This ACT lot owner wonders if their scheme is obliged to provide disabled access for a resident. Christopher Kerin, Kerin Benson Lawyers provides the following information.
Question: What are the obligations for providing disabled access for strata buildings in the ACT? One of our residents is in a wheelchair and requests improvements to access doors.
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I am in the ACT and live in an apartment building that appears to have met all the necessary requirements in the ACT. Our building was not advertised as having disability access.
We have a young woman in a wheelchair who is an owner here. She is asking the Owners Corporation to make changes to one of the ground floor entry doors and the door in the basement that leads to her car. She is requesting there is an automatic opening door to enable her to get in and out in her wheelchair. Before we make any decision we would like to know what we are legally obliged to do so that we can advise owners.
Are you able to tell us what the obligations for providing disabled access are for strata buildings in the ACT?
Answer: The following are two decisions where a court or tribunal considered the application of discrimination legislation in a strata context.
Discrimination legislation
14.44 Discrimination People are entitled to be discriminatory in their private lives and homes. For example, it does not contravene any legislation to refuse to assist a person with a disability into one’s home. 1
Indeed, prima facie, residential strata schemes are in the same category as any other home – both common property and lots are private property controlled by their owners. The existence of legislative provisions in all states that ban by-laws that prohibit guide dogs or assistance animals is evidence of this. If strata schemes were public property and regulated by discrimination legislation, such provisions would be unnecessary.2
Another area in which discrimination legislation regulates the actions of private citizens is the transfer or leasing of land. Some relevant provisions in Commonwealth legislation which apply to owners corporations in this area are as follows:
- section 12(1)(a) of the Racial Discrimination Act 1975 (Cth) provides that it is unlawful for a person, whether as a principal or agent to refuse or fail to dispose of an interest in land to someone by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person;
- section 24 of the Sex Discrimination Act 1984 (Cth) provides that it is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding:
- by refusing or failing to dispose of an estate or interest in land by the other person; or
- in the terms or conditions on which an estate or interest in land is offered to the other person; and
- section 26 of the Disability Discrimination Act 1992 (Cth) provides that it is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person’s disability:
- by refusing or failing to dispose of an estate or interest in land to the other person; or
- in the terms or conditions on which an estate or interest in land is offered to the other person.
However, as indicated above, the above provisions are unusual in that discrimination laws generally do not extend to owners corporations.
The following are two decisions where a court or tribunal considered the application of discrimination legislation in a strata context.
14.45 Case note. Hu v Stansure Strata Pty Ltd & Ors [2014] FCCA 905.
In 2007 the Applicant, a woman of Asian ethnicity, purchased and entered into occupation of a lowset unit in a unit complex known as Jarrah Court. Almost immediately she complained that she was subject to racial discrimination by the Chairperson of the body corporate, Ms Holmes (Second Respondent), the Body Corporate itself (‘Body Corporate’) (Third Respondent) and the third-party provider of professional body corporate services (“Stansure”) (First Respondent).
In particular, she alleged unlawful discrimination by the respondents contrary to section 18C of the Racial Discrimination Act 1975 (Cth) (amongst other provisions) and the question arose as to whether this provision could apply to actions that occurred inside a strata scheme.
Section 18C(1) makes it unlawful for a person to act, otherwise than in private, if it is reasonably likely, in all the circumstances, to offend, insult, humiliate, or intimidate another person or group and that act is done because of the race of the other person or group.
The court made it clear that Jarrah Court was not a public place and this was one of the grounds on which the case failed.3
14.46 Case note. Sutherland v Tallong Park Association Incorporated [2006] NSWADT 163.
The complaint of the applicant concerned access to the swimming pool that was located on the common areas within a residential development known as the Tallong Park Estate. The estate was made up of 169 lots, as well as the common areas reserved for open space and recreational use.
The applicant, Mr Sutherland, complained that the Respondent, the Tallong Park Association Incorporation (the Association) had prevented him from driving his vehicle to the area where the swimming pool was located, and from parking in an area proximate to the pool. He claimed that in order to access the pool facilities he was required to park in the main car park and traverse approximately 75 meters to the pool, which he could not do because of his disability. The common areas, on which the pool was located, are controlled and managed by the Association.
Mr Sutherland contracted polio as a teenager in the 1950s and had a mobility impairment, as a result of which he had difficulty walking, except for short distances. He requires leg callipers and a cane. He also had Post-Polio Syndrome, which makes it painful for him to stand and walk, affecting his balance, and necessitates medication for pain. Swimming had been recommended by his doctors as an appropriate form of exercise for his disabilities.
The respondent unsuccessfully argued that the Association came within an exception to the NSW Anti-Discrimination Act 1977 and the NSW Administrative Decisions Tribunal ultimately held that the Anti-Discrimination Act applied and the compliant of disability discrimination in the provision of goods and services was substantiated.
1 Sherry, C and Teys, M, ‘Strata Schemes and discrimination‘, Griffith University Strata Conference 2015, p 1.
2 Ibid, p1. See also section 139(5) of the Strata Schemes Manaagement Act 2015 (NSW).
3 Hu v Stansure Strata Pty Ltd & Ors [2014] FCCA 905 at 45-46.
This post appears in Strata News #267.
Read next:
- NSW: Disability Discrimination And The Human Rights Commission
- QLD: Q&A Are we required to upgrade our building for disability access?
- ACT: Q&A Bylaws to ban smoking in apartments
- Does discrimination law apply to strata schemes?
Christopher Kerin
Kerin Benson Lawyers
P: 02 8706 7060
E: [email protected]
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
Visit Maintenance and Common Property OR Australian Capital Territory Strata Legislation
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