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.
of Planning Permit for House Modification
Stairways in Cinema
Threshold Steps at Shops
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
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
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
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
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
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.
Threshold Steps at Shops
Buchan Laird Bawden v City of
Victorian Administrative Appeals Tribunal
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
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- 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.
- The condition was invalid because
it was inconsistent with the Building Code of Australia, and
- It was an unreasonable directive.
- 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
- 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
The argument for 3 was in effect
- 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
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
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
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.
Tactile Pedestrian Surface Indicators
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 Garlings 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
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.
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
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.
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
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 Mutuals web site at