A major inclusion into the ‘Building Code of Australia’ is the provision of Accessible Adult Change Facilities, but it has generated a number of questions such as “what are they?”, “whom are they provided for?” or “why are they required?” due to the lack of industry knowledge. The benefits such facilities provide to the community is significant and hopefully, this blog will go a long way in explaining to everyone that consults to the built environment, why.
An Accessible Adult Change Facility is a toilet and change facility that caters for users with high support needs and their carers where they require additional space, assistance and specialised equipment to allow them to use toilets safely and comfortably.
Accessible adult change facilities were developed and established in Australia back in 2009 originally as ‘Changing Places’. These were based on a model developed in the UK and have now been included in the 2019 Building Code of Australia to provide suitable facilities for people with high support needs who cannot use standard accessible toilets. We have also prepared a blog on the difference between an ‘Accessible Adult Change Facility’ vs ‘Changing Places’
Specification F2.9 is based on the Changing Places Information Guide and Technical Standard (June 2017 edition), copies of which can be obtained from the Changing Places website at: https://changingplaces.org.au/.
(Note: Changing Places is not in any way affiliated with, or endorsed by, the ABCB.)
There is nothing like the threat from a disgruntled stair nosing supplier to sue me if I do not retract my comments about purposely supplying non-compliant nosing. My answer to the retraction was simply ‘No” I had nothing to retract.
The reason for the threat is the compliance of the following style of commonly used stair nosings.
Striped style non-compliant stair nosings from a Chinese manufacturer as found on Alibaba.
Whilst the company name will remain redacted I thought it was a good time to discuss this type of nosings in question and why that style does not meet the prescriptive requirements of AS 1428.1:2009.
AS1428.1:2009 Figures 27(A) & (B)
The keywords within the above extracts are ‘Strip’ and ‘Colour’ both of which are used in a singular context.
This means the contrasting strip must be a ‘single strip’ and of ‘one colour’ only. The multiple strips nosings that are made up of bands of aluminium and coloured inserts, as shown above, do not meet this prescriptive requirement and are so non-compliant.
As detailed below, the maximum a stair nosing front face (any area of luminance contrast) is permitted to extend down the face of a riser is 10mm.
Standard stair nosing with a 50mm strip and maximum 10mm front extension on a square corner.
Any individual who specifies, supplies, certifies or installs such a product to a building that is required to be accessible (BCA Table D3.1) will be in breach of and potentially exposed to litigation as detailed in part 2.2 of the Disability (Access to Premises — Buildings) Standards 2010.
This is highlighted with the legal case of Toomey v Scolaro’s Concrete Constructions where a stair balustrade was found to be non-compliant and found to have contributed to a fall. In the end, Justice Geoffrey Eames decided that the responsibility of this case rests on a total of nine defendants and awarded $2.248M in damages paid by:
Balance 50% equally paid by the following:
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Now we know what is required let’s go back to the very beginning and look at some of the key vision conditions that the nosing’s assist with. Information about these conditions is following along with images from two different stairs, the first with a solid yellow band and the second with a series of black strips. We have then applied vision conditions to them by using a vision impairment simulator to demonstrate their effectiveness.
The vision conditions applied from left to right are ‘Mild’, ‘Moderate’ & ‘Severe’ Note percentage population figures are from the UK.
Macular degeneration affects the part of the eye responsible for sharp, detailed central vision. It can cause blurring or darkness in the centre of the visual field, and can also affect the ability to see fine detail. It is particularly common in older people.
NOTE: In practice, the eye naturally focuses on the centre of its vision. This makes it very difficult to look at things outside of the grey area.
3.7% Population
Diabetic retinopathy is caused by complications of diabetes. Its effects vary and include blurred and patchy vision and floating spots in the visual field. Vision may also get better or worse during the day. If not properly managed, it can lead to blindness.
0.16% Population
Glaucoma is a group of eye conditions in which the nerve at the back of the eye is damaged. It is usually gradual and progressive, and is often not detected in early stages. Once detected, further damage can often be minimised. Glaucoma causes progressive deterioration of peripheral vision.
0.74% Population
Retinitis pigmentosa is a group of inherited disorders leading to gradual but progressive vision loss. The most common first symptom is difficulty seeing in poor light, which is usually followed by a loss of peripheral vision.
0.04% Population
A cataract is a clouding of the lens inside the eye, producing blurred vision and sensitivity to light. In addition, colours often seem faded, with a yellow or brownish tint. Most cataracts are age-related and progressive, but they are often removed once they interfere with daily life.
