Affected part upgrades under the Premises Standards

BPB practice advice PS 11-002 December 2011

Note to readers: practice advice relates to the legislation in force at the time, which may since have been amended.

This Practice Advice will assist the application of the Commonwealth Disability (Access to Premises – Buildings) Standards 2010 (the Premises Standards) within NSW.

Background information on the Standards and guidance on their implementation in NSW can be viewed at www.bpb.nsw.gov.au.

Applying the 'affected part' upgrade to existing buildings

The principal pedestrian entrance and the part of the existing building that is necessary to provide a continuous accessible path of travel from that entrance to the new part is referred to as the 'affected part' of the building under the Standards.

When an application for a construction certificate (CC) or complying development certificate (CDC) is lodged in respect of an existing building or building works to an existing Crown building to which the Premises Standards apply, it is necessary to consider whether the 'affected part' of the building will need to be upgraded to comply. Technical disability access requirements are set out in Schedule 1 of the Premises Standards and are referred to as the Access Code for Buildings. The Premises Standards contain a number of concessions with the Access Code that set out when an upgrade to the 'affected part' of the building is not required.

Lessee concession

The lessee concession under Part 4.3 of the Premises Standards apply to all leased buildings and strata buildings where the relevant tenancy, or strata unit, is leased and there is more than one lessee in the building.

If the applicant for the CC or CDC is an owner/occupier of the unit, the concessions do not apply, even with leased tenancies or strata units in other parts of the building. If the building is a Class 2 building, the Premises Standards do not apply to building work undertaken within the internal parts of the unit a sole occupancy unit.

Existing sanitary facilities concession

The concession from compliance with the Access Code with respect to existing toilets specifies that where the existing toilet facility complies with AS1428 - 1 - 2001 Design for access and mobility, Part 1, General requirements for access - New building work, it is not necessary to provide a new facility or upgrade an existing toilet facility.

A part of a building is a new part if it is an extension to the building or a modified part of the building and an application for a CC or CDC is lodged on or after 1 May 2011.

The concession only applies where there is a requirement specified in a development consent or the State Environment Planning Policy (Exempt & Complying Development codes (2008) (the Codes SEPP) to upgrade or provide such facilities.

Principal pedestrian entrance

Neither the Standards nor the BCA define the term principal pedestrian entrance. However, the Premises Standards apply only to the principal pedestrian entrance of the building, not the allotment, nor the entrance from an accessible car parking space or another building on the allotment.

The Explanatory Statement for the Premises Standards describes the principal pedestrian entrance as being required to be accessible in all cases because it would be the most commonly used entrance by all building users. This is important in certain public buildings where the principal entrance is often used as a focus for events or as a ceremonial (i.e. formal) entrance, particularly in buildings such as hotels and theatres.

In the case of a building where a rear entrance from a car park is normally used by a majority of persons attending the building by car, the front entrance would be considered the principal pedestrian entrance as not all persons will travel by car and the use of the rear entrance would discriminate against those persons who do not use this mode of transport. The principal pedestrian entrance is not confined to the doorway. It also includes any external steps, ramps, porticos, turnstiles or the like which are associated with the entrance and which form part of the building.

Applying the Premises Standards to the 'affected part' of buildings

When the 'affected part' upgrade applies, the continuous accessible path of travel must be upgraded to comply with all aspects of the Access Code where they are applicable. This may include upgrading doorway widths, circulation spaces and luminance contrast. However, the upgrade only applies to those parts of the existing building that form part of the continuous accessible path of travel to the new work being undertaken.

Scenario 1

If a building contains more than one lessee and the building work is to be carried out only in the tenant’ s leased area, upgrading the path of travel to the new work (the 'affected part') is not required, providing the application for building work is lodged by the tenant.

Scenario 2

In a building that contains multiple tenants with ground floor tenancies that have their own separate entrances, each entrance is a principal pedestrian entrance for the purposes of the Premises Standards. If building works are carried out in one of the tenancies, there is no need to carry out any affected part upgrade, including work to the entrance (which is a portion of the 'affected part'), to address any non-compliance that may exist, providing the building is leased to more than one person.

Scenario 3

Where conditions of development consent for an existing building requires accessible upgrading of the building that is in excess of the requirements for the 'affected part' required by the Premises Standards, a claim for unjustifiable hardship cannot be made in relation to this additional work.

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