The AFFECTED PART: Do Not Lease a Commercial Tenancy Without Reading This!

Man looking at camera with finger pointed out.

A Costly Mistake

As an access consultant with many years experience, I have lost count of the amount of small businesses who have leased a commercial space, only to find they are forced to undertake extensive and costly building upgrades.

This not only causes a lot of stress for a small business owner, but may potentially see their fit-out budget go through the roof after seeing quotes from builders for upgrades.

In particular, this has been a very common issue for tenants of shops along strip shopping precincts, which historically all had stepped entrances and narrow or recessed doorways.

A gentlemen pushing a lady in a wheelchair past a shop that has two steps and a sign in the window saying NO DOGS

In this post, I share two key things a small business owner really needs to consider before signing any lease:

  1. Building and disability legislation may require you to remove existing stepped entrances into shops and provide new ramp access and possibly a new doorway; and
  2. If you change the use of the tenancy space then building legislation may require you to upgrade existing toilets, corridors, doors and parking spaces and a passenger lift may be required between levels of a building.

The Disability Discrimination Act 1992 requires that equitable access into premises is available. In 2011, the Disability (Access to Premises – Buildings) Standards 2010 or Premises Standards for short was introduced, which outlined prescriptive requirements for new building works with the Standards (detailed in Schedule 1 – Access Code). At that time, these prescriptive requirements were also mirrored into the Building Code of Australia (BCA).

Therefore, any new work you are undertaking in an existing building/tenancy under a building approval (construction certificate/building permit etc., depending on what State or Territory you are in) must comply with the Access Code and BCA.

The Premises Standards refers to this new work as the ‘new part’ of the building. The new part must comply. So if you are planning on making changes to the entrance door, this would then form part of the new part and require some thought to how you will deal with the step and provide access for wheelchair users.

However, if you’re fitting out an area that might be considered inappropriate for access for people with disability, then there might be an opportunity for an exemption under Clause D3.4. You can read this post to understand more about Clause D3.4: Commercial Kitchens and BCA / Premises Standards Clause D3.4

More significantly though, which is the cause of much stress for many startups, is the concept of the ‘affected part’. The affected part may be triggered for upgrade in any existing building.

The affected part is defined as the pathway from the new part building works to and including the existing principal pedestrian entrance, and this is generally seen to include any ramps, stairs and step structurally attached to the entrance and forming part of the entrance arrangement.

So if the work is being planned for a small private dining room at the back of a restaurant for example, the affected part would be the pathway from the door into the private dining room back to the existing entrance into the restaurant. Any steps, narrow corridors or doors within this affected part would also technically need to be upgraded too (unless they are managed through the use of a Performance Solution). This may result in the need for some structural work to the entrance doorway, or even automation of the door to offset any reduced circulation spaces around the door.

The Premises Standards does include a concession for some scenarios. This is referred to as the Lessee Concession and would be applicable where the tenant is leasing the tenancy/building, the tenant is planning the works and is making the application for the building approval and the tenancy space is within a building with at least one other tenant.

An example would be a small juice bar or cafe on the ground floor of  a three-storey office building. The Lessee Concession allows the tenant to complete the new part works without upgrading the affected part.

Garden cafe building with extensive glass windows.jpeg

Lastly, if you change the use of the tenancy space then building legislation may require you to upgrade existing toilets, corridors, doors , parking spaces and a passenger lift may be required between levels of a building. This is certainly the case in Victoria and some other States, where you might need to provide a new accessible toilet, ambulant toilets, new accessible car parking space or even a passenger lift between levels in some cases.

The solution is do your homework before signing a lease.

Discuss your planned use and works with a building surveyor/certifier and an accredited access consultant to help identify any project risks (i.e. time delays, cost blowouts and your own health).

Please contact Access Central if you have any questions.