Premises Standard Part 4

Unjustifiable hardship
(1) It is not unlawful to fail to comply with a requirement of these Standards if, and to the extent that, compliance would impose unjustifiable hardship on a person or organisation.

(2) However, compliance is required to the maximum extent not involving unjustifiable hardship.
Example
While enlarging a lift may impose unjustifiable hardship, upgrading the lift controls panel to provide braille and tactile buttons may not.

(3) In determining whether compliance with a requirement of these Standards would involve unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including the following:
 (a) any additional capital, operating or other costs, or loss of revenue, that would be directly incurred by, or reasonably likely to result from, compliance with the requirement;
 (b) any reductions in capital, operating or other costs, or increases in revenue, that would be directly achieved by, or reasonably likely to result from, compliance with the requirement;
 (c) the extent to which the building is provided by or on behalf of a public authority for public purposes;
 (d) the financial position of a person or organisation required to comply with these Standards;
 (e) any effect that compliance with the requirement is reasonably likely to have on the financial viability of a person or organisation required to comply;
 (f) any exceptional technical factors (such as the effect of load bearing elements on the structural integrity of the building) or geographic factors (such as gradient, topography or regional or remote location), affecting a person or organisation’s ability to comply with the requirement;
 (g) financial, staffing, technical, information and other resources reasonably available to a person or organisation required to comply with these Standards, including any grants, tax concessions, subsidies or other external assistance provided or available;
 (h) whether the cost of alterations to make a premises accessible is disproportionate to the value of the building, taking into consideration the improved value that would result from the alterations;
 (i) benefits reasonably likely to accrue from compliance with these Standards, including benefits to people with disabilities, to building users or to other affected persons, or detriment likely to result from non compliance;
 (j) detriment reasonably likely to be suffered by a building developer, building certifier or building manager, or a person with a disability or other building user, including in relation to means of access, comfort and convenience, if compliance with these Standards is required;
 (k) if detriment under paragraph (j) involves loss of heritage values — the extent to which relevant heritage value or features of the building are essential, and to what extent incidental, to the building;
 (l) whether compliance with the requirement may reasonably be achieved by less onerous means than those objected to by a person as imposing unjustifiable hardship;
 (m) any evidence regarding efforts made in good faith by a person to comply with these Standards, including consulting access consultants or building certifiers;
 (n) if a person has given an action plan to the Commission under section 64 of the Act — the terms of the action plan and any evidence about its implementation;
 (o) the nature and results of any processes of consultation, including at local, regional, State, national, international, industry or other level, involving, or on behalf of, a building developer, building manager or building certifier and people with a disability, about means of achieving compliance with the requirement, including in relation to the factors listed in this subsection;
 (p) any decisions of a State or Territory body established to make recommendations to building authorities about building access matters.

(4) If a substantial issue of unjustifiable hardship is raised having regard to the factors mentioned in paragraphs (3) (a) to (p), the following additional factors are to be considered:
 (a) the extent to which substantially equal access to public premises is or may be provided otherwise than by compliance with these Standards;
 (b) any measures undertaken, or to be undertaken by, on behalf of, or in association with, a person or organisation to ensure substantially equal access.

(5) For these Standards, unjustifiable hardship is to be interpreted and applied having due regard to the scope and objects of the Act (in particular the object of removing discrimination as far as possible) and the rights and interests of all relevant parties.

Acts done under statutory authority etc
These Standards do not render unlawful anything done in a circumstance mentioned in section 47 of the Act.

Lessees
(1) If the lessee of a new part of a building submits an application for approval for the building work, the following people do not have to ensure that the affected part of the building complies with these Standards:
 (a) the building developer;
 (b) the building certifier;
 (c) the building manager.

(2) Subsection (1) does not apply if a building with a new part is leased to only 1 person.

Lift concession
The requirement in Table E3.6 (b) of the Access Code that a lift is to have a floor dimension of not less than 1 400 mm x 1 600 mm does not apply to an existing passenger lift that is in a new part, or an affected part, of a building, if the lift:
 (a) travels more than 12 m; and
 (b) has a lift floor that is not less than 1 100 mm by 1 400 mm.

Toilet concession
(1) Paragraphs F2.4 (c) and (e) of the Access Code, to the extent that they require compliance with AS 1428.1—200X, Design for access and mobility, Part 1: General requirements for access—New building work, do not apply to the following:
 (a) existing accessible sanitary compartments;
 (b) existing sanitary compartments suitable for use by a person with a disability.

(2) For subsection (1) to apply, a sanitary compartment mentioned in paragraph (a) or (b) must:
 (a) comply with AS 1428.1—2001, Design for access and mobility, Part 1: General requirements for access—New building work; and
 (b) be located in either a new part, or an affected part, of a building.