HBC perseveres with disability discrimination for proposed Harold Place restaurant

Following the recent article here on the newbuild restaurant proposals, Hastings Borough Council  (HBC) alleged a ‘misleading and inaccurate headline and article’. A detailed comment was published that resisted the charge. Bernard McGinley takes another look. When is a lift not a lift?

The Council’s Communications Office was rapid in announcing ‘there is a lift included in the application’, for the proposed new restaurant building in Harold Place. The application, from May to December 2021, had no lift proposed. What was being referred to was the platform lift, added in December and mistaken (by me) for a dumbwaiter.  

On the casefile, the Design and Access Statement (DAS, Part 3, p42), published in September, still states that

the tenant does not require a lift to the first floor. 

Unfortunately the law does (Equality Act, ch. 2, s.15, and ch. 3, s.29). There is a duty to make reasonable adjustments, including for service businesses, regarding access.

The Architects’ Journal explained the issues in 2018: 

. . . building control will expect that lift access is provided or that an access statement is submitted to explain why a deviation from best practice is necessary. An access statement should say why and what the implications are for users.

The application has no access statement other than the DAS one above.

Even in January 2022, one of the DAS Design Team published a document again showing the building with no lift: more contradiction.

A short history

The Council’s application was assessed at many formal meetings and other technical ones:  

■  HBC Cabinet, March 2018 (Item 6). (Then the cost was estimated at £860,000. Now it is double that.)

■ Cabinet, December 2019  (Item 4). (Human Rights Act implications? ‘No’.)

■   Full Council, 12 February 2020.

■   Pre-application proforma advice was sought in April 2021, and provided in May. (See Application Form, Section 23.) Disabled access went unmentioned (save for ‘wheelchair accessible development‘ in a referenced checklist).

■   The Design & Access Statement (DAS) was done in the summer by a design team comprising design, consultancy and engineering practices: professionals with fearless views on requirements, following analysis and evaluation.

■ In September 2021 the planning application was made by the Council’s Estates Manager.

In October it went to ■ Cabinet and ■ Full Council for further scrutiny. (The £1.7m loan was approved.) In at least eight assessments, disability discrimination was nowhere noted. The platform lift detail was added after all these phases.   

Sequential neglect

Nowhere in the phases of scrutiny was it realised that having no lift or a platform lift in a new building was disability discrimination, and that that was against the Building and the Equality Regulations, and the law. Other than in exceptional circumstances, new buildings must have passenger lifts so that wheelchair-users and others are not hindered or disadvantaged unnecessarily.  

The architects attempted a rebuttal, in a statement published on 31 January. Unfortunately it was assertion, essentially bluster, not engagement with the detail of the objections: 

Therefore we believe the specification of an enclosed platform lift for this small single use buildings [sic] will meet the needs of all staff and customers and will fully comply with building regulations. 

The Building Regulations (Part M, vol 2) prescribe passenger lifts for all buildings, and add:  

3.22  For existing buildings, and in exceptional circumstances for new developments with particular constraints (e.g. a listed building or an infill site in a historic town centre), where a passenger lift cannot be accommodated, a vertical lifting platform (enclosed platform lift), although not equivalent to a passenger lift, may be considered as an alternative option to provide access for persons with impaired mobility.

Those circumstances and constraints do not exist here. Harold Place is not an infill site, and wheelchair-users deserve equality. The wide pavement gives ample space for a lift shaft.

Platform lifts are not even suitable for all wheelchair users, including the easily fatigued – a standard platform lift is operated by continuous-pressure push buttons. To reiterate, the Building Regs and the underpinning Act do not allow for a platform lift in a new building, except in

exceptional circumstances for new developments with particular constraints 

These are not those circumstances. The key constraint here is disability discrimination, unlawful.

Observations

Cllr Andy Patmore, Leader of the Conservative Group on HBC, described the Council’s application as ‘Only second best is good enough’. He commented: 

One of the main reasons given for HBC developing a new building themselves was they could control the design and get the best for the town. This obviously doesn’t ring true if you are disabled.

The Equality Act imposes a requirement to make reasonable adjustments to ensure that a disabled person is not discriminated against.

Why would the Council deviate from best practice when they are solely responsible for the design and construction of this new building?

