MODIFICATION OF BUILDING REGULATIONS - An application (Application 2) commenced in the BAB on 14 October 2024 and made under s 160(2)(b) of the Act for a determination to modify cl F2.3 of the BCA, applying to a Class 8 building, to permit employees occupying the existing Winery Building to use the sanitary facilities in the adjacent Wine Bottling Shed instead of what is required by cl F2.3 of the BCA - whether there is compliance with relevant provision.

APPLICANT Middle Creek Vineyard Pty Ltd (ACN 090 966 377) (Subject Land owner)

FIRST INTERESTED PARTY Ben Wilby (relevant building surveyor)

SUBJECT LAND 1647 Glenlofty Warrenmang Road, Warrenmang

BEFORE Members A Maynard (panel chair), W Jensen and A Kong

DATE OF HEARING 13 February 2025 and 15 April 2025

CITATION In the matter of 1647 Glenlofty Warrenmang Road, Warrenmang [2025] VBAB 89

1. In respect of Application 1 made under s 160B(1)(a) of the Building Act 1993 (Act), the BAB determines that the relief sought is granted as the relevant access provision that is cl F2.4 of the Building Code of Australia, 2019 - Volume One (BCA) ought not apply as we are satisfied that compliance with that clause would impose unjustifiable hardship on the Applicant.
2. In respect of Application 2 made under s 160(2)(b) of the Act, the relief sought is refused as no modification is required as the Applicant has demonstrated compliance with cl F2.3 of the BCA.

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For the Applicant Leighton Joy, director of the Applicant

1. These applications concern an already existing Winery Building at 1647 Glenlofty Warrenmang Road, Warrenmang (the Subject Land).
2. In summary they concern:

a) An application made under 160B(1)(a) of the Building Act 1993 (the Act) to not have to provide accessible sanitary facilities in the Winery Building because the nature of the work and equipment within the building lends itself to users of the Winery Building to be able bodied persons (Application 1). > > b) An application made under s 160(2)(b) of the Act to not be required to provide sanitary facilities in the Winery Building because sanitary facilities are available in the nearby Wine Bottling Shed (Application 2).

3. The owner of the Subject Land is Middle Creek Vineyard Pty Ltd and these applications have been made on its behalf by Mr Kevin Joy, an architect.
4. The applications state and we accept that the Winery Building on the Subject Land is a Class 8 processing building.
5. The Applicant submits the Winery Building is an unsafe work environment for persons with a disability because:

(a) During the operation of the wine making process there are large diameter suction and delivery hoses on the floor which would impede wheelchair movement within the building.

(b) There is constant movement of unmonitored forklift activity, as well as the work requiring manual lifting and rolling of heavy wine barrels.

1. In addition, the Applicant submits that the work required to be carried out in the Winery Building could not be undertaken by a person with a disability.
2. The Applicant has supplied sketch plans and photographs of the interior and exterior of the winery building. The photographs show hoses running across the floor, barrels, tanks, racks and pallets.

1. The following parts of the Building Code of Australia 2019 Volume One (BCA) are relevant:

FP2.1 Suitable sanitary facilities for personal hygiene must be provided in a convenient location within or associated with a building, to the degree necessary, appropriate to -

(a) the function or use of the building; and

(b) the number and gender of the occupants; and

(c) the disability or other particular needs of the occupants.

1. In relation to the application 1, we find that access to the Winery Building for people with a disability would be inappropriate because of the purpose for which the area is used, and the Winery Building would pose a health or safety risk for people with a disability, therefore cl F2.4 of the BCA does not apply and would have an unjustifiable hardship.
2. In relation to the application 2, we note that cl FP2.1 of the BCA provides that sanitary facilities may be provided in a convenient location associated with a building. We find that because sanitary facilities are provided in the nearby Wine Bottling Shed as demonstrated in the application before us, a modification to cl F2.3 of the BCA is not required.