Dark Kitchens, Restaurants and BCA/Premises Standards Clause D3.4

Chefs working in a commercial kitchen

Commercial kitchens are fast-moving, dynamic workplaces. Things move quickly and happen as fast as possible.

Staff are preparing food, cooking, washing dishes, cleaning surfaces and floors, receiving deliveries, loading and unloading items from coolrooms and refrigerators and on and on it goes – needless to say, a lot of different activities are undertaken by people working in such an environment.

The same exists for ‘dark kitchens’, being those dedicated to selling via delivery services only, where the only people entering the premises are kitchen staff and delivery drivers/riders.

The DDA Premises Standards Access Code and the current NCC BCA acknowledge that this isn’t a typical work environment and that people with disability could be put into an unsafe situation when entering an environment where people are operating commercial cooking equipment.

Clause D3.4 in both of the references above state exactly the same wording:

D3.4 Exemptions
The following areas are not required to be accessible:
(a) An area where access would be inappropriate because of the particular purpose for which the area is used.
(b) An area that would pose a health or safety risk for people with a disability.
(c) Any path of travel providing access only to an area exempted by (a) or (b).

One could argue that a person with a disability, including those who are blind, have low vision or have a significant mobility disability, wouldn’t be safe in a standard commercial kitchen designed for the needs of the occupants (i.e. a cafe or restaurant).

Since the introduction of the Premises Standards in May 2011, it hasn’t been that clear as to when the exemption provided under Clause D3.4 is applicable. To confirm compliance with the DDA Premises Standards and BCA, this must always be considered on a case-by-case basis.

Previously, the BCA prior to 2011 made it much clearer for project stakeholders to make this determination.

The now superseded BCA 2010 stated:

D3.3 Parts of buildings to be accessible
(a) In a building or part of a building required by Table D3.2 to be accessible—
(i) access must be provided—
(B) to areas normally used by the occupants, excluding any plantroom, commercial kitchen, cleaners’ store room, maintenance accessway, rigging loft, or the like; 

BCA 2010 also stated:

D3.4 Concessions
It is not necessary to provide access for people with disabilities to—
(d) any area if access would be inappropriate because of the particular purpose for which the area is used.

However, to get some better guidance in this matter, the Australian Human Rights Commission released the Guideline on the Application of the Premises Standards (Version 2), which also references commercial kitchens in the statement below:

This clause sets out some general exemptions from the requirement to meet the Deemed-to-Satisfy Provisions of the Access Code and provides details on buildings or parts of buildings not required to be accessible under the Premises Standards (and BCA).

Paragraph D3.4(a) states that accessways are not required to certain areas within buildings where providing access would be ‘inappropriate’ because of the nature of the area or the tasks undertaken in that area.

Paragraph D3.4(b) states that areas that would impose a health or safety risk for people with disability are also not required to be accessible.

These areas could include cleaners store rooms, commercial kitchens, staff serving areas behind bars, cool rooms, rigging lofts, waste-containment areas, foundry floors, abattoir animal processing areas, railway shunting yards, electrical switch rooms, chemical and hazardous materials store areas, loading docks, fire lookouts, plant and equipment rooms and other similar areas.

Assessment of application of this general exemption to specific areas will need to be made on a case-by-case basis. Care needs be taken, however, to ensure that any assessment of the need to utilise this exemption is not based on assumptions about the ability of people with disability or people with a particular type of disability to undertake work in those settings.

Access Central can assist when it is not so crystal clear and a building surveyor/certifier requires additional guidance or an expert opinion on the application of the exemption under Clause D3.4.

It is a simple exercise for us to assess the proposed food or beverage premises design, staff roles and responsibilities, and the functionality of the staff back of house areas.

The Clause D3.4 exemption might also then be a consideration in assessing other aspects of the architectural design, including the need for accessible toilets for cafe or restaurant staff, an accessible staff entrance or an accessible staff car parking space.

However, as stated above – it is always a case-by-case assessment, as there are many aspects to consider to confirm compliance in commercial buildings. Including considering Clause D3.4 for other scenarios and uses, such as juice bars, shopping centre kiosks, bubble tea shops and so on.

If you need assistance when designing food and beverage tenancies please contact our office.

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.