He quoted from a December 2019 paper: 

The option for the Council to redevelop the site itself incurs potentially more costs if there are additional unforeseen costs, but would retain more control in terms of what is built than if disposed of by long lease.

’More control’ obviously doesn’t mean providing the best access for all citizens. Disabled users are getting second best.   

Cllr Julia Hilton, Leader of the HBC Green Group, was clear:  

There shouldn’t be any disability discrimination. 

She thought the whole proposal ill thought out and the building certainly not ‘iconic’, adding more generally: 

This site is an essential part of the Hastings Garden town vision and any development of the site should have been considered as part of the landscaping masterplan being drawn up as part of the Garden Town proposals.

Neither Castle Ward councillor replied to a request for comment. 

A Council spokesperson said that Building Control involvement would follow planning permission, and ignored a query about the appearance of disability discrimination:  cart-before-horse, and evidence of evasion respectively.

Wheelchair-users

Following the 2010 Act, local major organisations including HBC issued their own Equality & Human Rights Charter. The Charter’s concerns include a commitment to eliminating discrimination, including by removal of unlawful discrimination against disability, and minimising as far as possible the disadvantages of disability. There’s also talk of engagement, and involvement to

• • • • •                design better services.

All commendable — but HBC is not practising this. Wheelchair-users and other people with disabilities seem as invisible as ever, despite the apparent progress of recent decades. The planners’ rejection of the White Rock Hotel ramp application (HS/FA/19/00815) was telling.  

A new proposed golf attraction on the seafront (application HS/FA/22/00005) ominously proposes a platform lift only, not a passenger lift.   

The Harold Place case is being discussed by the Planning Committee on Wednesday 23 March. Comments on the application (citing ref HS/FA/21/00905) can be made to the Council (by Friday 18th) on:

           dccomments@hastings.gov.uk

or by post to Muriel Matters House, TN34 3UY.

Design and impact 

In other ways too the benefits of this proposal are elusive. The DAS says nothing about renewable sources of energy, such as wind power or solar power for a new building. The carbon efficiency has been found wanting, and no heat exchangers are proposed. For a new building, the design is poor, and is not ‘regeneration’.

Government laws set rigorous food and hygiene standards enforced by council  environmental departments. Food Standards Agency advice is extensive.

HBC’s new-build restaurant should set best example. Yet there is no separate staff toilet contrary to Workplace Regulations 1992. European Food Law and Building regulations require that toilets should not lead directly into rooms in which food is prepared or eaten. The ground floor Disabled WC has no lobby and opens directly onto the kitchen serving hatch and restaurant. First-floor WCs have a lobby but without doors. Both toilets are in breach of regulations.

Regeneration projects must provide best staff facilities, but this does not. Establishments run by Loungers UK, the designated operator, have signature big bars which remain open long after the kitchen. These plans ignore the most basic catering facilities: the kitchen and food store are small, no private secure space for a manager, no staff cloakroom, no first floor staff service area, no cleaning cupboards on either floor, no kitchen dumbwaiter to service the upper floor. 

Additional problems include the restaurant location, with heavy traffic, a bus stop, flooding and drainage questions, a balcony facing away from the sea, no sea view downstairs, and those issues the police mentioned, such as adding to potential disorder in the area.

HBC in its Planning Statement (para 9) is explicit about Loungers attracting local people, and not seeking custom from further afield. Meanwhile many nearby businesses struggle and good premises go empty. The operator can exercise a break clause after just 10 years.

Major misjudgement, again

Despite assertions by HBC and their agents about ‘regeneration’ and ‘quality’, this proposal amounts to a breach of the fairness principle that it is unlawful for service providers to discriminate against a disabled person for a reason related to their disability. It’s hard to see how this application can be approved by the Planning Committee in its present form. 

Are HBC really going to approve discrimination by having a platform lift in a new building? That would indicate standards at or below the minimum, an insult to people with disabilities. Is that how HBC wants Hastings to be seen? The manifest failure of HBC’s prestige, seafront, ‘destination’ project that was Azur, seems to be a dirty secret now — 15 years on, no lessons learnt. Why repeat history? The complete lack of civic pride shown by many members and officers is strange.

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