In short-sightedness, the eye has difficulty focusing on distant objects, so they seem blurred. The degree of blurring depends on the object’s distance, and close objects can still be seen clearly. In contrast, long sightedness makes close-up objects seem blurred, while distant ones are clear. Both are usually corrected with glasses or contact lenses but people may not wear these all the time.
Long-sightedness makes close-up objects seem blurred, while distant ones are clear. In contrast, in short-sightedness, the eye has difficulty focusing on distant objects, so they seem blurred. The degree of blurring depends on the object’s distance, and close objects can still be seen clearly. Both are usually corrected with glasses or contact lenses but people may not wear these all the time.
People with colour blindness cannot distinguish certain colours and therefore perceive a reduced colour set. This simulation shows the most common form, red/green colour blindness, which causes difficulties differentiating between reds and greens. Blue/yellow colour blindness also exists but is rare
Standard stair nosing with a 50mm strip and maximum 10mm front extension on a square corner.
Stair nosing with 50mm strip, luminescent strip and maximum 10mm front extension.
Insert stair nosing with maximum 15mm front offset
Carpet tile stair nosing with a 50mm strip and maximum 10mm front extension with square corner.
Carpet tile stair nosing with a 50mm strip and maximum 10mm front extension with rounded corner.
Stair nosing with a 25mm front extension. The maximum permitted 10mm. Could be considered with a performance solution
Standard stair nosing with a 50mm strip and maximum 10mm front extension on a rounded corner.
Stair nosing on a radiused tread corner: Type 1
Stair nosing on a radiused tread corner: Type 2
NOTE: All images are copyright Equal Access Group Pty Ltd 2018
Tactile Ground Surface Indicators (TGSI’s)Tactile Ground Surface Indicator’s (TGSI’s) are designed to assist people with a vision impairment to safely navigate the built environment by the visual and sensory stimulus. It is often mistaken that people who are legally blind are in total darkness. Though it can mean that, it is more likely that legally blind individual can still detect changes and differences in colours. For this very reason, it is essential that TGSI’s meet the minimum allowable luminance contrast ratios.
All TGSI manufacturers should be able to produce official documentation that states their products LRV’s. With these in hand it is possible to calculate luminance contrast ratios and for assistance with this please feel free to use our Contrast Calculators.
As a guide Australian Standard AS1428.4.1 – 2009 has a table in Appendix E that shows the required Y values for lighter and darker surfaces. Please note that the Y value is not the LRV.
The recent Supreme Court of Victoria ruling makes clear that Victorian owners corporations are required to make reasonable adjustments for both tenants and visitors who have a disability.
Since 2015, Anne Black had lived in an apartment on the fourth floor of a residential development. In 2015, she developed disabilities that required her to use a wheelchair which inhibited her from accessing her apartment and other parts of the building.
Ms Black commenced proceedings, pursuant to sections 44, 45 and 56 of the Equal Opportunity Act 2010 (‘the EOA’), against the relevant Owners Corporation asserting that the Owners Corporation was unlawfully discriminating against her by failing to make alterations to the building so she could access the common areas and her apartment independently. Read together, sections 44 and 45 of the EOA essentially provide that a service provider must not discriminate against a person with a disability by refusing to make reasonable adjustments to a service so the disabled person may access or derive a substantial benefit from the service.
The Owners Corporation’s position was that its obligations were limited to consenting to Ms Black making reasonable alternations to the common property so long as she paid for those alterations. In support of that position the Owners Corporation relied on section 56 of the EOA which obliges Owners Corporations to allow owners to make reasonable alterations to the common property at their own cost in circumstances where those owners are disabled.
Senior Member Steele found that section 56 did not exclude the operation of sections 44 and 45 and therefore those sections applied to Owners Corporations as a service provider. However, the question of whether the Owners Corporation had unlawfully discriminated against Ms Black depended upon whether the alterations required by Ms Black were reasonable within the meaning of section 45(3) of the EOA. Submissions on the reasonableness of Ms Black’s requests were not made at this hearing.
Over the past 30 years the Commonwealth Government and the state and territory governments have introduced laws to help protect people from discrimination and harassment.
The following laws operate at a federal level and the Australian Human Rights Commission has statutory responsibilities under them:
The following laws operate at a state and territory level, with state and territory equal opportunity and anti-discrimination agencies having statutory responsibilities under them:
Commonwealth laws and the state/territory laws generally overlap and prohibit the same type of discrimination. As both state/territory laws and Commonwealth laws apply, you must comply with both. Unfortunately, the laws apply in slightly different ways and there are some gaps in the protection that is offered between different states and territories and at a Commonwealth level. To work out your obligations you will need to check the Commonwealth legislation and the state or territory legislation in each state in which you operate.
