Disability (Access to Premises - Buildings) Standards 2010
After lobbying for exemption from complying with the new building code by Hosted Accommodation Australia - Victorian Division on behalf of operators seeking a certification for a change of use of their 1a buildings to 1b, the Victorian Building Commission’s Appeals Tribunal has determined that operators of accommodation businesses of three bedrooms and less do not need to comply.
The tribunal has received a number of requests for exemption from compliance with the Code under its 'hardship' provisions. However these are extremely costly and difficult applications to make with little history of success. Anyone seeking to develop a B&B business or the many existing operators who have not formally applied for a change of use of their property to a 1b classification would have been subject to the code. To comply they would have been confronted with substational costs in adapting their propertry.This determination clarifies the position of operators of three or less bedrooms and avoids the need to undertake significant alterations to their property.
The Victorian Building Commission has been at the forefront of interpreting Federal building codes and we understand that this interpretation of the application of the new code is being followed in other States
From 1May 2011 changes to the federal Building code came into effect with the introduction of a new code governing “‘Access to buildings for people with a disability” The new code applies to class 1b, 2 ,3,5-9 and certain 10a and 10b buildings.
This code lays down requirements for new buildings or a new part of an existing building and the effected part of an existing building to be constructed to include facilities for people with a disabilities. Operators of small accommodation buildings of 300sq metres or less (bedroom space) are classified as class 1b. Many properties which started out as residential properties are classified as 1a. However to convert a class 1a building to a 1b is “a change of use” and this subjects the premises to the new code. The White Paper on this legislation specifically states that there are to be no exemptions and a building owner who wishes to be exempted has to apply to a Building Tribunal for a consideration on the grounds of hardship.
In Victoria and Western Australia the implementation of the building code is controlled by their respective building commissions which then authorise local authorities to implement the new code. In other states local authorities undertake this role under the direction of their state planning authority and in the Northern Territory and the Australian Capital Territory where there is no layer of local government, the territory governments oversee the implementation of this legislation.
For a change of use of a 1a private residence to a 1b a certificate of compliance has to be issued by a Registered Building Surveyor. This has impacted on on people who wish to develop their residence into a B&B and also existing B&B owners who have not applied for a change of use. There are many businesses operating in this latter category and who are now getting caught up in this situation.
As with all Government Acts much is left to interpretation and in Victoria the Building Commission decided that changes of use after 1 May 2011 required the full implementation of the code. Consequently, the Victorian Appeals Tribunal has been indundated with applications for hardship. Fortunately after much discussion with the Building commission an appeal to their Appeals board has resulted in a determination that small accommodation operators of 3 bedrooms and less would not need to comply.
Throughout all of our discussions with the various bodies involved in this issue it has been recognised that the intent of the code was not to penalize existing or operators of new buildings providing small accommodation but that they were caught up in what was meant to apply to larger providers of accommodation. However the whole circumstances of the introduction of this new code should be of concern to the small accommodation industry as no recognition was give to it in the lengthy negotiations (over 10 years) that took place prior to its introduction. A great example of the need for an industry organisation with strong membership.
Good Intent, Bad Result.
Australian operators are not alone in battling red tape and legislation that has unintended consequences for our industry.
In an article recently published in the official magazine of the PAII, The Professional Innkeepers association in USA, there is a similar example of beaurocracy introducing new regulations to the detriment of a successful and profitable small accommodation industry.
In an effort to quash New York City's problem of illegal hotes, Ch.225 of 2012 - a law which went into effect on May 1 of last year - has prohibited residential 'Class A' buildings from hosting paying guests for less than 30 consecutive days. But what is pure in spirit (the law is meant to shield both tenants and tourists from illicit properties operating without compliance to local building, fire and housing codes) has inflicted serious collateral damage on Manhattan's unique B&Bs and vacation rentals.
The new law is being implemented aggressively and has led to the formation of StayNYC, comprised of a select group of B&B owners whose small properties are used exclusively as bed and breakfasts.