BPB practice advice PS 11-001 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.
Difference in the application of the Premises Standards and the BCA
The Premises Standards apply to the construction of new buildings and new parts of existing buildings. Unlike the Building Code of Australia (BCA), the Premises Standards also apply to a specified path of travel in an existing building (the 'affected part') and require a mandatory upgrade where that part does not comply with the Premises Standards.
The technical disability access requirements, which mirror the current disability access provisions of the BCA, are set out in Schedule 1 of the Premises Standards and are referred to as the Access Code for Buildings.
The Premises Standards do not apply to Class 1a buildings, or to a Class 10 building if it is associated with a Class 1a or a Class 4 building.
The Premises Standards also differ from the BCA with respect to how each applies to Class 1b and Class 2 buildings.
Class 1b buildings and specified Class 1b buildings
A Class 1b building is defined in the Premises Standards and the BCA as:
One or more buildings which in association constitute:
(i) a boarding house, guest house, hostel or the like —
- (A) with a total area of all floors not exceeding 300m2 measured over the enclosing walls of the Class 1b; and
- (B) in which not more than 12 persons would ordinarily be resident; or
- (ii) 4 or more single dwellings located on one allotment and used for short-term holiday accommodation;
which are not located above or below another dwelling or another Class of building other than a private garage.
Under subclause (i) of this definition the nature of the use of the building (i.e. boarding house, guest house), the floor area and the number of residents are relevant factors. These factors do not apply to dwellings under subclause (ii).
However, the Premises Standards only apply to buildings identified as specified Class 1b buildings, defined as:
- (a) a new building with 1 or more bedrooms used for rental accommodation; or
- (b) an existing building with 4 or more bedrooms used for rental accommodation; or
(c) a building that comprises 4 or more single dwellings that are:
- (i) on the same allotment; and
- (ii) used for short-term holiday accommodation.
Wherever the word 'building' is used in the definition of specified Class 1b building, it should be read to mean Class 1b building.
A specified Class 1b building is therefore a sub-category of Class 1b buildings.
For the Standards to apply, a building must first be within the definition of being a Class 1b building, and then must meet the further characteristics of a specified Class 1b building. Further, subclause (a) of the definition applies only to new buildings, sub clause (b) applies only to existing buildings, and subclause (c) applies to new and existing buildings.
What does short-term holiday accommodation mean?
While not defined in the Standards or the BCA, short-term holiday accommodation is typically rented out on a commercial basis for short periods without a lease agreement.
Applying the BCA and the Standards to Class 1b buildings
Because the accessibility requirements for Class 1b buildings differ between the Premises Standards and the BCA, the application of their relevant provisions vary depending on the type of building work proposed.
New Class 1b buildings
A building is a new building under the Premises Standards if it is not a part of a n existing building and if the application for a construction certificate (CC) or complying development certificate (CDC) for it is lodged on or after 1 May 2011.
The Premises Standards apply to a new Class 1b building only where the building is a specified Class 1b building.
All Class 1b buildings that are new buildings are required to meet the disability access provisions of the BCA whether or not the building also meets the definition of specified Class 1b building under the Premises Standards.
Where a building meets the disability access provisions of the BCA, it will also meet the corresponding disability access provisions of the Access Code under the Premises Standards.
If the building is a specified Class 1b building and compliance with the Access Code is not possible (i.e. deemed-to-satisfy solution, performance solution or a combination of both), relief from compliance is available if it can be demonstrated that compliance would impose unjustifiable hardship on a person (and an objection in relation to compliance with the corresponding provisions of the BCA may be required).
New parts of existing class 1b buildings
The Standards also applies to a 'new part', and any 'affected part', of a specified Class 1b building. 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.
Where an application for a CC or CDC is sought with respect to a new part of a building that is a specified Class 1b building (i.e. subclauses (b) and (c) of the definition):
- the work associated with the new part must meet the requirements of the Access Code and the BCA
- the Standards require (unlike the BCA) that the 'affected part' must comply with the Access Code.
If the 'affected part' of the existing building does not already meet the requirements of the Access Code, it will need to be upgraded to comply.
As with new specified Class 1b buildings, relief from compliance with the Access Code (including work that may be required to upgrade the 'affected part') may be possible on the basis of unjustifiable hardship.
Class 2 buildings
The Premises Standards and the BCA define a Class 2 building as a building containing two or more sole-occupancy units, each being a separate dwelling. The Premises Standards do not apply to all Class 2 buildings or to all parts of a Class 2 building.
The Premises Standards apply to a Class 2 building only where:
- the application for the CC or CDC for its construction as a new building was lodged on or after 1 May 2011
- it has accommodation available for short-term rent.
The Premises Standards therefore do not apply to a Class 2 building (that has accommodation available for short-term rent) which existed before 1 May 2011, such as a building constructed in 2004 that is being modified, or a building constructed in 2011 under a CC applied for before May 2011.
This recognises the impact compliance with the Premises Standards could have on the owners of existing Class 2 buildings (particularly those that are walk-ups with parking on the ground floor and the first of the units on the first floor level).
In comparison, the disability access provisions in the BCA apply to all new Class 2 buildings and to alterations and/or additions to any existing Class 2 building. This does not include a car park associated with a Class 2 building, as this is a Class 7a building. Further, the BCA disability access requirements will only apply to new work to an existing building if it is within the areas nominated in BCA Table D3.1.
There is no requirement under the BCA to upgrade existing parts of a building that are not part of the proposed building works. For example, if the proposal involves refurbishment to an existing lobby area (common area) and no works are proposed to the principal entrance doorway, it is not necessary to upgrade this door unless it is a building to which the Premises Standards apply.
The Premises Standards and the BCA do not, however, apply to the internal parts of a sole-occupancy unit in a Class 2 building.