You will also need to check the exemptions and exceptions in both the Commonwealth and state/territory legislation as an exemption or exception under one Act will not mean you are exempt under the other.
See the tables below for detailed information on Victorian Acts.
| Disability Discrimination Act 1992
Discrimination on the basis of physical, intellectual, psychiatric, sensory, neurological or learning disability, physical disfigurement, disorder, illness or disease that affects thought processes, perception of reality, emotions or judgement, or results in disturbed behaviour, and presence in body of organisms causing or capable of causing disease or illness (eg, HIV virus). Also covers discrimination involving harassment in employment, education or the provision of goods and services |
Discrimination in employment, education, access to premises, provision of goods, services and facilities, accommodation, disposal of land, activities of clubs, sport, and administration of Commonwealth laws and programs. |
| Victoria: Equal Opportunity Act 2010 (VIC)
Discrimination on the basis of age, breastfeeding, disability, employment activity, gender identity, industrial activity, lawful sexual activity, marital status, parental status or status as a carer, physical features, political belief or activity, pregnancy, race (including colour, nationality, ethnicity and ethnic origin), religious belief or activity, sex, sexual orientation, and personal association with someone who has, or is assumed to have, any of these personal characteristics. Sexual harassment is also prohibited under this Act. Victoria: Racial and Religious Tolerance Act 2001 (VIC) Vilification on the basis of race or religion is prohibited under this Act. |
Discrimination in employment, partnerships, firms, qualifying bodies, industrial organisations, education, provision of goods and services, disposal of land, accommodation (including alteration of accommodation), clubs, sport, and local government. |
On the 21 June 2018 the Supreme Court of Victoria confirmed that owners corporations must make reasonable adjustments to buildings for tenants and visitors with a disability, or they risk being discriminatory.
The case, Owners Corporation v Anne Black, has significant implications for residential and commercial owners corporations across Victoria.
“Owners corporations are vitally important bodies that can help Victorians use, access and enjoy their homes and the world around them,” said Commissioner Kristen Hilton.
“This case confirms their obligations towards people with a disability, including making sure they can access their home and public spaces.”
Accessibility is a common issue for people with a disability. In this case, Ms Black has trouble accessing her own apartment because of heavy, manual doors that don’t open easily with the scooter she uses. The owners corporations responsible for managing the apartment complex argued they did not provide a service, and that Ms Black must pay for any changes to the building herself.
The Commission joined the case, as a friend of the court, to provide expert advice on discrimination law.
The Equal Opportunity Act 2010 requires service providers to make “reasonable adjustments” to accommodate people with disabilities. What is reasonable depends on individual circumstances, such as the size of the owners corporation, the nature of adjustments required and their cost.
The ruling makes clear that Victorian owners corporations are required to make reasonable adjustments for both tenants and visitors who have a disability. This may mean providing appropriate signage, lighting or accessible meeting rooms, depending on circumstances. It will affect owners corporations operating in commercial settings, like a shopping plaza or private offices, as well as in residential settings.
References:
() A quick guide to Australian discrimination laws, Available at: https://www.humanrights.gov.au/employers/good-practice-good-business-factsheets/quick-guide-australian-discrimination-laws (Accessed: 11 July 2018).
(9 February 2018) Anne Black v Owners Corporation OC1-POS539033E (Human Rights) [2018] VCAT 185 (8 February 2018), Available at: http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2018/185.html (Accessed: 11 July 2018).
James Collier and Gerard Nymyer (4 May 2018) Owners Corporation Management: Black v Owners Corporation OC1-POS539033E [2018] VCAT 185, Available at: https://www.strataconsultants.com.au/owners-corporation-management-black-v-owners-corporation-oc1-pos539033e-2018-vcat-185/ (Accessed: 11 July 2018).
Expert Judgement in Access could leave you open to a lawsuit
The use of ‘Expert Judgement’ when assessing a Performance Solution in regard to disability access can leave practitioners open to potential claims under the DDA.
The Premises standards do not state that ‘Expert Judgement’ is an unsuitable method of assessment, however it does state that to achieve compliance with the relevant Performance Requirements, the performance solution must be comparable to the ‘Deemed to Satisfy’ provisions. From this we can then determine BCA A0.5 (a), (b) or (d) can be used.
