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Deciding whether a pool complex needs to provide access for people with disabilities

Posted: 29 January 2019

Determination 2018/036 discusses the application of section 118 to a swimming pool complex.

Background

A pool complex with a four-lane pool and a separate two-lane pool was built without a way for people with disabilities to get into and out of the pool. The building consent drawings showed a ramp into the two-lane pool, but that ramp was not installed. Instead, after the construction was mostly complete the owner proposed to install a hoist. The building consent authority (BCA) did not agree that the proposed hoist complied with Clause D1 and section 118 of the Building Act.

The owner argued section 118, which requires certain buildings to provide a means of access for people with disabilities, did not apply to the building because only members of the swim school club are allowed to use the complex.

Discussion

The determination noted the clear intent of the Building Act that buildings accessed by the public are constructed to allow people with disabilities to visit or work, and carry out normal activities to their fullest extent.

Section 118 of the Building Act states:

If provision is being made for the construction or alteration of any building to which members of the public are to be admitted, whether for free or on payment of a charge, reasonable and adequate provision by way of access... must be made for persons with disabilities who may be expected to -

  1. visit or work in that building; and
  2. carry out normal activities and processes in that building.

This section applies to buildings that are listed in Schedule 2 of the Building Act.

The owner argued that once a person becomes a member of the swim club they are no longer a member of the public. The determination concluded that a person’s status as a member of a club or the benefits they receive would not determine whether or not section 118 applied. In this case, the complex is intended to be open to a wide range of members of the public.

While club members received benefits that were not available to non-members, the determination found they continued to be members of the public despite their membership status. The determination considered the phrase “whether for free or on payment of a charge…” included this type of situation where members of the public are members of an organisation or group. The view was taken that section 118 still applies to buildings that house organisations or groups that provide member-only benefits or services.

The owner argued that by refusing membership for some people because their requirements could not be met, the building was not open to members of the public. However, the determination decided that although those who were refused membership were looking for services not offered, they could still join one of the club’s existing activities. Therefore, the building admitted members of the public.

The determination found section 118 applied to the pool complex because members of the public were permitted entry, and it is a building that requires access to and within for people with disabilities.

Determination 2018/036 in full.

Previous determinations is a register of all previous determinations.

This information is published by the Ministry of Business, Innovation and Employment’s Chief Executive. It is a general guide only and, if used, does not relieve any person of the obligation to consider any matter to which the information relates according to the circumstances of the particular case. Expert advice may be required in specific circumstances. Where this information relates to assisting people: