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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-09-15 Daily Xml
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DEVELOPMENT (BUILDING RULES CONSENT—DISABILITY ACCESS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 13 September 2011.)

The Hon. D.W. RIDGWAY (Leader of the Opposition) (15:28): I rise on behalf of the opposition to speak to the Development (Building Rules Consent—Disability Access) Amendment Bill. This legislation was introduced by minister Rau as a mechanism to align the Development Act and the regulations with the Commonwealth Disability Discrimination Act to ensure greater and dignified access to buildings for people with a disability and also to provide greater certainty to the building industry, particularly where an applicant is seeking to upgrade or extend an existing building.

The framework for development assessment and for building rules and standards in South Australia is provided by the Development Act. The main technical document called up under the act and the regulations is the Building Code of Australia. The Building Code of Australia is a national technical document which sets the standards for building work.

Since the Commonwealth Disability Discrimination Act was initiated in 1993, there have been inconsistencies between it and national building law which, of course, we call the code. The incongruities between the anti-discrimination law and the building law have made it untenable for developers and property owners in situations where building works, carried out in compliance with the building law, have ended up in complaints with the human rights commission. This has often meant extra work for builders, costs for clients and general difficulty within the industry.

In 2000, the commonwealth Disability Discrimination Act was amended so that it could allow for a set of standards, which were the Premises Standards, relating to building access. Since then, discussions have been taking place on the federal level, mainly with the Australian Building Codes Board, to negotiate a set of technical requirements which would form the basis of those Premises Standards.

The standards, in the form of the commonwealth disability (access to premises) standards, were passed by the commonwealth parliament last year and take effect on 1 May 2011. I understand that they will be reviewed every five years. The standards set out administrative provisions and an Access Code detailing the technical building requirements. That code will be mirrored in the Building Code of Australia, which is maintained by a national board under intergovernmental agreement. The standards will apply to public buildings—new buildings, as well as upgrades or extensions to existing buildings requiring building approval.

The Premises Standards must now be reflected in the development regulations under a head power within the act. The regulations will be picking up the exemptions and concessions for existing buildings out of that document. There are two main aspects to be considered, and they are section 53A of the Development Act, which already describes the situation in which an application for the building rules consent would require a building upgrade as a condition of approval.

Section 53A is divided into two subsections. The first deals with cases where an existing building is deemed to be unsound from a structural perspective. The second deals with an existing building deemed to be inadequate from a disability access perspective. The new buildings are not subject to this legislative change that they will be covered by the code. The bill defines the 'affected part' of a building on which building work is to be carried out. The affected part is the principal pedestrian entrance of the building and any part of the building that is necessary to provide a continuous accessible path of travel from the entrance to the location of the building work.

The bill also makes a number of technical amendments. Firstly, it removes the prescribed date of construction, before which a building may be subject to section 53A if deemed to be structurally unsound. It defers the date to the new regulations. As I mentioned, it may also be required that prescribed alterations to a building impose the requirement to upgrade inadequate access and facilities. This clause would amend the section so that 'the affected part' (rather than simply 'the facilities') may need to be upgraded if not compliant with the Building Code. Further, where there is currently a restriction on that subsection only applying to buildings constructed before 1 January 1980, that restriction is removed and the application of this section is fully dependable on alterations of a class prescribed by the regulations.

The Premises Standards also contain a general exemption, which is the same as is found in the Disability Discrimination Act, for situations involving an unjustifiable hardship. The Premises Standards spell out much more clearly, however, what factors would need to be considered by a court if someone was defending the decision not to comply with the Premises Standards. In essence, this bill simply provides a head power where all the requirements to an upgrade of buildings in certain cases will be referred to the regulations which reflect the Premises Standards and therefore the commonwealth Disability Discrimination Act and the Building Code.

