Municipalities that are planning to build a smaller facility for refugees must also precisely clarify its suitability for the disabled.
Last April, the municipal council of Oberweningen approved three residential units consisting of single-storey containers with a wet room and a shared washroom for the accommodation of refugees. Because the facility was difficult to access for people with walking disabilities, the specialist department for barrier-free architecture submitted an appeal on behalf of the Canton of Zurich’s conference for people with disabilities.
Their requirement: one of the residential units must be realized with a stepless entrance, and the access routes and ramps should have a maximum gradient of six percent. The washroom with shower is to be built at ground level and must be wheelchair accessible.
Accommodation is not the same as an apartment
Before the cantonal construction appeals court, the municipality took the view that these were normal apartments. In this case, the guidelines for obstacle-free construction according to the cantonal planning and building law only apply from five residential units. The municipality also pointed out that the planned emergency accommodation should be available as quickly as possible and that the delay caused by the appeal came at a bad time.
However, the court was not impressed by this and agreed with the arguments of the appellants. Reason: In the planned construction project, no residential building is being built, but accommodation. There is a legal difference. Accommodation is generally accessible and open to an unspecified audience, similar to hotels, hostels or conference venues.
The court even turned an argument of the community into the opposite: Especially in the case of emergency accommodation, a frequent change of asylum seekers is to be expected, who also have no choice but are assigned, it writes. It must therefore be ensured that people with disabilities are not disadvantaged by the community when it comes to accommodation and that the housing estate is geared to their needs.
When asked, Eva Schmidt, head of the Swiss department for obstacle-free architecture, described the verdict as “important and clarifying”. Publicly accessible facilities must also be usable with a wheelchair or walker, which also applies to student dormitories, for example. Only part of the system has to meet the requirements. Therefore, in this case, the specialist department required that one of the three residential units be wheelchair accessible.
However, the judgment does not yet mean that Oberweningen cannot build the asylum accommodation as planned, but it has been put on hold for the time being. According to the Federal Disability Equality Act, the principle of economic proportionality must always be observed. Therefore, the court only partially approved the appeal and referred the matter back to the municipal council for a re-examination of this question.
Proportionality is always an issue, especially when it comes to temporary arrangements. However, the specialist department cannot assess this itself because the information on the building application was not sufficient, says Schmidt. In any case, making one of the single-storey containers accessible with a ramp and removing thresholds inside is no big deal. Adjusting the sanitary facilities tends to cause costs, but there are wheelchair-accessible containers on the market.
In the process, the municipality stated that meeting the needs of disabled people was disproportionate because they had bought the containers used from another municipality. According to the law, barrier-free access can be waived if the adjustment exceeds 5 percent of the building insurance value of the system or 20 percent of the renovation costs.
In principle, however, the judgment means for all municipalities that in future they will definitely have to check the barrier-free accessibility even for smaller asylum accommodations. In view of the increasing number of refugees, one or the other is probably faced with the situation of setting up a temporary solution.
BRGE IV, 0179/2022, November 17, 2022, not legally binding.