Unjustifiable Hardship

  • August 8, 2014
  • Bruce Bromley

Disability Access Standards

Unjustifiable Hardship

The Disability (Access to Premises Standards – Buildings) 2010 (Premises Standards) and the 2011 version of the Building Code of Australia (BCA) came into force on 1st May 2011 and applies to all new buildings, and new works associated with existing buildings. It includes specific access provisions and references a number of Australian Standards that relate to disability access.

Typically, these access standards are updated versions of the previous access standards, which now have enhanced/additional access provisions. The Premises Standards and the BCA do not have any retrospective triggers to upgrade existing buildings that do not comply with the current access standards. However, if an existing building remains unaltered, it will always be subject to a complaint under the Disability Discrimination Act 1992 (DDA). If upgrade works are undertaken to an existing building that requires building approval, then the Premises Standards requires the ‘new part’ to comply with the relevant access provisions, as well as requiring the ‘affected part’ to be accessible and meet the current access standards.

The ‘affected part’ is defined as the path from the ‘new part’ to the main entrance of the building. Alternative SolutionsThis concept can have significant implications for an existing building. For example, if the upper floor of an existing building is refurbished via a building approval process, a new lift may be required to form part of the accessible path to the ground floor main entrance. There are a number of concessions and exemptions under the Premises Standards for existing buildings, which relate to works undertaken by a lessee in a multi-tenanted building, the re-use of existing lifts (certain dimensions apply) and the re-use of an existing accessible toilet that complies with the previous access standards. In some cases, compliance with the current access standards may be difficult and costly.

This is recognised by the Premises Standards, whereby an applicant could claim that compliance will impose an “unjustifiable hardship” and may seek a determination from an Access Panel. The Access Panel process in each State or Territory varies, but the concept is similar as it is based upon the Commonwealth protocol (agreed by all States & Territories) for deciding “unjustifiable hardship“.

The agreed protocols are included in Clause 4.1(3) of the Premises Standards and are also replicated in some State building regulations to facilitate their Access Panel process. The agreed protocols include a number of criteria in determining “unjustifiable hardship”, such as financial hardship, technical limitations (i.e. structural implications, topography, etc.), benefits/losses caused by achieving compliance, heritage considerations, if an Action Plan has been implemented, etc. Deemed To Comply SolutionsThe benchmark to determine “unjustifiable hardship” is high and any submission to an Access Panel needs to be based on valid grounds and robust, as it will be heavily scrutinised by panel members. All of the agreed protocols need to be considered and detailed information will be required to support any submission. This includes financial information, if a financial hardship claim is being made.

We can assist applicants with this process, as we have the expertise to assess projects against the agreed protocols for “unjustifiable hardship” and can prepare detailed accessibility reports as part of an “unjustifiable hardship” determination to an Access Panel. Also, in States or Territories where Access Panels are yet to be established, we can provide similar detailed accessibility reports for approval by the building certifier/surveyor.