I was a little disappointed to learn that the regulations had not been finalised at the time that we were briefed on the bill and that there had been no consultation conducted on the bill. It seems a pretty simple and sensible piece of legislation. It was interesting to note that there had not been any consultation. Certainly, the opposition undertook consultation with a number of groups, including the Property Council, the Housing Institute, the Master Builders, Local Government Association, Julia Farr, Minda and Novita. They raised a number of concerns but none were of the view that the act needed to be amended; however, they were concerned with the level of consultation.

I request that the government consults with industry fully when they develop the regulations because, as I said, I do not believe there was any resistance to the proposed changes but there certainly was concern that the level of consultation was lacking. With those few words, I indicate the opposition is happy to support the bill.

The Hon. M. PARNELL (15:35): The Greens will be supporting this bill but we acknowledge that it is a very small step in what needs to be a longer march towards making our built environment more accessible to people living with various disabilities. Certainly, there have been advances made in relation to public buildings over the years to make them more accessible to people with mobility disabilities. However, all of us know that the general rule in our built environment is that the vast bulk of buildings are not accessible.

This bill makes a number of technical amendments to the Development Act that will support the introduction of the Disability (Access to Premises—Buildings) Standards 2010. These Premises Standards will apply to all new buildings and upgrades or extensions to existing buildings and will be incorporated into the next revision of the Building Code of Australia.

One of the main difficulties with using the Development Act and the Building Code of Australia to bring about changes to our built environment is that they only apply to new applications; that is, they only apply to new buildings or substantial alterations to existing buildings. In simple terms, if you do not need to lodge a development application you do not need to comply with these new standards. If that analysis is incorrect then I look forward to the minister clarifying it, but that is my understanding: if you do not put your head over the parapet by applying for development approval then you will not be caught by these standards—certainly not via their introduction through the Development Act.

This type of approach guarantees that progress will be slow. In many ways I think it reflects the relative lack of importance attached to disability access compared to other areas of government regulation. For example, our pollution regulators have the right to modify pollution standards or to set appropriate guidelines and they can change mandatory standards, and they can do it as the need arises or perhaps in a licence renewal situation. However, they do not have to wait until an industry comes along and lodges a development application. It is the same with public health standards in relation, for example, to food premises.

This tool will be a very slow and ad hoc way of making our city more accessible, and it certainly needs to be supplemented with other strategies. If we were really serious about accessibility then there would be a strategy of retrofitting existing buildings. There would also be a range of concessions and other incentives to do so, but this bill does not go that far.

I note that the new disability access standards will apply to shops, offices, educational facilities, entertainment and commercial buildings but not to detached houses or apartments unless they are used for short-term rental. That raises a number of interesting issues. Certainly, the public policy rationale for insisting that premises that provide services to the public should be accessible is, in my opinion, beyond challenge, but the situation is different with private dwellings.

At one level you might say that, if someone wants to build a house that is multilevel and has lots of steps and narrow doorways and the like, they should be able to do so. However, on the other hand, we know that the average Australian changes house about every seven years and that buildings generally last much longer than that. Therefore, houses will contain a range of occupants over their life. I think there is a case for at least providing (in relation to housing) that it should be capable of later retrofitting for accessibility even if that work is not done at the stage of initial construction. However, that is a debate for another day as it is not included in this bill or, as I understand it, in the latest accessibility Premises Standards.

I note, though, that in relation to apartments if they are built for the purpose of short-term rental then they will be covered by the standards but apartments that are built for owner-occupiers or long-term rentals will not be. Whilst this approach makes some sense, it does not acknowledge the fact that such buildings can and do change use and that the change of use does not necessarily require any additional building work but might require development approval in the form of a provisional development plan consent in relation to the change of use.

What I would like to do, given that the minister's adviser is listening, is put a question on notice now rather than in the committee stage, and that is to pose a question. For example, an apartment block is built for long-term rental and, subsequently, the owner applies to a relevant authority (a local council) to change the use to, say, serviced apartments—so for short-term rental—but they do not propose to alter a single brick or any aspect at all of the physical infrastructure. Will the new provisions of the Building Code of Australia apply, given that they will not be applying for any building approval?