When assessing any proposed ‘Performance Solution’, Equal Access typically do not rely solely upon ‘expert judgement’ (BCA assessment method A0.5(c)). The BCA was amended in 2011 to align with the Premises Standards, enacted under the DDA. But, as there are several differences with these documents and where an inconsistency occurs, Equal Access adopts the more onerous requirements.
Disability Access and the New Building Regulations 2018 (Vic Only).Under the new Victorian Building Regulations introduced June 2, 2018, Regulation 38 states:
“Building surveyor to document determination of performance solution –
When determining an application for a building permit, the RBS must record in writing how a performance solution has been assessed as meeting the performance requirements of the NCC
The relevant building surveyor must record the following in writing if the relevant building surveyor determines that a performance solution meets a performance requirement of the BCA in relation to proposed building work—
(a) the performance requirement with which the performance solution complies;
(b) details of any one or more of the following that the relevant building surveyor uses or relies on in making the determination—
(i) the assessment method or methods;
(ii) the details of any expert judgement;
(iii) the details of any tests or calculations;
(iv) the details of any standards or other information.
Why ‘Blue’ Disabled Carpark Bollards & at What Height?
The concept of ‘Universal Design’ (UD) is simple in nature, yet requires careful consideration to execute successfully and for people with vision impairment, the built environment can create unintentional barriers if a holistic view is not taken.
An example of this is the required bollard for accessible car parking spaces as required by AS 2890.6.
Whilst the standard requires the provision of a bollard, it does not however, prescribe any requirements on the design of the bollard. This has resulted in the copious number of calls to our office from people that have reversed into them (are you listening Bunnings?) seeking advice on whether they are non-compliant. Sadly for them, as I mentioned earlier, there are no requirements.
When the standard was first released we took a best practice approach with height recommendations which we blogged about.
If we look at AS/NZS 2890.1:2004 (Incorporating Amendment No. 1) Parking facilities Part 1: Off-street car parking
Is gender specified signage in sanitary facilities required?F2.4 Accessible Sanitary Facilities
In a building required to be accessible –
The above reference from the 2016 National Construction Code (NCC) Volume One of the Building Code of Australia (BCA), instructs the provision of hygiene facilities fit for use by males and females with disability. The BCA is specific in assigning all accessible sanitary facilities, and in some cases, general facilities, as unisex. In fact, the word ‘unisex’ is mentioned 39 times in the current NCC Volume One of the BCA, mostly when referring to accessible toilets.
The promotion of accessible sanitary facilities for both males and females may be seen as a more equitable and fair provision of toilets, which is, according to the Australian Standards 1428.2-1992, designed for use by people with disabilities who are accompanied by a carer of the opposite sex. However, what happens when the person with disability does not identify themselves as either gender? Or, perhaps, their carer doesn’t either?
People who identify outside of a gender binary can be seen as discriminated against where only male, female, or unisex facilities are available. See a similar article here: https://www.disabilityaccessconsultants.com.au/cant-unisex-ambulant-toilet/
Heritage Premises and Disability Access
Disability Access to the Heritage Listed Museum of Australian Democracy at Old Parliament House
We are regularly told in our practice by clients, that building modifications to provide access for people with disability cannot be undertaken due to “Heritage Restrictions” on the subject property.
This, however, is an incorrect statement and I hope the following post makes things clearer, particularly in terms of the hierarchical levels of Australian legislation.
Firstly we need to understand the relationship between federal and state acts and codes.
At the very top, we have the Disability Discrimination Act 1992 and whilst this does not include any such prescriptive requirements on how compliance can be achieved, it, however, outlines where and how discrimination must not occur.
The following are the key sections of the DDA that are typically applicable in the built environment.
SDA Specialist Disability Accommodation Under The NDISEqual Access disbaility access consultants undertake specialised SDA Specialist Disability Accommodation Assessments in accordance with the requirements of the NDIS and NDIA throughout Australia.
Specialist Disability Accommodation (SDA) refers accommodation for participants who are eligible for specialist housing solutions to assist with the delivery of environmental supports to cater for their significant functional impairment and/or meet their very high (support) needs. SDA refers to the homes in which support services are delivered, and may include specific designs for people with very high needs or may be located as such for viable provision of high level support and care to facilitate independent living.
From 1 July 2016, SDA will be funded by the National Disability Insurance Scheme (NDIS; Scheme), with an aim to enable people with disability to have greater choice and control over support services and housing facilities. In Metropolitan Melbourne, the NDIS rollout has already begun in the North East, due to be followed by other districts from 1 November 2017.
The NDIA will determine which NDIS participants will benefit from specialist disability accommodation, by conducting various assessments with references to two sets of criteria:
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