Legal Outcomes as Design Guides

Until such time as a there is a disability standard covering buildings, indication as to what is discriminatory about premises will, in addition to other guidance material such as the Australian Standards and the Advisory Notes on Access to Premises issued by the Commonwealth Human Rights and Equal Opportunity Commission, need to be found in legal outcomes of State and Commonwealth jurisdictions. Legal outcomes as used here denotes case law, conciliated outcomes, and legal opinions.   

Following are summaries of such legal outcomes.

Refusal of Planning Permit for House Modification
Stairways in Cinema
Threshold Steps at Shops
Tactile Pedestrian Surface Indicators

Refusal of Planning Permit for House Modification

At a Tasmanian Planning Appeal tribunal hearing, the DDA was used as a basis of an appeal against refusal of a Council to grant a permit under its Planning Scheme. This part of the appeal was dismissed because consideration of disability discrimination was not within the scope of the Planning Scheme. The Tribunal advised that, in any event, submitted argument and evidence had not established that the planning disapproval would be detrimental in terms of the person's disability.

Watson v Clarence City Council
Tasmanian Resource Management and Planning Appeal Tribunal
21 Feb1997

A person in a Hobart suburb in Tasmania lodged an application with his local Council for a town planning permit to carry out modifications to his house. The Council refused planning approval because the width of an existing open space alongside his house did not allow sufficient private open space as required by the Planning Scheme.

The person appealed to Tasmania's Appeal Tribunal, on two grounds, one of which was that Council's refusal contravened the Disability Discrimination Act.

The person argued that the refusal of the planning approval would require him to remove, or not use part of his existing driveway, adversely affecting his access to and movement within the property.

The Tribunal advised, in effect, that, because there was no discretion allowed within the Planning Scheme to avoid or vary the requirements of the Scheme, issues such as whether or not the results of the Scheme might be, and whether in this case they were, at variance with the DDA, fell outside the Planning Scheme and therefore outside the powers of the Tribunal to allow the appeal.

The Tribunal further advised that, with regard to the DDA, the appellant had not established that the results of Council's disallowance of the planning permit would be detrimental to him in terms of his disability.

The Tribunal also added, in effect, that its decision to disallow the appeal could not be construed as necessarily contributing to any impediment related to disability because the insufficiency of private open space in terms of the Planning Scheme was the function of an existing situation.

• This case was summarised by Hunarch from information obtained from the Australian Legal Information Institute at

Stairways in Cinema

Cooper and Others vs Holiday Coast Cinema Centres
Commonwealth Human Rights and Equal Opportunity Commission

A person, on behalf of himself and fellow members of an organisation who are confined to wheelchairs, lodged a complaint under the Disability Discrimination Act with the HREOC about a cinema complex in Coffs Harbour.

The complaint was that it was impossible for a person in a wheelchair to independently enter the cinemas; that even though assistance from cinema staff was available it was unacceptably inappropriate; and that therefore patrons who use a wheelchair were indirectly discriminated against. Evidence was given about the apprehension experienced by a wheelchair user in being carried up stairs lest serious injury be caused to the person being carried and to those doing the carrying.

The cinema complex was an existing one that contained two cinemas. It was refurbished and another cinema added. The resulting complex has five levels with four flights of stairs.

It was concluded by the Commission that conventional lifts and ramps were not possible or practicable within the cinema complex and that platform stairlifts were the only feasible means of providing for independent wheelchair access to all levels.

In arguing against the installation of stairlifts, the Cinema asserted that the installation would be financially crippling and cause the cinema to be closed, having repercussions for cinema staff, the cinema-going public, and the local community generally. The Commission acknowledged this but concluded on evidence that the installation could be accommodated within the typical seven year refurbishment cycle of the cinema and that it should be possible to amortize the cost of installation over this time.

The Commission found that indirect discrimination had occurred because there was effectively a requirement or condition that persons wishing to gain access to the cinema complex be able to climb stairs. This was a requirement or condition with which the complainants and other persons with similar disabilities could not comply, and which was not a reasonable condition or requirement.

The Cinema was directed to install within or by the end of five years efficient and effective platform stairlifts to provide access to all levels of the cinema.

• This case was summarised by Hunarch from information obtained from HREOC at http://www.humanrights.gov.au/disability_rights/

Threshold Steps at Shops

Buchan Laird Bawden v City of Moreland
Victorian Administrative Appeals Tribunal
January, 1996.

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.
4. 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.

   • This case was summarised by Hunarch Consulting from the written determination issued by the APT.

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   Tactile Pedestrian Surface Indicators

   Liability of Councils and Tactile Pedestrian Surface Indicators

   This is an edited and abridged version of a legal opinion given to Statewide Mutual insurance company by P R Garling, SC, 24 December 2000, about the potential liability of Councils for tactile pedestrian surface indicators¹

   P R Garling’s opinion is that liability of Councils could arise if negligence in the design, construction, installation or repair of the surfaces was established, but not because of the decision to specify or install them. In other words, providing that they comply with AS1428.4, tactile pedestrian surface indicators would not inherently attract liability for Councils or, by extrapolation, for other specifiers. 

   A number of Councils in New South Wales have installed or are considering installing tactile pedestrian surface indicators.  Tactile tiles have recently been extensively installed on the platforms of Sydney Railway Authority stations, at least, in the Sydney metropolitan area.

   Councils have expressed concern about the legal implications arising from the installation of tactile pedestrian surface indicators on footpaths or roadways.

   A council does not automatically owe a duty of care to all road users. The fact that a council has the effective care, control and management of a footpath, or that a footpath is vested in fee simple in a council, does not give rise to any civil liability.

   Original Design and Construction

   For a council to be held liable for injuries to a person from an accident caused by a tactile pedestrian surface, either during or after its installation, it would need to be established that at least:

   •         The council designed, constructed and installed the tactile pedestrian surface;
   •         There were identifiable standards applicable to the design, construction and installation of the tactile surface (e.g.AS1428.4);
   •          The tactile surface at the time of the accident, and after the installation, was the same as at the installation - i.e. there was no subsequent work which altered the footpath;
   •         The accident arose from negligence in the design, construction or installation and not through deterioration from usage or weathering subsequent to the installation.

   Repair and Maintenance

   For a council to be held liable for injuries to a person resulting from the repair or maintenance of a tactile pedestrian surface, it would need to be established that at least:

   •         The council undertook the repair, or in other ways modified the original condition of the tactile surface;
   •         There were identifiable standards applicable to the repair of the tactile surface (e.g. AS1428.4);
   •         That the footpath and the tactile surface at the time of the accident, and after the repair, was the same as at the time of the repair - i.e. there had been no further work, or modifications, following the repair, which altered or affected the footpath;
   •         The defect, which caused the plaintiff's accident was a defect arising from negligence in the repair and not through deterioration from usage or weathering subsequent to the repair.

   
   The liability of a council for tactile pedestrian surface indicators will substantially depend upon the principles that attach negligence to local councils for negligent design, construction, installation or repair, rather than by reason of the installation of the products themselves.

   1. Tactile pedestrian surface indicators are denoted as tactile ground surface indicators, or TGSIs, in Australian Standard 1428.4.

   This editing and abridgment has been prepared by Rod A Hunter for Hunarch Consulting. It has not been appraised for accuracy by the person giving the opinion or by Statewide Mutual for whom the opinion was given. The full text of the opinion can be found at Statewide Mutual’s web site at http://www.statewide.nsw.gov.au/index.htm.