre of its vision. This makes it very difficult to look at things outside of the grey area.
Diabetic retinopathy is caused by complications of diabetes. Its effects vary and include blurred and patchy vision and floating spots in the visual field. Vision may also get better or worse during the day. If not properly managed, it can lead to blindness.
Glaucoma is a group of eye conditions in which the nerve at the back of the eye is damaged. It is usually gradual and progressive, and is often not detected in early stages. Once detected, further damage can often be minimised. Glaucoma causes progressive deterioration of peripheral vision.
Retinitis pigmentosa is a group of inherited disorders leading to gradual but progressive vision loss. The most common first symptom is difficulty seeing in poor light, which is usually followed by a loss of peripheral vision.
A cataract is a clouding of the lens inside the eye, producing blurred vision and sensitivity to light. In addition, colours often seem faded, with a yellow or brownish tint. Most cataracts are age-related and progressive, but they are often removed once they interfere with daily life.
In short-sightedness, the eye has difficulty focusing on distant objects, so they seem blurred. The degree of blurring depends on the object’s distance, and close objects can still be seen clearly. In contrast, long sightedness makes close-up objects seem blurred, while distant ones are clear. Both are usually corrected with glasses or contact lenses but people may not wear these all the time.
Long-sightedness makes close-up objects seem blurred, while distant ones are clear. In contrast, in short-sightedness, the eye has difficulty focusing on distant objects, so they seem blurred. The degree of blurring depends on the object’s distance, and close objects can still be seen clearly. Both are usually corrected with glasses or contact lenses but people may not wear these all the time.
People with colour blindness cannot distinguish certain colours and therefore perceive a reduced colour set. This simulation shows the most common form, red/green colour blindness, which causes difficulties differentiating between reds and greens. Blue/yellow colour blindness also exists but is rare
Standard stair nosing with a 50mm strip and maximum 10mm front extension on a square corner.
Stair nosing with 50mm strip, luminescent strip and maximum 10mm front extension.
Insert stair nosing with maximum 15mm front offset
Carpet tile stair nosing with a 50mm strip and maximum 10mm front extension with square corner.
Carpet tile stair nosing with a 50mm strip and maximum 10mm front extension with rounded corner.
Stair nosing with a 25mm front extension. The maximum permitted 10mm. Could be considered with a performance solution
Standard stair nosing with a 50mm strip and maximum 10mm front extension on a rounded corner.
Stair nosing on a radiused tread corner: Type 1
Stair nosing on a radiused tread corner: Type 2
NOTE: All images are copyright Equal Access Group Pty Ltd 2018Tactile Ground Surface Indicators (TGSI’s)
Tactile Ground Surface Indicator’s (TGSI’s) are designed to assist people with a vision impairment to safely navigate the built environment by the visual and sensory stimulus. It is often mistaken that people who are legally blind are in total darkness. Though it can mean that, it is more likely that legally blind individual can still detect changes and differences in colours. For this very reason, it is essential that TGSI’s meet the minimum allowable luminance contrast ratios.
All TGSI manufacturers should be able to produce official documentation that states their products LRV’s. With these in hand it is possible to calculate luminance contrast ratios and for assistance with this please feel free to use our Contrast Calculators.
As a guide Australian Standard AS1428.4.1 – 2009 has a table in Appendix E that shows the required Y values for lighter and darker surfaces. Please note that the Y value is not the LRV.
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.
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.
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.
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.
() 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)  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  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
The 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.