So, the situation is the same. The Hon. Kelly Vincent in her contribution yesterday raised the issue of other applications that require development approval in the form of planning consent, but do not require building consent. The classic example is the old house that is turned into offices, consulting rooms, shops or the like. Can the relevant authority insist on the applicant for development approval actually undertaking additional building work that they did not intend to do as a condition of approving the change of use of land? With those brief comments, the Greens support the second reading of this bill.

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling) (15:41): I believe there are no further second reading contributions, so I take this opportunity to make a few concluding remarks. I thank members who have contributed to this second reading and for their support: the Hon. Kelly Vincent, the Hon. Mark Parnell and the Hon. David Ridgway. This bill is a straightforward piece of legislation and really is about providing consistency of standards around building disability access. A number of issues were raised during second reading contributions on which I will comment; one was in relation to the lack of consultation around the bill.

I have been advised that, subsequent to that, the agency has undertaken consultation with all relevant stakeholders and that the bill has been positively received by those stakeholders, so consultation was done. In terms of the work that has been done on regulation, I have been advised that the honourable member is quite correct: work has not commenced on development of the regulations as yet. However, members can expect that those regulations will be in line with those of the commonwealth, so we expect that they would be very similar to those. I have been advised that the regulations will go out to all key stakeholders for consultation, so members can be assured that they will have an opportunity to input into those.

In relation to the issue the Hon. Mark Parnell raised—that is, he gave an example of an apartment block, the use of which would be changed—I have been advised that, if the changes effected a change to the classification of the building (and I believe the example he gave would constitute a change in the classification), then the building would be captured. If it did not result in a change to the classification, it would not be captured. The effect of that, I am advised, is that any significant changes to the building, whether they be structural or in the use of the building, would be captured by this bill.

I believe I have addressed all matters, but any I have failed to address, or if there are further questions, we can deal with them in committee, and I thank members again for their support.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. M. PARNELL: I thank the minister for answering my question. I am not an expert on the various classifications of buildings under the Building Code of Australia, but I appreciate your answer. The example I used, which was apartments for owner-occupier or long-term rental, is a different category from apartments for short-term rental, such as serviced apartments. Is the situation the same in relation to the old stately home that is then turned into a doctor's consulting rooms or into an accountant's office; is that a different category as well? I am trying to work out the range of examples where a retrofit would be triggered by a change of use, even if it does not require building work.

The Hon. G.E. GAGO: I have been advised that the example the honourable member has given would be captured by the legislation—a change from a home to doctor's rooms, for instance. Another example would be a change of use from shop to, say, office use. This is, of course, assuming that no walls are being pulled out, etc., because that would automatically be captured. This is just simply a change of use. Basically, the classification system, I have been advised, is a series of classifications of use, and where there is a major change of use, I am advised they would be captured by this legislation.

Clause passed.

Remaining clauses (2 to 5) and title passed.

Bill reported without amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling) (15:50): I move:

That this bill be now read a third time.

I would just like to make a few comments to clarify the record. I was asked a question on consultation, and I advised that we subsequently had provided consultation to relevant stakeholders. I have been advised, however, just for the sake of clarifying the record and setting that straight, that we did not consult with Minda and that there were some other groups, but generally letters did go to industry stakeholders. I just needed to correct the record in case I had confused or misled the chamber.

The Hon. S.G. WADE (15:51): I think the government has put us in an awkward position, but let me speak in that context. I think the fact that the minister chose to provide that information out of committee has denied members the opportunity to unpack the information. It is actually extraordinary. To suggest that Minda, the largest private disability agency, was not consulted about this poses the question: what value were the other assurances the minister gave us at the second reading and committee stage about consultation?

It reminds me of a statement earlier in relation to a previous matter where the minister told us that the disability sector had been consulted because Disability SA had been consulted—the government bureaucracy. I think this is extremely unfortunate, and I would hope that there might be some way that the minister could actually provide more full information as to, if Minda was not consulted, who on earth was?

Bill read a third time and passed.

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